1
Exhibit 10.1
CREDIT AGREEMENT
dated as of April 15, 1997
among
VORNADO REALTY L.P.
as Borrower,
VORNADO REALTY TRUST,
as General Partner,
UNION BANK OF SWITZERLAND
(New York Branch),
as Bank,
and
UNION BANK OF SWITZERLAND
(New York Branch),
as Administrative Agent
2
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS; ETC...................................... 1
Section 1.01 Definitions........................................... 1
Section 1.02 Accounting Terms...................................... 13
Section 1.03 Computation of Time Periods........................... 13
Section 1.04 Rules of Construction................................. 13
ARTICLE II. THE LOANS............................................. 13
Section 2.01 The Loans............................................. 13
Section 2.02 Purpose .............................................. 14
Section 2.03 Notice and Manner of Borrowing........................ 14
Section 2.04 Interest Periods; Renewals............................ 14
Section 2.05 Interest.............................................. 15
Section 2.06 Notes .............................................. 15
Section 2.07 Prepayments........................................... 16
Section 2.08 Method of Payment..................................... 16
Section 2.09 Conversions or Continuation of Loans.................. 16
Section 2.10 Minimum Amounts....................................... 17
Section 2.11 Certain Notices Regarding Conversions and
Continuations of Loans.............................. 17
Section 2.12 Late Payment Premium.................................. 17
Section 2.13 Extension of Maturity................................. 17
ARTICLE III. YIELD PROTECTION;
ILLEGALITY; ETC....................................... 18
Section 3.01 Additional Costs...................................... 18
Section 3.02 Limitation on Types of Loans.......................... 19
Section 3.03 Illegality............................................ 19
Section 3.04 Treatment of Affected Loans........................... 20
Section 3.05 Certain Compensation.................................. 20
Section 3.06 Capital Adequacy...................................... 21
Section 3.07 Substitution of Banks................................. 21
ARTICLE IV. CONDITIONS PRECEDENT.................................. 23
Section 4.01 Conditions Precedent to the Loans..................... 23
ARTICLE V. REPRESENTATIONS AND WARRANTIES........................ 25
Section 5.01 Existence............................................. 25
Section 5.02 Corporate/Partnership Powers.......................... 26
Section 5.03 Power of Officers..................................... 26
Section 5.04 Power and Authority; No Conflicts;
Compliance With Laws................................ 26
Section 5.05 Legally Enforceable Agreements........................ 26
Section 5.06 Litigation............................................ 26
Section 5.07 Good Title to Properties.............................. 27
Section 5.08 Taxes .............................................. 27
Section 5.09 ERISA .............................................. 27
Section 5.10 No Default on Outstanding Judgments or
Orders.............................................. 28
Section 5.11 No Defaults on Other Agreements....................... 28
Section 5.12 Government Regulation................................. 28
Section 5.13 Environmental Protection.............................. 28
Section 5.14 Solvency.............................................. 28
Section 5.15 Financial Statements.................................. 29
i
3
Page
Section 5.16 Valid Existence of Affiliates......................... 29
Section 5.17 Insurance............................................. 29
Section 5.18 Accuracy of Information; Full Disclosure.............. 29
Section 5.19 Status .............................................. 30
ARTICLE VI. AFFIRMATIVE COVENANTS................................. 30
Section 6.01 Maintenance of Existence.............................. 30
Section 6.02 Maintenance of Records................................ 30
Section 6.03 Maintenance of Insurance.............................. 30
Section 6.04 Compliance with Laws; Payment of Taxes................ 30
Section 6.05 Right of Inspection................................... 30
Section 6.06 Compliance With Environmental Laws.................... 31
Section 6.07 Payment of Costs...................................... 31
Section 6.08 Maintenance of Properties............................. 31
Section 6.09 Reporting and Miscellaneous Document
Requirements........................................ 31
Section 6.10 Mandatory Prepayments................................. 34
Section 6.11 Management............................................ 34
ARTICLE VII. NEGATIVE COVENANTS.................................... 34
Section 7.01 Mergers Etc........................................... 34
Section 7.02 Investments........................................... 34
Section 7.03 Sale of Assets........................................ 34
Section 7.04 Encumbrance of Certain Assets......................... 35
ARTICLE VIII. FINANCIAL COVENANTS................................... 35
Section 8.01 Equity Value.......................................... 35
Section 8.02 Relationship of Total Outstanding
Indebtedness to Equity Value........................ 35
Section 8.03 Relationship of Secured Indebtedness to
Equity Value........................................ 35
Section 8.04 Relationship of Combined EBITDA to Interest
Expense............................................. 35
Section 8.05 Relationship of Combined EBITDA to Total
Outstanding Indebtedness............................ 35
Section 8.06 Unsecured Debt Yield.................................. 35
ARTICLE IX. EVENTS OF DEFAULT..................................... 36
Section 9.01 Events of Default..................................... 36
Section 9.02 Remedies.............................................. 38
ARTICLE X. ADMINISTRATIVE AGENT; RELATIONS
AMONG BANKS........................................... 38
Section 10.01 Appointment, Powers and Immunities of
Administrative Agent................................ 38
Section 10.02 Reliance by Administrative Agent..................... 39
Section 10.03 Defaults............................................. 39
Section 10.04 Rights of Administrative Agent as a Bank............. 40
Section 10.05 Indemnification of Administrative Agent.............. 40
Section 10.06 Non-Reliance on Administrative Agent and
Other Banks......................................... 40
Section 10.07 Failure of Administrative Agent to Act............... 41
Section 10.08 Resignation or Removal of Administrative
Agent............................................... 41
Section 10.09 Amendments Concerning Agency Function................ 42
ii
4
Section 10.10 Liability of Administrative Agent..................... 42
Section 10.11 Transfer of Agency Function........................... 42
Section 10.12 Non-Receipt of Funds by Administrative
Agent....................................... 42
Section 10.13 Withholding Taxes..................................... 43
Section 10.14 Minimum Commitment by UBS............................. 43
Section 10.15 Pro Rata Treatment.................................... 43
Section 10.16 Sharing of Payments Among Banks....................... 44
Section 10.17 Possession of Documents............................... 44
ARTICLE XI. NATURE OF OBLIGATIONS.................................. 44
Section 11.01 Absolute and Unconditional Obligations................ 44
Section 11.02 Non-Recourse to VRT Principals........................ 45
ARTICLE XII. MISCELLANEOUS.......................................... 46
Section 12.01 Binding Effect of Request for Advance................. 46
Section 12.02 Amendments and Waivers................................ 46
Section 12.03 Usury .............................................. 47
Section 12.04 Expenses; Indemnification............................. 47
Section 12.05 Assignment; Participation............................. 47
Section 12.06 Documentation Satisfactory............................ 49
Section 12.07 Notices .............................................. 49
Section 12.08 Setoff .............................................. 50
Section 12.09 Table of Contents; Headings........................... 50
Section 12.10 Severability.......................................... 50
Section 12.11 Counterparts.......................................... 50
Section 12.12 Integration........................................... 50
Section 12.13 Governing Law......................................... 51
Section 12.14 Waivers .............................................. 51
Section 12.15 Jurisdiction; Immunities.............................. 51
EXHIBIT A - Authorization Letter
EXHIBIT B - Note
EXHIBIT C - List of Material Affiliates
EXHIBIT D - Solvency Certificate
EXHIBIT E - Assignment and Assumption Agreement
iii
5
CREDIT AGREEMENT dated as of April 15, 1997 among VORNADO REALTY L.P.,
a limited partnership organized and existing under the laws of the State of
Delaware ("Borrower"), VORNADO REALTY TRUST, a real estate investment trust
organized and existing under the laws of the State of Maryland and the sole
general partner of Borrower ("General Partner"), UNION BANK OF SWITZERLAND (New
York Branch), as agent for the Banks (in such capacity, together with its
successors in such capacity, "Administrative Agent"), and UNION BANK OF
SWITZERLAND (New York Branch) (in its individual capacity and not as
Administrative Agent, "UBS"; UBS and the lenders who from time to time become
Banks pursuant to Section 3.07 or 12.05, each a "Bank" and collectively, the
"Banks").
Borrower desires that the Banks extend credit as provided herein, and
the Banks are prepared to extend such credit. General Partner is fully liable
for the obligations of Borrower hereunder by virtue of its status as the sole
general partner of Borrower. Accordingly, Borrower, General Partner, each Bank
and Administrative Agent agree as follows:
ARTICLE I. DEFINITIONS; ETC.
Section 1.01 Definitions. As used in this Agreement the following terms
have the following meanings (except as otherwise provided, terms defined in the
singular to have a correlative meaning when used in the plural and vice versa):
"Additional Costs" has the meaning specified in Section 3.01.
"Administrative Agent" has the meaning specified in the preamble.
"Administrative Agent's Office" means Administrative Agent's address
located at 299 Park Avenue, New York, NY 10171, or such other address in the
United States as Administrative Agent may designate by written notice to
Borrower and the Banks.
"Affiliate" means, with respect to any Person (the "first Person"), any
other Person: (1) which directly or indirectly controls, or is controlled by, or
is under common control with the first Person; or (2) ten percent (10%) or more
of the beneficial interest in which is directly or indirectly owned or held by
the first Person. The term "control" means the possession, directly or
indirectly, of the power, alone, to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract, or otherwise.
"Agreement" means this Credit Agreement.
6
"Applicable Lending Office" means, for each Bank and for its LIBOR Loan
or Base Rate Loan, as applicable, the lending office of such Bank (or of an
Affiliate of such Bank) designated as such on its signature page hereof or in
the applicable Assignment and Assumption Agreement, or such other office of such
Bank (or of an Affiliate of such Bank) as such Bank may from time to time
specify to Administrative Agent and Borrower as the office by which its LIBOR
Loan or Base Rate Loan, as applicable, is to be made and maintained.
"Applicable Margin" means: (1) with respect to the Base Rate and Base
Rate Loans, 0%, and (2) with respect to the LIBOR Interest Rate and LIBOR Loans,
.625%.
"Assignee" has the meaning specified in Section 12.05.
"Assignment and Assumption Agreement" means an Assignment and
Assumption Agreement, substantially in the form of EXHIBIT E hereto, pursuant to
which a Bank assigns and an Assignee assumes rights and obligations in
accordance with Section 12.05.
"Authorization Letter" means a letter agreement executed by Borrower in
the form of EXHIBIT A hereto.
"Bank" and "Banks" have the respective meanings specified in the
preamble.
"Bank Parties" means Administrative Agent and the Banks.
"Banking Day" means (1) any day on which commercial banks are not
authorized or required to close in New York City and (2) whenever such day
relates to a LIBOR Loan, an Interest Period with respect to a LIBOR Loan, or
notice with respect to any LIBOR Loan, a day on which dealings in Dollar
deposits are also carried out in the London interbank market and banks are open
for business in London.
"Base Rate" means, for any day, the higher of (1) the Federal Funds
Rate for such day plus one-half percent (.50%), or (2) the Prime Rate for such
day.
"Base Rate Loan" means all or any portion (as the context requires) of
a Bank's Loan which shall accrue interest at a rate determined in relation to
the Base Rate.
"Borrower" has the meaning specified in the preamble; except that, in
the financial definitions and the definition of Consolidated Businesses,
"Borrower" shall mean General Partner and the Mendik Properties (as defined in
the current report on Form 8-K of General Partner filed with the Securities and
2
7
Exchange Commission on March 26, 1997 (the "Form 8-K")) and certain management
and leasing assets held by the Mendik Group (as defined in the Form 8-K) as
contemplated by the Form 8-K (collectively, the "Mendik Assets") collectively
with respect to periods of time prior to the Closing Date and shall mean
Borrower with respect to periods after the Closing Date.
"Borrower's Accountants" means Deloitte & Touche, or such other
accounting firm(s) selected by Borrower and reasonably acceptable to the
Required Banks.
"Capitalization Value" means, at any time, the sum of (1) Combined
EBITDA, for the twelve (12) month period then ended (except that for purposes of
this definition, the aggregate contribution to Combined EBITDA from leasing
commissions and management and development fees shall not exceed 5% of Combined
EBITDA), capitalized at a rate of 9% per annum, (2) Borrower's beneficial share
of unrestricted cash and marketable securities of Borrower and its Consolidated
Businesses and UJVs, at such time, as reflected in VRT's Consolidated Financial
Statements, and (3) without duplication, the cost basis of properties of
Borrower under construction as certified by Borrower, such certificate to be
accompanied by all appropriate documentation supporting such figure.
"Capital Lease" means any lease which has been or should be capitalized
on the books of the lessee in accordance with GAAP.
"Closing Date" means the date this Agreement has been executed by all
parties.
"Code" means the Internal Revenue Code of 1986.
"Combined EBITDA" means, for any period of time, (1) revenues less
operating costs before Interest Expense, income taxes, gains or losses on the
sale of real estate and/or marketable securities, depreciation and amortization
and extraordinary items (including without limitation non-recurring items such
as gains or losses from asset sales) for Borrower and its Consolidated
Businesses, plus (2) Borrower's beneficial interest in revenues less operating
costs before Interest Expense, income taxes, gains or losses on the sale of real
estate and/or marketable securities, depreciation and amortization and
extraordinary items (after eliminating appropriate intercompany amounts)
applicable to each of the UJVs, in all cases as reflected in the VRT
Consolidated Financial Statements.
"Consolidated Businesses" means, collectively each Affiliate of
Borrower who is included in the VRT Consolidated Statements in accordance with
GAAP.
3
8
"Consolidated Outstanding Indebtedness" means, as of any time, all
indebtedness and liability for borrowed money, secured or unsecured, of Borrower
and its Consolidated Businesses, including mortgage and other notes payable but
excluding any indebtedness which is margin indebtedness on cash and cash
equivalent securities, all as reflected in the VRT Consolidated Financial
Statements.
"Contingent Liabilities" means the sum of (1) those liabilities, as
determined in accordance with GAAP, set forth and quantified as contingent
liabilities in the notes to the VRT Consolidated Financial Statements and (2)
contingent liabilities, other than those described in the foregoing clause (1),
which represent direct payment guaranties of Borrower; provided, however, that
Contingent Liabilities shall exclude contingent liabilities which represent the
"Other Party's Share" of "Duplicated Obligations" (as such quoted terms are
hereinafter defined). "Duplicated Obligations" means, collectively, all those
payment guaranties in respect of Debt of UJVs for which Borrower and another
party are jointly and severally liable, where the other party is, in the sole
judgment of the Required Banks, capable of satisfying the Other Party's Share of
such obligation. "Other Party's Share" means such other party's fractional share
of the obligation under the UJV in question.
"Continue", "Continuation" and "Continued" refer to the continuation
pursuant to Section 2.09 of a LIBOR Loan as a LIBOR Loan from one Interest
Period to the next Interest Period.
"Convert", "Conversion" and "Converted" refer to a conversion pursuant
to Section 2.09 of a Base Rate Loan into a LIBOR Loan or a LIBOR Loan into a
Base Rate Loan, each of which may be accompanied by the transfer by a Bank (at
its sole discretion) of all or a portion of its Loan from one Applicable Lending
Office to another.
"Debt" means: (1) indebtedness or liability for borrowed money, or for
the deferred purchase price of property or services (including trade
obligations); (2) obligations as lessee under Capital Leases; (3) current
liabilities in respect of unfunded vested benefits under any Plan; (4)
obligations under letters of credit issued for the account of any Person; (5)
all obligations arising under bankers' or trade acceptance facilities; (6) all
guarantees, endorsements (other than for collection or deposit in the ordinary
course of business), and other contingent obligations to purchase any of the
items included in this definition, to provide funds for payment, to supply funds
to invest in any Person, or otherwise to assure a creditor against loss; (7) all
obligations secured by any Lien on property owned by the Person whose Debt is
being measured, whether or not the obligations have been assumed; and (8) all
obligations under any agreement providing for contingent
4
9
participation or other hedging mechanisms with respect to interest payable on
any of the items described above in this definition.
"Default" means any event which with the giving of notice or lapse of
time, or both, would become an Event of Default.
"Default Rate" means a rate per annum equal to: (1) with respect to
Base Rate Loans, a variable rate three percent (3%) above the rate of interest
then in effect thereon (including the Applicable Margin); and (2) with respect
to LIBOR Loans, a fixed rate three percent (3%) above the rate(s) of interest in
effect thereon (including the Applicable Margin) at the time of Default until
the end of the then current Interest Period therefor and, thereafter, a variable
rate three percent (3%) above the rate of interest for a Base Rate Loan
(including the Applicable Margin).
"Disposition" means a sale (whether by assignment, transfer or Capital
Lease) of an asset.
"Dollars" and the sign "$" mean lawful money of the United States of
America.
"Environmental Discharge" means any discharge or release of any
Hazardous Materials in violation of any applicable Environmental Law.
"Environmental Law" means any applicable Law relating to pollution or
the environment, including Laws relating to noise or to emissions, discharges,
releases or threatened releases of Hazardous Materials into the work place, the
community or the environment, or otherwise relating to the generation,
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials.
