1
EXECUTION COPY
--------------------------------------------------------------------------------
Exhibit 10.29
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
dated as of February ___, 1998
among
VORNADO REALTY L.P.
as Borrower,
VORNADO REALTY TRUST,
as General Partner,
UNION BANK OF SWITZERLAND
(New York Branch),
as Bank,
THE OTHER BANKS SIGNATORY HERETO, each as a Bank,
UNION BANK OF SWITZERLAND
(New York Branch),
as Administrative Agent,
CITICORP REAL ESTATE, INC.,
as Syndication Agent,
THE CHASE MANHATTAN BANK,
as Syndication Agent,
and
NATIONSBANK,
as Documentation Agent
--------------------------------------------------------------------------------
2
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this
"Agreement") dated as of February ___, 1998 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"), CITICORP REAL ESTATE, INC., as Syndication
Agent, THE CHASE MANHATTAN BANK, as Syndication Agent, NATIONSBANK, as
Documentation Agent, UNION BANK OF SWITZERLAND (New York Branch) (in its
individual capacity and not as Administrative Agent, "UBS") and the lenders
signatory hereto (UBS, said other lenders signatory hereto and the lenders who
from time to time become Banks pursuant to Section 3.07 or 12.05 and, if
applicable, any of the foregoing lenders' Designated Lender, each a "Bank" and
collectively, the "Banks").
Borrower, General Partner, UBS and the Administrative Agent
entered into a Revolving Credit Agreement dated as of July 17, 1997 (the "Prior
Credit Agreement"), which provided for a revolving line of credit in the amount
of up to Six Hundred Million Dollars ($600,000,000) in favor of Borrower. The
Prior Credit Agreement was amended by certain letter agreements. In addition,
pursuant to the terms and provisions of the Prior Credit Agreement, certain of
the lenders who are identified on the signature pages hereof have become "Banks"
thereunder and pursuant hereto the remainder of such lenders shall become
"Banks" hereunder.
Borrower, has now requested certain additional amendments to the
Prior Credit Agreement (as heretofore modified as set forth above) to, among
other things, increase the amount of the credit provided thereby to up to One
Billion Dollars ($1,000,000,000). The Administrative Agent and the Banks have
agreed to Borrower's request pursuant to the terms and conditions of this
Amended and Restated Revolving Loan Agreement, which supersedes the Prior Credit
Agreement (as previously modified) in its entirety. General Partner is fully
liable for the obligations of Borrower under this Agreement by virtue of its
status as the sole general partner of Borrower.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, covenants and conditions hereinafter set forth, the Prior Credit
Agreement (as previously modified) is hereby amended and restated in its
entirety and Borrower, General Partner, the Administrative Agent and each of the
Banks 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.
3
"Administrative Agent" has the meaning specified in the preamble.
"Administrative Agent's Office" means Administrative Agent's
address located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, 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 Revolving Credit Agreement.
"Applicable Lending Office" means, for each Bank and for its
LIBOR Loan, Bid Rate Loan(s) 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, Bid Rate Loan(s) or Base Rate Loan, as applicable, is
to be made and maintained.
"Applicable Margin" means, with respect to Base Rate Loans and
LIBOR Loans, the respective rates per annum determined, at any time, based on
Borrower's Credit Rating at the time, in accordance with the following table,
subject to possible adjustment in accordance with the definition of "Borrower's
Credit Rating" set forth in this Section 1.01. Any change in Borrower's Credit
Rating causing it to move to a different range on the table shall effect an
immediate change in the Applicable Margin.
--------------------------------------------------------------------------------
Borrower's Credit Rating Applicable Margin Applicable Margin
(S&P/▇▇▇▇▇'▇/▇▇▇▇ & for Base Rate Loans for LIBOR Loans
▇▇▇▇▇▇/Fitch Ratings) (% per annum) (% per annum)
--------------------------------------------------------------------------------
A-/A3/A-/A- or higher 0.00 0.70
--------------------------------------------------------------------------------
BBB+/Baal/BBB+/BBB+ 0.00 0.80
--------------------------------------------------------------------------------
BBB/Baa2/BBB/BBB 0.00 0.90
--------------------------------------------------------------------------------
BBB-/Baa3/BBB-/BBB- 0.00 1.00
--------------------------------------------------------------------------------
Below BBB-/Baa3/BBB-/BBB- or unrated 0.00 1.25
--------------------------------------------------------------------------------
"Assignee" has the meaning specified in Section 12.05.
2
4
"Assignment and Assumption Agreement" means an Assignment and
Assumption Agreement, substantially in the form of EXHIBIT E, 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.
"Available Total Loan Commitment" has the meaning specified in
Section 2.01(b).
"Bank" and "Banks" have the respective meanings specified in the
preamble; provided, however, that the term "Bank" shall exclude each Designated
Lender when used in reference to a Ratable Loan, the Loan Commitments or terms
relating to the Ratable Loans and the Loan Commitments.
"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, a Bid Rate Loan, an Interest Period with respect to a
LIBOR Loan or a Bid Rate Loan, or notice with respect to a LIBOR Loan or Bid
Rate 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 Ratable Loan which shall accrue interest at a rate
determined in relation to the Base Rate.
"Bid Borrowing Limit" means 50% of the Total Loan Commitment.
"Bid Rate Loan" has the meaning specified in Section 2.01(c).
"Bid Rate Loan Note" has the meaning specified in Section 2.08.
"Bid Rate Quote" means an offer by a Bank to make a Bid Rate Loan
in accordance with Section 2.02.
"Bid Rate Quote Request" has the meaning specified in Section
2.02(a).
"Borrower" has the meaning specified in the preamble.
"Borrower's Accountants" means Deloitte & Touche, or such other
accounting firm(s) selected by Borrower and reasonably acceptable to the
Required Banks.
3
5
"Borrower's Credit Rating" means, except as provided hereafter in
this definition, the lower of the S&P and Moody's ratings (if these are the only
two (2) ratings) or the lower of the two (2) highest ratings (if one (1) of
these two highest ratings is from either S&P or Moody's and if, in addition to
S&P and Moody's, there exist ratings by either or both of Duff & ▇▇▇▇▇▇ and
Fitch; provided, however, if Duff & ▇▇▇▇▇▇ and Fitch are the two (2) highest
ratings, then the "Borrower's Credit Rating" shall be the higher of S&P and
Moody's ratings) assigned from time to time by, respectively, S&P, ▇▇▇▇▇'▇, ▇▇▇▇
& ▇▇▇▇▇▇ and Fitch to Borrower's cumulative preferred stock, as increased by
one-half rating grade for purposes of this definition (for example, if the
applicable cumulative preferred stock rating is Baa3, Borrower's Credit Rating
would be Baa2; if the applicable cumulative preferred stock rating is BBB,
Borrower's Credit Rating would be BBB+). Unless such stock is rated by at least
two (2) of the rating agencies identified above, at least one (1) of which must
be either S&P or Moody's, "Borrower's Credit Rating" shall be considered unrated
for purposes of determining both the Applicable Margin and Commitment Fee Rate.
At such time and for so long as Borrower's unsecured and unsubordinated
long-term indebtedness is rated by at least two (2) of the rating agencies
identified above, then during such times the two preceding sentences shall no
longer be applicable and "Borrower's Credit Rating" shall mean the lower of the
S&P and Moody's ratings (if these are the only two (2) ratings) or the lower of
the two (2) highest ratings (if one (1) of these two highest ratings is from
either S&P or Moody's and if, in addition to S&P and Moody's, there exist
ratings by either or both of Duff & ▇▇▇▇▇▇ and Fitch; provided, however, if Duff
& ▇▇▇▇▇▇ and Fitch are the two (2) highest ratings, then the "Borrower's Credit
Rating" shall be the higher of S&P and Moody's ratings) assigned from time to
time by, respectively, S&P, Moody's, ▇▇▇▇ & ▇▇▇▇▇▇ and Fitch to Borrower's
unsecured and unsubordinated long-term indebtedness. For so long as Borrower's
unsecured and unsubordinated long-term indebtedness is rated as provided in the
preceding sentence, unless such indebtedness of Borrower is rated by either S&P
or Moody's, "Borrower's Credit Rating" shall be considered unrated for purposes
of determining both the Applicable Margin and Commitment Fee Rate. If at any
time Borrower's unsecured and unsubordinated long-term indebtedness is no longer
rated by at least two (2) of the rating agencies identified above, then the
first two sentences of this definition shall again be applicable.
