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EXHIBIT 10.2
CREDIT AGREEMENT
dated as of
___, 1998
between
VORNADO OPERATING L.P.,
as Borrower
and
VORNADO REALTY L.P.,
as Lender
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS...............................................1
Section 1.01 Definitions........................................................................1
(a) Terms Generally................................................................1
(b) Other Terms....................................................................1
ARTICLE II
THE REVOLVING CREDIT FACILITY......................................6
Section 2.01 Commitment and Loans. ............................................................6
Section 2.02 Borrowing Procedure................................................................6
Section 2.03 Termination and Reduction of Commitment............................................6
Section 2.04 Repayment..........................................................................6
Section 2.05 Optional Prepayment................................................................6
ARTICLE III
INTEREST AND FEES............................................7
Section 3.01 Interest Rate......................................................................7
Section 3.02 Interest on Overdue Amounts........................................................7
Section 3.03 Maximum Interest Rate..............................................................7
Section 3.04 Commitment Fee.....................................................................8
ARTICLE IV
DISBURSEMENT AND PAYMENT.........................................8
Section 4.01 Method and Time of Payments........................................................8
Section 4.02 Compensation for Losses............................................................8
Section 4.03 Withholding and Additional Costs...................................................8
(a) Withholding........................................................................9
(b) Additional Costs...................................................................9
(c) Certificate, Etc...................................................................9
Section 4.04 Expenses; Indemnity................................................................9
Section 4.05 Survival..........................................................................10
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Page
ARTICLE V
REPRESENTATIONS AND WARRANTIES.....................................10
Section 5.01 Representations and Warranties....................................................10
(a) Subsidiaries......................................................................10
(b) Good Standing and Power...........................................................10
(c) Authority.........................................................................11
(d) Authorizations....................................................................11
(e) Binding Obligation................................................................11
(f) Litigation........................................................................11
(g) No Conflicts......................................................................11
(h) Taxes.............................................................................11
(i) Properties........................................................................12
(j) Compliance with Laws and Charter Documents........................................12
(k) Disclosure........................................................................12
Section 5.02 Survival..........................................................................12
ARTICLE VI
CONDITIONS PRECEDENT..........................................12
Section 6.01 Conditions to the Availability of the Commitment..................................12
(a) This Agreement....................................................................12
(b) Certificate of Limited Partnership and Agreement of Limited
Partnership..................................................................12
(c) Representations and Warranties....................................................13
(d) Other Documents...................................................................13
Section 6.02 Conditions to All Loans...........................................................13
(a) Borrowing Request.................................................................13
(b) No Default........................................................................13
(c) Representations and Warranties; Covenants.........................................13
Section 6.03 Satisfaction of Conditions Precedent..............................................13
ARTICLE VII
COVENANTS...............................................14
Section 7.01 Affirmative Covenants.............................................................14
(a) Financial Statements; Compliance Certificates.....................................14
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Page
(b) Existence.........................................................................14
(c) Conduct of Business...............................................................15
(d) Authorizations....................................................................15
(e) Inspection........................................................................15
(f) Maintenance of Records............................................................15
(g) Notice of Defaults and Adverse Developments.......................................15
Section 7.02 Negative Covenants................................................................16
(a) Mergers, Consolidations and Sales of Assets.......................................16
(b) Liens.............................................................................16
(c) Indebtedness......................................................................16
(d) Dividends.........................................................................16
(e) Certain Amendments................................................................16
ARTICLE VIII
EVENTS OF DEFAULT...........................................17
Section 8.01 Events of Default.................................................................17
ARTICLE IX
EVIDENCE OF LOANS; TRANSFERS......................................18
Section 9.01 Evidence of Loans.................................................................18
ARTICLE X
MISCELLANEOUS.............................................19
Section 10.01 APPLICABLE LAW...................................................................19
Section 10.02 WAIVER OF JURY...................................................................19
Section 10.03 Jurisdiction and Venue; Service of Process.......................................19
Section 10.04 Confidentiality..................................................................20
Section 10.05 Amendments and Waivers...........................................................20
Section 10.06 Cumulative Rights; No Waiver.....................................................20
Section 10.07 Notices..........................................................................20
Section 10.08 Certain Acknowledgments..........................................................21
Section 10.09 Separability.....................................................................21
Section 10.10 Parties in Interest..............................................................21
Section 10.11 Execution in Counterparts........................................................21
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CREDIT AGREEMENT, dated as of ___, 1998, between Vornado
Operating L.P., a Delaware limited partnership, and Vornado Realty L.P., a
Delaware limited partnership.
W I T N E S S E T H:
WHEREAS, the Borrower has requested the Lender to commit to
lend to the Borrower up to $75 million on a revolving basis for acquisitions of
assets and general corporate purposes; and
WHEREAS, the Lender is willing to make revolving credit loans
on the terms and conditions provided herein;
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
(a) Terms Generally. The definitions ascribed to terms in this
Agreement apply equally to both the singular and plural forms of such terms.
Whenever the context may require, any pronoun shall be deemed to include the
corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be interpreted as if followed by the phrase
"without limitation". The phrase "individually or in the aggregate" shall be
deemed general in scope and not to refer to any specific Section or clause of
this Agreement. All references herein to Articles, Sections, Exhibits and
Schedules shall be deemed references to Articles and Sections of, and Exhibits
and Schedules to, this Agreement unless the context shall otherwise require. The
table of contents, headings and captions herein shall not be given effect in
interpreting or construing the provisions of this Agreement. Except as otherwise
expressly provided herein, all references to "dollars" or "$" shall be deemed
references to the lawful money of the United States of America.
(b) Other Terms. The following terms have the meanings
ascribed to them below or in the Sections of this Agreement indicated below:
"Affiliate" means, with respect to any Person, any other
Person that controls, is controlled by, or is under common control
with, such Person.
"Agreement" means this credit agreement, as it may be amended,
modified or supplemented from time to time.
"Available Commitment" means, on any day, an amount equal to
(i) the Commitment on such day minus (ii) the aggregate outstanding
principal amount of Loans on such day.
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"Borrower" means Vornado Operating L.P., a Delaware limited
partnership.