"Environmental Notice" means any written complaint, order, citation,
letter, inquiry, notice or other written communication from any Person (1)
affecting or relating to Borrower's compliance with any Environmental Law in
connection with any activity or operations at any time conducted by Borrower,
(2) relating to the occurrence or presence of or exposure to or possible or
threatened or alleged occurrence or presence of or exposure to Environmental
Discharges or Hazardous Materials at any of Borrower's locations or facilities,
including, without limitation: (a) the existence of any contamination or
possible or threatened contamination at any such location or facility and (b)
remediation of any Environmental Discharge or Hazardous Materials at any such
location or facility or any part thereof; and (3) any violation or alleged
violation of any relevant Environmental Law.
5
10
"Equity Value" means, at any time, Capitalization Value less the Total
Outstanding Indebtedness.
"ERISA" means the Employee Retirement Income Security Act of 1974
including the rules and regulations promulgated thereunder.
"ERISA Affiliate" means any corporation or trade or business which is a
member of the same controlled group of organizations (within the meaning of
Section 414(b) of the Code) as Borrower or General Partner or is under common
control (within the meaning of Section 414(c) of the Code) with Borrower or
General Partner or is required to be treated as a single employer with Borrower
or General Partner under Section 414(m) or 414(o) of the Code.
"Event of Default" has the meaning specified in Section 9.01.
"Federal Funds Rate" means, for any day, the rate per annum (expressed
on a 360-day basis of calculation) equal to the weighted average of the rates on
overnight federal funds transactions as published by the Federal Reserve Bank of
New York for such day provided that (1) if such day is not a Banking Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
immediately preceding Banking Day as so published on the next succeeding Banking
Day, and (2) if no such rate is so published on such next succeeding Banking
Day, the Federal Funds Rate for such day shall be the average of the rates
quoted by three Federal Funds brokers to Administrative Agent on such day on
such transactions.
"Fiscal Year" means each period from January 1 to December 31.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time, applied on a basis consistent
with those used in the preparation of the financial statements referred to in
Section 5.15 (except for changes concurred in by Borrower's Accountants).
"General Partner" has the meaning specified in the preamble.
"Good Faith Contest" means the contest of an item if: (1) the item is
diligently contested in good faith, and, if appropriate, by proceedings timely
instituted; (2) adequate reserves are established with respect to the contested
item; (3) during the period of such contest, the enforcement of any contested
item is effectively stayed; and (4) the failure to pay or comply with the
contested item during the period of the contest is not likely to result in a
Material Adverse Change.
6
11
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guaranty" means the guaranty(ies) of all or part of Borrower's
obligations to be executed by General Partner.
"Hazardous Materials" means any pollutant, effluents, emissions,
contaminants, toxic or hazardous wastes or substances, as any of those terms are
defined from time to time in or for the purposes of any relevant Environmental
Law, including asbestos fibers and friable asbestos, polychlorinated biphenyls,
and any petroleum or hydrocarbon-based products or derivatives.
"Interest Expense" means, for any period of time, the consolidated
interest expense (without deduction of consolidated interest income) of Borrower
and its Consolidated Businesses, including, without limitation or duplication
(or, to the extent not so included, with the addition of), (1) the portion of
any rental obligation in respect of any Capital Lease obligation allocable to
interest expense in accordance with GAAP; (2) the amortization of Debt
discounts; (3) any payments or fees (other than up-front fees) with respect to
interest rate swap or similar agreements; and (4) the interest expense and items
listed in clauses (1) through (3) above applicable to each of the UJVs
multiplied by Borrower's respective beneficial interests in the UJVs, in all
cases as reflected in the applicable VRT Consolidated Financial Statements.
"Interest Period" means, with respect to any LIBOR Loan, the period
commencing on the date the same is advanced, converted from a Base Rate Loan or
Continued, as the case may be, and ending, as Borrower may select pursuant to
Section 2.04, on the numerically corresponding day in the first, second or third
calendar month thereafter, provided that each such Interest Period which
commences on the last Banking Day of a calendar month (or on any day for which
there is no numerically corresponding day in the appropriate subsequent calendar
month) shall end on the last Banking Day of the appropriate calendar month.
"Law" means any federal, state or local statute, law, rule, regulation,
ordinance, order, code, or rule of common law, now or hereafter in effect, and
in each case as amended, and any judicial or administrative interpretation
thereof by a Governmental Authority or otherwise, including any judicial or
administrative order, consent decree or judgment.
"LIBOR Base Rate" means, with respect to any Interest Period therefor,
the rate per annum (rounded upwards if necessary to the nearest 1/16 of 1%)
quoted at approximately 11:00 a.m.,
7
12
New York time, by the principal New York branch of UBS two (2) Banking Days
prior to the first day of such Interest Period for the offering to leading banks
in the London interbank market of Dollar deposits in immediately available
funds, for a period, and in an amount, comparable to such Interest Period and
principal amount of the LIBOR Loan in question outstanding during such Interest
Period.
"LIBOR Interest Rate" means, for any LIBOR Loan, a rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by
Administrative Agent to be equal to the quotient of (1) the LIBOR Base Rate for
such LIBOR Loan for the Interest Period therefor divided by (2) one minus the
LIBOR Reserve Requirement for such LIBOR Loan for such Interest Period.
"LIBOR Loan" means all or any portion (as the context requires) of any
Bank's Loan which shall accrue interest at rate(s) determined in relation to
LIBOR Interest Rate(s).
"LIBOR Reserve Requirement" means, for any LIBOR Loan, the average
maximum rate at which reserves (including any marginal, supplemental or
emergency reserves) are required to be maintained during the Interest Period for
such LIBOR Loan under Regulation D by member banks of the Federal Reserve System
in New York City with deposits exceeding One Billion Dollars ($1,000,000,000)
against "Eurocurrency liabilities" (as such term is used in Regulation D).
Without limiting the effect of the foregoing, the LIBOR Reserve Requirement
shall also reflect any other reserves required to be maintained by such member
banks by reason of any Regulatory Change against (1) any category of liabilities
which includes deposits by reference to which the LIBOR Base Rate is to be
determined as provided in the definition of "LIBOR Base Rate" in this Section
1.01 or (2) any category of extensions of credit or other assets which include
loans the interest rate on which is determined on the basis of rates referred to
in said definition of "LIBOR Base Rate".
"Lien" means any mortgage, deed of trust, pledge, security interest,
hypothecation, assignment for collateral purposes, deposit arrangement, lien
(statutory or other), or other security agreement or charge of any kind or
nature whatsoever of any third party (excluding any right of setoff but
including, without limitation, any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing, and the filing of any financing statement under the
Uniform Commercial Code or comparable law of any jurisdiction to evidence any of
the foregoing).
"Loan" and "Loans" have the respective meanings specified in Section
2.01.
8
13
"Loan Commitment" means, with respect to each Bank, the obligation to
make a Loan in the principal amount set forth below:
Loan
Bank Commitment
---- ----------
UBS $400,000,000
------------
Total $400,000,000
============
"Loan Documents" means this Agreement, the Notes, the Guaranty, the
Authorization Letter and the Solvency Certificate.
"Material Adverse Change" means either (1) a material adverse change in
the status of the business, results of operations, financial condition or
property of Borrower or General Partner or (2) any event or occurrence of
whatever nature which is likely to have a material adverse effect on the ability
of Borrower or General Partner to perform their obligations under the Loan
Documents.
"Material Affiliates" means the Affiliates listed on EXHIBIT C hereto.
"Maturity Date" means July 15, 1997, as the same may be extended
pursuant to Section 2.13.
"Multiemployer Plan" means a Plan defined as such in Section 3(37) of
ERISA to which contributions have been made by Borrower or any ERISA Affiliate
and which is covered by Title IV of ERISA.
"Note" and "Notes" have the respective meanings specified in Section
2.06.
"Obligations" means each and every obligation, covenant and agreement
of Borrower, now or hereafter existing, contained in this Agreement, and any of
the other Loan Documents, whether for principal, reimbursement obligations,
interest, fees, expenses, indemnities or otherwise, and any amendments or
supplements thereto, extensions or renewals thereof or replacements therefor,
including but not limited to all indebtedness, obligations and liabilities of
Borrower to Administrative Agent and any Bank now existing or hereafter incurred
under or arising out of or in connection with the Notes, this Agreement, the
other Loan Documents, and any documents or instruments executed in connection
therewith; in each case whether direct or indirect, joint or several, absolute
or contingent, liquidated or unliquidated, now or hereafter existing, renewed or
restructured, whether or not from time to time decreased or extinguished and
later increased, created or incurred, and including all indebtedness of
Borrower, under any
9
14
instrument now or hereafter evidencing or securing any of the foregoing.
"Parent" means, with respect to any Bank, any Person controlling such
Bank.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture, limited
liability company, Governmental Authority or other entity of whatever nature.
"Plan" means any employee benefit or other plan established or
maintained, or to which contributions have been made, by Borrower or General
Partner or any ERISA Affiliate and which is covered by Title IV of ERISA or to
which Section 412 of the Code applies.
"presence", when used in connection with any Environmental Discharge or
Hazardous Materials, means and includes presence, generation, manufacture,
installation, treatment, use, storage, handling, repair, encapsulation,
disposal, transportation, spill, discharge and release.
"Prime Rate" means that rate of interest from time to time announced by
UBS at its Principal Office as its prime commercial lending rate.
"Principal Office" means the principal office of UBS in the United
States, presently located at 299 Park Avenue, New York, New York 10171.
"Pro Rata Share" means, for purposes of this Agreement and with respect
to each Bank, a fraction, the numerator of which is the amount of such Bank's
Loan Commitment and the denominator of which is the Total Loan Commitment.
"Prohibited Transaction" means any transaction set forth in Section 406
of ERISA or Section 4975 of the Code.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System, as the same may be amended or supplemented from time to
time, or any similar Law from time to time in effect.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as the same may be
10
15
amended or supplemented from time to time, or any similar Law from time to time
in effect.
"Regulatory Change" means, with respect to any Bank, any change after
the date of this Agreement in United States federal, state, municipal or foreign
laws or regulations (including Regulation D) or the adoption or making after
such date of any interpretations, directives or requests applying to a class of
banks including such Bank of or under any United States, federal, state,
municipal or foreign laws or regulations (whether or not having the force of
law) by any court or governmental or monetary authority charged with the
interpretation or administration thereof.
"Reportable Event" means any of the events set forth in Section 4043(b)
of ERISA, other than those events as to which the thirty (30) day notice period
is waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg.
Section 2615.
"Required Banks" means at any time the Banks holding at least sixty-six
and sixty six hundredths percent (66.66%) of the then aggregate unpaid principal
amount of the Loans.
"SEC Reports" means the reports required to be delivered to the
Securities and Exchange Commission pursuant to the Securities Exchange Act of
1934, as amended.
"Secured Indebtedness" means that portion of Total Outstanding
Indebtedness that is secured.
"Solvency Certificate" means a certificate in substantially the form of
EXHIBIT D hereto, to be delivered by Borrower pursuant to the terms of this
Agreement.
"Solvent" means, when used with respect to any Person, that (1) the
fair value of the property of such Person, on a going concern basis, is greater
than the total amount of liabilities (including, without limitation, contingent
liabilities) of such Person; (2) the present fair saleable value of the assets
of such Person, on a going concern basis, is not less than the amount that will
be required to pay the probable liabilities of such Person on its debts as they
become absolute and matured; (3) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability to
pay as such debts and liabilities mature; (4) such Person is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute unreasonably
small capital after giving due consideration to the prevailing practice in the
industry in which such Person is engaged; and (5) such Person has sufficient
resources, provided that such resources are prudently utilized, to satisfy all
of such Person's obligations.
11
16
Contingent liabilities will be computed at the amount that, in light of all the
facts and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"Total Loan Commitment" means an amount equal to the aggregate amount
of all Loan Commitments.
"Total Outstanding Indebtedness" means the sum, without duplication, of
(1) Consolidated Outstanding Indebtedness, (2) VRT's Share of UJV Combined
Outstanding Indebtedness and (3) Contingent Liabilities.
"UJV Combined Outstanding Indebtedness" means, as of any time, all
indebtedness and liability for borrowed money, secured or unsecured, of the
UJV's, on a combined basis, including mortgage and other notes payable but
excluding any indebtedness which is margin indebtedness on cash and cash
equivalent securities, all as reflected in the balance sheets of each of the
UJVs, prepared in accordance with GAAP.
"UJVs" means the unconsolidated joint ventures in which Borrower owns a
beneficial interest and which are accounted for under the equity method in the
VRT Consolidated Financial Statements.
"Unencumbered Combined EBITDA" means that portion of Combined EBITDA
attributable to Unencumbered Assets.
"Unfunded Current Liability" of any Plan means the amount, if any, by
which the actuarial present value of accumulated plan benefits as of the close
of its most recent plan year, based upon the actuarial assumptions used by the
Plan's actuary in the most recent annual valuation of the Plan, exceeds the fair
market value of the assets allocable thereto, determined in accordance with
Section 412 of the Code.
"Unencumbered Assets" means collectively, assets, reflected on the VRT
Consolidated Financial Statements, wholly owned, directly or indirectly, by
Borrower and not subject to any Lien to secure all or any portion of Secured
Indebtedness and assets of UJVs which are not subject to any Lien to secure all
or any portion of Secured Indebtedness.
"Unsecured Debt Yield" means, for any prior twelve-month period, the
ratio, expressed as a percentage, of (1) Unencumbered Combined EBITDA for such
period to (2) Unsecured Indebtedness less Borrower's unrestricted cash and cash
equivalent securities as of the end of such period.
"Unsecured Indebtedness" means that portion of Total Outstanding
Indebtedness that is unsecured.
12
17
"VRT Consolidated Financial Statements" means collectively the
consolidated balance sheet and related consolidated statement of operations,
accumulated deficiency in assets and cash flows, and footnotes thereto, of each
of General Partner and the Mendik Assets prior to the date hereof and of
Borrower after the date hereof, in each case prepared in accordance with GAAP.
"VRT Principals" means the trustees, officers and directors of General
Partner at any applicable time.
"VRT's Share of UJV Combined Outstanding Indebtedness" means the sum of
the indebtedness of each of the UJVs contributing to UJV Combined Outstanding
Indebtedness multiplied by Borrower's respective beneficial fractional interests
in each such UJV.
Section 1.02 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP, and all financial
data required to be delivered hereunder shall be prepared in accordance with
GAAP.
Section 1.03 Computation of Time Periods. Except as otherwise provided
herein, in this Agreement, in the computation of periods of time from a
specified date to a later specified date, the word "from" means "from and
including" and words "to" and "until" each means "to but excluding".
Section 1.04 Rules of Construction. When used in this Agreement: (1)
"or" is not exclusive; (2) a reference to a law includes any amendment or
modification to such law; (3) a reference to a Person includes its permitted
successors and permitted assigns; (4) except as provided otherwise, all
references to the singular shall include the plural and vice versa; (5) except
as provided in this Agreement, a reference to an agreement, instrument or
document shall include such agreement, instrument or document as the same may be
amended, modified or supplemented from time to time in accordance with its terms
and as permitted by the Loan Documents; (6) all references to Articles or
Sections shall be to Articles and Sections of this Agreement unless otherwise
indicated; and (7) all Exhibits to this Agreement shall be incorporated into
this Agreement.
ARTICLE II. THE LOANS
Section 2.01 The Loans. Subject to the terms and conditions of this
Agreement, each of the Banks severally agrees to make a loan to Borrower (each
such loan by a Bank, a "Loan"; such loans, collectively, the "Loans") pursuant
to which each Bank shall advance to Borrower on the Closing Date an amount equal
to its Loan Commitment. The Loans may be outstanding as:
13
18
(1) Base Rate Loans; (2) LIBOR Loans; or (3) a combination of the foregoing, as
Borrower shall elect and notify Administrative Agent in accordance with Section
2.03. The LIBOR Loan and Base Rate Loan of each Bank shall be maintained at such
Bank's Applicable Lending Office for its LIBOR Loan and Base Rate Loan,
respectively.
Section 2.02 Purpose. The Loan shall be made for the business purpose
of acquiring assets and providing adequate reserves. Borrower covenants and
agrees that in no event shall proceeds of the Loans, or any part thereof, be
used for any illegal purpose or for the purpose, whether immediate, incidental
or ultimate, of buying or carrying "margin stock" within the meaning of
Regulation U, or in connection with any hostile acquisition.
Section 2.03 Notice and Manner of Borrowing. The Banks' obligation to
disburse the proceeds of the Loans shall be subject to Borrower's submission to
Administrative Agent of a request for disbursement of the proceeds of the Loans,
which request contains the following: (1) the portion of the Loans that will be
Base Rate Loans and LIBOR Loans, and (2) in the case all or a portion of such
Loans is a LIBOR Loan, the duration of the Interest Period applicable thereto.
Not later than 10:00 a.m. (New York time) on the date such disbursement is to be
made, each Bank shall, through its Applicable Lending Office and subject to the
conditions of this Agreement, make the amount to be disbursed by it available to
Administrative Agent, at Administrative Agent's Office and in immediately
available funds for the account of Borrower. The amount so received by
Administrative Agent shall, subject to the conditions of this Agreement, be made
available to Borrower, in immediately available funds, by Administrative Agent's
wiring said funds to General Partner's account number 231313517 at Fleet Bank,
N.A., ABA number 021200339.