"Capitalization Value" means, at any time, the sum of (1)
Combined EBITDA, for the most recently ended calendar quarter, annualized (i.e.,
multiplied by four (4)) (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 9.25% 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.
4
6
"Combined EBITDA" means, for any period of time, (1) revenues
less operating costs before Interest Expense, income taxes, depreciation and
amortization and extraordinary items (including, without limitation,
non-recurring items such as gains or losses from asset sales) for Borrower and
its beneficial interest in its Consolidated Businesses, plus (2) Borrower's
beneficial interest in revenues less operating costs before Interest Expense,
income taxes, depreciation and amortization and extraordinary items (including,
without limitation, non-recurring items such as gains or losses from asset
sales) applicable to each of the UJVs (to the extent not included above), in
accordance with GAAP, in all cases as reflected in the VRT Consolidated
Financial Statements.
"Commitment Fee Rate" means the rate per annum determined, at any
time, based on Borrower's Credit Rating, in accordance with the following table.
Any change in Borrower's Credit Rating which causes it to move into a different
range on the table shall effect an immediate change in the Commitment Fee Rate.
Borrower's Credit Rating Commitment Fee Rate
(S&P/Moody's/▇▇▇▇ & ▇▇▇▇▇▇/▇▇▇▇▇ Ratings) (% per annum)
----------------------------------------- -------------
A-/A3/A-/A- or higher 0.15
BBB+/Baa1/BBB+/BBB+ 0.15
BBB/Baa2/BBB/BBB 0.20
BBB-/Baa3/BBB-/BBB- 0.20
Below BBB-/Baa3/BBB-/BBB- or unrated 0.25
"Consolidated Businesses" means, collectively each Affiliate of
Borrower who is included in the VRT Consolidated Statements in accordance with
GAAP.
"Consolidated Outstanding Indebtedness" means, as of any time,
all indebtedness and liability for borrowed money, secured or unsecured, of
Borrower and all indebtedness and liability for borrowed money, secured or
unsecured, attributable to Borrower's beneficial interest in its Consolidated
Businesses, including mortgage and other notes payable but excluding any
indebtedness which is margin indebtedness secured by 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's unsecured and
unsubordinated long-term indebtedness has been assigned a credit rating of BBB-
5
7
or better by S&P or Baa3 or better by Moody's. "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 2.11 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 2.11 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 Ratable 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 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 and Bid Rate Loans, a fixed rate three percent (3%) above
the rate(s) of interest in effect thereon (including the Applicable Margin or
the LIBOR Bid Margin, as the case may be) 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).
"Designated Lender" means a special purpose corporation that (i)
shall have become a party to this Agreement pursuant to Section 12.16 and (ii)
is not otherwise a Bank.
"Designating Lender" has the meaning specified in Section 12.16.
"Designation Agreement" means an agreement in substantially the
form of EXHIBIT H, entered into by a Bank and a Designated Lender and accepted
by Administrative Agent.
6
8
"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.
"Duff & ▇▇▇▇▇▇" means Duff & ▇▇▇▇▇▇ Credit Rating Company.
"Elect", "Election" and "Elected" refer to elections, if any, by
Borrower pursuant to Section 2.11 to have all or a portion of an advance of the
Ratable Loans be outstanding as LIBOR Loans.
"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.
"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.
7
9
"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.
"Fitch" means Fitch Investors Service, L.P.
"Fixed Charges" means, for any period of time, (1) Interest
Expense plus (2) preferred dividend expense and regularly scheduled principal
amortization of Borrower and that attributable to Borrower's beneficial interest
in its Consolidated Businesses and UJV's.
"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.
"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.
"Initial Advance" means the first advance of proceeds of the
Loans.
8
10
"Interest Expense" means, for any period of time, the
consolidated interest expense, whether paid, accrued or capitalized (without
deduction of consolidated interest income) of Borrower and that attributable to
Borrower's beneficial interest in 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 (to the extent not included above) 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, (1) 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 2.05, 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; and (2) with respect to any Bid Rate Loan, the period commencing
on the date the same is advanced and ending, as Borrower may select pursuant to
Section 2.02, 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.
"Invitation for Bid Rate Quotes" has the meaning specified in
Section 2.02(b).
"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.
"Letter of Credit" has the meaning specified in Section 2.16(a).
"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., 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 or Bid
Rate Loan, as the case may be, in question outstanding during such Interest
Period.
"LIBOR Bid Margin" has the meaning specified in Section
2.02(c)(2).
9
11
"LIBOR Bid Rate" means the rate per annum equal to the sum of (1)
the LIBOR Interest Rate for the Bid Rate Loan and Interest Period in question
and (2) the LIBOR Bid Margin.
"LIBOR Interest Rate" means, for any LIBOR Loan or Bid Rate 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 or Bid Rate Loan, as the case may be, for the
Interest Period therefor divided by (2) one minus the LIBOR Reserve Requirement
for such LIBOR Loan or Bid Rate Loan, as the case may be, for such Interest
Period.
"LIBOR Loan" means all or any portion (as the context requires)
of any Bank's Ratable Loan which shall accrue interest at rate(s) determined in
relation to LIBOR Interest Rate(s).
"LIBOR Reserve Requirement" means, for any LIBOR Loan or Bid Rate
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 or Bid Rate 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" means, with respect to each Bank, its Ratable Loan and Bid
Rate Loan(s), collectively.
10
12
"Loan Commitment" means, with respect to each Bank, the
obligation to make a Ratable Loan in the principal amount set forth below, as
such amount may be reduced from time to time in accordance with the provisions
of Section 2.15 (upon the execution of an Assignment and Assumption Agreement,
the definition of Loan Commitment shall be revised to reflect the assignment
being effected pursuant to such Assignment and Assumption Agreement):
Loan
Bank Commitment
---- ----------
UBS $ 111,250,000.00
Citicorp Real Estate, Inc. $ 111,250,000.00
The Chase Manhattan Bank $ 111,250,000.00
NationsBank $ 111,250,000.00
Bank of Boston $ 60,000,000.00
Bayerische Hypotheken- und Wechsel-Bank Aktiengesellschaft
(New York Branch) $ 60,000,000.00
Commerzbank AG, New York Branch $ 60,000,000.00
PNC Bank, National Association $ 60,000,000.00
Fleet Bank, National Association $ 60,000,000.00
Dresdner Bank AG, New York Branch and Grand Cayman Branch $ 50,000,000.00
The Bank of New York $ 40,000,000.00
Bayerische Landesbank Cayman Islands Branch $ 25,000,000.00
Societe Generale, Southwest Agency $ 25,000,000.00
The Sumitomo Bank, Limited $ 25,000,000.00
Summit Bank $ 25,000,000.00
Kredietbank, N.V. $ 20,000,000.00
Credit Lyonnais New York Branch $ 15,000,000.00
DG Bank Deutsche Genossenschaftbank, Cayman Island Branch $ 15,000,000.00
The Sumitomo Trust & Banking Co., Ltd. $ 15,000,000.00
Total $1,000,000,000.00
=================
"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 of Borrower listed on
EXHIBIT F.
"Maturity Date" means July 16, 2000.
"Maximum Loan Amount" means, from time to time, the Total Loan
Commitment less Secured Indebtedness which is recourse to Borrower.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
11
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 2.08.
"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 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 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"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.
12
14
"Prohibited Transaction" means any transaction set forth in
Section 406 of ERISA or Section 4975 of the Code.