"Borrowing Date" means, with respect to any Loan, the Business
Day set forth in the relevant Borrowing Request as the date upon which
the Borrower desires to borrow such Loan;
"Borrowing Request" means a request by the Borrower for a
Loan, which shall specify (i) the requested Borrowing Date and (ii) the
aggregate amount of such Loan.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in The City of New York are
authorized by law to close.
"Capital Lease Obligations" means, with respect to any Person,
the obligation of such Person to pay rent or other amounts under any
lease with respect to any property (whether real, personal or mixed)
acquired or leased by such Person that is required to be accounted for
as a liability on a consolidated balance sheet of such Person.
"Commitment" means $75 million, as such amount may be reduced
from time to time pursuant to Section 2.03.
"Commitment Fee" has the meaning assigned to such term in
Section 3.04.
"Commitment Termination Date" means the earlier to occur of
(i) December 31, 2002 and (ii) the date, if any, on which the
Commitment is terminated.
"Confidential Information" means information delivered to the
Lender by or on behalf of the Borrower in connection with the
transactions contemplated by or otherwise pursuant to this Agreement
that is confidential or proprietary in nature at the time it is so
delivered or information obtained by the Lender in the course of its
review of the books or records of the Borrower contemplated herein;
provided that such term shall not include information (i) that was
publicly known or otherwise known to the Lender prior to the time of
such disclosure, (ii) that subsequently becomes publicly known through
no act or omission by the Lender or any Person acting on the Lender's
behalf, (iii) that otherwise becomes known to the Lender other than
through disclosure by the Borrower or (iv) that constitutes financial
information delivered to the Lender that is otherwise publicly
available.
"Default" means any event or circumstance which, with the
giving of notice or the passage of time, or both, would be an Event of
Default.
"Effective Date" has the meaning assigned to such term in
Section 6.01.
"Event of Default" has the meaning assigned to such term in
Section 8.01.
"GAAP" means generally accepted accounting principles, as set
forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the
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Financial Accounting Standards Board or in such other statements by
such other entities as may be approved by a significant segment of the
accounting profession of the United States of America.
"General Partner" means Vornado Operating Company, a Delaware
corporation and the sole general partner of the Borrower.
"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, with respect to any Person, any obligation,
contingent or otherwise, of such Person guaranteeing or having the
economic effect of guaranteeing any Indebtedness of any other Person
(the "primary obligor") in any manner, whether directly or indirectly,
and including any obligation of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such
Indebtedness or to purchase (or to advance or supply funds for the
purchase of) any security for the payment of such Indebtedness, (ii) to
purchase property, securities or services for the purpose of assuring
the holder of such Indebtedness of the payment of such Indebtedness or
(iii) to maintain working capital, equity capital or the financial
condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Indebtedness. The term "Guaranteed" shall
have the corresponding meaning.
"Indebtedness" means, with respect to any Person, (i) all
obligations of such Person for borrowed money or for the deferred
purchase price of property or services (including all obligations,
contingent or otherwise, of such Person in connection with letters of
credit, bankers' acceptances, interest rate swap agreements, interest
rate cap agreements or other similar instruments, including currency
swaps) other than indebtedness to trade creditors and service providers
incurred in the ordinary course of business and payable on usual and
customary terms, (ii) all obligations of such Person evidenced by
bonds, notes, debentures or other similar instruments, (iii) all
indebtedness created or arising under any conditional sale or other
title retention agreement with respect to property acquired by such
Person (even though the remedies available to the seller or lender
under such agreement are limited to repossession or sale of such
property), (iv) all Capital Lease Obligations of such Person, (v) all
obligations of the types described in clauses (i), (ii), (iii) or (iv)
above secured by (or for which the obligee has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in any
property (including accounts, contract rights and other intangibles)
owned by such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness, (vi) all preferred stock
issued by such Person which is redeemable, prior to full satisfaction
of the Borrower's obligations under this Agreement (including repayment
in full of the Loans and all interest accrued thereon), other than at
the option of such Person, valued at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends,
(vii) all Indebtedness of others Guaranteed by such Person and (viii)
all Indebtedness of any partnership of which such Person is a general
partner.
"Indemnitee" has the meaning assigned to such term in Section
4.04(b).
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"Intercompany Agreement" means the intercompany agreement,
dated as of the date hereof, by and between the Lender and the General
Partner.
"Interest Period" means, with respect to any Loan, each one,
two, three or six-month period, such period being the one selected by
the Borrower pursuant to Section 2.02 or 3.01(b) and commencing on the
date such Loan is made or at the end of the preceding Interest Period,
as the case may be; provided, however, that:
(i) any Interest Period that would otherwise end on a
day that is not a Business Day shall be extended to the next
Business Day, unless such Business Day falls in another
calendar month, in which case such Interest Period shall end
on the next preceding Business Day;
(ii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall, subject to clause
(iii) below, end on the last Business Day of a calendar month;
and
(iii) any Interest Period that would otherwise end
after the Commitment Termination Date then in effect shall end
on such Commitment Termination Date.
"Lender" means Vornado Realty L.P., a Delaware limited
partnership.
"LIBOR" means, with respect to any Interest Period, the rate
per annum determined by the Lender to be the offered rate for dollar
deposits with a term comparable to such Interest Period that appears on
the display designated as Page 3750 on the Dow Xxxxx Telerate Service
(or such other page as may replace such page on such service, or on
another service designated by the British Bankers' Association, for the
purpose of displaying the rates at which dollar deposits are offered by
leading banks in the London interbank deposit market) at approximately
11:00 A.M., London time, on the second Business Day preceding the first
day of such Interest Period. If such rate does not appear on such page,
"LIBOR" shall mean the arithmetic mean (rounded, if necessary, to the
next higher 1/16 of 1%) of the respective rates of interest
communicated by the LIBOR Reference Banks to the Lender as the rate at
which U.S. dollar deposits are offered to the LIBOR Reference Banks by
leading banks in the London interbank deposit market at approximately
11:00 A.M., London time, on the second Business Day preceding the first
day of such Interest Period in an amount substantially equal to the
respective LIBOR Reference Amounts for a term equal to such Interest
Period.