Section 2.04 Interest Periods; Renewals. In the case of the LIBOR
Loans, Borrower shall select an Interest Period of any duration in accordance
with the definition of Interest Period in Section 1.01, subject to the following
limitations: (1) no Interest Period may extend beyond the Maturity Date; (2) if
an Interest Period would end on a day which is not a Banking Day, such Interest
Period shall be extended to the next Banking Day, unless such Banking Day would
fall in the next calendar month, in which event such Interest Period shall end
on the immediately preceding Banking Day; and (3) only three (3) discrete
segments of a Bank's Loan bearing interest at a LIBOR Interest Rate for a
designated Interest Period may be outstanding at any one time (each such segment
of each Bank's Loan corresponding to a proportionate segment of each of the
other Banks' Loans).
14
19
Upon notice to Administrative Agent as provided in Section 2.11,
Borrower may Continue any LIBOR Loan on the last day of the Interest Period of
the same or different duration in accordance with the limitations provided
above.
Section 2.05 Interest. Borrower shall pay interest to Administrative
Agent for the account of the applicable Bank on the outstanding and unpaid
principal amount of the Loans, at a rate per annum as follows: (1) for Base Rate
Loans at a rate equal to the Base Rate plus the Applicable Margin; and (2) for
LIBOR Loans at a rate equal to the applicable LIBOR Interest Rate plus the
Applicable Margin. Any principal amount not paid when due (when scheduled, at
acceleration or otherwise) shall bear interest thereafter, payable on demand, at
the Default Rate.
The interest rate on Base Rate Loans shall change when the Base Rate
changes. Interest on Base Rate Loans and LIBOR Loans shall not exceed the
maximum amount permitted under applicable law. Interest shall be calculated for
the actual number of days elapsed on the basis of, in the case of both Base Rate
Loans and LIBOR Loans, three hundred sixty (360) days.
Accrued interest shall be due and payable in arrears upon and with
respect to any payment or prepayment of principal and on the first Banking Day
of each calendar month; provided, however, that interest accruing at the Default
Rate shall be due and payable on demand.
Section 2.06 Notes. The Loan made by each Bank under this Agreement
shall be evidenced by, and repaid with interest in accordance with, a single
promissory note of Borrower in the form of EXHIBIT B hereto duly completed and
executed by Borrower, representing the amount of such Bank's Loan Commitment, or
if less, the aggregate unpaid principal amount of the Loans by such Bank to
Borrower, payable to such Bank for the account of the Applicable Lending Office
(each, a "Note" and collectively, the "Notes"). Each Note shall mature, and all
outstanding principal and other sums thereunder shall be paid in full, on the
Maturity Date.
Each Bank is hereby authorized by Borrower to endorse on the schedule
attached to the Note held by it, the amount of each payment of principal
received by such Bank for the account of its Applicable Lending Office(s) on
account of its Loan, which endorsement shall, in the absence of manifest error,
be conclusive as to the outstanding balance of the Loan made by such Bank;
provided, however, that the failure to make any such notation shall not limit or
otherwise affect the obligations of Borrower under this Agreement or the Note
held by such Bank. Each Bank agrees that prior to any assignment of the Note it
will endorse the schedule attached to its Note.
15
20
Section 2.07 Prepayments. Without prepayment premium or penalty but
subject to Section 3.05, Borrower may, upon at least one (1) Banking Day's
notice to Administrative Agent in the case of the Base Rate Loans, and at least
three (3) Banking Days' notice to Administrative Agent in the case of LIBOR
Loans, prepay the Loans in whole or, with respect to Base Rate Loans only, in
part, provided that (1) any partial prepayment under this Section shall be in
integral multiples of One Million Dollars ($1,000,000); and (2) each prepayment
under this Section shall include all interest accrued on the amount of principal
prepaid to (but excluding) the date of prepayment.
Section 2.08 Method of Payment. Borrower shall make each payment under
this Agreement and under the Notes not later than 11:00 A.M. (New York time) on
the date when due in Dollars to Administrative Agent at Administrative Agent's
Office in immediately available funds. Administrative Agent will thereafter, on
the day of its receipt of each such payment, cause to be distributed to each
Bank (1) such Bank's ratable share (based upon the respective outstanding
principal amounts and interest due under the Notes of the Banks) of the payments
of principal and interest in like funds for the account of such Bank's
Applicable Lending Office; and (2) fees payable to such Bank in accordance with
the terms of this Agreement. Borrower hereby authorizes Administrative Agent and
the Banks, if and to the extent payment by Borrower is not made when due under
this Agreement or under the Notes, to charge from time to time against any
account Borrower maintains with Administrative Agent or any Bank any amount so
due to Administrative Agent and/or the Banks.
Except to the extent provided in this Agreement, whenever any payment
to be made under this Agreement or under the Notes is due on any day other than
a Banking Day, such payment shall be made on the next succeeding Banking Day,
and such extension of time shall in such case be included in the computation of
the payment of interest and other fees, as the case may be.
Section 2.09 Conversions or Continuation of Loans. Subject to the
provisions of Article III and Sections 2.04 and 2.10, Borrower shall have the
right to Convert Base Rate Loans into LIBOR Loans, to Convert LIBOR Loans into
Base Rate Loans, or to Continue LIBOR Loans as LIBOR Loans, at any time or from
time to time, provided that: (1) Borrower shall give Administrative Agent notice
of each such Conversion or Continuation as provided in Section 2.11; and (2) a
LIBOR Loan may be Continued only on the last day of the applicable Interest
Period for such LIBOR Loan. Except as otherwise provided in this Agreement, each
Continuation and Conversion shall be applicable to each Bank's Loan in
accordance with its Pro Rata Share.
16
21
Section 2.10 Minimum Amounts. With respect to the Loans as a whole,
each Conversion shall be in an amount at least equal to Three Million Dollars
($3,000,000) and in integral multiples of One Hundred Thousand Dollars
($100,000).
Section 2.11 Certain Notices Regarding Conversions and Continuations of
Loans. Notices by Borrower to Administrative Agent of Conversions and
Continuations of LIBOR Loans shall be irrevocable and shall be effective only if
received by Administrative Agent not later than 10:00 a.m. (New York time) on
the number of Banking Days prior to the date of the relevant Conversion or
Continuation specified below:
Number of
Notice Banking Days Prior
------ ------------------
Conversions into Base Rate
Loans one (1)
Conversions into or Continuations
as, LIBOR Loans three (3)
Promptly following its receipt of any such notice, Administrative Agent shall so
advise the Banks. Each such notice of Conversion shall specify the LIBOR Loans
or Base Rate Loans to be Converted; and each such notice of Conversion or
Continuation shall specify the date of Conversion or Continuation (which shall
be a Banking Day), the amount thereof (subject to Section 2.10) and the duration
of the Interest Period applicable thereto (subject to Section 2.04). In the
event that Borrower fails to Continue LIBOR Loans within the time period and as
otherwise provided in this Section , such LIBOR Loans will be automatically
Converted into Base Rate Loans on the last day of the then current applicable
Interest Period for such LIBOR Loans.
Section 2.12 Late Payment Premium. Borrower shall pay to Administrative
Agent for the account of the Banks a late payment premium in the amount of 4% of
any payments of principal or interest under the Loans made more than ten (10)
days after the due date thereof, which shall be due with any such late payment.
Section 2.13 Extension of Maturity. Borrower shall have an option to
extend the Maturity Date for a period of three (3) months. If Borrower exercises
that option, it shall have a second option to extend the Maturity Date for a
period of six (6) months (but in no event to a date later than April 14, 1998).
Each option is subject to Administrative Agent's receipt of a written request
from Borrower for such extension not later than thirty (30) days prior to the
then applicable Maturity Date and is subject to there existing no Default.
17
22
ARTICLE III. YIELD PROTECTION;
ILLEGALITY; ETC.
Section 3.01 Additional Costs. Borrower shall pay directly to
each Bank from time to time on demand such amounts as such Bank may reasonably
determine to be necessary to compensate it for any increased costs which such
Bank determines are attributable to its making or maintaining a LIBOR Loan, or
its obligation to make or maintain a LIBOR Loan, or its obligation to Convert a
Base Rate Loan to a LIBOR Loan hereunder, or any reduction in any amount
receivable by such Bank hereunder in respect of its LIBOR Loan or such
obligations (such increases in costs and reductions in amounts receivable being
herein called "Additional Costs"), in each case resulting from any Regulatory
Change which:
(1) changes the basis of taxation of any amounts payable to
such Bank under this Agreement or the Notes in respect of any such
LIBOR Loan (other than (i) changes in the rate of general corporate,
franchise, branch profit, net income or other income tax imposed on
such Bank or its Applicable Lending Office or (ii) a tax described in
Section 10.13); or
(2) (other than to the extent the LIBOR Reserve Requirement is
taken into account in determining the LIBOR Rate at the commencement of
the applicable Interest Period) imposes or modifies any reserve,
special deposit, deposit insurance or assessment, minimum capital,
capital ratio or similar requirements relating to any extensions of
credit or other assets of, or any deposits with or other liabilities
of, such Bank (including any LIBOR Loan or any deposits referred to in
the definition of "LIBOR Interest Rate" in Section 1.01), or any
commitment of such Bank (including such Bank's Loan Commitment
hereunder); or
(3) imposes any other condition (unrelated to the basis of
taxation referred to in paragraph (1) above) affecting this Agreement
or the Notes (or any of such extensions of credit or liabilities).
Without limiting the effect of the provisions of the first
paragraph of this Section , in the event that, by reason of any Regulatory
Change, any Bank either (1) incurs Additional Costs based on or measured by the
excess above a specified level of the amount of a category of deposits of other
liabilities of such Bank which includes deposits by reference to which the LIBOR
Interest Rate is determined as provided in this Agreement or a category of
extensions of credit or other assets of such Bank which includes loans based on
the LIBOR Interest Rate or (2) becomes subject to restrictions on the amount of
such a category
18
23
of liabilities or assets which it may hold, then, if such Bank so elects by
notice to Borrower (with a copy to Administrative Agent), the obligation of such
Bank to Continue, or to Convert Base Rate Loans into, LIBOR Loans shall be
suspended (in which case the provisions of Section 3.04 shall be applicable)
until such Regulatory Change ceases to be in effect.
Determinations and allocations by a Bank for purposes of this
Section of the effect of any Regulatory Change pursuant to the first or second
paragraph of this Section , on its costs or rate of return of making or
maintaining its Loan or portions thereof or on amounts receivable by it in
respect of its Loan or portions thereof, and the amounts required to compensate
such Bank under this Section, shall be included in a calculation of such amounts
given to Borrower and shall be conclusive absent manifest error.
Section 3.02 Limitation on Types of Loans. Anything herein to
the contrary notwithstanding, if, on or prior to the determination of the LIBOR
Interest Rate for any Interest Period:
(1) Administrative Agent reasonably determines (which
determination shall be conclusive) that quotations of interest rates
for the relevant deposits referred to in the definition of "LIBOR
Interest Rate" in Section 1.01 are not being provided in the relevant
amounts or for the relevant maturities for purposes of determining
rates of interest for the LIBOR Loans as provided in this Agreement; or
(2) a Bank reasonably determines (which determination shall be
conclusive) and promptly notifies Administrative Agent that the
relevant rates of interest referred to in the definition of "LIBOR
Interest Rate" in Section 1.01 upon the basis of which the rate of
interest for LIBOR Loans for such Interest Period is to be determined
do not adequately cover the cost to such Bank of making or maintaining
such LIBOR Loan for such Interest Period;
then Administrative Agent shall give Borrower prompt notice thereof, and so long
as such condition remains in effect, the Banks (or, in the case of the
circumstances described in clause (2) above, the affected Bank) shall be under
no obligation to Convert Base Rate Loans into LIBOR Loans or to Continue LIBOR
Loans and Borrower shall, on the last day(s) of the then current Interest
Period(s) for the affected outstanding LIBOR Loans, either prepay the affected
LIBOR Loans or Convert the affected LIBOR Loans into Base Rate Loans in
accordance with Section 2.09.
Section 3.03 Illegality. Notwithstanding any other provision
of this Agreement, in the event that it becomes unlawful for any Bank or its
Applicable Lending Office to honor its obligation to make or maintain a LIBOR
Loan hereunder or to
19
24
Convert a Base Rate Loan into a LIBOR Loan, then such Bank shall promptly notify
Administrative Agent and Borrower thereof and such Bank's obligation to make or
maintain, to Continue, or to Convert its Base Rate Loan into, a LIBOR Loan shall
be suspended (in which case the provisions of Section 3.04 shall be applicable)
until such time as such Bank may again make and maintain a LIBOR Loan.
Section 3.04 Treatment of Affected Loans. If the obligations
of any Bank to Continue its LIBOR Loan, or to Convert its Base Rate Loan into a
LIBOR Loan, are suspended pursuant to Sections 3.01 or 3.03 (each LIBOR Loan so
affected being herein called an "Affected Loan"), such Bank's Affected Loan
shall be automatically Converted into a Base Rate Loan on the last day of the
then current Interest Period for the Affected Loan (or, in the case of a
Conversion required by Sections 3.01 or 3.03, on such earlier date as such Bank
may specify to Borrower).
To the extent that such Bank's Affected Loan has been so
Converted, all payments and prepayments of principal which would otherwise be
applied to such Bank's Affected Loan shall be applied instead to its Base Rate
Loan and such Bank shall have no obligation to Convert its Base Rate Loan into a
LIBOR Loan.
Section 3.05 Certain Compensation. Other than in connection
with a Conversion of an Affected Loan, Borrower shall pay to Administrative
Agent for the account of the applicable Bank, upon the request of such Bank
through Administrative Agent which request includes a calculation of the
amount(s) due, such amount or amounts as shall be sufficient (in the reasonable
opinion of such Bank) to compensate it for any loss, cost or expense which such
Bank reasonably determines is attributable to:
(1) any payment, prepayment, Conversion or Continuation of a
LIBOR Loan made by such Bank on a date other than the last day of an
applicable Interest Period for such LIBOR Loan whether by reason of
acceleration or otherwise; or
(2) any failure by Borrower for any reason to Convert or
Continue a LIBOR Loan to be Converted or Continued by such Bank on the
date specified therefor in the relevant notice under Section 2.11.
Without limiting the foregoing, such compensation shall
include an amount equal to the present value (using as the discount rate an
interest rate equal to the rate determined under (2) below) of the excess, if
any, of (1) the amount of interest (less the Applicable Margin) which otherwise
would have accrued on the principal amount so paid, prepaid, Converted or
Continued (or not Converted or Continued) for the period from the date of such
payment, prepayment, Conversion or Continuation (or failure
20
25
to Convert or Continue) to the last day of the then current applicable Interest
Period for the LIBOR Loan (or, in the case of a failure to Convert or Continue,
to the last day of the applicable Interest Period for the LIBOR Loan which would
have commenced on the date specified therefor in the relevant notice) at the
applicable rate of interest for the LIBOR Loan provided for herein, over (2) the
amount of interest (as reasonably determined by such Bank) based upon the
interest rate which such Bank would have bid in the London interbank market for
Dollar deposits, for amounts comparable to such principal amount and maturities
comparable to such period. A determination of any Bank as to the amounts payable
pursuant to this Section shall be conclusive absent manifest error.
Section 3.06 Capital Adequacy. If any Bank shall have
determined that, after the date hereof, the adoption of any applicable law, rule
or regulation regarding capital adequacy, or any change therein, or any change
in the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such Governmental Authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on capital of such Bank (or its Parent) as a consequence of such
Bank's obligations hereunder to a level below that which such Bank (or its
Parent) could have achieved but for such adoption, change, request or directive
(taking into consideration its policies with respect to capital adequacy) by an
amount deemed by such Bank to be material, then from time to time, within
fifteen (15) days after demand by such Bank (with a copy to Administrative
Agent), Borrower shall pay to such Bank such additional amount or amounts as
will compensate such Bank (or its Parent) for such reduction. A certificate of
any Bank claiming compensation under this Section , setting forth in reasonable
detail the basis therefor, shall be conclusive absent manifest error.
Section 3.07 Substitution of Banks. If any Bank (an "Affected
Bank") (i) makes demand upon Borrower for (or if Borrower is otherwise required
to pay) Additional Costs pursuant to Section 3.01 or (ii) is unable to make or
maintain its Loan or any portion thereof at the LIBOR Based Rate as a result of
a condition described in Section 3.03 or clause (2) of Section 3.02, Borrower
may, within ninety (90) days of receipt of such demand or notice (or the
occurrence of such other event causing Borrower to be required to pay Additional
Costs or causing said Section 3.03 or clause (2) of Section 3.02 to be
applicable), as the case may be, give written notice (a "Replacement Notice") to
Administrative Agent and to each Bank of Borrower's intention either (x) to
prepay in full the Affected Bank's Note and to terminate the Affected Bank's
entire Loan Commitment or (y) to
21
26
replace the Affected Bank with another financial institution (the "Replacement
Bank") designated in such Replacement Notice.
In the event Borrower opts to give the notice provided for in
clause (x) above, and if the Affected Bank shall not agree within thirty (30)
days of its receipt thereof to waive the payment of the Additional Costs in
question or the effect of the circumstances described in Section 3.03 or clause
(2) of Section 3.02, then, so long as no Default or Event of Default shall
exist, Borrower may terminate the Affected Bank's entire Loan Commitment,
provided that in connection therewith it pays to the Affected Bank all
outstanding principal and accrued and unpaid interest under the Affected Bank's
Note, together with all other amounts, if any, due from Borrower to the Affected
Bank, including all amounts properly demanded and unreimbursed under Section
3.01.