"Ratable Loan" has the meaning specified in Section 2.01(b).
"Ratable Loan Note" has the meaning specified in Section 2.08.
"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 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(c) 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.
ss.2615.
"Required Banks" means at any time the Banks having Pro Rata
Shares aggregating at least 66 2/3%; provided, however, that during the
existence of an Event of Default, the "Required Banks" shall be the Banks
holding at least 66 2/3% 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, 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
13
15
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. 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.
"S&P" means Standard & Poor's Ratings Services, a division of
▇▇▇▇▇▇-▇▇▇▇ Companies.
"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 Outstanding Indebtedness and (3) Contingent Liabilities.
"UJV Outstanding Indebtedness" means, as of any time, all
indebtedness and liability for borrowed money, secured or unsecured, of the
UJV's, including mortgage and other notes payable but excluding any indebtedness
which is margin indebtedness secured by 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. Alexander's, Inc. shall not be
deemed to be a UJV.
"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.
"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.
14
16
"Unsecured Debt Yield" means, at any time, the ratio, expressed
as a percentage, of (1) Unencumbered Combined EBITDA for the most recently ended
calendar quarter, annualized (i.e., multiplied by four (4)) to (2) Unsecured
Indebtedness.
"Unsecured Indebtedness" means that portion of Total Outstanding
Indebtedness that is unsecured.
"Unsecured Interest Expense" means that portion of Interest
Expense attributable to Unsecured Indebtedness.
"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 Borrower, in each case prepared in accordance with GAAP.
"VRT Principals" means the trustees, officers and directors of
Borrower (other than General Partner) or General Partner at any applicable time.
"VRT's Share of UJV Outstanding Indebtedness" means the sum of
the indebtedness of each of the UJVs contributing to UJV 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.
15
17
ARTICLE II
THE LOANS
SECTION 2.01. Ratable Loans; Bid Rate Loans; Purpose. (a) Subject to the
terms and conditions of this Agreement, the Banks agree to make loans to
Borrower as provided in this Article II.
(b) Each of the Banks severally agrees to make a loan to Borrower
(each such loan by a Bank, a "Ratable Loan") in an amount up to its Loan
Commitment pursuant to which the Bank shall from time to time advance and
re-advance to Borrower an amount equal to its Pro Rata Share of the excess (the
"Available Total Loan Commitment") of the Maximum Loan Amount over the sum of
(1) all previous advances (including Bid Rate Loans) made by the Banks which
remain unpaid and (2) the outstanding amount of all Letters of Credit. Within
the limits set forth herein, Borrower may borrow from time to time under this
paragraph (b) and prepay from time to time pursuant to Section 2.09 (subject,
however, to the restrictions on prepayment set forth in said Section), and
thereafter re-borrow pursuant to this paragraph (b). The Ratable Loans may be
outstanding as: (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 2.13. The LIBOR Loan, Bid Rate Loan and Base Rate Loan
of each Bank shall be maintained at such Bank's Applicable Lending Office.
(c) In addition to Ratable Loans pursuant to paragraph (b) above,
so long as Borrower's Credit Rating is BBB- or better by S&P and Baa3 or better
by Moody's, one or more Banks may, at Borrower's request and in their sole
discretion, make non-ratable loans which shall bear interest at the LIBOR Bid
Rate in accordance with Section 2.02 (such loans being referred to in this
Agreement as "Bid Rate Loans"). Borrower may borrow Bid Rate Loans from time to
time pursuant to this paragraph (c) in an amount up to the Available Total Loan
Commitment at the time of the borrowing (taking into account any repayments of
the Loans made simultaneously therewith) and shall repay such Bid Rate Loans as
required by Section 2.08, and it may thereafter re-borrow pursuant to this
paragraph (c) or paragraph (b) above; provided, however, that the aggregate
outstanding principal amount of Bid Rate Loans at any particular time shall not
exceed the Bid Borrowing Limit.
(d) The obligations of the Banks under this Agreement are
several, and no Bank shall be responsible for the failure of any other Bank to
make any advance of a Loan to be made by such other Bank. However, the failure
of any Bank to make any advance of the Loan to be made by it hereunder on the
date specified therefor shall not relieve any other Bank of its obligation to
make any advance of its Loan specified hereby to be made on such date.
(e) Borrower shall use the proceeds of the Loans for general
capital and working capital purposes of Borrower and its Consolidated Businesses
and UJVs, including costs incurred in connection with real estate acquisitions
and/or developments. In no event shall proceeds of the Loans 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.
16
18
SECTION 2.02. Bid Rate Loans. (a) When Borrower has the Borrower's
Credit Rating required by Section 2.01(c) and wishes to request offers from the
Banks to make Bid Rate Loans, it shall transmit to Administrative Agent by
facsimile a request (a "Bid Rate Quote Request") substantially in the form of
EXHIBIT G-1 so as to be received not later than 10:30 a.m. (New York time) on
the fifth Banking Day prior to the date for funding of the Bid Rate Loan(s)
proposed therein, specifying:
(1) the proposed date of funding of the Bid Rate Loan(s),
which shall be a Banking Day;
(2) the aggregate amount of the Bid Rate Loans requested,
which shall be Twenty Five Million Dollars ($25,000,000) or a larger
integral multiple of One Million Dollars ($1,000,000); and
(3) the duration of the Interest Period(s) applicable thereto,
subject to the provisions of the definition of "Interest Period" in
Section 1.01.
Borrower may request offers to make Bid Rate Loans for more than one (1)
Interest Period in a single Bid Rate Quote Request. No Bid Rate Quote Request
may be submitted by Borrower sooner than thirty (30) days after the submission
of any other Bid Rate Quote Request.
(b) Promptly upon receipt of a Bid Rate Quote Request,
Administrative Agent shall send to the Banks by facsimile an invitation (an
"Invitation for Bid Rate Quotes") substantially in the form of EXHIBIT G-2,
which shall constitute an invitation by Borrower to the Banks to submit Bid Rate
Quotes offering to make Bid Rate Loans to which such Bid Rate Quote Request
relates in accordance with this Section.
(c) (1) Each Bank may submit a Bid Rate Quote containing an offer
or offers to make Bid Rate Loans in response to any Invitation for Bid Rate
Quotes. Each Bid Rate Quote must comply with the requirements of this paragraph
(c) and must be submitted to Administrative Agent by facsimile not later than
2:00 p.m. (New York time) on the fourth Banking Day prior to the proposed date
of the Bid Rate Loan(s); provided that Bid Rate Quotes submitted by UBS (or any
Affiliate of Administrative Agent) in its capacity as a Bank may be submitted,
and may only be submitted, if UBS or such Affiliate notifies Borrower of the
terms of the offer or offers contained therein not later than one (1) hour prior
to the deadline for the other Banks. Any Bid Rate Quote so made shall (subject
to Borrower's satisfaction of the conditions precedent set forth in this
Agreement to its entitlement to an advance) be irrevocable except with the
written consent of Administrative Agent given on the instructions of Borrower.
Bid Rate Loans to be funded pursuant to a Bid Rate Quote may, as provided in
Section 12.16, be funded by a Bank's Designated Lender. A Bank making a Bid Rate
Quote shall specify in its Bid Rate Quote whether the related Bid Rate Loans are
intended to be funded by such Bank's Designated Lender, as provided in Section
12.16.
(2) Each Bid Rate Quote shall be in substantially the form of
EXHIBIT G-3 and shall in any case specify:
17
19
(i) the proposed date of funding of the Bid Rate Loan(s);
(ii) the principal amount of the Bid Rate Loan(s) for which
each such offer is being made, which principal amount (w) may be greater
than or less than the Loan Commitment of the quoting Bank, (x) must be
in the aggregate Twenty Five Million Dollars ($25,000,000) or a larger
integral multiple of One Million Dollars ($1,000,000), (y) may not
exceed the principal amount of Bid Rate Loans for which offers were
requested and (z) may be subject to an aggregate limitation as to the
principal amount of Bid Rate Loans for which offers being made by such
quoting Bank may be accepted;
(iii) the margin above or below the applicable LIBOR Interest
Rate (the "LIBOR Bid Margin") offered for each such Bid Rate Loan,
expressed as a percentage per annum (specified to the nearest 1/1,000th
of 1%) to be added to (or subtracted from) the applicable LIBOR Interest
Rate;
(iv) the applicable Interest Period; and
(v) the identity of the quoting Bank.