"LIBOR Reference Amount" means, with respect to any LIBOR
Reference Bank and Interest Period, the amount of the Loan scheduled to
be outstanding during that Interest Period and rounded up to the
nearest integral multiple of $1,000,000.
"LIBOR Reference Banks" mean three major banks in the London
interbank market, as selected by the Lender and agreed to by the
Borrower.
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"Lien" means, with respect to any asset of a Person, (i) any
mortgage, deed of trust, lien, pledge, encumbrance, charge or security
interest in or on such asset, (ii) the interest of a vendor or lessor
under any conditional sale agreement, capital lease or title retention
agreement relating to such asset, and (iii) in the case of securities,
any purchase option, call or similar right of any other Person with
respect to such securities.
"Loans" has the meaning assigned to such term in Section 2.01.
"Material Adverse Effect" means any material and adverse
effect on (i) the consolidated business, properties, condition
(financial or otherwise) or operations, present or prospective, of the
Borrower and its Subsidiaries, (ii) the ability of the Borrower timely
to perform any of its material obligations, or of the Lender to
exercise any remedy, under this Agreement or (iii) the legality,
validity, binding nature or enforceability of this Agreement.
"Permitted Liens" means, collectively, the following: (i)
Liens expressly approved by the Lender, which approval shall not be
unreasonably withheld; (ii) Liens imposed by any Governmental Authority
for taxes, assessments or charges not yet due or that are being
contested in good faith by appropriate proceedings and for which
adequate reserves are being maintained (in accordance with GAAP); and
(iii) Liens existing on the date hereof.
"Person" means any individual, sole proprietorship,
partnership, joint venture, trust, unincorporated organization,
association, corporation, institution, public benefit corporation,
entity or government (whether Federal, state, county, city, municipal
or otherwise, including any instrumentality, division, agency, body or
department thereof).
"Responsible Officer" means the chief executive officer,
president, chief financial officer, chief accounting officer, treasurer
or any vice president, senior vice president or executive vice
president of the General Partner.
"SEC" means the Securities and Exchange Commission (or any
successor Governmental Authority).
"Subsidiary" means, at any time and with respect to any
Person, any other Person the shares of stock or other ownership
interests of which having ordinary voting power to elect a majority of
the board of directors or with respect to other matters of such Person
are at the time owned, or the management or policies of which is
otherwise at the time controlled, directly or indirectly through one or
more intermediaries (including other Subsidiaries) or both, by such
first Person. Unless otherwise qualified or the context indicates
clearly to the contrary, all references to a "Subsidiary" or
"Subsidiaries" in this Agreement refer to a Subsidiary or Subsidiaries
of the Borrower.
"Taxes" has the meaning assigned to such term in Section
4.03(a).
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ARTICLE II
THE REVOLVING CREDIT FACILITY
Section 2.01 Commitment and Loans. Until the Commitment
Termination Date, subject to the terms and conditions of this Agreement, the
Lender agrees to make revolving credit loans (collectively, "Loans") in dollars
to the Borrower in an aggregate principal amount at any one time outstanding not
to exceed the Commitment.
Section 2.02 Borrowing Procedure. In order to borrow a Loan,
the Borrower shall give a Borrowing Request to the Lender, by telephone, telex
or telecopy or in writing, not later than 10:30 A.M., New York time, on the
third Business Day before the Borrowing Date (or such later time or date as the
Lender may in its sole discretion permit). (If any Borrowing Request is made
otherwise than in writing, Borrower shall promptly confirm such Borrowing
Request in writing.) Subject to satisfaction, or waiver by the Lender, of each
of the applicable conditions precedent contained in Article VI, on the Borrowing
Date the Lender shall make available, in immediately available funds, to the
Borrower the amount of the requested Loan.
Section 2.03 Termination and Reduction of Commitment. The
Borrower may terminate the Commitment, or reduce the amount thereof, by giving
written notice to the Lender, not later than 5:00 P.M., New York time, on the
fifth Business Day prior to the date of termination or reduction (or such later
time or date as the Lender may in its sole discretion permit).
Section 2.04 Repayment. Loans shall be repaid, together with
all accrued and unpaid interest thereon, on the Commitment Termination Date.
Section 2.05 Optional Prepayment. The Borrower may prepay
Loans by giving notice (specifying the Loans to be prepaid in whole or in part,
the principal amount thereof to be prepaid and the date of prepayment) to the
Lender, by telephone, telex, telecopy or in writing not later than 12:00 noon,
New York time, on the fourth Business Day preceding the proposed date of
prepayment (or such later time or date as the Lender may in its sole discretion
permit). (If any such prepayment notice is made otherwise than in writing,
Borrower shall promptly confirm such notice in writing.) Each such prepayment
shall be at the aggregate principal amount of the principal being prepaid,
together with accrued interest on the principal being prepaid to the date of
prepayment and the amounts required by Section 4.03. Subject to the terms and
conditions of this Agreement, prepaid Loans may be reborrowed.
ARTICLE III
INTEREST AND FEES
Section 3.01 Interest Rate. (a) Each Loan shall bear interest
from the date made until the date repaid, payable in arrears, with respect to
Interest Periods of three months or less, on the last day of such Interest
Period, and with respect to Interest Periods longer than three months, on the
day which is three months after the commencement of such Interest Period and on
the last day of such Interest Period, at a rate per annum equal to the sum of
(i) 3% and (ii) LIBOR for the applicable Interest Period.
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(b) At the end of an Interest Period for any Loan (other than
an Interest Period that ends on the Commitment Termination Date), the succeeding
Interest Period for such Loan shall be deemed to be three months; provided, that
if the Borrower shall give notice to the Lender specifying some other Interest
Period, by telephone, telex, telecopy or in writing not later than the third
Business Day prior to the last day of such Interest Period (or such later date
as the Lender may in its sole discretion permit), the succeeding Interest Period
for such Loan shall become the period so specified. (If any such notice
specifying an Interest Period is given otherwise than in writing, Borrower shall
promptly confirm such notice in writing.)
Section 3.02 Interest on Overdue Amounts. All overdue amounts
(including principal, interest and fees) hereunder, and, during the continuance
of any Event of Default that shall have occurred, each Loan, shall bear
interest, payable on demand, at a rate per annum equal to the sum of (i) 6% and
(ii) LIBOR for the applicable Interest Period.