In the event Borrower opts to give the notice provided for in
clause (y) above, and if (i) Administrative Agent shall, within thirty (30) days
of its receipt of the Replacement Notice, notify Borrower and each Bank in
writing that the Replacement Bank is reasonably satisfactory to Administrative
Agent and (ii) the Affected Bank shall not, prior to the end of such thirty
(30)-day period, agree to waive the payment of the Additional Costs in question
or the effect of the circumstances described in Section 3.03 or clause (2) of
Section 3.02, then the Affected Bank shall, so long as no Default or Event of
Default shall exist, assign its Note and all of its rights and obligations under
this Agreement to the Replacement Bank, and the Replacement Bank shall assume
all of the Affected Bank's rights and obligations, pursuant to an agreement,
substantially in the form of an Assignment and Assumption Agreement, executed by
the Affected Bank and the Replacement Bank. In connection with such assignment
and assumption, the Replacement Bank shall pay to the Affected Bank an amount
equal to the outstanding principal amount under the Affected Bank's Note plus
all interest accrued thereon, plus all other amounts, if any (other than the
Additional Costs in question), then due and payable to the Affected Bank;
provided, however, that prior to or simultaneously with any such assignment and
assumption, Borrower shall have paid to such Affected Bank all amounts properly
demanded and unreimbursed under Section 3.01. Upon the effective date of such
assignment and assumption, the Replacement Bank shall become a Bank Party to
this Agreement and shall have all the rights and obligations of a Bank as set
forth in such Assignment and Assumption Agreement, and the Affected Bank shall
be released from its obligations hereunder, and no further consent or action by
any party shall be required. Upon the consummation of any assignment pursuant to
this Section , a substitute note shall be issued to the Replacement Bank by
Borrower, in exchange for the return of the Affected Bank's Note. Such
substitute note shall constitute a "Note" and the obligations evidenced by such
substitute note
22
27
shall constitute "Obligations" for all purposes of this Agreement and the other
Loan Documents. If the Replacement Bank is not incorporated under the laws of
the United States of America or a state thereof, it shall, prior to the first
date on which interest or fees are payable hereunder for its account, deliver to
Borrower and Administrative Agent certification as to exemption from deduction
or withholding of any United States federal income taxes in accordance with
Section 10.13. Each Replacement Bank shall be deemed to have made the
representations contained in, and shall be bound by the provisions of, Section
10.13.
Borrower, Administrative Agent and the Banks shall execute
such modifications to the Loan Documents as shall be reasonably required in
connection with and to effectuate the foregoing.
ARTICLE IV. CONDITIONS PRECEDENT
Section 4.01 Conditions Precedent to the Loans. The
obligations of the Banks hereunder to advance the proceeds of the Loans are
subject to the condition precedent that Administrative Agent shall have received
on or before the Closing Date each of the following documents, and each of the
following requirements shall have been fulfilled:
(1) Fees and Expenses. The payment of all fees and expenses
incurred by Administrative Agent (including, without limitation, the
reasonable fees and expenses of legal counsel);
(2) Note. The Note for UBS, duly executed by Borrower;
(3) Financial Statements. Audited VRT Consolidated Financial
Statements as of and for the year ended December 31, 1996, acceptable
to the Banks;
(4) Certificates of Limited Partnership/Incorporation. A copy
of the Certificate of Limited Partnership for Borrower and a copy of
the articles of incorporation of General Partner, each certified by the
appropriate Secretary of State or equivalent state official;
(5) Agreements of Limited Partnership/Bylaws. A copy of the
Agreement of Limited Partnership for Borrower and a copy of the bylaws
of General Partner, including all amendments thereto, each certified by
the Secretary or an Assistant Secretary of General Partner as being in
full force and effect on the Closing Date;
23
28
(6) Good Standing Certificates. A certified copy of a
certificate from the Secretary of State or equivalent state official of
the states where Borrower and General Partner are organized, dated as
of the most recent practicable date, showing the good standing or
partnership qualification of (i) Borrower and (ii) General Partner;
(7) Foreign Qualification Certificates. A certified copy of a
certificate from the Secretary of State or equivalent state official of
the state where Borrower and General Partner maintain their principal
place of business, dated as of the most recent practicable date,
showing the qualification to transact business in such state as a
foreign limited partnership or foreign corporation, as the case may be,
for (i) Borrower and (ii) General Partner;
(8) Resolutions. A copy of a resolution or resolutions adopted
by the Board of Directors of General Partner, certified by the
Secretary or an Assistant Secretary of General Partner as being in full
force and effect on the Closing Date, authorizing the Loans provided
for herein and the execution, delivery and performance of the Loan
Documents to be executed and delivered by General Partner hereunder on
behalf of itself and Borrower;
(9) Incumbency Certificate. A certificate, signed by the
Secretary or an Assistant Secretary of General Partner and dated the
Closing Date, as to the incumbency, and containing the specimen
signature or signatures, of the Persons authorized to execute and
deliver the Loan Documents to be executed and delivered by it and
Borrower hereunder;
(10) Solvency Certificate. A Solvency Certificate, duly
executed, from Borrower;
(11) Opinion of Counsel for Borrower. Favorable opinions,
dated the Closing Date, from counsels for Borrower and General Partner,
as to such matters as Administrative Agent may reasonably request;
(12) Authorization Letter. The Authorization Letter,
duly executed by Borrower;
(13) Guaranty. The Guaranty duly executed by General Partner;
(14) Certificate. The following statements shall be true and
Administrative Agent shall have received a certificate dated the
Closing Date signed by a duly authorized signatory of Borrower stating,
to the best of the certifying party's knowledge, the following:
24
29
(a) All representations and warranties contained in
this Agreement and in each of the other Loan Documents are
true and correct on and as of the Closing Date as though made
on and as of such date, and
(b) No Default or Event of Default has occurred and
is continuing, or could result from the transactions
contemplated by this Agreement and the other Loan Documents;
(15) Compliance Certificate. A certificate of the sort
required by paragraph (3) of Section 6.09; and
(16) Evidence. Evidence of Borrower's acquisition of the
Mendik Assets and the transfer of the assets of General Partner and
Alexander's, Inc. to Borrower.
ARTICLE V. REPRESENTATIONS AND WARRANTIES
Borrower (and General Partner, if expressly included in
Sections contained in this Article) represents and warrants to Administrative
Agent and each Bank as follows:
Section 5.01 Existence. Borrower is a limited partnership duly
organized and existing under the laws of the State of Delaware, with its
principal place of business in the State of New Jersey, and is duly qualified as
a foreign limited partnership, properly licensed, in good standing and has all
requisite authority to conduct its business in each jurisdiction in which it
owns properties or conducts business except where the failure to be so qualified
or to obtain such authority would not have a material adverse effect. Each of
its Consolidated Businesses is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization and has all
requisite authority to conduct its business in each jurisdiction in which it
owns property or conducts business, except where the failure to be so qualified
or to obtain such authority would not have a material adverse effect. General
Partner is a real estate investment trust duly organized and existing under the
laws of the State of Maryland, with its principal place of business in the State
of New Jersey, is duly qualified as a foreign corporation and properly licensed
and in good standing in each jurisdiction where the failure to qualify or be
licensed would constitute a Material Adverse Change with respect to General
Partner or have a material adverse effect on the business or properties of
General Partner. The stock of General Partner is listed on the New York Stock
Exchange.
25
30
Section 5.02 Corporate/Partnership Powers. The execution,
delivery and performance of the Loan Documents required to be delivered by
Borrower hereunder are within its partnership authority and the corporate power
of General Partner, have been duly authorized by all requisite action, and are
not in conflict with the terms of any organizational instruments of such entity,
or any instrument or agreement to which Borrower or General Partner is a party
or by which Borrower, General Partner or any of their respective assets may be
bound or affected.
Section 5.03 Power of Officers. The officers of General
Partner executing the Loan Documents required to be delivered by it on its own
behalf or that of Borrower hereunder have been duly elected or appointed and
were fully authorized to execute the same at the time each such Loan Document
was executed.
Section 5.04 Power and Authority; No Conflicts; Compliance
With Laws. The execution, delivery and performance of the obligations required
to be performed by Borrower and General Partner of the Loan Documents does not
and will not (a) violate any provision of, or require any filing, registration,
consent or approval under, any Law (including, without limitation, Regulation
U), order, writ, judgment, injunction, decree, determination or award presently
in effect having applicability to either of them, (b) result in a breach of or
constitute a default under or require any consent under any indenture or loan or
credit agreement or any other agreement, lease or instrument to which either of
them may be a party or by which either of them or their properties may be bound
or affected except for consents which have been obtained, (c) result in, or
require, the creation or imposition of any Lien, upon or with respect to any of
its properties now owned or hereafter acquired, or (d) cause either of them to
be in default under any such Law, order, writ, judgment, injunction, decree,
determination or award or any such indenture, agreement, lease or instrument; to
the best of their knowledge, Borrower and General Partner are in compliance with
all Laws applicable to them and their properties where the failure to be in
compliance would cause a Material Adverse Change to occur.
Section 5.05 Legally Enforceable Agreements. Each Loan
Document is a legal, valid and binding obligation of Borrower and/or General
Partner, as the case may be, enforceable in accordance with its terms, except to
the extent that such enforcement may be limited by applicable bankruptcy,
insolvency and other similar laws affecting creditors' rights generally.
Section 5.06 Litigation. Except as disclosed in General
Partner's SEC Reports existing as of the date hereof, there are no actions,
suits or proceedings pending or, to its knowledge, threatened against Borrower,
General Partner or any of
26
31
their Affiliates before any court or arbitrator or any Governmental Authority
reasonably likely to have a material effect on Borrower's ability to repay the
Loans.
Section 5.07 Good Title to Properties. Borrower and each of
its Affiliates have good, marketable and legal title to all of the properties
and assets each of them purports to own (including, without limitation, those
reflected in the December 31, 1996 financial statements referred to in Section
5.15) and only with exceptions which do not materially detract from the value of
such property or assets or the use thereof in Borrower's and such Affiliate's
business, and except to the extent that any such properties and assets have been
encumbered or disposed of since the date of such financial statements without
violating any of the covenants contained in Article VII or elsewhere in this
Agreement. Borrower and its Material Affiliates enjoy peaceful and undisturbed
possession of all leased property necessary in any material respect in the
conduct of their respective businesses. All such leases are valid and subsisting
and are in full force and effect.
Section 5.08 Taxes. Borrower and General Partner have filed
all tax returns (federal, state and local) required to be filed and have paid
all taxes, assessments and governmental charges and levies due and payable
without the imposition of a penalty, including interest and penalties, except to
the extent they are the subject of a Good Faith Contest.
Section 5.09 ERISA. Borrower and General Partner are in
compliance in all material respects with all applicable provisions of ERISA.
Neither a Reportable Event nor a Prohibited Transaction has occurred with
respect to any Plan; no notice of intent to terminate a Plan has been filed nor
has any Plan been terminated within the past five (5) years; no circumstance
exists which constitutes grounds under Section 4042 of ERISA entitling the PBGC
to institute proceedings to terminate, or appoint a trustee to administer, a
Plan, nor has the PBGC instituted any such proceedings; Borrower, General
Partner and the ERISA Affiliates have not completely or partially withdrawn
under Sections 4201 or 4204 of ERISA from a Multiemployer Plan; Borrower,
General Partner and the ERISA Affiliates have met the minimum funding
requirements of Section 412 of the Code and Section 302 of ERISA of each with
respect to the Plans of each and there is no Unfunded Current Liability with
respect to any Plan established or maintained by each; and Borrower, General
Partner and the ERISA Affiliates have not incurred any liability to the PBGC
under ERISA (other than for the payment of premiums under Section 4007 of
ERISA). No part of the funds to be used by Borrower in satisfaction of its
obligations under this Agreement constitute "plan assets" of any "employee
benefit plan" within the meaning of ERISA or of any "plan" within the meaning of
Section 4975(e)(1) of the Code, as interpreted by the Internal
27
32
Revenue Service and the U.S. Department of Labor in rules, regulations,
releases, bulletins or as interpreted under applicable case law.
Section 5.10 No Default on Outstanding Judgments or Orders. Borrower
and General Partner have satisfied all judgments which are not being appealed
and are not in default with respect to any judgment, order, writ, injunction,
decree, rule or regulation of any court, arbitrator or federal, state, municipal
or other Governmental Authority, commission, board, bureau, agency or
instrumentality, domestic or foreign.
Section 5.11 No Defaults on Other Agreements. Except as disclosed to
the Bank Parties in writing or as disclosed in General Partner's SEC Reports,
Borrower or General Partner, to the best of their knowledge, are not a party to
any indenture, loan or credit agreement or any lease or other agreement or
instrument or subject to any partnership, trust or other restriction which is
likely to result in a Material Adverse Change. To the best of their knowledge,
neither Borrower nor General Partner is in default in any respect in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any agreement or instrument which is likely to result in
a Material Adverse Change.
Section 5.12 Government Regulation. Neither Borrower nor General
Partner is subject to regulation under the Investment Company Act of 1940 or any
statute or regulation limiting any such Person's ability to incur indebtedness
for money borrowed as contemplated hereby.
Section 5.13 Environmental Protection. To Borrower's knowledge, except
as disclosed in General Partner's SEC Reports existing as of the date hereof,
none of Borrower's or its Affiliates' properties contains any Hazardous
Materials that, under any Environmental Law currently in effect, (1) would
impose liability on Borrower or General Partner that is likely to result in a
Material Adverse Change, or (2) is likely to result in the imposition of a Lien
on any assets of Borrower, General Partner or any Material Affiliates that is
likely to result in a Material Adverse Change. To Borrower's knowledge, neither
it, General Partner nor any Material Affiliates are in violation of, or subject
to any existing, pending or threatened investigation or proceeding by any
Governmental Authority under any Environmental Law that is likely to result in a
Material Adverse Change.
Section 5.14 Solvency. Borrower and General Partner are, and upon
consummation of the transactions contemplated by this Agreement, the other Loan
Documents and any other documents, instruments or agreements relating thereto,
will be, Solvent.
28
33
Section 5.15 Financial Statements. The VRT Consolidated Financial
Statements most recently delivered to the Banks pursuant to the terms of this
Agreement are in all material respects complete and correct and fairly present
the financial condition of the subjects thereof as of the dates of and for the
periods covered by such statements, all in accordance with GAAP. There has been
no Material Adverse Change since the date of such most recently delivered VRT
Consolidated Financial Statements.
Section 5.16 Valid Existence of Affiliates. Each Material Affiliate is
an entity duly organized and existing in good standing under the laws of the
jurisdiction of its formation. As to each Material Affiliate, its correct name,
the jurisdiction of its formation, Borrower's direct or indirect percentage of
beneficial interest therein, and the type of business in which it is primarily
engaged, are set forth on said EXHIBIT C. Borrower and each of its Material
Affiliates have the power to own their respective properties and to carry on
their respective businesses now being conducted. Each Material Affiliate is duly
qualified as a foreign corporation to do business and is in good standing in
every jurisdiction in which the nature of the respective businesses conducted by
it or its respective properties, owned or held under lease, make such
qualification necessary and where the failure to be so qualified would have the
effect of a Material Adverse Change on Borrower and its Consolidated Businesses
taken as a whole.
Section 5.17 Insurance. Borrower and each of its Affiliates has in
force paid insurance with financially sound and reputable insurance companies or
associations in such amounts and covering such risks as are usually carried by
companies engaged in the same or a similar business and similarly situated.
Section 5.18 Accuracy of Information; Full Disclosure. Neither this
Agreement nor any documents, financial statements, reports, notices, schedules,
certificates, statements or other writings furnished by or on behalf of Borrower
to Administrative Agent or any Bank in connection with the negotiation of this
Agreement or the consummation of the transactions contemplated hereby, or
required herein to be furnished by or on behalf of Borrower (other than
projections which are made by Borrower in good faith), contains any untrue or
misleading statement of a material fact or omits a material fact necessary to
make the statements herein or therein not misleading. There is no fact which
Borrower has not disclosed to Administrative Agent and the Banks in writing or
which is not included in General Partner's SEC Reports which materially affects
adversely nor, so far as Borrower can now foresee, will materially affect
adversely the business or financial condition of Borrower or the ability of
Borrower to perform this Agreement and the other Loan Documents.
29
34
Section 5.19 Status. General Partner agrees that all of its
representations and warranties set forth in this Article V and elsewhere in this
Agreement are true on the Closing Date.
ARTICLE VI. AFFIRMATIVE COVENANTS
So long as any of the Notes shall remain unpaid or the Loan Commitments
remain in effect, or any other amount is owing by Borrower to any Bank hereunder
or under any other Loan Document, Borrower and General Partner shall each:
Section 6.01 Maintenance of Existence. Preserve and maintain its legal
existence and, if applicable, good standing in the jurisdiction of organization
and, if applicable, qualify and remain qualified as a foreign entity in each
jurisdiction in which such qualification is required, except to the extent that
failure to so qualify is not likely to result in a Material Adverse Change.