A Bid Rate Quote may set forth up to three (3) separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Bid Rate Quotes.
(3) Any Bid Rate Quote shall be disregarded if it:
(i) is not substantially in conformity with EXHIBIT G-3 or
does not specify all of the information required by sub-paragraph (c)(2)
above;
(ii) contains qualifying, conditional or similar language
(except for an aggregate limitation as provided in sub-paragraph
(c)(2)(ii) above);
(iii) proposes terms other than or in addition to those set
forth in the applicable Invitation for Bid Rate Quotes; or
(iv) arrives after the time set forth in sub-paragraph (c)(1)
above.
(d) Administrative Agent shall on the Banking Day of receipt
thereof notify Borrower in writing of the terms of (x) any Bid Rate Quote
submitted by a Bank that is in accordance with paragraph (c) and (y) any Bid
Rate Quote that amends, modifies or is otherwise inconsistent with a previous
Bid Rate Quote submitted by such Bank with respect to the same Bid Rate Quote
Request. Any such subsequent Bid Rate Quote shall be disregarded by
Administrative Agent unless such subsequent Bid Rate Quote is submitted solely
to correct a manifest error in such former Bid Rate Quote. Administrative
Agent's notice to Borrower shall specify (A) the aggregate principal amount of
Bid Rate Loans for which offers have been received for each Interest Period
specified in the related Bid Rate Quote Request, (B) the respective principal
amounts and LIBOR Bid Margins so offered and (C) if applicable,
18
20
limitations on the aggregate principal amount of Bid Rate Loans for which offers
in any single Bid Rate Quote may be accepted.
(e) Not later than 4:00 p.m. (New York time) on the fourth
Banking Day prior to the proposed date of funding of the Bid Rate Loan, Borrower
shall notify Administrative Agent of its acceptance or non-acceptance of the
offers so notified to it pursuant to paragraph (d). A notice of acceptance shall
be substantially in the form of EXHIBIT G-4 and shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. Borrower
may accept any Bid Rate Quote in whole or in part; provided that:
(i) the principal amount of each Bid Rate Loan may not exceed
the applicable amount set forth in the related Bid Rate Quote Request or
be less than Five Million Dollars ($5,000,000) and shall be an integral
multiple of One Hundred Thousand Dollars ($100,000);
(ii) acceptance of offers with respect to a particular
Interest Period may only be made on the basis of ascending LIBOR Bid
Margins offered for such Interest Period from the lowest effective cost;
and
(iii) Borrower may not accept any offer that is described in
sub-paragraph (c)(3) or that otherwise fails to comply with the
requirements of this Agreement.
(f) If offers are made by two (2) or more Banks with the same
LIBOR Bid Margins, for a greater aggregate principal amount than the amount in
respect of which such offers are accepted for the related Interest Period, the
principal amount of Bid Rate Loans in respect of which such offers are accepted
shall be allocated by Administrative Agent among such Banks as nearly as
possible (in multiples of One Hundred Thousand Dollars ($100,000), as
Administrative Agent may deem appropriate) in proportion to the aggregate
principal amounts of such offers. Administrative Agent shall promptly (and in
any event within one (1) Banking Day after such offers are accepted) notify
Borrower and each such Bank in writing of any such allocation of Bid Rate Loans.
Determinations by Administrative Agent of the allocation of Bid Rate Loans shall
be conclusive in the absence of manifest error.
(g) In the event that Borrower accepts the offer(s) contained in
one (1) or more Bid Rate Quotes in accordance with paragraph (e), the Bank(s)
making such offer(s) shall make a Bid Rate Loan in the accepted amount (as
allocated, if necessary, pursuant to paragraph (f)) on the date specified
therefor, in accordance with the procedures specified in Section 2.04.
(h) Notwithstanding anything to the contrary contained herein,
each Bank shall be required to fund its Pro Rata Share of the Available Total
Loan Commitment in accordance with Section 2.01(b) despite the fact that any
Bank's Loan Commitment may have been or may be exceeded as a result of such
Bank's making Bid Rate Loans.
(i) A Bank who is notified that it has been selected to make a
Bid Rate Loan as provided above may designate its Designated Lender (if any) to
fund such Bid Rate Loan on its behalf, as described in Section 12.16. Any
Designated Lender which funds a Bid Rate Loan
19
21
shall on and after the time of such funding become the obligee under such Bid
Rate Loan and be entitled to receive payment thereof when due. No Bank shall be
relieved of its obligation to fund a Bid Rate Loan, and no Designated Lender
shall assume such obligation, prior to the time the applicable Bid Rate Loan is
funded.
SECTION 2.03. Advances, Generally. The Initial Advance shall be in the
minimum amount of One Million Dollars ($1,000,000) and in integral multiples of
One Hundred Thousand Dollars ($100,000) above such amount and shall be made upon
satisfaction of the conditions set forth in Section 4.01. Subsequent advances
shall be made no more frequently than weekly thereafter, upon satisfaction of
the conditions set forth in Section 4.02. The amount of each advance subsequent
to the Initial Advance shall be in the minimum amount of One Million Dollars
($1,000,000) (unless less than One Million Dollars ($1,000,000) is available for
disbursement pursuant to the terms hereof at the time of any subsequent advance,
in which case the amount of such subsequent advance shall be equal to such
remaining availability) and in integral multiples of One Hundred Thousand
Dollars ($100,000) above such amount. Additional restrictions on the amounts and
timing of, and conditions to the making of, advances of Bid Rate Loans are set
forth in Section 2.02.
Each advance shall be subject, in addition to the limitations and
conditions applicable to advances of the Loans generally, to Administrative
Agent's receipt, on or immediately prior to the date the request for such
advance is made, of a certificate from the officer requesting the advance (1)
certifying that Borrower is in compliance with all covenants enumerated in
paragraph 3(b) of Section 6.09 and containing covenant compliance calculations
that include the pro-forma adjustments described below, which calculations shall
demonstrate Borrower's compliance, on a pro-forma basis, as of the end of the
most recently ended calendar quarter for which financial results have been
reported by Borrower as required hereunder, with such covenants and (2) setting
forth the use of the advance, the income projected to be generated from such
advance for purposes of determining Combined EBITDA and the type of income so
generated.
In connection with each advance of Loan proceeds, the following
pro-forma adjustments shall be made to the covenant compliance calculations
required as of the end of the most recently ended calendar quarter for which
financial results are required hereunder to have been reported by Borrower:
(i) Total Outstanding Indebtedness and Unsecured Indebtedness
shall be adjusted by adding thereto, respectively, all indebtedness and
unsecured indebtedness that is incurred by Borrower in connection with
the advance;
(ii) Combined EBITDA, for any period, shall be adjusted by
adding the income to be included as provided in Borrower's certificate;
and
(iii) Interest Expense for any period, shall be adjusted by
adding thereto interest expense to be incurred by Borrower in connection
with the advance.