Section 3.03 Maximum Interest Rate. (a) Nothing in this
Agreement shall require the Borrower to pay interest at a rate exceeding the
maximum rate permitted by applicable law. Neither this Section nor Section 10.01
is intended to limit the rate of interest payable for the account of the Lender
to the maximum rate permitted by the laws of the State of New York (or any other
applicable law) if a higher rate is permitted with respect to the Lender by
supervening provisions of U.S. Federal law.
(b) If the amount of interest payable for the account of the
Lender on any interest payment date in respect of the immediately preceding
interest computation period, computed pursuant to this Article III, would exceed
the maximum amount permitted by applicable law to be charged by the Lender, the
amount of interest payable for its account on such interest payment date shall
automatically be reduced to such maximum permissible amount.
(c) If the amount of interest payable for the account of the
Lender in respect of any interest computation period is reduced pursuant to
Section 3.03(b) and the amount of interest payable for its account in respect of
any subsequent interest computation period would be less than the maximum amount
permitted by law to be charged by the Lender, then the amount of interest
payable for its account in respect of such subsequent interest computation
period shall be automatically increased to such maximum permissible amount;
provided that at no time shall the aggregate amount by which interest paid for
the account of the Lender has been increased pursuant to this Section 3.03(c)
exceed the aggregate amount by which interest paid for its account has
theretofore been reduced pursuant to Section 3.03(b).
Section 3.04 Commitment Fee. The Borrower agrees to pay to the
Lender, on the last day of each calendar quarter of each year, commencing with
the first such day after the Effective Date, and on the Commitment Termination
Date (or other date on which the Commitment shall terminate), a commitment fee
(the "Commitment Fee") computed by applying (i) 0.25% to (ii) the average daily
Available Commitment during such quarter.
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ARTICLE IV
DISBURSEMENT AND PAYMENT
Section 4.01 Method and Time of Payments.
(a) All payments by the Borrower hereunder shall be made
without setoff or counterclaim to the Lender, for its account, in dollars and in
immediately available funds to the account of the Lender theretofore designated
in writing to the Borrower not later than 12:00 noon, New York time, on the date
when due or, in the case of payments pursuant to Sections 4.03 and 4.04 or
payments otherwise specified as payable upon demand, forthwith upon written
demand therefor.
(b) Whenever any payment from the Borrower shall be due on a
day that is not a Business Day, the date of payment thereof shall be extended to
the next succeeding Business Day. If the date for any payment of principal is
extended by operation of law or otherwise, interest thereon shall be payable for
such extended time.
Section 4.02 Compensation for Losses. (a) If (i) the Borrower
prepays Loans, (ii) the Borrower revokes any Borrowing Request or (iii) Loans
(or portions thereof) shall become or be declared to be due prior to the
scheduled maturity thereof, then the Borrower shall pay to the Lender an amount
that will compensate the Lender for any loss (other than lost profit) or premium
or penalty incurred by the Lender as a result of such prepayment, declaration or
revocation in respect of funds obtained for the purpose of making or maintaining
the Lender's Loans, or any portion thereof. Such compensation shall include an
amount equal to the excess, if any, of (i) the amount of interest that would
have accrued on the amount so paid or prepaid, or not borrowed, for the period
from the date of such payment or prepayment or failure to borrow to the last day
of such Interest Period (or, in the case of a failure to borrow, the Interest
Period that would have commenced on the expected Borrowing Date) in each case at
the applicable rate of interest for such Loan over (ii) the amount of interest
(as reasonably determined by the Lender) that would have accrued on such amount
were it on deposit for a comparable period with leading banks in the London
interbank market.
(b) If requested by the Borrower, in connection with a payment
due pursuant to this Section 4.02, the Lender shall provide to the Borrower a
certificate setting forth in reasonable detail the amount required to be paid by
the Borrower to the Lender and the computations made by the Lender to determine
such amount. In the absence of manifest error, such certificate shall be
conclusive as to the amount required to be paid.
Section 4.03 Withholding and Additional Costs.
(a) Withholding. All payments under this Agreement (including
payments of principal and interest) shall be payable to the Lender free and
clear of any and all present and future taxes, levies, imposts, duties,
deductions, withholdings, fees, liabilities and similar charges (collectively,
"Taxes"). If any Taxes are required to be withheld or deducted from any amount
payable under this Agreement, then the amount payable under this Agreement shall
be increased to the amount which, after deduction from such increased amount of
all Taxes required to be
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withheld or deducted therefrom, will yield to the Lender the amount stated to be
payable under this Agreement. The Borrower shall also hold the Lender harmless
and indemnify it for any stamp or other taxes with respect to the preparation,
execution, delivery, recording, performance or enforcement of this Agreement
(all of which shall be included within "Taxes"). If any of the Taxes specified
in this Section 4.03(a) are paid by the Lender, the Borrower shall, upon demand
of the Lender, promptly reimburse the Lender for such payments, together with
any interest, penalties and expenses incurred in connection therewith. The
Borrower shall deliver to the Lender certificates or other valid vouchers for
all Taxes or other charges deducted from or paid with respect to payments made
by the Borrower hereunder.
(b) Additional Costs. Subject to Section 4.03 (c), and without
duplication of any amounts payable described in Section 4.02 or 4.03(a), if
after the date hereof any change in any law or regulation or in the
interpretation thereof by any court or administrative or Governmental Authority
charged with the administration thereof or the enactment of any law or
regulation shall either (1) impose, modify or deem applicable any reserve,
special deposit or similar requirement against the Lender's Commitment or Loans
or (2) impose on the Lender any other condition regarding this Agreement, its
Commitment or the Loans and the result of any event referred to in clause (1) or
(2) shall be to increase the cost to the Lender of maintaining its Commitment or
any Loans made by the Lender (which increase in cost shall be calculated in
accordance with the Lender's reasonable averaging and attribution methods) by an
amount which the Lender deems to be material, then, upon demand by the Lender,
the Borrower shall pay to the Lender an amount equal to such increase in cost.