Section 6.02 Maintenance of Records. Keep adequate records and books of
account, in which complete entries will be made in accordance with GAAP,
reflecting all of its financial transactions.
Section 6.03 Maintenance of Insurance. At all times, maintain and keep
in force, and cause each of its Material Affiliates to maintain and keep in
force, insurance with financially sound and reputable insurance companies or
associations in such amounts and covering such risks as are usually carried by
companies engaged in the same or a similar business and similarly situated,
which insurance may provide for reasonable deductibility from coverage thereof.
Section 6.04 Compliance with Laws; Payment of Taxes. Comply in all
material respects with all Laws applicable to it or to any of its properties or
any part thereof, such compliance to include, without limitation, paying before
the same become delinquent all taxes, assessments and governmental charges
imposed upon it, General Partner or upon any of their property, except to the
extent they are the subject of a Good Faith Contest.
Section 6.05 Right of Inspection. At any reasonable time and from time
to time upon reasonable notice, permit Administrative Agent or any Bank or any
agent or representative thereof (provided that, at Borrower's request,
Administrative Agent or such Bank, agent or representative must be accompanied
by a representative of Borrower), to examine and make copies and abstracts from
the records and books of account of, and visit the properties of, Borrower and
to discuss the affairs, finances and
30
35
accounts of Borrower with the independent accountants of Borrower.
Section 6.06 Compliance With Environmental Laws. Comply in all material
respects with all applicable Environmental Laws and immediately pay or cause to
be paid all costs and expenses incurred in connection with such compliance,
except to the extent there is a Good Faith Contest.
Section 6.07 Payment of Costs. Pay all costs and expenses required for
the satisfaction of the conditions of this Agreement.
Section 6.08 Maintenance of Properties. Do all things reasonably
necessary to maintain, preserve, protect and keep its and its Affiliates'
properties in good repair, working order and condition.
Section 6.09 Reporting and Miscellaneous Document Requirements. Furnish
directly to each of the Banks:
(1) Annual Financial Statements. As soon as available and in any event
within ninety (90) days after the end of each Fiscal Year, the VRT Consolidated
Financial Statements as of the end of and for such Fiscal Year, in reasonable
detail and stating in comparative form the respective figures for the
corresponding date and period in the prior Fiscal Year and audited by Borrower's
Accountants;
(2) Quarterly Financial Statements. As soon as available and in any
event within forty-five (45) days after the end of each calendar quarter (other
than the last quarter of the Fiscal Year), the unaudited VRT Consolidated
Financial Statements as of the end of and for such calendar quarter, in
reasonable detail and stating in comparative form the respective figures for the
corresponding date and period in the prior Fiscal Year;
(3) Certificate of No Default and Financial Compliance. Within fifty
(50) days after the end of each of the first three quarters of each Fiscal Year
and within ninety-five (95) days after the end of each Fiscal Year, a
certificate of the chief financial officer or treasurer of General Partner (a)
stating that, to the best of his or her knowledge, no Default or Event of
Default has occurred and is continuing, or if a Default or Event of Default has
occurred and is continuing, specifying the nature thereof and the action which
is proposed to be taken with respect thereto; (b) stating that the covenants
contained in Section 6.10, Sections 7.02, 7.03 and 7.04 and in Article VIII have
been complied with (or specifying those that have not been complied with) and
including computations demonstrating such compliance (or non-compliance); (c)
setting forth the details of all items comprising Total Outstanding Indebtedness
(including
31
36
amount, maturity, interest rate and amortization requirements), Secured
Indebtedness, Unencumbered Combined EBITDA, Interest Expense and Unsecured
Indebtedness; and (d) only at the end of each Fiscal Year stating Borrower's
taxable income;
(4) Certificate of Borrower's Accountants. Simultaneously with the
delivery of the annual financial statements required by paragraph (1) of this
Section , (a) a statement of Borrower's Accountants who audited such financial
statements comparing the computations set forth in the financial compliance
certificate required by paragraphs (3)(b) and (d) of this Section to the audited
financial statements required by paragraph (1) of this Section and (b) when the
audited financial statements required by paragraph (1) of this Section have a
qualified auditor's opinion, a statement of Borrower's Accountants who audited
such financial statements of whether any Default or Event of Default has
occurred and is continuing;
(5) Notice of Litigation. Promptly after the commencement and knowledge
thereof, notice of all actions, suits, and proceedings before any court or
arbitrator, affecting Borrower or General Partner which, if determined adversely
to Borrower or General Partner is likely to result in a Material Adverse Change
and which would be required to be reported in Borrower's or General Partner's
SEC Reports;
(6) Notices of Defaults and Events of Default. As soon as possible and
in any event within ten (10) days after Borrower becomes aware of the occurrence
of a material Default or any Event of Default a written notice setting forth the
details of such Default or Event of Default and the action which is proposed to
be taken with respect thereto;
(7) Sales or Acquisitions of Assets. Promptly after the occurrence
thereof, written notice of any Disposition or acquisition of assets (other than
acquisitions or Dispositions of investments such as certificates of deposit,
Treasury securities and money market deposits in the ordinary course of
Borrower's cash management) in excess of Twenty Five Million Dollars
($25,000,000) together with, in the case of any acquisition of such an asset,
copies of the agreements governing the acquisition and historical financial
information and Borrower's projections with respect to the property acquired;
(8) Material Adverse Change. As soon as is practicable and in any event
within five (5) days after knowledge of the occurrence of any event or
circumstance which is likely to result in or has resulted in a Material Adverse
Change and which would be required to be reported in General Partner's SEC
Reports, written notice thereof;
32
37
(9) Bankruptcy of Tenants. Promptly after becoming aware of the same,
written notice of the bankruptcy, insolvency or cessation of operations of any
tenant in any property of Borrower or in which Borrower has an interest to which
four percent (4%) or more of aggregate minimum rent payable to Borrower directly
or through its Consolidated Businesses or UJVs is attributable;
(10) Offices. Thirty (30) days' prior written notice of any change in
the chief executive office or principal place of business of Borrower;
(11) Environmental and Other Notices. As soon as possible and in any
event within thirty (30) days after receipt, copies of all Environmental Notices
received by Borrower which are not received in the ordinary course of business
and which relate to a previously undisclosed situation which is likely to result
in a Material Adverse Change;
(12) Insurance Coverage. Promptly, such information concerning
Borrower's insurance coverage as Administrative Agent may reasonably request;
(13) Proxy Statements, Etc. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements and reports which
Borrower or its Material Affiliates sends to its shareholders, and copies of all
regular, periodic and special reports, and all registration statements which
Borrower or its Material Affiliates files with the Securities and Exchange
Commission or any Governmental Authority which may be substituted therefor, or
with any national securities exchange;
(14) Rent Rolls. As soon as available and in any event within ninety
(90) days after the end of each Fiscal Year, a rent roll, tenant sales report
and operating statement for each property directly or indirectly owned in whole
or in part by Borrower;
(15) Capital Expenditures. As soon as available and in any event within
ninety (90) days after the end of each Fiscal Year, a schedule of such Fiscal
Year's capital expenditures and a budget for the next Fiscal Year's planned
capital expenditures for each property directly or indirectly owned in whole or
in part by Borrower; and
(16) General Information. Promptly, such other information respecting
the condition or operations, financial or otherwise, of Borrower or any
properties of Borrower as Administrative Agent may from time to time reasonably
request.
33
38
Section 6.10 Mandatory Prepayments. Immediately upon receipt of the
same, cause any proceeds, net of necessary and proper expenses, received by
Borrower or General Partner from any financing, equity offering, public or
private debt offering, Disposition of any of its now owned or hereafter acquired
assets or any other capital event to be applied to the repayment of the Loans.
Section 6.11 Management. At all times, cause Borrower or its Affiliates
to provide property management and leasing services for at least eighty percent
(80%) of the properties then owned, directly or indirectly, in whole or in part
by Borrower.
ARTICLE VII. NEGATIVE COVENANTS
So long as any of the Notes shall remain unpaid, or the Loan
Commitments remain in effect, or any other amount is owing by Borrower to
Administrative Agent or any Bank hereunder or under any other Loan Document,
Borrower shall not do any or all of the following:
Section 7.01 Mergers Etc. Merge or consolidate with (except where
Borrower is the surviving entity), or sell, assign, lease or otherwise dispose
of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) (or
enter into any agreement to do any of the foregoing).
Section 7.02 Investments. Make any loan or advance to any Person or
purchase or otherwise acquire any capital stock, assets, obligations or other
securities of, make any capital contribution to, or otherwise invest in, or
acquire any interest in, any Person (any such transaction, an "Investment") if
such Investment constitutes the acquisition of a minority interest in a Person
(a "Minority Interest") and the amount of such Investment, together with the
value of all other Minority Interests acquired after the Closing Date
contributing to Equity Value, would exceed fifteen percent (15%) of
Capitalization Value. A fifty percent (50%) beneficial interest in a Person, in
connection with which the holder thereof exercises joint control over such
Person with the holder(s) of the other fifty percent (50%) beneficial interest,
shall not constitute a "Minority Interest" for purposes of this Section .
Section 7.03 Sale of Assets. Effect a Disposition of any of its now
owned or hereafter acquired assets (other than "margin stock" as defined in
Regulation U), including assets in which Borrower owns a beneficial interest
through its ownership of interests in joint ventures, aggregating more than
twenty five percent (25%) of Capitalization Value.
34
39
Section 7.04 Encumbrance of Certain Assets. At any time, mortgage,
hypothecate or otherwise encumber to secure a Debt (it being understood that,
for purposes of this Section, an asset shall be deemed "encumbered" if it is the
subject of a pledge not to encumber) any of its properties or any properties of
any UJV which are currently unencumbered, create any additional mortgage,
hypothecation or other encumbrance on any such properties which are currently
encumbered or create any mortgage, hypothecation or other encumbrance on any
such properties which are hereafter acquired.
ARTICLE VIII. FINANCIAL COVENANTS
So long as any of the Notes shall remain unpaid, or the Loan
Commitments remain in effect, or any other amount is owing by Borrower to
Administrative Agent or any Bank under this Agreement or under any other Loan
Document, Borrower shall not permit or suffer:
Section 8.01 Equity Value. At any time, Equity Value to be less than
Six Hundred Million Dollars ($600,000,000); or
Section 8.02 Relationship of Total Outstanding Indebtedness to Equity
Value. At any time, Total Outstanding Indebtedness to exceed fifty five percent
(55%) of Capitalization Value; or
Section 8.03 Relationship of Secured Indebtedness to Equity Value. At
any time, Secured Indebtedness to exceed thirty five percent (35%) of
Capitalization Value; or
Section 8.04 Relationship of Combined EBITDA to Interest Expense. For
any prior twelve-month period, the ratio of (1) Combined EBITDA to (2) Interest
Expense, each for such period, to be less than 2.25 to 1.00; or
Section 8.05 Relationship of Combined EBITDA to Total Outstanding
Indebtedness. For any prior twelve-month period, the ratio (expressed as a
percentage) of (1) Combined EBITDA for such period, to (2) Total Outstanding
Indebtedness less Borrower's unrestricted cash and cash equivalent securities as
of the end of such period to be less than sixteen percent (16%); or
Section 8.06 Unsecured Debt Yield. Unsecured Debt Yield to be less than
sixteen percent (16%).
35
40
ARTICLE IX. EVENTS OF DEFAULT
Section 9.01 Events of Default. Any of the following events shall be an
"Event of Default":
(1) If Borrower shall: fail to pay the principal of any Notes
(including any payment required under Section 6.10) as and when due; or fail to
pay interest accruing on any Notes as and when due and such failure to pay shall
continue unremedied for five (5) days after the due date of such amount; or fail
to pay any fee or any other amount due under this Agreement or any other Loan
Document as and when due and such failure to pay shall continue unremedied for
two (2) days after notice by Administrative Agent of such failure to pay; or
(2) If any representation or warranty made by Borrower or General
Partner in this Agreement or in any other Loan Document or which is contained in
any certificate, document, opinion, financial or other statement furnished at
any time under or in connection with a Loan Document shall prove to have been
incorrect in any material respect on or as of the date made; or
(3) If Borrower shall fail (a) to perform or observe any term, covenant
or agreement contained in Section 6.11, Article VII or Article VIII; or (b) to
perform or observe any term, covenant or agreement contained in this Agreement
(other than obligations specifically referred to elsewhere in this Section 9.01)
and such failure shall remain unremedied for thirty (30) consecutive calendar
days after notice thereof; provided, however, that if any such default under
clause (b) above cannot by its nature be cured within such thirty (30) day grace
period and so long as Borrower shall have commenced cure within such thirty (30)
day grace period and shall, at all times thereafter, diligently prosecute the
same to completion, Borrower shall have an additional period to cure such
default; in no event, however, is the foregoing intended to effect an extension
of the Maturity Date; or
(4) If Borrower or General Partner shall fail (a) to pay any Debt
(other than the payment obligations described in paragraph (1) of this Section )
in an amount equal to or greater than Ten Million Dollars ($10,000,000) when due
(whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise) after the expiration of any applicable grace period, or (b) to
perform or observe any material term, covenant, or condition under any agreement
or instrument relating to any such Debt, when required to be performed or
observed, if the effect of such failure to perform or observe is to accelerate,
or to permit the acceleration of, after the giving of notice or the lapse of
time, or both (other than in cases where, in the judgment of the Required Banks,
meaningful discussions likely to result in (i) a waiver or cure of the failure
to perform or observe, or (ii)
36
41
otherwise averting such acceleration are in progress between Borrower and the
obligee of such Debt), the maturity of such Debt, or any such Debt shall be
declared to be due and payable, or required to be prepaid (other than by a
regularly scheduled or otherwise required prepayment), prior to the stated
maturity thereof; or
(5) If any of Borrower, General Partner or any Affiliate of Borrower to
which One Hundred Million Dollars ($100,000,000) or more of Capitalization Value
is attributable, shall: (a) generally not, or be unable to, or shall admit in
writing its inability to, pay its debts as such debts become due; or (b) make an
assignment for the benefit of creditors, petition or apply to any tribunal for
the appointment of a custodian, receiver or trustee for it or a substantial part
of its assets; or (c) commence any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution or liquidation
law or statute of any jurisdiction, whether now or hereafter in effect; or (d)
have had any such petition or application filed or any such proceeding shall
have been commenced, against it, in which an adjudication or appointment is made
or order for relief is entered, or which petition, application or proceeding
remains undismissed or unstayed for a period of sixty (60) days or more; or (e)
be the subject of any proceeding under which all or a substantial part of its
assets may be subject to seizure, forfeiture or divestiture; or (f) by any act
or omission indicate its consent to, approval of or acquiescence in any such
petition, application or proceeding or order for relief or the appointment of a
custodian, receiver or trustee for all or any substantial part of its property;
or (g) suffer any such custodianship, receivership or trusteeship for all or any
substantial part of its property, to continue undischarged for a period of sixty
(60) days or more; or
(6) If one or more judgments, decrees or orders for the payment of
money in excess of Ten Million Dollars ($10,000,000) in the aggregate shall be
rendered against Borrower or General Partner, and any such judgments, decrees or
orders shall continue unsatisfied and in effect for a period of thirty (30)
consecutive days without being vacated, discharged, satisfied or stayed or
bonded pending appeal; or
(7) If any of the following events shall occur or exist with respect to
Borrower, General Partner, or any ERISA Affiliate: (a) any Prohibited
Transaction involving any Plan; (b) any Reportable Event with respect to any
Plan: (c) the filing under Section 4041 of ERISA of a notice of intent to
terminate any Plan or the termination of any Plan; (d) any event or circumstance
which might constitute grounds entitling the PBGC to institute proceedings under
Section 4042 of ERISA for the termination of, or for the appointment of a
trustee to administer, any Plan, or the institution by the PBGC of any such
37
42
proceedings; or (e) complete or partial withdrawal under Section 4201 or 4204 of
ERISA from a Multiemployer Plan or the reorganization, insolvency, or
termination of any Multiemployer Plan; and in each case above, if such event or
conditions, if any, could in the opinion of any Bank subject Borrower, General
Partner or any ERISA Affiliate to any tax, penalty, or other liability to a
Plan, Multiemployer Plan, the PBGC or otherwise (or any combination thereof)
which in the aggregate exceeds or may exceed Fifty Thousand Dollars ($50,000);
or
(8) If at any time General Partner is not a qualified real estate
investment trust under Sections 856 through 860 of the Code or is not listed on
the New York Stock Exchange; or
(9) If at any time Borrower or General Partner constitutes plan assets
for ERISA purposes (within the meaning of C.F.R. Section 2510.3-101).
Section 9.02 Remedies. If any Event of Default shall occur and be
continuing, Administrative Agent shall, upon request of the Required Banks, by
notice to Borrower, (1) declare the unpaid balance of the Notes, all interest
thereon, and all other amounts payable under this Agreement to be forthwith due
and payable, whereupon such balance, all such interest, and all such amounts due
under this Agreement shall become and be forthwith due and payable, without
presentment, demand, protest, or further notice of any kind, all of which are
hereby expressly waived by Borrower; and/or (2) exercise any remedies provided
in any of the Loan Documents or by law.