20
22
SECTION 2.04. Procedures for Advances. In the case of advances of
Ratable Loans, Borrower shall submit to Administrative Agent a request for each
advance, stating the amount requested and the expected purpose for which such
advance is to be used, no later than 10:00 a.m. (New York time) on the date, in
the case of advances of Base Rate Loans, which is one (1) Banking Day, and, in
the case of advances of LIBOR Loans, which is three (3) Banking Days, prior to
the date the advance is to be made. In the case of advances of Bid Rate Loans,
Borrower shall submit a Bid Rate Quote Request at the time specified in Section
2.02, accompanied by a statement of the expected purpose for which such advance
is to be used. Administrative Agent, upon its receipt and approval of the
request for advance, will so notify the Banks either by telephone or by
facsimile. Not later than 10:00 a.m. (New York time) on the date of each
advance, each Bank (in the case of Ratable Loans) or the applicable Bank(s) (in
the case of Bid Rate Loans) shall, through its Applicable Lending Office and
subject to the conditions of this Agreement, make the amount to be advanced by
it on such day 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 crediting account number 2017537183 of Borrower
maintained at Fleet Bank.
SECTION 2.05. 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 eight (8) discrete
segments of a Bank's Ratable Loan bearing interest at a LIBOR Interest Rate for
a designated Interest Period pursuant to a particular Election, Conversion or
Continuation, may be outstanding at any one time (each such segment of each
Bank's Ratable Loan corresponding to a proportionate segment of each of the
other Banks' Ratable Loans).
Upon notice to Administrative Agent as provided in Section 2.13,
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 2.06. 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; (2) for LIBOR
Loans at a rate equal to the applicable LIBOR Interest Rate plus the Applicable
Margin; and (3) for Bid Rate Loans at a rate equal to the applicable LIBOR Bid
Rate. 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, LIBOR Loans and Bid Rate Loans shall
not exceed the maximum amount permitted under applicable law. Interest shall be
calculated for the actual number of
21
23
days elapsed on the basis of, in the case of Base Rate Loans, LIBOR Loans and
Bid Rate Loans, three hundred sixty (360) days.
Accrued interest shall be due and payable in arrears, (x) in the
case of both Base Rate Loans and LIBOR Loans, on the first Banking Day of each
calendar month and (y) in the case of Bid Rate Loans, at the expiration of the
Interest Period applicable thereto; provided, however, that interest accruing at
the Default Rate shall be due and payable on demand.
SECTION 2.07. Fees. Borrower shall, during the term of the Loans, pay to
Administrative Agent for the account of each Bank a commitment fee computed (1)
during periods when Borrower's Credit Rating is below BBB- by S&P or below Baa3
by ▇▇▇▇▇'▇ or unrated, on the daily unused Loan Commitment of such Bank and (2)
during periods when Borrower's Credit Rating is BBB- or higher by S&P and Baa3
or higher by ▇▇▇▇▇'▇, on the daily Loan Commitment of such Bank, in either such
case at a rate per annum equal to the daily Commitment Fee Rate, calculated on
the basis of a year of three hundred sixty (360) days for the actual number of
days elapsed. The accrued commitment fee shall be due and payable in arrears on
the first day of October, January, April and July of each year, commencing on
the first such date after the Closing Date, and upon the Maturity Date (as the
case may be accelerated) or earlier termination of the Loan Commitments.
SECTION 2.08. Notes. The Ratable Loan made by each Bank under this
Agreement shall be evidenced by, and repaid with interest in accordance with, a
promissory note of Borrower in the form of EXHIBIT B duly completed and executed
by Borrower, in the principal amount equal to such Bank's Loan Commitment,
payable to such Bank for the account of its Applicable Lending Office (each such
note, as the same may hereafter be amended, modified, extended, severed,
assigned, substituted, renewed or restated from time to time, including any
substitute note pursuant to Section 3.07 or 12.05, a "Ratable Loan Note"). The
Bid Rate Loans of the Banks shall be evidenced by a single global promissory
note of Borrower in the form of EXHIBIT C, duly completed and executed by
Borrower, in the principal amount of Five Hundred Million Dollars
($500,000,000), payable to Administrative Agent for the account of the
respective Banks making Bid Rate Loans (such note, as the same may hereafter be
amended, modified, extended, severed, assigned, substituted, renewed or restated
from time to time, the "Bid Rate Loan Note"). A particular Bank's Ratable Loan
Note, together with its interest, if any, in the Bid Rate Loan Note, are
referred to collectively in this Agreement as such Bank's "Note"; all such
Ratable Loan Notes and interests are referred to collectively in this Agreement
as the "Notes". The Ratable Loan Notes shall mature, and all outstanding
principal and accrued interest and other sums thereunder shall be paid in full,
on the Maturity Date, as the same may be accelerated. The outstanding principal
amount of each Bid Rate Loan evidenced by the Bid Rate Loan Note, and all
accrued interest and other sums with respect thereto, shall become due and
payable to the Bank making such Bid Rate Loan at the earlier of the expiration
of the Interest Period applicable thereto or the Maturity Date, as the same may
be accelerated.
Each Bank is hereby authorized by Borrower to endorse on the
schedule attached to the Ratable Loan Note held by it, the amount of each
advance, and each payment of principal received by such Bank for the account of
its Applicable Lending Office(s) on account of its Ratable Loan, which
endorsement shall, in the absence of manifest error, be conclusive as to the
22
24
outstanding balance of the Ratable Loan made by such Bank. Administrative Agent
is hereby authorized by Borrower to endorse on the schedule attached to the Bid
Rate Loan Note the amount of each Bid Rate Loan, the name of the Bank making the
same, the date of the advance thereof, the interest rate applicable thereto and
the expiration of the Interest Period applicable thereto (i.e., the maturity
date thereof). The failure by Administrative Agent or any Bank to make such
notations with respect to the Loans or each advance or payment shall not limit
or otherwise affect the obligations of Borrower under this Agreement or the
Notes.
SECTION 2.09. 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 Ratable 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, at Administrative Agent's option,
all interest accrued on the amount of principal prepaid to (but excluding) the
date of prepayment.
SECTION 2.10. 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 appropriate 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 2.11. Elections, Conversions or Continuation of Loans. Subject
to the provisions of Article III and Sections 2.05 and 2.12, Borrower shall have
the right to Elect to have all or a portion of any advance of the Ratable Loans
be LIBOR Loans, 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 Election, Conversion or Continuation as provided in
Section 2.13; 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 Election, Continuation and Conversion shall be applicable
to each Bank's Ratable Loan in accordance with its Pro Rata Share.
23
25
SECTION 2.12. Minimum Amounts. With respect to the Ratable Loans as a
whole, each Election and 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 2.13. Certain Notices Regarding Elections, Conversions and
Continuations of Loans. Notices by Borrower to Administrative Agent of
Elections, 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 Election, Conversion or Continuation specified below:
Number of
Notice Banking Days Prior
------ ------------------
Conversions into Base Rate Loans one (1)
Elections of, Conversions into or Continuations as, LIBOR Loans three (3)
Promptly following its receipt of any such notice, Administrative Agent shall so
advise the Banks either by telephone or by facsimile. Each such notice of
Election shall specify the portion of the amount of the advance that is to be
LIBOR Loans (subject to Section 2.12) and the duration of the Interest Period
applicable thereto (subject to Section 2.05); 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 2.12) and the duration of the Interest Period applicable thereto
(subject to Section 2.05). In the event that Borrower fails to Elect to have any
portion of an advance of the Ratable Loans be LIBOR Loans, the entire amount of
such advance shall constitute Base Rate Loans. 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 2.14. 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 2.15. Changes of Commitments. (a) At any time, Borrower shall
have the right, without premium or penalty, to terminate any unused Loan
Commitments existing as of the date of such termination, in whole or in part,
from time to time, provided that: (1) Borrower shall give notice of each such
termination to Administrative Agent no later then 10:00 a.m. (New York time) on
the date which is fifteen (15) Banking Days prior to the effectiveness of such
termination; (2) the Loan Commitments of each of the Banks must be terminated
ratably and simultaneously with those of the other Banks; and (3) each partial
termination of the Loan
24
26
Commitments as a whole (and corresponding reduction of the Total Loan
Commitment) shall be in an integral multiple of One Million Dollars
($1,000,000).
(b) The Loan Commitments, to the extent terminated, may not be
reinstated.