(c) Certificate, Etc. If requested by the Borrower, in
connection with any demand for payment pursuant to this Section 4.03, the Lender
shall provide to the Borrower a certificate setting forth in reasonable detail
the basis for such demand, the amount required to be paid by the Borrower to the
Lender, the computations made by the Lender to determine such amount and
satisfaction of the conditions set forth in the next sentence. Anything to the
contrary herein notwithstanding, the Lender shall not have the right to demand
any payment or compensation under this Section 4.03 (i) with respect to any
period more than 180 days prior to the date it has made a demand pursuant to
this Section 4.03, and (ii) to the extent that the Lender determines in good
faith that the interest rate on the relevant Loans appropriately accounts for
any increased cost or reduced rate of return. In the absence of manifest error,
the certificate referred to above shall be conclusive as to the amount required
to be paid.
Section 4.04 Expenses; Indemnity. (a) The Borrower agrees: (i)
to pay or reimburse the Lender for all reasonable out-of-pocket costs and
expenses incurred in connection with the preparation and execution of, and any
amendment, supplement or modification to, this Agreement and any other documents
prepared in connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of Xxxxxxxx & Xxxxxxxx, counsel to the Lender;
and (ii) to pay or reimburse the Lender for all reasonable costs and expenses
incurred in connection with the enforcement or preservation of any rights under
this Agreement and any such other documents, including, without limitation, the
reasonable fees and disbursements of counsel to the Lender. The Borrower also
agrees to indemnify the Lender against any transfer taxes, documentary taxes,
assessments or charges made by any Governmental Authority by reason of the
execution and delivery of this Agreement.
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(b) The Borrower agrees to indemnify the Lender and its
directors, officers, partners, employees, agents and Affiliates (for purposes of
this paragraph, each, an "Indemnitee") against, and to hold each Indemnitee
harmless from, any and all claims, liabilities, damages, losses, costs, charges
and expenses (including fees and expenses of counsel) incurred by or asserted
against any Indemnitee arising out of, in any way connected with, or as a result
of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated by this Agreement, the performance by the parties
thereto of their respective obligations under this Agreement or the consummation
of the transactions and the other transactions contemplated by this Agreement,
(ii) the use of the proceeds of the Loans or (iii) any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether or not any
Indemnitee is a party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee.
(c) All amounts due under this Section 4.04 shall be payable
in immediately available funds upon written demand therefor.
Section 4.05. Survival. The provisions of Sections 4.02, 4.03
and 4.04 shall remain operative and in full force and effect regardless of the
expiration of the term of this Agreement, the consummation of the transactions
contemplated hereby, the repayment of any of the Loans, the reduction or
termination of the Commitment, the invalidity or unenforceability of any term or
provision of this Agreement, or any investigation made by or on behalf of the
Lender.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.01 Representations and Warranties. The Borrower
represents and warrants to the Lender as follows:
(a) Good Standing and Power. The Borrower and each Subsidiary
is a limited partnership or corporation, duly organized and validly
existing in good standing under the laws of the jurisdiction of its
organization; each has the power to own its property and to carry on
its business as now being conducted; and each is duly qualified to do
business and is in good standing in each jurisdiction in which the
character of the properties owned or leased by it therein or in which
the transaction of its business makes such qualification necessary,
except where the failure to be so qualified, or to be in good standing,
individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
(b) Authority. The Borrower has full power and authority to
execute and deliver, and to incur and perform its obligations under,
this Agreement, which has been duly authorized by all proper and
necessary action. No consent or approval of limited partners is
required as a condition to the validity or performance of, or the
exercise by the Lender of any of its rights or remedies under, this
Agreement.
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(c) Authorizations. All authorizations, consents, approvals,
registrations, notices, exemptions and licenses with or from any
Governmental Authority or other Person necessary for the execution,
delivery and performance by the Borrower of, and the incurrence and
performance of each of its obligations under, this Agreement, and the
exercise by the Lender of its remedies under this Agreement have been
effected or obtained and are in full force and effect.
(d) Binding Obligation. This Agreement constitutes the valid
and legally binding obligation of the Borrower enforceable in
accordance with its terms, subject as to enforcement to bankruptcy,
insolvency, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
(e) Litigation. There are no proceedings or investigations now
pending or, to the knowledge of the Borrower, threatened before any
court or arbitrator or before or by any Governmental Authority which,
individually or in the aggregate, if determined adversely to the
interests of the Borrower or any Subsidiary, could reasonably be
expected to have a Material Adverse Effect.
(f) No Conflicts. There is no statute, regulation, rule, order
or judgment, and no provision of any agreement or instrument binding
upon the Borrower or any Subsidiary, or affecting their properties, and
no provision of the certificate of limited partnership, certificate of
incorporation, agreement of limited partnership or by-laws (or similar
constitutive instruments) of the Borrower or any Subsidiary, that would
prohibit, conflict with or in any way impair the execution or delivery
of, or the incurrence or performance of any obligations of the Borrower
under, this Agreement, or result in or require the creation or
imposition of any Lien on property of the Borrower or any Subsidiary as
a consequence of the execution, delivery and performance of this
Agreement.
(g) Taxes. The Borrower and the Subsidiaries each has filed or
caused to be filed all tax returns that are required to be filed and
paid all taxes that are required to be shown to be due and payable on
said returns or on any assessment made against it or any of its
property and all other taxes, assessments, fees, liabilities, penalties
or other charges imposed on it or any of its property by any
Governmental Authority, except for any taxes, assessments, fees,
liabilities, penalties or other charges which are being contested in
good faith and (unless the amount thereof is not material to the
Borrower's consolidated financial condition) for which adequate
reserves have been established in accordance with GAAP.
(h) Properties. The Borrower and the Subsidiaries each has
good and marketable title to, or valid leasehold interests in, all of
its respective properties and assets. All such assets and properties
are so owned or held free and clear of all Liens, except Permitted
Liens.
(i) Compliance with Laws and Charter Documents. Neither the
Borrower nor any Subsidiary is, or as a result of performing any of its
obligations under this Agreement will be, in violation of (a) any law,
statute, rule, regulation or order of any Governmental
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Authority applicable to it or its properties or assets or (b) its
certificate of limited partnership, certificate of incorporation,
agreement of limited partnership, by-laws or any similar document.