ARTICLE X. ADMINISTRATIVE AGENT; RELATIONS AMONG BANKS
Section 10.01 Appointment, Powers and Immunities of Administrative
Agent. Each Bank hereby irrevocably appoints and authorizes Administrative Agent
to act as its agent hereunder and under any other Loan Document with such powers
as are specifically delegated to Administrative Agent by the terms of this
Agreement and any other Loan Document, together with such other powers as are
reasonably incidental thereto. Administrative Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement and any
other Loan Document or required by law, and shall not by reason of this
Agreement be a fiduciary or trustee for any Bank except to the extent that
Administrative Agent acts as an agent with respect to the receipt or payment of
funds. Administrative Agent shall not be responsible to the Banks for any
recitals, statements, representations or warranties made by Borrower or any
officer, partner or official of Borrower or any other Person contained in this
Agreement or any other Loan Document, or in any certificate or other document or
instrument referred to or provided for in, or received by any of them under,
this Agreement or any other
38
43
Loan Document, or for the value, legality, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
any other document or instrument referred to or provided for herein or therein,
for the perfection or priority of any Lien securing the Obligations or for any
failure by Borrower to perform any of its obligations hereunder or thereunder.
Administrative Agent may employ agents and attorneys-in-fact and shall not be
responsible, except as to money or securities received by it or its authorized
agents, for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. Neither Administrative Agent nor any of its
directors, officers, employees or agents shall be liable or responsible for any
action taken or omitted to be taken by it or them hereunder or under any other
Loan Document or in connection herewith or therewith, except for its or their
own gross negligence or willful misconduct. Borrower shall pay any fee agreed to
by Borrower and Administrative Agent with respect to Administrative Agent's
services hereunder.
Section 10.02 Reliance by Administrative Agent. Administrative Agent
shall be entitled to rely upon any certification, notice or other communication
(including any thereof by telephone, telex, telegram or cable) believed by it to
be genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by Administrative Agent.
Administrative Agent may deem and treat each Bank as the holder of the Loan made
by it for all purposes hereof and shall not be required to deal with any Person
who has acquired a participation in any Loan or participation from a Bank. As to
any matters not expressly provided for by this Agreement or any other Loan
Document, Administrative Agent shall in all cases be fully protected in acting,
or in refraining from acting, hereunder in accordance with instructions signed
by the Required Banks, and such instructions of the Required Banks and any
action taken or failure to act pursuant thereto shall be binding on all of the
Banks and any other holder of all or any portion of any Loan or participation.
Section 10.03 Defaults. Administrative Agent shall not be deemed to
have knowledge of the occurrence of a Default or Event of Default unless
Administrative Agent has received notice from a Bank or Borrower specifying such
Default or Event of Default and stating that such notice is a "Notice of
Default." In the event that Administrative Agent receives such a notice of the
occurrence of a Default or Event of Default, Administrative Agent shall give
prompt notice thereof to the Banks. Administrative Agent, following consultation
with the Banks, shall (subject to Section 10.07) take such action with respect
to such Default or Event of Default which is continuing as shall be directed by
the Required Banks; provided that, unless and until
39
44
Administrative Agent shall have received such directions, Administrative Agent
may take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interest of
the Banks; and provided further that Administrative Agent shall not send a
Notice of Default or acceleration to Borrower without the approval of the
Required Banks. In no event shall Administrative Agent be required to take any
such action which it determines to be contrary to law.
Section 10.04 Rights of Administrative Agent as a Bank. With respect to
its Loan Commitment and the Loan provided by it, Administrative Agent in its
capacity as a Bank hereunder shall have the same rights and powers hereunder as
any other Bank and may exercise the same as though it were not acting as
Administrative Agent, and the term "Bank" or "Banks" shall, unless the context
otherwise indicates, include Administrative Agent in its capacity as a Bank.
Administrative Agent and its Affiliates may (without having to account therefor
to any Bank) accept deposits from, lend money to (on a secured or unsecured
basis), and generally engage in any kind of banking, trust or other business
with Borrower (and any Affiliates of Borrower) as if it were not acting as
Administrative Agent.
Section 10.05 Indemnification of Administrative Agent. Each Bank agrees
to indemnify Administrative Agent (to the extent not reimbursed under Section
12.04 or under the applicable provisions of any other Loan Document, but without
limiting the obligations of Borrower under Section 12.04 or such provisions),
for its Pro Rata Share of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever which may be imposed on, incurred by or asserted
against Administrative Agent in any way relating to or arising out of this
Agreement, any other Loan Document or any other documents contemplated by or
referred to herein or the transactions contemplated hereby or thereby
(including, without limitation, the costs and expenses which Borrower is
obligated to pay under Section 12.04) or under the applicable provisions of any
other Loan Document or the enforcement of any of the terms hereof or thereof or
of any such other documents or instruments; provided that no Bank shall be
liable for (1) any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the party to be indemnified, (2) any loss of
principal or interest with respect to Administrative Agent's Loan or (3) any
loss suffered by Administrative Agent in connection with a swap or other
interest rate hedging arrangement entered into with Borrower.
Section 10.06 Non-Reliance on Administrative Agent and Other Banks.
Each Bank agrees that it has, independently and without reliance on
Administrative Agent or any other Bank, and based on such documents and
information as it has deemed
40
45
appropriate, made its own credit analysis of Borrower and the decision to enter
into this Agreement and that it will, independently and without reliance upon
Administrative Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
analysis and decisions in taking or not taking action under this Agreement or
any other Loan Document. Administrative Agent shall not be required to keep
itself informed as to the performance or observance by Borrower of this
Agreement or any other Loan Document or any other document referred to or
provided for herein or therein or to inspect the properties or books of
Borrower. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by Administrative Agent
hereunder, Administrative Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the affairs,
financial condition or business of Borrower (or any Affiliate of Borrower) which
may come into the possession of Administrative Agent or any of its Affiliates.
Administrative Agent shall not be required to file this Agreement, any other
Loan Document or any document or instrument referred to herein or therein, for
record or give notice of this Agreement, any other Loan Document or any document
or instrument referred to herein or therein, to anyone.
Section 10.07 Failure of Administrative Agent to Act. Except for action
expressly required of Administrative Agent hereunder, Administrative Agent shall
in all cases be fully justified in failing or refusing to act hereunder unless
it shall have received further assurances (which may include cash collateral) of
the indemnification obligations of the Banks under Section 10.05 in respect of
any and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action.
Section 10.08 Resignation or Removal of Administrative Agent.
Administrative Agent shall have the right to resign at any time. Administrative
Agent may be removed at any time with cause by the Required Banks, provided that
Borrower and the other Banks shall be promptly notified thereof. Upon any such
removal or resignation, the Required Banks shall have the right to appoint a
successor Administrative Agent which successor Administrative Agent, so long as
it is reasonably acceptable to the Required Banks, shall be that Bank then
having the greatest Loan Commitment. If no successor Administrative Agent shall
have been so appointed by the Required Banks and shall have accepted such
appointment within thirty (30) days after the Required Banks' removal of the
retiring Administrative Agent, then the retiring Administrative Agent may, on
behalf of the Banks, appoint a successor Administrative Agent, which shall be
one of the Banks. The Required Banks or the retiring Administrative Agent, as
the case may be, shall upon the appointment of a successor Administrative Agent
promptly so notify Borrower and
41
46
the other Banks. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After any retiring Administrative Agent's removal hereunder as
Administrative Agent, the provisions of this Article X shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as Administrative Agent.
Section 10.09 Amendments Concerning Agency Function. Notwithstanding
anything to the contrary contained in this Agreement, Administrative Agent shall
not be bound by any waiver, amendment, supplement or modification of this
Agreement or any other Loan Document which affects its duties, rights, and/or
function hereunder or thereunder unless it shall have given its prior written
consent thereto.
Section 10.10 Liability of Administrative Agent. Administrative Agent
shall not have any liabilities or responsibilities to Borrower on account of the
failure of any Bank to perform its obligations hereunder or to any Bank on
account of the failure of Borrower to perform its obligations hereunder or under
any other Loan Document.
Section 10.11 Transfer of Agency Function. Without the consent of
Borrower or any Bank, Administrative Agent may at any time or from time to time
transfer its functions as Administrative Agent hereunder to any of its offices
wherever located in the United States, provided that Administrative Agent shall
promptly notify Borrower and the Banks thereof.
Section 10.12 Non-Receipt of Funds by Administrative Agent. Unless
Administrative Agent shall have received notice from a Bank or Borrower (either
one as appropriate being the "Payor") prior to the date on which such Bank is to
make payment hereunder to Administrative Agent of the proceeds of a Loan or
Borrower is to make payment to Administrative Agent, as the case may be (either
such payment being a "Required Payment"), which notice shall be effective upon
receipt, that the Payor will not make the Required Payment in full to
Administrative Agent, Administrative Agent may assume that the Required Payment
has been made in full to Administrative Agent on such date, and Administrative
Agent in its sole discretion may, but shall not be obligated to, in reliance
upon such assumption, make the amount thereof available to the intended
recipient on such date. If and to the extent the Payor shall not have in fact so
made the Required Payment in full to Administrative Agent, the recipient of such
payment shall repay to Administrative Agent forthwith on demand such amount made
available to it together with interest
42
47
thereon, for each day from the date such amount was so made available by
Administrative Agent until the date Administrative Agent recovers such amount,
at the customary rate set by Administrative Agent for the correction of errors
among Banks for three (3) Banking Days and thereafter at the Base Rate.
Section 10.13 Withholding Taxes. Each Bank represents at all times
during the term of this Agreement that it is entitled to receive any payments to
be made to it hereunder without the withholding of any tax and will furnish to
Administrative Agent and Borrower such forms, certifications, statements and
other documents as Administrative Agent or Borrower may request from time to
time to evidence such Bank's exemption from the withholding of any tax imposed
by any jurisdiction or to enable Administrative Agent or Borrower to comply with
any applicable Laws or regulations relating thereto. Without limiting the effect
of the foregoing, if any Bank is not created or organized under the laws of the
United States of America or any state thereof, such Bank will furnish to
Administrative Agent and Borrower a United States Internal Revenue Service Form
4224 in respect of all payments to be made to such Bank by Borrower or
Administrative Agent under this Agreement or any other Loan Document or a United
States Internal Revenue Service Form 1001 establishing such Bank's complete
exemption from United States withholding tax in respect of payments to be made
to such Bank by Borrower or Administrative Agent under this Agreement or any
other Loan Document, or such other forms, certifications, statements or
documents, duly executed and completed by such Bank as evidence of such Bank's
exemption from the withholding of U.S. tax with respect thereto. Administrative
Agent shall not be obligated to make any payments hereunder to such Bank in
respect of any Loan or participation or such Bank's Loan Commitment or
obligation to purchase participations until such Bank shall have furnished to
Administrative Agent and Borrower the requested form, certification, statement
or document.
Section 10.14 Minimum Commitment by UBS. Subsequent to the Closing
Date, UBS hereby agrees to maintain a Loan Commitment in an amount no less than
$25,000,000 for so long as no Event of Default exists under this Agreement, as
the same may be decreased from time to time in accordance with the provisions of
this Agreement, and further agrees to hold and not to participate or assign any
of such amount other than an assignment to a Federal Reserve Bank or to the
Parent or a majority-owned subsidiary of UBS.
Section 10.15 Pro Rata Treatment. Except to the extent otherwise
provided, the advance of proceeds of the Loans shall be made by the Banks
ratably according to the amounts of their respective Loan Commitments.
43
48
Section 10.16 Sharing of Payments Among Banks. If a Bank shall obtain
payment of any principal of or interest on any Loan made by it through the
exercise of any right of setoff, banker's lien, counterclaim, or by any other
means (including direct payment), and such payment results in such Bank
receiving a greater payment than it would have been entitled to had such payment
been paid directly to Administrative Agent for disbursement to the Banks, then
such Bank shall promptly purchase for cash from the other Banks participations
in the Loans made by the other Banks in such amounts, and make such other
adjustments from time to time as shall be equitable to the end that all the
Banks shall share ratably the benefit of such payment. To such end the Banks
shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or must otherwise
be restored. Borrower agrees that any Bank so purchasing a participation in the
Loans made by other Banks may exercise all rights of setoff, banker's lien,
counterclaim or similar rights with respect to such participation. Nothing
contained herein shall require any Bank to exercise any such right or shall
affect the right of any Bank to exercise, and retain the benefits of exercising,
any such right with respect to any other indebtedness of Borrower.
Section 10.17 Possession of Documents. Each Bank shall keep possession
of its own Note. Administrative Agent shall hold all the other Loan Documents
and related documents in its possession and maintain separate records and
accounts with respect thereto, and shall permit the Banks and their
representatives access at all reasonable times to inspect such Loan Documents,
related documents, records and accounts.
ARTICLE XI. NATURE OF OBLIGATIONS
Section 11.01 Absolute and Unconditional Obligations. Borrower and
General Partner acknowledge and agree that their obligations and liabilities
under this Agreement and under the other Loan Documents shall be absolute and
unconditional irrespective of: (1) any lack of validity or enforceability of any
of the Obligations, any Loan Documents, or any agreement or instrument relating
thereto; (2) any change in the time, manner or place of payment of, or in any
other term in respect of, all or any of the Obligations, or any other amendment
or waiver of or consent to any departure from any Loan Documents or any other
documents or instruments executed in connection with or related to the
Obligations; (3) any exchange or release of any collateral, if any, or of any
other Person from all or any of the Obligations; or (4) any other circumstances
which might otherwise constitute a defense available to, or a discharge of,
Borrower, General Partner or any other Person in respect of the Obligations.
44
49
The obligations and liabilities of Borrower and General Partner under
this Agreement and other Loan Documents shall not be conditioned or contingent
upon the pursuit by any Bank or any other Person at any time of any right or
remedy against Borrower, General Partner or any other Person which may be or
become liable in respect of all or any part of the Obligations or against any
collateral or security or guarantee therefor or right of setoff with respect
thereto.
Section 11.02 Non-Recourse to VRT Principals. This Agreement and the
obligations hereunder and under the Loan Documents are fully recourse to
Borrower and General Partner. Notwithstanding anything to the contrary contained
in this Agreement, in any of the other Loan Documents, or in any other
instruments, certificates, documents or agreements executed in connection with
the Loans (all of the foregoing, for purposes of this Section , hereinafter
referred to, individually and collectively, as the "Relevant Documents"), no
recourse under or upon any Obligation, representation, warranty, promise or
other matter whatsoever shall be had against any of the VRT Principals and each
Bank expressly waives and releases, on behalf of itself and its successors and
assigns, all right to assert any liability whatsoever under or with respect to
the Relevant Documents against, or to satisfy any claim or obligation arising
thereunder against, any of the VRT Principals or out of any assets of the VRT
Principals, provided, however, that nothing in this Section shall be deemed to:
(1) release Borrower or General Partner from any personal liability pursuant to,
or from any of its respective obligations under, the Relevant Documents, or from
personal liability for its fraudulent actions or fraudulent omissions; (2)
release any VRT Principals from personal liability for its or his own fraudulent
actions or fraudulent omissions; (3) constitute a waiver of any obligation
evidenced or secured by, or contained in, the Relevant Documents or affect in
any way the validity or enforceability of the Relevant Documents; or (4) limit
the right of Administrative Agent and/or the Banks to proceed against or realize
upon any collateral hereafter given for the Loans or any and all of the assets
of Borrower or General Partner (notwithstanding the fact that the VRT Principals
have an ownership interest in Borrower or General Partner and, thereby, an
interest in the assets of Borrower or General Partner) or to name Borrower or
General Partner (or, to the extent that the same are required by applicable law
or are determined by a court to be necessary parties in connection with an
action or suit against Borrower, General Partner or any collateral hereafter
given for the Loans, any of the VRT Principals) as a party defendant in, and to
enforce against any collateral hereafter given for the Loans and/or assets of
Borrower or General Partner any judgment obtained by Administrative Agent and/or
the Banks with respect to, any action or suit under the Relevant Documents so
long as no judgment shall be taken (except to the extent taking a judgment is
required by applicable law or determined by a court to be
45
50
necessary to preserve Administrative Agent's and/or Banks' rights against any
collateral hereafter given for the Loans or Borrower or General Partner, but not
otherwise) or shall be enforced against the VRT Principals or their assets.
ARTICLE XII. MISCELLANEOUS
Section 12.01 Binding Effect of Request for Advance. Borrower agrees
that, by its acceptance of the advance of proceeds of the Loans under this
Agreement, it shall be bound in all respects by any request for advance
submitted on its behalf in connection therewith with the same force and effect
as if Borrower had itself executed and submitted the request for advance and
whether or not the request for advance is executed and/or submitted by an
authorized person.