SECTION 2.16. Letters of Credit. (a) Borrower, by notice to
Administrative Agent, may request, in lieu of advances of proceeds of the
Ratable Loans, that Administrative Agent issue unconditional, irrevocable
standby letters of credit (each, a "Letter of Credit") for the account of
Borrower, payable by sight drafts, for such beneficiaries and with such other
terms as Borrower shall specify. Promptly upon issuance of a Letter of Credit,
Administrative Agent shall notify each of the Banks by telephone or by
facsimile.
(b) The amount of any such Letter of Credit shall be limited to
the lesser of (1) Two Hundred Fifty Million Dollars ($250,000,000) less the
amount of all other Letters of Credit then issued and outstanding or (2) the
Available Total Loan Commitment, it being understood that the amount of each
Letter of Credit issued and outstanding shall effect a reduction, by an equal
amount, of the Available Total Loan Commitment as provided in Section 2.01(b)
(such reduction to be allocated to each Bank's Ratable Loan ratably in
accordance with the Banks' respective Pro Rata Shares).
(c) The amount of each Letter of Credit shall be further subject
to the conditions and limitations applicable to amounts of advances set forth in
Section 2.03 and the procedures for the issuance of each Letter of Credit shall
be the same as the procedures applicable to the making of advances as set forth
in the first sentence of Section 2.04.
(d) Administrative Agent's issuance of each Letter of Credit
shall be subject to Borrower's satisfaction of all conditions precedent to its
entitlement to an advance of proceeds of the Loans.
(e) Each Letter of Credit shall expire no later than the earlier
of (x) one (1) month prior to the Maturity Date or (y) one (1) year after the
date of its issuance.
(f) In connection with, and as a further condition to the
issuance of, each Letter of Credit, Borrower shall execute and deliver to
Administrative Agent an application for the Letter of Credit on Administrative
Agent's standard form therefor, together with such other documents, opinions and
assurances as Administrative Agent shall reasonably require.
(g) In connection with each Letter of Credit, Borrower hereby
covenants to pay to Administrative Agent the following fees, each payable
quarterly in arrears (on the first Banking Day of each calendar quarter
following the issuance of the Letter of Credit): (i) a fee, payable to
Administrative Agent for the account of the Banks, computed daily on the amount
of the Letter of Credit issued and outstanding at a rate per annum equal to the
"Banks' L/C Fee Rate" (as hereinafter defined) and (ii) a fee, payable to
Administrative Agent for its own account, computed daily on the amount of the
Letter of Credit issued and outstanding at a rate per annum of 0.125%. For
purposes of this Agreement, the "Banks' L/C Fee Rate" shall mean, at any time, a
rate per annum equal to the Applicable Margin for LIBOR Loans less 0.125% per
annum. It is
25
27
understood and agreed that the last installment of the fees provided for in this
paragraph (g) with respect to any particular Letter of Credit shall be due and
payable on the first day of the calendar quarter following the return, undrawn,
or cancellation, of such Letter of Credit.
(h) The parties hereto acknowledge and agree that, immediately
upon notice from Administrative Agent of any drawing under a Letter of Credit,
each Bank shall, notwithstanding the existence of a Default or Event of Default
or the non-satisfaction of any conditions precedent to the making of an advance
of the Loans, advance proceeds of its Ratable Loan, in an amount equal to its
Pro Rata Share of such drawing, which advance shall be made to Administrative
Agent to reimburse Administrative Agent, for its own account, for such drawing.
Each of the Banks further acknowledges that its obligation to fund its Pro Rata
Share of drawings under Letters of Credit as aforesaid shall survive the Banks'
termination of this Agreement or enforcement of remedies hereunder or under the
other Loan Documents.
(i) Borrower agrees, upon the occurrence of an Event of Default
and at the request of Administrative Agent, (x) to deposit with Administrative
Agent cash collateral in the amount of all the outstanding Letters of Credit,
which cash collateral shall be held by Administrative Agent as security for
Borrower's obligations in connection with the Letters of Credit and (y) to
execute and deliver to Administrative Agent such documents as Administrative
Agent requests to confirm and perfect the assignment of such cash collateral to
Administrative Agent.
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 a Bid
Rate Loan, or its obligation to make or maintain a LIBOR Loan or a Bid Rate
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 Bid Rate Loan(s) 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 or Bid Rate 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
26
28
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 Bid
Rate 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 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 permit Elections of, 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 or Bid Rate 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 or Bid Rate 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 or Bid Rate Loan for such Interest Period;
27
29
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 permit Elections of LIBOR Loans, 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 or Bid Rate Loans,
either (x) prepay the affected LIBOR Loans or Bid Rate Loans or (y)
Convert the affected LIBOR Loans into Base Rate Loans in accordance with
Section 2.11 or convert the rate of interest under the affected Bid Rate
Loans to the rate applicable to Base Rate Loans by following the same
procedures as are applicable for Conversions into Base Rate Loans set
forth in Section 2.11.
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 or Bid
Rate Loan hereunder, to allow Elections of a LIBOR Loan or to 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 a
LIBOR Loan or Bid Rate Loan, or to permit Elections of, 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 or Bid Rate Loan.
SECTION 3.04. Treatment of Affected Loans. If the obligations of any
Bank to make or maintain a LIBOR Loan or a Bid Rate Loan, or to permit an
Election of a LIBOR Loan, 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 or Bid Rate Loan so affected being herein called an "Affected
Loan"), such Bank's Affected Loan shall be automatically Converted into a Base
Rate Loan (or, in the case of an Affected Loan that is a Bid Rate Loan, the
interest rate thereon shall be converted to the rate applicable to Base Rate
Loans) on the last day of the then current Interest Period for the Affected Loan
(or, in the case of a Conversion or 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 (or the interest rate thereon 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 (or to its Bid Rate
Loan bearing interest at the converted rate) 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:
28
30
(1) any payment or prepayment of a LIBOR Loan or Bid Rate Loan
made by such Bank, or any Conversion of a LIBOR Loan (or conversion of
the rate of interest on a Bid Rate Loan) made by such Bank, in any such
case on a date other than the last day of an applicable Interest Period,
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 2.13; or
(3) any failure by Borrower to borrow (or to qualify for a
borrowing of) a LIBOR Loan or Bid Rate Loan which would otherwise be
made hereunder on the date specified in the relevant Election notice
under Section 2.13 or Bid Rate Quote acceptance under Section 2.02(e)
given or submitted by Borrower.
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, Continued or borrowed) for the period from the date of such payment,
prepayment, Conversion or Continuation (or failure to Convert, Continue or
borrow) to the last day of the then current applicable Interest Period (or, in
the case of a failure to Convert, Continue or borrow, to the last day of the
applicable Interest Period which would have commenced on the date specified
therefor in the relevant notice) at the applicable rate of interest for the
LIBOR Loan or Bid Rate 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.
29
31
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
a LIBOR Loan or Bid Rate Loan 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 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 (notwithstanding the provisions of clause (2) of Section
2.15(a)) 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 Sections 3.01 and 3.05.
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 Sections 3.01 and 3.05. 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 Ratable Loan Note shall be issued to the
Replacement Bank by Borrower, in exchange for the return of the Affected Bank's
Ratable Loan Note. The obligations evidenced by such substitute note shall
constitute "Obligations" for all purposes of this Agreement and the
30
32
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 and the obligation of each Bank to make the Initial Advance are
subject to the condition precedent that Administrative Agent shall have received
on or before the Closing Date (other than with respect to paragraph 13 below,
which shall be required prior to the Initial Advance) 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
owed to or incurred by Administrative Agent (including, without
limitation, the reasonable fees and expenses of legal counsel);
(2) Note. The Ratable Loan Note for each Bank and the Bid
Rate Loan Note for Administrative Agent, each duly executed by Borrower;
(3) Financial Statements. (i) Audited VRT Consolidated
Financial Statements as of and for the year ended December 31, 1996 and
(ii) unaudited VRT Consolidated Financial Statements, certified by the
chief financial officer, as and for the quarter ended September 30,
1997, 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 by-laws
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;
31
33
(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) Request for Advance. A request for an advance in
accordance with Section 2.04;
(15) 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:
32
34
(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;
(16) Compliance Certificate. A certificate of the sort
required by paragraph (3) of Section 6.09; and
(17) Insurance. Evidence of the insurance described in
Section 5.17.