(j) No Material Adverse Effect. Since October 30, 1997, there
has not occurred or arisen any event, condition or circumstance that,
individually or in the aggregate, could reasonably be expected to have
a Material Adverse Effect.
(k) Disclosure. All information relating to the Borrower or
its Subsidiaries delivered in writing to the Lender in connection with
the negotiation, execution and delivery of this Agreement is true and
complete in all material respects. There is no material fact of which
the Borrower is aware which, individually or in the aggregate, would
reasonably be expected adversely to influence the Lender's credit
analysis relating to the Borrower and its Subsidiaries which has not
been disclosed to the Lender in writing.
Section 5.02 Survival. All representations and warranties made
by the Borrower in this Agreement, and in the certificates or other instruments
prepared or delivered in connection with or pursuant to this Agreement, shall
(i) be considered to have been relied upon by the Lender, (ii) survive the
making of Loans regardless of any investigation made by, or on behalf of, the
Lender and (iii) continue in full force and effect as long as the Commitment has
not been terminated and, thereafter, so long as any Loan, fee or other amount
payable under this Agreement remains unpaid.
ARTICLE VI
CONDITIONS PRECEDENT
Section 6.01 Conditions to the Availability of the Commitment.
The obligations of the Lender hereunder are subject to, and the Lender's
Commitment shall not become available until the earliest date (the "Effective
Date") on which each of the following conditions precedent shall have been
satisfied or waived in writing by the Lender:
(a) This Agreement. The Lender shall have received this
Agreement duly executed and delivered by the Borrower.
(b) Certificate of Limited Partnership and Agreement of
Limited Partnership. The Lender shall have received the following:
(i) a copy of the Certificate of Limited Partnership
of the Borrower, as in effect on the Effective Date, certified
by the Secretary of State of Delaware, and a certificate from
such Secretary of State as to the good standing of the
Borrower, in each case as of a date reasonably close to the
Effective Date; and
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(ii) a certificate of a Responsible Officer of the
Borrower, dated the Effective Date, and stating that attached
thereto is a true and complete copy of the Agreement of
Limited Partnership of the Borrower as in effect on such date.
(c) Representations and Warranties. The representations and
warranties contained in Section 5.01 shall be true and correct on the
Effective Date, and the Lender shall have received a certificate,
signed by a Responsible Officer of the Borrower, to that effect.
(d) Other Documents. The Lender shall have received such other
certificates, opinions and other documents as the Lender reasonably may
require.
(e) REIT STATUS of General Partner. The General Partner shall
no longer be required under the Intercompany Agreement to seek to
qualify as a real estate investment trust.
Section 6.02 Conditions to All Loans. The obligations of the
Lender to make each Loan are subject to the conditions precedent that, on the
date of each Loan and after giving effect thereto, each of the following
conditions precedent shall have been satisfied, or waived in writing by the
Lender:
(a) Borrowing Request. The Lender shall have received a
Borrowing Request in accordance with the terms of this Agreement.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing, nor shall any Default or Event of Default
occur as a result of the making of such Loan.
(c) Representations and Warranties; Covenants. The
representations and warranties contained in Section 5.01 shall have
been true and correct when made and (except to the extent that any
representation or warranty speaks as of a date certain) shall be true
and correct on the Borrowing Date with the same effect as though such
representations and warranties were made on such Borrowing Date; and
the Borrower shall have complied with all of its covenants and
agreements under this Agreement.
Section 6.03 Satisfaction of Conditions Precedent. Each of (i)
the delivery by the Borrower of a Borrowing Request (unless the Borrower
notifies the Lender in writing to the contrary prior to the Borrowing Date) and
(ii) the acceptance of the proceeds of a Loan shall be deemed to constitute a
certification by the Borrower that, as of the Borrowing Date, each of the
conditions precedent contained in Section 6.02 has been satisfied with respect
to the Loan then being made.
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ARTICLE VII
COVENANTS
Section 7.01 Affirmative Covenants. Until satisfaction in full
of all the obligations of the Borrower under this Agreement and termination of
the Commitment of the Lender hereunder, the Borrower will:
(a) Financial Statements; Compliance Certificates. Furnish to
the Lender:
(i) as soon as available, but in no event more than
60 days following the end of each of the first three quarters
of each fiscal year, copies of the General Partner's Quarterly
Report on Form 10-Q being filed with the SEC, which shall
include a consolidated balance sheet and consolidated income
statement of the General Partner, the Borrower and the
Subsidiaries for such quarter;
(ii) as soon as available, but in no event more than
120 days following the end of each fiscal year, a copy of the
General Partner's Annual Report on Form 10-K being filed with
the SEC, which shall include the consolidated financial
statements of the General Partner, the Borrower and the
Subsidiaries, together with a report thereon by Deloitte &
Touche LLP (or another firm of independent certified public
accountants reasonably satisfactory to the Lender), for such
year;
(iii) within five Business Days of any Responsible
Officer of the Borrower obtaining knowledge of any Default or
Event of Default, if such Default or Event of Default is then
continuing, a certificate of a Responsible Officer of the
Borrower stating that such certificate is a "Notice of
Default" and setting forth the details thereof and the action
which the Borrower is taking or proposes to take with respect
thereto; and
(iv) such additional information, reports or
statements, regarding the business, financial condition or
results of operations of the Borrower and its Subsidiaries, as
the Lender from time to time may reasonably request.
(b) Existence. Except as permitted by Section 7.02(a),
maintain its existence in good standing and qualify and remain
qualified to do business in each jurisdiction in which the character of
the properties owned or leased by it therein or in which the trans
action of its business is such that the failure to qualify,
individually or in the aggregate, could reasonably be expected to have
a Material Adverse Effect.
(c) Compliance with Law and Agreements. Comply, and cause each
Subsidiary to comply, with all applicable laws, ordinances, orders,
rules, regulations and requirements of all Governmental Authorities and
with all agreements except where the necessity of compliance therewith
is contested in good faith by appropriate proceedings or
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where the failure to comply therewith, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(d) Authorizations. Obtain, make and keep in full force and
effect all authorizations from and registrations with Governmental
Authorities required for the validity or enforceability of this
Agreement.