Section 12.02 Amendments and Waivers. No amendment or material waiver
of any provision of this Agreement or any other Loan Document nor consent to any
material departure by Borrower therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Required Banks and, solely for
purposes of its acknowledgment thereof, Administrative Agent, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given, provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by all the Banks do any of the
following: (1) reduce the principal of, or interest on, the Notes or any fees
due hereunder or any other amount due hereunder or under any Loan Document; (2)
postpone any date fixed for any payment of principal of, or interest on, the
Notes or any fees due hereunder or under any Loan Document, or waive any default
in the payment of principal, interest or any other amount due hereunder or under
any Loan Documents; (3) change the definition of Required Banks; (4) amend this
Section or any other provision requiring the consent of all the Banks; or (5)
waive any default under paragraph (5) of Section 9.01. No failure on the part of
Administrative Agent or any Bank to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof or preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law. All
communications from Administrative Agent to the Banks requesting the Banks'
determination, consent, approval or disapproval (i) shall be given in the form
of a written notice to each Bank, (ii) shall be accompanied by a description of
the matter or thing as to which such determination, approval, consent or
disapproval is requested and (iii) shall include Administrative Agent's
recommended course of action or determination in respect thereof. Each Bank
shall reply promptly, but in any event within fifteen (15) Banking Days (or five
(5) Banking Days with respect to any decision to accelerate or stop acceleration
of the Loan) after
46
51
receipt of the request therefor by Administrative Agent (the "Bank Reply
Period"). Unless a Bank shall give written notice to Administrative Agent that
it objects to the recommendation or determination of Administrative Agent
(together with a written explanation of the reasons behind such objection)
within the Bank Reply Period, such Bank shall be deemed to have approved or
consented to such recommendation or determination.
Section 12.03 Usury. Anything herein to the contrary notwithstanding,
the obligations of Borrower under this Agreement and the Notes shall be subject
to the limitation that payments of interest shall not be required to the extent
that receipt thereof would be contrary to provisions of law applicable to a Bank
limiting rates of interest which may be charged or collected by such Bank.
Section 12.04 Expenses; Indemnification. Borrower agrees to reimburse
Administrative Agent on demand for all costs, expenses, and charges (including,
without limitation, all reasonable fees and charges of engineers, appraisers and
external legal counsel) incurred by Administrative Agent in connection with the
Loans and to reimburse each of the Banks for reasonable legal costs, expenses
and charges incurred by each of the Banks in connection with the performance or
enforcement of this Agreement, the Notes, or any other Loan Documents; provided,
however, that Borrower is not responsible for costs, expenses and charges
incurred by the Bank Parties in connection with the administration or
syndication of the Loans. Borrower agrees to indemnify Administrative Agent and
each Bank and their respective directors, officers, employees and agents from,
and hold each of them harmless against, any and all losses, liabilities, claims,
damages or expenses incurred by any of them arising out of or by reason of (x)
any claims by brokers due to acts or omissions by Borrower, or (y) any
investigation or litigation or other proceedings (including any threatened
investigation or litigation or other proceedings) relating to any actual or
proposed use by Borrower of the proceeds of the Loans, including without
limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such investigation or litigation or other proceedings (but
excluding any such losses, liabilities, claims, damages or expenses incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified).
The obligations of Borrower under this Section shall survive the
repayment of all amounts due under or in connection with any of the Loan
Documents and the termination of the Loans.
Section 12.05 Assignment; Participation. This Agreement shall be
binding upon, and shall inure to the benefit of, Borrower, Administrative Agent,
the Banks and their
47
52
respective successors and permitted assigns. Borrower may not assign or transfer
its rights or obligations hereunder.
Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Loan (the
"Participations") with the consent of Administrative Agent, which consent shall
not be unreasonably withheld or delayed. In the event of any such grant by a
Bank of a participating interest to a Participant, whether or not Borrower or
Administrative Agent was given notice, such Bank shall remain responsible for
the performance of its obligations hereunder, and Borrower and Administrative
Agent shall continue to deal solely and directly with such Bank in connection
with such Bank's rights and obligations hereunder. Any agreement pursuant to
which any Bank may grant such a participating interest shall provide that such
Bank shall retain the sole right and responsibility to enforce the obligations
of Borrower hereunder and under any other Loan Document including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of this Agreement or any other Loan Document; provided that such
participation agreement may provide that such Bank will not agree to any
modification, amendment or waiver of this Agreement described in Section 12.02
without the consent of the Participant.
Subject to the provisions of Section 10.14, any Bank having a Loan
Commitment in an amount of Thirty Million Dollars ($30,000,000) or more may at
any time assign to any bank or other institution with the acknowledgment of
Administrative Agent and the consent of Borrower and UBS, which consent shall
not be unreasonably withheld or delayed (such assignee, a "Consented Assignee"),
or to one or more banks or other institutions which are majority owned
subsidiaries of a Bank or to the Parent of a Bank (each Consented Assignee or
subsidiary bank or institution, an "Assignee") all, or a proportionate part of
all, of its rights and obligations under this Agreement and its Note, and such
Assignee shall assume rights and obligations, pursuant to an Assignment and
Assumption Agreement executed by such Assignee and the Bank, provided that, in
each case, after giving effect to such assignment each Bank's and each
Assignee's portion of the Loan will be equal to or greater than Fifteen Million
Dollars ($15,000,000). Upon execution and delivery of such instrument and
payment by such Assignee to the Bank of an amount equal to the purchase price
agreed between the Bank and such Assignee, such Assignee shall be a Bank Party
to this Agreement and shall have all the rights and obligations of a Bank as set
forth in such Assignment and Assumption Agreement, and the Bank shall be
released from its obligations hereunder to a corresponding extent, and no
further consent or action by any party shall be required. Upon the consummation
of any assignment pursuant to this paragraph, substitute notes shall be issued
to the assigning Bank and Assignee by Borrower, in exchange for the return of
the
48
53
original Note. All such substitute notes shall constitute "Notes" and the
obligations evidenced by such substitute notes shall constitute "Obligations"
for all purposes of this Agreement and the other Loan Documents. If the Assignee
is not incorporated under the laws of the United States of America or a state
thereof, it shall, prior to the first date on which interest or fees are payable
hereunder for its account, deliver to Borrower and Administrative Agent
certification as to exemption from deduction or withholding of any United States
federal income taxes in accordance with Section 10.13. Each Assignee shall be
deemed to have made the representations contained in, and shall be bound by the
provisions of, Section 10.13.
Any Bank may at any time assign all or any portion of its rights under
this Agreement and its Note to a Federal Reserve Bank. No such assignment shall
release the transferor Bank from its obligations hereunder.
Borrower recognizes that in connection with a Bank's selling of
Participations or making of assignments, any or all documentation, financial
statements, appraisals and other data, or copies thereof, relevant to Borrower
or the Loans may be exhibited to and retained by any such Participant or
assignee or prospective Participant or assignee. In connection with a Bank's
delivery of any financial statements and appraisals to any such Participant or
assignee or prospective Participant or assignee, such Bank shall also indicate
that the same are delivered on a confidential basis. Borrower agrees to provide
all assistance reasonably requested by a Bank to enable such Bank to sell
Participations or make assignments of its Loan as permitted by this Section .
Each Bank agrees to provide Borrower with notice of all Participations sold by
such Bank.
Section 12.06 Documentation Satisfactory. All documentation required
from or to be submitted on behalf of Borrower in connection with this Agreement
and the documents relating hereto shall be subject to the prior approval of, and
be satisfactory in form and substance to, Administrative Agent, its counsel and,
where specifically provided herein, the Banks. In addition, the persons or
parties responsible for the execution and delivery of, and signatories to, all
of such documentation, shall be acceptable to, and subject to the approval of,
Administrative Agent and its counsel and the Banks.
Section 12.07 Notices. Unless the party to be notified otherwise
notifies the other parties in writing as provided in this Section, and except as
otherwise provided in this Agreement, notices shall be given to Administrative
Agent by telephone, confirmed by writing, and to the Banks and to Borrower and
General Partner by ordinary mail or overnight courier or telecopy, receipt
confirmed, addressed to such party at its
49
54
address on the signature page of this Agreement. Notices shall be effective: (1)
if by telephone, at the time of such telephone conversation, (2) if given by
mail, three (3) days after mailing; (3) if given by overnight courier, upon
receipt; and (4) if given by telecopy, upon receipt.
Section 12.08 Setoff. To the extent permitted or not expressly
prohibited by applicable law, Borrower and General Partner agree that, in
addition to (and without limitation of) any right of setoff, bankers' lien or
counterclaim a Bank may otherwise have, each Bank shall be entitled, at its
option, to offset balances (general or special, time or demand, provisional or
final) held by it for the account of Borrower or General Partner at any of such
Bank's offices, in Dollars or in any other currency, against any amount payable
by Borrower or General Partner to such Bank under this Agreement or such Bank's
Note, or any other Loan Document which is not paid when due (regardless of
whether such balances are then due to Borrower or General Partner), in which
case it shall promptly notify Borrower, General Partner and Administrative Agent
thereof; provided that such Bank's failure to give such notice shall not affect
the validity thereof. Payments by Borrower or General Partner hereunder or under
the other Loan Documents shall be made without setoff or counterclaim.
Section 12.09 Table of Contents; Headings. Any table of contents and
the headings and captions hereunder are for convenience only and shall not
affect the interpretation or construction of this Agreement.
Section 12.10 Severability. The provisions of this Agreement are
intended to be severable. If for any reason any provision of this Agreement
shall be held invalid or unenforceable in whole or in part in any jurisdiction,
such provision shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without in any manner affecting the validity
or enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
Section 12.11 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument, and any party hereto may execute this Agreement by signing any
such counterpart.
Section 12.12 Integration. The Loan Documents set forth the entire
agreement among the parties hereto relating to the transactions contemplated
thereby and supersede any prior oral or written statements or agreements with
respect to such transactions.
50
55
Section 12.13 Governing Law. This Agreement shall be governed by, and
interpreted and construed in accordance with, the laws of the State of New York.
Section 12.14 Waivers. To the extent permitted or not expressly
prohibited by applicable law, in connection with the obligations and liabilities
as aforesaid, Borrower and General Partner hereby waive: (1) promptness and
diligence; (2) notice of any actions taken by any Bank Party under this
Agreement, any other Loan Document or any other agreement or instrument relating
thereto except to the extent otherwise provided herein; (3) all other notices,
demands and protests, and all other formalities of every kind in connection with
the enforcement of the Obligations, the omission of or delay in which, but for
the provisions of this Section , might constitute grounds for relieving Borrower
or General Partner of their obligations hereunder; (4) any requirement that any
Bank Party protect, secure, perfect or insure any Lien on any collateral or
exhaust any right or take any action against Borrower, General Partner or any
other Person or any collateral; (5) any right or claim of right to cause a
marshalling of the assets of Borrower or General Partner; and (6) all rights of
subrogation or contribution, whether arising by contract or operation of law
(including, without limitation, any such right arising under the Federal
Bankruptcy Code) or otherwise by reason of payment by Borrower or General
Partner, either jointly or severally, pursuant to this Agreement or other Loan
Documents.
Section 12.15 Jurisdiction; Immunities. Borrower, General Partner,
Administrative Agent and each Bank hereby irrevocably submit to the jurisdiction
of any New York State or United States Federal court sitting in New York City
over any action or proceeding arising out of or relating to this Agreement, the
Notes or any other Loan Document. Borrower, General Partner, Administrative
Agent, and each Bank irrevocably agree that all claims in respect of such action
or proceeding may be heard and determined in such New York State or United
States Federal court. Borrower, General Partner, Administrative Agent, and each
Bank irrevocably consent to the service of any and all process in any such
action or proceeding by the mailing of copies of such process to Borrower,
General Partner, Administrative Agent or each Bank, as the case may be, at the
addresses specified herein. Borrower, General Partner, Administrative Agent and
each Bank agree that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Borrower, General Partner, Administrative
Agent and each Bank further waive any objection to venue in the State of New
York and any objection to an action or proceeding in the State of New York on
the basis of forum non conveniens. Borrower, General Partner, Administrative
Agent and each Bank agree that any action or proceeding brought against
51
56
Borrower, General Partner, Administrative Agent or any Bank, as the case may be,
shall be brought only in a New York State court sitting in New York City or a
United States Federal court sitting in New York City, to the extent permitted or
not expressly prohibited by applicable law.
Nothing in this Section shall affect the right of Borrower, General
Partner, Administrative Agent or any Bank to serve legal process in any other
manner permitted by law.
To the extent that Borrower, General Partner, Administrative Agent or
any Bank have or hereafter may acquire any immunity from jurisdiction of any
court or from any legal process (whether from service or notice, attachment
prior to judgment, attachment in aid of execution, execution or otherwise) with
respect to itself or its property, Borrower, General Partner, Administrative
Agent and each Bank hereby irrevocably waive such immunity in respect of its
obligations under this Agreement, the Notes and any other Loan Document.
BORROWER, GENERAL PARTNER, ADMINISTRATIVE AGENT AND EACH BANK WAIVE ANY
RIGHT EACH SUCH PARTY MAY HAVE TO JURY TRIAL IN CONNECTION WITH ANY SUIT, ACTION
OR PROCEEDING BROUGHT WITH RESPECT TO THIS AGREEMENT, THE NOTES OR THE LOAN. IN
ADDITION, BORROWER AND GENERAL PARTNER HEREBY WAIVE, IN CONNECTION WITH ANY
SUIT, ACTION OR PROCEEDING BROUGHT BY ADMINISTRATIVE AGENT OR THE BANKS WITH
RESPECT TO THE NOTES, ANY RIGHT BORROWER OR GENERAL PARTNER MAY HAVE TO (1) TO
THE EXTENT PERMITTED OR NOT EXPRESSLY PROHIBITED BY APPLICABLE LAW, INTERPOSE
ANY COUNTERCLAIM THEREIN (OTHER THAN A COUNTERCLAIM THAT IF NOT BROUGHT IN THE
SUIT, ACTION OR PROCEEDING BROUGHT BY ADMINISTRATIVE AGENT OR THE BANKS COULD
NOT BE BROUGHT IN A SEPARATE SUIT, ACTION OR PROCEEDING OR WOULD BE SUBJECT TO
DISMISSAL OR SIMILAR DISPOSITION FOR FAILURE TO HAVE BEEN ASSERTED IN SUCH SUIT,
ACTION OR PROCEEDING BROUGHT BY ADMINISTRATIVE AGENT OR THE BANKS) OR (2) TO THE
EXTENT PERMITTED OR NOT EXPRESSLY PROHIBITED BY APPLICABLE LAW, HAVE THE SAME
CONSOLIDATED WITH ANY OTHER OR SEPARATE SUIT, ACTION OR PROCEEDING. NOTHING
HEREIN CONTAINED SHALL PREVENT OR PROHIBIT BORROWER OR GENERAL PARTNER FROM
INSTITUTING OR MAINTAINING A SEPARATE ACTION AGAINST ADMINISTRATIVE AGENT OR THE
BANKS WITH RESPECT TO ANY ASSERTED CLAIM.
52
57
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
VORNADO REALTY L.P., a
Delaware limited partnership
By: Vornado Realty Trust, a
Maryland real estate
investment trust, general
partner
By /s/ Joseph Macnow
----------------------------------
Name: Joseph Macnow
Title: Vice President
VORNADO REALTY TRUST, a Maryland
real estate investment trust
By /s/ Joseph Macnow
---------------------------------------
Name: Joseph Macnow
Title: Vice President
Address for Notices for both:
Park 80 West
Plaza II
Saddle Brook, New Jersey 07663
Attention: Steven Roth, Chairman
and
Joseph Macnow, Vice
President and Chief
Financial Officer
Telephone: (201) 587-1000
Telecopy: (201) 587-0600
with copies to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Patricia A. Ceruzzi
and
Janet Geldzahler
Telephone: (212) 558-4000
Telecopy: (212) 558-3588
53
58
UNION BANK OF SWITZERLAND
(New York Branch)
(as Bank and Administrative Agent)
By /s/ Joseph Bassil
---------------------------------------
Name: Joseph Bassil
Title: Vice President
By /s/ Albert Rabil, III
---------------------------------------
Name: Albert Rabil, III
Title: Managing Director
Address for Notices and Applicable
Lending Office for Base Rate Loan
and LIBOR Loan:
299 Park Avenue
38th Floor
New York, New York 10171-0026
Attention: Albert Rabil, III
and Mara Martez
Telephone: (212) 821-3872
Telecopy: (212) 821-3943
with copies to:
Dewey Ballantine
1301 Avenue of the Americas
New York, New York 10019
Attention: George C. Weiss
Telephone: (212) 259-7320
Telecopy: (212) 259-6333
54
59
EXHIBIT A
AUTHORIZATION LETTER
April 15, 1997
Union Bank of Switzerland
(New York Branch)
299 Park Avenue
New York, New York 10171
Re: Credit Agreement dated as of April 15, 1997 (the "Loan
Agreement"; capitalized terms not otherwise defined herein
shall have the meanings ascribed to such terms in the Loan
Agreement) among us, as Borrower, the Banks named therein, and
you, as Administrative Agent for said Banks
Gentlemen:
In connection with the captioned Loan Agreement, we hereby designate
any of the following persons to give to you instructions, including notices
required pursuant to the Agreement, orally, by telephone or teleprocess, or in
writing:
Steven Roth
Michael Fascitelli
Joseph Macnow
Clifford Broser
Ross Morrison
Instructions may be honored on the oral, telephonic, teleprocess or
written instructions of anyone purporting to be any one of the above designated
persons even if the instructions are for the benefit of the person delivering
them. We will furnish you with confirmation of each such instruction either by
telex (whether tested or untested) or in writing signed by any person designated
above (including any telecopy which appears to bear the signature of any person
designated above) on the same day that the instruction is provided to you but
your responsibility with respect to any instruction shall not be affected by
your failure to receive such confirmation or by its contents.