SECTION 4.02. Conditions Precedent to Advances After the Initial
Advance. The obligation of each Bank to make advances of the Loans subsequent to
the Initial Advance shall be subject to satisfaction of the following conditions
precedent:
(1) No Default or Event of Default shall have occurred and be
continuing as of the date of the advance;
(2) Each of the representations and warranties contained in
this Agreement and in each of the other Loan Documents shall be true and
correct as of the date of the advance; and
(3) Administrative Agent shall have received a request for an
advance in accordance with Section 2.04.
SECTION 4.03. Deemed Representations. Each request by Borrower for, and
acceptance by Borrower of, an advance of proceeds of the Loans shall constitute
a representation and warranty by Borrower and General Partner that, as of both
the date of such request and the date of the advance (1) no Default or Event of
Default has occurred and is continuing, and (2) each representation or warranty
contained in this Agreement or the other Loan Documents is true and correct.
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
33
35
it owns properties or conducts business except where the failure to be so
qualified or to obtain such authority would not constitute a Material Adverse
Change. 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 constitute a Material Adverse Change.
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. The stock of General Partner is listed on the New York Stock
Exchange.
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 and delivery of, and the performance of the obligations required
to be performed by Borrower and General Partner under, the Loan Documents do 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.
34
36
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 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 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
35
37
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.
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 F. 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
36
38
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 and
reasonably acceptable to Administrative Agent.
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.
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
37
39
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 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;
38
40
(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 Sections 7.02 and 7.03 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 by property (or by pool
of properties where the pool of properties secures a particular loan) of
all items comprising Total Outstanding Indebtedness (including amount,
maturity, interest rate and amortization requirements), Capitalization
Value, Secured Indebtedness, Combined EBITDA, Unencumbered Combined
EBITDA, Interest Expense, Unsecured 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 Fifty
Million Dollars ($50,000,000) 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;
39
41
(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;
(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;
(16) Change in Borrower's Credit Rating. Within two (2)
Banking Days after any change in Borrower's Credit Rating, written
notice of such change; and
(17) 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.
40
42
SECTION 6.10. Management. At all times, cause Borrower or its Affiliates
to provide property management and leasing services for at least seventy-five
percent (75%) of the total square footage 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 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.
41
43
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
One Billion Five Hundred Million Dollars ($1,500,000,000).
SECTION 8.02. Relationship of Total Outstanding Indebtedness to
Capitalization Value. At any time, Total Outstanding Indebtedness to exceed
sixty percent (60%) of Capitalization Value.
SECTION 8.03. Secured Indebtedness. At any time, Secured Indebtedness
which is recourse to Borrower such that the Maximum Loan Amount is less than the
sum of (1) the aggregate principal amount outstanding under all Ratable Loans
and Bid Rate Loans and (2) the outstanding amount of all Letters of Credit.
SECTION 8.04. Relationship of Combined EBITDA to Interest Expense. At
any time, the ratio of (1) Combined EBITDA to (2) Interest Expense, each for the
most recently ended calendar quarter, to be less than 2.00 to 1.00.
SECTION 8.05. Relationship of Combined EBITDA to Total Outstanding
Indebtedness. At any time, the ratio (expressed as a percentage) of (1) Combined
EBITDA for the most recently ended calendar quarter, annualized (i.e.,
multiplied by four (4), to (2) Total Outstanding Indebtedness as of the end of
such quarter, to be less than fifteen percent (15%).
SECTION 8.06. Unsecured Debt Yield. At any time, Unsecured Debt Yield to
be less than twelve percent (12%).
SECTION 8.07. Relationship of Combined EBITDA to Fixed Charges. At any
time, the ratio of Combined EBITDA to Fixed Charges, each for the most recently
ended calendar quarter, to be less than 1.80 to 1.00.
SECTION 8.08. Relationship of Unencumbered Combined EBITDA to Unsecured
Interest Expense. At any time, the ratio of Unencumbered Combined EBITDA to
Unsecured Interest Expense, each for the most recently ended calendar quarter,
to be less than 1.50 to 1.00.
42
44
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
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 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) 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
43
45
(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 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.
ss.2510.3-101).
44
46
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 (nor shall Administrative Agent have any fiduciary duty to Borrower nor
shall any Bank have any fiduciary duty to Borrower or to any other Bank).
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 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. Notwithstanding anything
to the contrary contained in this Agreement, Administrative Agent agrees with
the Banks that Administrative Agent shall perform its obligations under this
Agreement in good faith according to the same standard of care as that
customarily exercised by it in administering its own revolving credit loans.
45
47
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 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 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,
46
48
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 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
47
49
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 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 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.
48
50
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
Seventy Five Million Dollars ($75,000,000) for so long as (1) no Event of
Default exists under this Agreement and (2) UBS remains as Administrative Agent,
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, (1) each advance of proceeds of the Ratable Loans shall be made by the
Banks, (2) each reduction of the amount of the Total Loan Commitment under
Section 2.15 shall be applied to the Loan Commitments of the Banks and (3) each
payment of the commitment fee accruing under Section 2.07(a) shall be made for
the account of the Banks, ratably according to the amounts of their respective
Loan Commitments.
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
49
51
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 Ratable Loan 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.
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,
50
52
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 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 any advance of proceeds of the Loans under this
Agreement, it shall be bound in all respects by the 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; (3) change the
definition of Required Banks; (4) amend this Section or any other provision
requiring the consent of all the Banks; (5) waive any default under paragraph
(5) of
51
53
Section 9.01; (6) increase the Total Loan Commitment; or (7) release the
Guaranty. Any advance of proceeds of the Loans made prior to or without the
fulfillment by Borrower of all of the conditions precedent thereto, whether or
not known to Administrative Agent and the Banks, shall not constitute a waiver
of the requirement that all conditions, including the non-performed conditions,
shall be required with respect to all future advances. 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 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 (other than any administration fee payable to
Administrative Agent). 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).
52
54
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 respective successors and permitted assigns. Borrower may
not assign or transfer its rights or obligations hereunder.
Any Bank or its Designated Lender may at any time grant to one or
more banks or other institutions (each a "Participant") participating interests
in its Loan (the "Participations"). 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 clauses (1)
through (7) of Section 12.02 without the consent of the Participant.
Subject to the provisions of Section 10.14, any Bank may at any
time assign to any bank or other institution with the acknowledgment of
Administrative Agent and the consent of UBS and, provided there exists no Event
of Default, of Borrower, which consents 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 assigning Bank, provided that, in each case, after giving
effect to such assignment the Assignee's Loan Commitment and, in the case of a
partial assignment, the assigning Bank's Loan Commitment, each will be equal to
or greater than Fifteen Million Dollars ($15,000,000). Upon (i) execution and
delivery of such instrument, (ii) payment by such Assignee to the Bank of an
amount equal to the purchase price agreed between the Bank and such Assignee and
(iii) payment by such Assignee to Administrative Agent of a fee, for
Administrative Agent's own account, in the amount of Two Thousand Five Hundred
Dollars ($2,500), 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 assigning 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 Ratable Loan Notes shall be
issued to the assigning Bank (in the case of a partial assignment) and Assignee
by Borrower, in exchange for
53
55
the return of the original Ratable Loan Note of the assigning Bank. 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 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 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
54
56
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 (except with respect to agreements relating solely to compensation,
consideration and the coordinated syndication of the Loan) and supersede any
prior oral or written statements or agreements with respect to such
transactions.
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
55
57
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
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
56
58
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.