(e) Inspection. Permit, and cause each Subsidiary to permit,
the Lender to have one or more of its officers and employees, or any
other Person designated by the Lender, to visit and inspect any of the
properties of the Borrower and the Subsidiaries and to examine the
minute books, books of account and other records of the Borrower and
the Subsidiaries, and to photocopy extracts from such minute books,
books of account and other records, and to discuss its affairs,
finances and accounts with its officers and with the Borrower's
independent accountants, during normal business hours and at such other
reasonable times, for the purpose of monitoring the Borrower's
compliance with its obligations under this Agreement.
(f) Maintenance of Records. Keep, and cause each Subsidiary to
keep, proper books of record and account in which full, true and
correct entries will be made of all dealings or transactions of or in
relation to its business and affairs.
(g) Notice of Defaults and Adverse Developments. Promptly
notify the Lender upon the discovery by any Responsible Officer of the
occurrence of (i) any Default or Event of Default; (ii) any event,
development or circumstance whereby the financial statements most
recently furnished to the Lender fail in any material respect to
present fairly, in accordance with GAAP, the financial condition and
operating results of the Borrower and the Subsidiaries as of the date
of such financial statements; (iii) any material litigation or
proceedings that are instituted or threatened (to the knowledge of the
Borrower) against the Borrower or any Subsidiary or any of their
respective assets; (iv) any event, development or circumstance which,
individually or in the aggregate, could reasonably be expected to
result in an event of default (or, with the giving of notice or lapse
of time or both, an event of default) under any Indebtedness and the
amount thereof; and (v) any other development in the business or
affairs of the Borrower or any Subsidiary if the effect thereof would
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect; in each case describing the nature thereof and
the action the Borrower proposes to take with respect thereto.
Section 7.02 Negative Covenants. Until satisfaction in full of
all the obligations of the Borrower under this Agreement and termination of the
Commitment of the Lender hereunder, the Borrower will not:
(a) Mergers, Consolidations and Sales of Assets. Wind up,
liquidate or dissolve its affairs or enter into any merger,
consolidation or share exchange, or convey, sell, lease or otherwise
dispose of (or agree to do any of the foregoing at any future time),
whether in one or a series of transactions, all or any substantial part
of its assets, or permit any Subsidiary so to do, unless such
transaction or series of transactions are expressly approved by the
Lender, which approval shall not be unreasonably withheld.
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(b) Liens. Create, incur, assume or suffer to exist any Lien
upon or with respect to any of its property or assets, whether now
owned or hereafter acquired, or assign or otherwise convey any right to
receive income, except Permitted Liens.
(c) Indebtedness. Create, incur, issue, assume, guarantee or
suffer to exist any Indebtedness, or permit any Subsidiary so to do,
except:
(i) Indebtedness to the Lender under this Agreement,
(ii) Non-recourse Indebtedness of the Borrower and
any Subsidiary secured by mortgages, encumbrances or liens
specifically permitted by Section 7.02(b), and
(iii) Indebtedness expressly approved by the Lender
in writing, which approval may be withheld in the Lender's
sole discretion.
(d) Dividends. Declare any dividends or distributions on any
of its partnership interests unless such dividend or distribution is
expressing approval by the Lender, which approval shall not be
unreasonably withheld.
(e) Certain Amendments. Amend, modify or waive, or permit to
be amended, modified or waived, any provision of its Certificate of
Limited Partnership or Agreement of Limited Partnership unless, within
not less than 5 days prior to such amendment, modification or waiver
(or such later time as the Lender may in its sole discretion permit),
the Borrower shall have given the Lender notice thereof, including all
relevant terms and conditions thereof, and the Lender shall have
consented in writing thereto, which consent shall not be unreasonably
withheld.
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.01 Events of Default. If one or more of the
following events (each, an "Event of Default") shall occur:
(a) The Borrower shall fail duly to pay any principal of any
Loan when due, whether at maturity, by notice of intention to prepay or
otherwise; or
(b) The Borrower shall fail duly to pay any interest, fee or
any other amount payable under this Agreement within two days after the
same shall be due; or
(c) The Borrower shall fail duly to observe or perform any
term, covenant, or agreement contained in Section 7.02; or
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(d) The Borrower shall fail duly to observe or perform any
other term, covenant or agreement contained in this Agreement, and such
failure shall have continued unremedied for a period of 30 days; or
(e) Any representation or warranty made or deemed made by the
Borrower in this Agreement, or any statement or representation made in
any certificate, report or opinion delivered by or on behalf of the
Borrower in connection with this Agreement, shall prove to have been
false or misleading in any material respect when so made or deemed
made; or
(f) The Borrower shall fail to pay any Indebtedness (other
than obligations here under) in an amount of $100,000 or more when due;
or any such Indebtedness having an aggregate principal amount
outstanding of $100,000 or more shall become or be declared to be due
prior to the expressed maturity thereof; or
(g) An involuntary case or other proceeding shall be commenced
against the Borrower seeking liquidation, reorganization or other
relief with respect to it or its debts under any applicable bankruptcy,
insolvency, reorganization or similar law or seeking the appointment of
a custodian, receiver, liquidator, assignee, trustee, sequestrator or
similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of more than 60 days; or an order or decree
approving or ordering any of the foregoing shall be entered and
continued unstayed and in effect; or
(h) The Borrower shall commence a voluntary case or proceeding
under any applicable bankruptcy, insolvency, reorganization or similar
law or any other case or proceeding to be adjudicated a bankrupt or
insolvent, or any of them shall consent to the entry of a decree or
order for relief in respect of the Borrower in an involuntary case or
proceeding under any applicable bankruptcy, insolvency, reorganization
or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against any of them, or any of them shall
file a petition or answer or consent seeking reorganization or relief
under any applicable law, or any of them shall consent to the filing of
such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
similar official of the Borrower or any substantial part of its
property, or the Borrower shall make an assignment for the benefit of
creditors, or the Borrower shall admit in writing its inability to pay
its debts generally as they become due, or the Borrower shall take
corporate action in furtherance of any such action; or
(i) One or more judgments against the Borrower or attachments
against its property, which in the aggregate exceed $100,000, or the
operation or result of which could be to interfere materially and
adversely with the conduct of the business of the Borrower remain
unpaid, unstayed on appeal, undischarged, unbonded, or undismissed for
a period of more than 30 days; or
(j) Any court or governmental or regulatory authority shall
have enacted, issued, promulgated, enforced or entered any statute,
rule, regulation, judgment, decree,
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injunction or other order (whether temporary, preliminary or permanent)
which is in effect and which prohibits, enjoins or otherwise restricts,
in a manner that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, any of the transactions
contemplated under this Agreement;
then, and at any time during the continuance of such Event of Default, the
Lender may, by written notice to the Borrower, take either or both of the
following actions, at the same or different times: (i) terminate forthwith the
Commitment and (ii) declare any Loans then outstanding to be due, whereupon the
principal of the Loans so declared to be due, together with accrued interest
thereon and any unpaid amounts accrued under this Agreement, shall become
forthwith due, without presentment, demand, protest or any other notice of any
kind (all of which are hereby expressly waived by the Borrower); provided that,
in the case of any Event of Default described in Section 8.01(g) or (h)
occurring with respect to the Borrower, the Commitment shall automatically and
immediately terminate and the principal of all Loans then outstanding, together
with accrued interest thereon and any unpaid amounts accrued under this
Agreement, shall automatically and immediately become due without presentment,
demand, protest or any other notice of any kind (all of which are hereby
expressly waived by the Borrower).