60
Without limiting the foregoing, we hereby unconditionally authorize any
one of the above-designated persons to execute and submit the request for the
advance of proceeds of the Loans and notices of Conversions and Continuations to
you under the Loan Agreement with the identical force and effect in all respects
as if executed and submitted by us.
You shall be fully protected in, and shall incur no liability to us
for, acting upon any instructions which you in good faith believe to have been
given by any person designated above, and in no event shall you be liable for
special, consequential or punitive damages. In addition, we agree to hold you
and your agents harmless from any and all liability, loss and expense arising
directly or indirectly out of instructions that we provide to you in connection
with the Loan Agreement except for liability, loss or expense occasioned by the
gross negligence or willful misconduct of you or your agents.
Upon notice to us, you may, at your option, refuse to execute any
instruction, or part thereof, without incurring any responsibility for any loss,
liability or expense arising out of such refusal if you in good faith believe
that the person delivering the instruction is not one of the persons designated
above or if the instruction is not accompanied by an authentication method that
we have agreed to in writing.
We will promptly notify you in writing of any change in the persons
designated above and, until you have actually received such written notice and
have had a reasonable opportunity to act upon it, you are authorized to act upon
instructions, even though the person delivering them may no longer be
authorized.
Very truly yours,
VORNADO REALTY L.P., a
Delaware limited partnership
By: Vornado Realty Trust, a
Maryland real estate
investment trust, general
partner
By
-----------------------------------
Name:
Title:
2
61
EXHIBIT B
NOTE
$___________ New York, New York
__________, 199_
For value received, Vornado Realty L.P., a Delaware limited partnership
("Borrower"), hereby promises to pay to the order of ___________ or its
successors or assigns (collectively, the "Bank"), at the principal office of
Union Bank of Switzerland (New York Branch) located at 299 Park Avenue, New
York, New York 10171 (the "Administrative Agent") for the account of the
Applicable Lending Office at the Bank, the principal sum of ________ Dollars
($____________), or if less, the amount loaned by the Bank to Borrower pursuant
to the Loan Agreement (as defined below) and actually outstanding, in lawful
money of the United States and in immediately available funds, in accordance
with the terms set forth in the Loan Agreement. Borrower also promises to pay
interest on the unpaid principal balance hereof, for the period such balance is
outstanding, in like money, at said office for the account of said Applicable
Lending Office, at the time and at a rate per annum as provided in the Loan
Agreement. Any amount of principal hereof which is not paid when due, whether at
stated maturity, by acceleration, or otherwise, shall bear interest from the
date when due until said principal amount is paid in full, payable on demand, at
the rate set forth in the Loan Agreement.
The date and amount of each payment of the Loan, shall be recorded by
the Bank on its books and, prior to any transfer of this Note (or, at the
discretion of the Bank, at any other time), endorsed by the Bank on the schedule
attached hereto and any continuation thereof.
This Note is one of the Notes referred to in the Credit Agreement dated
as of April 15, 1997 (as the same may be amended from time to time, the "Loan
Agreement") among Borrower, Vornado Realty Trust, the Banks named therein
(including the Bank) and Administrative Agent, as administrative agent for the
Banks. All of the terms, conditions and provisions of the Loan Agreement are
hereby incorporated by reference. All capitalized terms used herein and not
defined herein shall have the meanings given to them in the Loan Agreement.
The Loan Agreement contains, among other things, provisions for the
prepayment of and acceleration of this Note upon the happening of certain stated
events.
62
No recourse shall be had under this Note against the VRT Principals
except as and to the extent set forth in Section 11.02 of the Loan Agreement.
All parties to this Note, whether principal, surety, guarantor or
endorser, hereby waive presentment for payment, demand, protest, notice of
protest and notice of dishonor.
This Note shall be governed by the laws of the State of New York,
provided that, as to the maximum lawful rate of interest which may be charged or
collected, if the laws applicable to the Bank permit it to charge or collect a
higher rate than the laws of the State of New York, then such law applicable to
the Bank shall apply to the Bank under this Note.
IN WITNESS WHEREOF, Borrower has executed and delivered this Note on
the day and year first above written.
Very truly yours,
VORNADO REALTY L.P., a
Delaware limited partnership
By: Vornado Realty Trust, a
Maryland real estate
investment trust, general
partner
By
-----------------------------------
Name:
Title:
This is to certify that this Note was executed in my presence on the
date hereof by the party whose signature appears above in the capacity
indicated.
----------------------------
Notary Public
My commission expires:
----------------------------
2
63
Amount Balance
Date of Payment Outstanding Notation By
64
EXHIBIT C
LIST OF MATERIAL AFFILIATES
65
EXHIBIT C
STATE OF PERCENTAGE
NAME OF SUBSIDIARY ORGANIZATION OF OWNERSHIP
- ------------------------------------------- ------------ ------------
14th Street Acquisition Corporation New York 100%
Amherst Holding Corporation New York 100%
Amherst Industries, Inc. New York 100%
Atlantic City Holding Corporation New Jersey 100%
Bensalem Holding Company Pennsylvania 100%
Bethlehem Holding Company Pennsylvania 100%
Bordertown Holding Corporation New Jersey 100%
Brentwood Development Corp. New York 100%
Bridgeland Warehouses, Inc. New Jersey 100%
Camden Holding Corporation New Jersey 100%
Chicopee Holding Corporation Massachusetts 100%
Clementon Holding Corporation New Jersey 100%
Cross Avenue Broadway Corporation New York 100%
Cumberland Holding Corporation New Jersey 100%
Dallas Skillman Abrams Crossing Corporation Texas 100%
Delran Holding Corporation New Jersey 100%
Dover Holding Corporation New Jersey 100%
Dundalk Stores Corporation Maryland 100%
Durham Leasing Corp. New Jersey 100%
Eudowood Holding Corporation Maryland 100%
Evesham Holding Corporation New Jersey 100%
Gallery Market Holding Company Pennsylvania 100%
Glen Burnie Shopping Plaza, Inc. Maryland 100%
Greenwich Holding Corporation New York 100%
Hackbridge Corporation New Jersey 100%
Hagerstown Holding Corporation Maryland 100%
Hanover Holding Corporation New Jersey 100%
Hanover Industries, Inc. New Jersey 100%
Hanover Leasing Corporation New Jersey 100%
Hanover Public Warehousing, Inc. New Jersey 100%
Henrietta Holding Corp. New York 100%
HEP Acquisition Corporation Delaware 100%
Jersey City Leasing Corporation New Jersey 100%
Kearny Holding Corp. New Jersey 100%
Kearny Leasing Corporation New Jersey 100%
Lancaster Holding Company Pennsylvania 100%
Landthorp Enterprises, Inc. Delaware 100%
Lawnside Holding Corporation New Jersey 100%
Lawnwhite Leasing Corporation New Jersey 100%
Lawnwhite Holding Corporation New Jersey 100%
Lewisville Town Centre Corporation Texas 100%
Littleton Holding Corporation New Jersey 100%
Lodi Industries Corp. New Jersey 100%
Lodi Leasing Corporation New Jersey 100%
Manalapan Industries, Inc. New Jersey 100%
Marple Holding Company Pennsylvania 100%
The assets held by the entities listed above have been transferred (by
contribution, merger or otherwise) to partnerships or limited liability
companies who are the successors to such entities and constitute the Material
Affiliates
66
STATE OF PERCENTAGE
NAME OF SUBSIDIARY ORGANIZATION OF OWNERSHIP
- ------------------ ------------ ------------
Menands Holding Corporation New York 100%
Mesquite Crossing Corporation Texas 100%
Middletown Holding Corporation New Jersey 100%
Montclair Holding Corporation New Jersey 100%
Morris Plains Leasing Corp. New Jersey 100%
National Hydrant Corporation New York 100%
New Hanover, Inc. New Jersey 100%
Newington Holding Corporation Connecticut 100%
New Woodbridge, Inc. New Jersey 100%
North Bergen Stores, Inc. New Jersey 100%
North Plainfield Holding Corporation New Jersey 100%
Oak Trading Company New Jersey 100%
Philadelphia Holding Company Pennsylvania 100%
Phillipsburg Holding Corporation New Jersey 100%
Pike Holding Company Pennsylvania 100%
Princeton Corridor Holding Corporation New Jersey 100%
Princeton Windsor Holding Corporation New Jersey 100%
Rahway Leasing Corporation New Jersey 100%
RMJ Company, Inc. New Jersey 100%
Rochester Holding Corporation New York 100%
Silver Lane Properties Connecticut 100%
Springfield Holding Corporation Massachusetts 100%
Star Universal Corporation New Jersey 100%
T.G. Hanover, Inc. New Jersey 100%
T.G. Stores, Inc. Maryland 100%
The Second Lawnside Corporation New Jersey 100%
The Second Rochester Corporation New York 100%
Turnersville Holding Corporation New Jersey 100%
Two Guys - Conn., Inc. Connecticut 100%
Two Guys - Mass., Inc. Massachusetts 100%
Two Guys from Harrison, Inc. New Jersey 100%
Two Guys from Harrison Company Pennsylvania 100%
Two Guys from Harrison - N.Y., Inc. New York 100%
Unado Corp. New Jersey 100%
Upper Moreland Holding Company Pennsylvania 100%
Vornado, Inc. New York 100%
Vornado Acquisition Corporation Delaware 100%
Vornado Finance Corp. Delaware 100%
Vornado Holding Corporation Delaware 100%
Vornado Investments Corporation Delaware 100%
Watchung Holding Corporation New Jersey 100%
White Horse Lawnside Corporation New Jersey 100%
West Windsor Holding Corporation New Jersey 100%
York Holding Company Pennsylvania 100%
The assets held by the entities listed above have been transferred (by
contribution, merger or otherwise) to partnerships or limited liability
companies who are the successors to such entities and constitute the Material
Affiliates.
67
EXHIBIT D
SOLVENCY CERTIFICATE
The __________ executing this certificate is the _______________ of
Vornado Realty Trust, a Maryland real estate investment trust ("General
Partner"), a general partner of Vornado Realty L.P., a Delaware limited
partnership ("Borrower"), and is familiar with its properties, assets and
businesses, and is duly authorized to execute this certificate on behalf of
Borrower pursuant to Section 4.01(10) of the Credit Agreement dated April 15,
1997 (the "Loan Agreement") among Borrower, General Partner, the banks party
thereto (each a "Bank" and collectively, the "Banks") and Union Bank of
Switzerland (New York Branch), as agent for the Banks (in such capacity,
together with its successors in such capacity, the "Agent"). In executing this
Certificate, such individual is acting solely in [his] [her] capacity as the
_________ of General Partner, and not in [his] [her] individual capacity. Unless
otherwise defined herein, terms defined in the Loan Agreement are used herein as
therein defined.
The undersigned further certifies that [he] [she] has carefully
reviewed the Loan Agreement and the other Loan Documents and the contents of
this Certificate and, in connection herewith, has made such investigation and
inquiries as [he] [she] deems necessary and prudent therefor. The undersigned
further certifies that the financial information and assumptions which underlie
and form the basis for the representations made in this Certificate were
reasonable when made and were made in good faith and continue to be reasonable
as of the date hereof.
The undersigned understands that the Agent is relying on the truth and
accuracy of this Certificate in connection with the transactions contemplated by
the Loan Agreement.
The undersigned certifies that Borrower is Solvent.
IN WITNESS WHEREOF, the undersigned has executed this Certificate on
April 15, 1997.
------------------------------
68
EXHIBIT E
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT dated as of __________, 199_, among
[insert name of assigning Bank] ("Assignor"), [insert name of Assignee]
("Assignee"), Vornado Realty L.P., a Delaware limited partnership ("Borrower")
and Union Bank of Switzerland (New York Branch), as administrative agent for the
Banks referred to below (in such capacity, together with its successors in such
capacity, the "Administrative Agent").
Preliminary Statement
1. This Assignment and Assumption Agreement (this "Agreement")
relates to the Credit Agreement (as the same may be amended from time to time,
the "Loan Agreement") dated April 15, 1997 among Borrower, Vornado Realty Trust,
the banks party thereto (each a "Bank" and, collectively, the "Banks") and the
Administrative Agent. All capitalized terms not otherwise defined herein shall
have the respective meanings set forth in the Loan Agreement.
2. Subject to the terms and conditions set forth in the Loan
Agreement, Assignor has made a Loan Commitment to Borrower in an aggregate
principal amount of ___________ Dollars ($____________) ("Assignor's Loan
Commitment").
3. The aggregate outstanding principal amount of Assignor's Loan
made pursuant to Assignor's Loan Commitment at commencement of business on the
date hereof is __________ Dollars ($__________).
4. Assignor desires to assign to Assignee (a) all of the rights
of Assignor under the Loan Agreement in respect of a portion of its Loan and
Loan Commitment thereunder in an amount equal to __________ ($__________) (the
"Assigned Loan and Commitment"); and Assignee desires to accept assignment of
such rights and assume the corresponding obligations from Assignor on such
terms.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Assignment. Assignor hereby assigns and sells to Assignee
all of the rights of Assignor under the Loan Agreement in and to the Assigned
Loan and Commitment, and
69
Assignee hereby accepts such assignment from Assignor and assumes all of the
obligations of Assignor under the Loan Agreement with respect to the Assigned
Loan and Commitment. Upon the execution and delivery hereof by Assignor,
Assignee, Borrower and the Administrative Agent and the payment of the amount
specified in Section 2 hereof required to be paid on the date hereof, (1)
Assignee shall, as of the commencement of business on the date hereof, succeed
to the rights and obligations of a Bank under the Loan Agreement with a Loan and
a Loan Commitment in an amount equal to the Assigned Loan and Commitment, and
(2) the Loan and Loan Commitment of Assignor shall, as of the commencement of
business on the date hereof, be reduced correspondingly and Assignor released
from its obligations under the Loan Agreement to the extent such obligations
have been assumed by Assignee. The assignment provided for herein shall be
without recourse to Assignor.
SECTION 2. Payments. As consideration for the assignment and sale
contemplated in Section 1 hereof, Assignee shall pay to Assignor on the date
hereof in immediately available funds an amount equal to __________
($___________) [insert the amount of that portion of Assignor's Loan being
assigned]. It is understood that any fees paid to Assignor under the Loan
Agreement are for the account of Assignor. Each of Assignor and Assignee hereby
agrees that if it receives any amount under the Loan Agreement which is for the
account of the other party hereto, it shall receive the same for the account of
such other party to the extent of such other party's interest therein and shall
promptly pay the same to such other party.
SECTION 3. [CONSENT OF BORROWER AND UBS AND ACKNOWLEDGMENT BY THE
ADMINISTRATIVE AGENT;] Execution and Delivery of Note. [THIS AGREEMENT IS
CONDITIONED UPON THE CONSENT OF BORROWER AND UBS AND ACKNOWLEDGMENT BY THE
ADMINISTRATIVE AGENT PURSUANT TO SECTION 12.05 OF THE LOAN AGREEMENT. THE
EXECUTION OF THIS AGREEMENT BY BORROWER AND UBS AND THE ADMINISTRATIVE AGENT IS
EVIDENCE OF THIS CONSENT AND ACKNOWLEDGMENT, RESPECTIVELY. ONLY NECESSARY IF
ASSIGNEE IS NOT A MAJORITY OWNED SUBSIDIARY OF A BANK OR OF THE PARENT OF A
BANK] Pursuant to Section 12.05 of the Loan Agreement, Borrower has agreed to
execute and deliver Notes payable to the respective orders of Assignee and
Assignor to evidence the assignment and assumption provided for herein.
SECTION 4. Non-Reliance on Assignor. Assignor makes no representation
or warranty in connection with, and shall have no responsibility with respect
to, the solvency, financial condition, or statements of Borrower or any other
party to any Loan Document, or the validity and enforceability of the
obligations of Borrower or any other party to a Loan Document in respect of the
Loan Agreement or any other Loan Document. Assignee acknowledges that it has,
independently and without
2
70
reliance on Assignor, and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Agreement and will continue to be responsible for making its own independent
appraisal of the business, affairs and financial condition of Borrower and the
other parties to the Loan Documents.
SECTION 5. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 6. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
SECTION 7. Certain Representations and Agreements by Assignee.
Reference is made to Section 10.13 of the Loan Agreement. Assignee hereby
represents that it is entitled to receive any payments to be made to it under
the Loan Agreement or hereunder without the withholding of any tax and agrees to
furnish the evidence of such exemption as specified therein and otherwise to
comply with the provisions of said Section 10.13.
3
71
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[NAME OF ASSIGNOR]
By
-----------------------------------
Name:
Title:
[NAME OF ASSIGNEE]
By
-----------------------------------
Name:
Title:
Applicable Lending Office:
Address for Notices:
[Assignee]
[Address]
Attention:
---------------
Telephone: ( )
--- --------
Telecopy: ( )
--- --------
VORNADO REALTY L.P., a
Delaware limited partnership
By: Vornado Realty Trust, a
Maryland real estate
investment trust, general
partner
By
-----------------------------------
Name:
Title:
4
72
UNION BANK OF SWITZERLAND
(New York Branch)
(as Bank and Administrative Agent)
By
-----------------------------------
Name:
Title:
By
-----------------------------------
Name:
Title:
5