SECTION 12.16. Designated Lender. Any Bank (other than a Bank which is
such solely because it is a Designated Lender) (each, a "Designating Lender")
may at any time designate one (1) Designated Lender to fund Bid Rate Loans on
behalf of such Designating Lender subject to the terms of this Section and the
provisions in Section 12.05 shall not apply to such designation. No Bank may
designate more than one (1) Designated Lender. The parties to each such
designation shall execute and deliver to Administrative Agent for its acceptance
a Designation Agreement. Upon such receipt of an appropriately completed
Designation Agreement executed by a Designating Lender and a designee
representing that it is a Designated Lender, Administrative Agent will accept
such Designation Agreement and give prompt notice thereto to Borrower,
whereupon, (i) from and after the "Effective Date" specified in the Designation
Agreement, the Designated Lender shall become a party to this Agreement with a
right to make Bid Rate Loans on behalf of its Designating Lender pursuant to
Section 2.02 after Borrower has accepted the Bid Rate Quote of the Designating
Lender and (ii) the Designated Lender shall not be required to make payments
with respect to any obligations in this Agreement except to the extent of excess
cash flow of such Designated Lender which is not otherwise required to repay
obligations of such Designated Lender which are then due and payable; provided,
however, that regardless of such designation and assumption by the Designated
Lender, the Designating Lender shall be and remain obligated to Borrower,
Administrative Agent and the Banks for each and every of the obligations of the
Designating Lender and its related Designated Lender with respect to this
Agreement, including, without limitation, any indemnification obligations under
Section 10.05. Each Designating Lender shall serve as the administrative agent
of its Designated Lender and shall on behalf of, and to the exclusion of, the
Designated Lender: (i) receive any and all payments made for the benefit of the
Designated Lender and (ii) give and receive all communications and notices and
take all actions hereunder, including, without limitation, votes, approvals,
waivers and consents under or relating to this Agreement and the other Loan
Documents. Any such notice, communication, vote, approval, waiver or consent
shall be signed by the Designating Lender as administrative agent for the
Designated Lender and shall not be signed by the Designated Lender on its own
behalf, but shall be binding on the Designated Lender to the same extent as if
actually signed by the Designated Lender. Borrower, Administrative Agent and the
Banks may rely thereon without any requirement that the Designated Lender sign
or acknowledge the same. No Designated Lender may assign or transfer all or any
portion of its interest hereunder or under any other Loan Document, other than
assignments to the Designating Lender which originally designated such
Designated Lender.
57
59
SECTION 12.17. No Bankruptcy Proceedings. Each of Borrower, the Banks
and Administrative Agent hereby agrees that it will not institute against any
Designated Lender or join any other Person in instituting against any Designated
Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding under any federal or state bankruptcy or similar law, for one (1)
year and one (1) day after the payment in full of the latest maturing commercial
paper note issued by such Designated Lender.
58
60
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_____________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President
VORNADO REALTY TRUST,
a Maryland real estate investment trust
By________________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President
Address for Notices for both:
Park ▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇, Chairman and
▇▇▇▇▇▇ ▇▇▇▇▇▇, Executive Vice
President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇
(▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇)
(as Bank and Administrative Agent)
By________________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
By________________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇, III
Title: Managing Director
Address for Notices and Applicable Lending Office
for Base Rate Loan and LIBOR Loan:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Real Estate Finance and ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
62
FLEET BANK, NATIONAL ASSOCIATION
(as Bank)
By________________________________________
Name:
Title:
Address for Notices and Applicable Lending Office
for Base Rate Loan and LIBOR Loan:
Fleet Bank, National Association
1133 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. Soled
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ BRANCH
(as Bank)
By________________________________________
Name:
Title:
By________________________________________
Name:
Title:
Address for Notices and Applicable Lending Office
for Base Rate Loan and LIBOR Loan:
Bayerische Landesbank Cayman Islands Branch
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
64
SOCIETE GENERALE, SOUTHWEST AGENCY
(as Bank)
By________________________________________
Name:
Title:
Applicable Lending Office for Base Rate Loan and
LIBOR Loan:
Societe General, New York
1221 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Address for Notices for Base Rate Loan and LIBOR
Loan:
Societe Generale, Southwest Agency
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
65
PNC BANK, NATIONAL ASSOCIATION
(as Bank)
By________________________________________
Name:
Title:
Address for Notices and Applicable Lending Office
for Base Rate Loan and LIBOR Loan:
PNC Bank, National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
66
CREDIT LYONNAIS NEW YORK BRANCH
(as Bank)
By________________________________________
Name:
Title:
Address for Notices and Applicable Lending Office
for Base Rate Loan and LIBOR Loan:
Credit Lyonnais New York Branch
1301 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇'▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
67
KREDIETBANK, N.V.
(as Bank)
By________________________________________
Name:
Title:
By________________________________________
Name:
Title:
Address for Notices and Applicable Lending Office
for Base Rate Loan and LIBOR Loan:
Kredietbank N.V.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ BRANCH
AND GRAND CAYMAN BRANCH
(as Bank)
By________________________________________
Name:
Title:
By________________________________________
Name:
Title:
Applicable Lending Office for Base Rate Loan and
LIBOR Loan:
Dresdner Bank AG, New York
Branch and Grand Cayman Branch
Address for Notices for Base Rate Loan and LIBOR
Loan:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ BRANCH
(as Bank)
By________________________________________
Name:
Title:
By________________________________________
Name:
Title:
Address for Notices and Applicable Lending Office
for Base Rate Loan and LIBOR Loan:
Commerzbank AG
New York Branch
2 World Financial Center
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇/7375
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ BRANCH
(as Bank)
By________________________________________
Name:
Title:
By________________________________________
Name:
Title:
Address for Notices and Applicable Lending Office
for Base Rate Loan and LIBOR Loan:
DG Bank Deutsche Genossenschaftbank,
Cayman Island Branch
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
71
THE BANK OF NEW YORK
(as Bank)
By________________________________________
Name:
Title:
Address for Notices and Applicable Lending Office
for Base Rate Loan and LIBOR Loan:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
72
CITICORP REAL ESTATE, INC.
(as Bank)
By________________________________________
Name:
Title:
Address for Notices and Applicable Lending Office
for Base Rate Loan and LIBOR Loan:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇/▇▇▇▇ ▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Mr. G. ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
73
THE SUMITOMO BANK, LIMITED
(as Bank)
By________________________________________
Name:
Title:
Address for Notices and Applicable Lending Office
for Base Rate Loan and LIBOR Loan:
The Sumitomo Bank, Limited
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
74
THE SUMITOMO TRUST & BANKING
CO., LTD.
(as Bank)
By________________________________________
Name:
Title:
Address for Notices and Applicable Lending Office
for Base Rate Loan and LIBOR Loan:
The Sumitomo Trust & Banking Co., Ltd.
New York Branch
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and
The Sumitomo Trust & Banking Co., Ltd.
New York Branch
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
75
SUMMIT BANK
(as Bank)
By________________________________________
Name:
Title:
Address for Notices and Applicable Lending Office
for Base Rate Loan and LIBOR Loan:
Summit Bank
Commercial Real Estate Department
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇- ▇▇▇
▇▇▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
(▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇)
(as Bank)
By________________________________________
Name:
Title:
By________________________________________
Name:
Title:
Address for Notices and Applicable Lending Office
for Base Rate Loan and LIBOR Loan:
Financial Square
▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ BANK
(as Bank)
By________________________________________
Name:
Title:
Address for Notices and Applicable Lending Office
for Base Rate Loan and LIBOR Loan:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Ms. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
78
NATIONSBANK
(as Bank)
By________________________________________
Name:
Title:
By________________________________________
Name:
Title:
Address for Notices and Applicable Lending Office
for Base Rate Loan and LIBOR Loan:
NationsBank
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
79
BANK OF BOSTON
(as Bank)
By________________________________________
Name:
Title:
Address for Notices and Applicable Lending Office
for Base Rate Loan and LIBOR Loan:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(▇▇-▇▇-▇▇)
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