ARTICLE IX
EVIDENCE OF LOANS; TRANSFERS
Section 9.01 Evidence of Loans. (a) The Lender shall maintain
accounts evidencing the indebtedness of the Borrower to the Lender resulting
from each Loan made by the Lender from time to time, including the amounts of
principal and interest payable and paid to the Lender in respect of Loans.
(b) The Lender's written records described above shall be
available for inspection during ordinary business hours by the Borrower from
time to time upon reasonable prior notice to the Lender.
(c) The entries made in the Lender's written or electronic
records and the foregoing accounts shall be prima facie evidence of the
existence and amounts of the indebtedness of the Borrower therein recorded;
provided, however, that the failure of the Lender to maintain any such account
or such records, as applicable, or any error therein, shall not in any manner
affect the validity or enforceability of any obligation of the Borrower to repay
any Loan actually made by the Lender in accordance with the terms of this
Agreement.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. APPLICABLE LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF XXX
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XXXXX XX XXX XXXX APPLICABLE TO CONTRACTS MADE AND TO BE PER FORMED ENTIRELY
WITHIN SUCH STATE.
SECTION 10.02. WAIVER OF JURY. THE BORROWER AND THE LENDER
EACH HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY
OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN
ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT, THE NOTES
OR THE RELATIONSHIPS ESTABLISHED HEREUNDER.
Section 10.03. Jurisdiction and Venue; Service of Process. The
Borrower and the Lender each hereby irrevocably submits to the non-exclusive
jurisdiction of any state or federal court in the Borough of Manhattan, The City
of New York for the purpose of any suit, action, proceeding or judgment relating
to or arising out of this Agreement and to the laying of venue in the Borough of
Manhattan, The City of New York. The Borrower and the Lender each hereby
irrevocably waives, to the fullest extent permitted by applicable law, any
objection to the laying of the venue of any such suit, action or proceeding
brought in the aforesaid courts and hereby irrevocably waives any claim that any
such suit, action or proceeding brought in any such court has been brought in an
inconvenient forum.
(b) The Borrower agrees that service of process in any such
action or proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage prepaid, to
the Borrower at its address set forth in subsection 10.07 or at such other
address of which the Lender shall have been notified pursuant thereto. The
Borrower further agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to xxx in any other jurisdiction; and
(c) The Borrower waives, to the maximum extent not prohibited
by law, any right it may have to claim or recover in any legal action or
proceeding referred to in this subsection any special, exemplary, punitive or
consequential damages.
Section 10.04. Confidentiality. The Lender agrees (on behalf
of itself and each of its Affiliates, partners, officers, employees and
representatives) to use its best efforts to keep confidential, in accordance
with their customary procedures for handling confidential information of this
nature and in accordance with commercially reasonable business practices, any
Confidential Information; provided that nothing herein shall limit the
disclosure of any such information (i) to the extent required by statute, rule,
regulation or judicial process, (ii) to counsel for the Lender, (iii) to
auditors or accountants, (iv) by the Lender to an Affiliate thereof, or (v) in
connection with any litigation relating to enforcement of this Agreement;
provided further, that, unless specifically prohibited by applicable law or
court order, the Lender shall, prior to disclosure thereof, notify the Borrower
of any request for disclosure of any Confidential Information (x) by any
Governmental Authority or representative thereof or (y) pursuant to legal
process.
Section 10.05. Amendments and Waivers. (a) Any provision of
this Agreement may be amended, modified, supplemented or waived, but only by a
written amendment or supplement, or written waiver, signed by the Borrower and
the Lender.
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(b) Except to the extent expressly set forth therein, any
waiver shall be effective only in the specific instance and for the specific
purpose for which such waiver is given.
Section 10.06. Cumulative Rights; No Waiver. Each and every
right granted to the Lender hereunder or under any other document delivered in
connection herewith, or allowed it by law or equity, shall be cumulative and not
exclusive and may be exercised from time to time. No failure on the part of the
Lender to exercise, and no delay in exercising, any right will operate as a
waiver thereof, nor will any single or partial exercise by the Lender of any
right preclude any other or future exercise thereof or the exercise of any other
right.
Section 10.07. Notices. Any communication, demand or notice to
be given hereunder will be duly given when delivered in writing or by telecopy
to a party at its address as indicated below or such other address as such party
may specify in a notice to the other party hereto. A communication, demand or
notice given pursuant to this Agreement shall be addressed:
If to the Borrower, to:
Vornado Operating L.P.
Park 00 Xxxx, Xxxxx XX
Xxxxxx Xxxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
Attention: Chief Financial Officer
If to the Lender, to:
Vornado Realty L.P.
Park 00 Xxxx, Xxxxx XX
Xxxxxx Xxxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
Attention: Chief Financial Officer
This Section 10.07 shall not apply to notices referred to in
Article II of this Agreement, except to the extent set forth therein.
Section 10.08. Certain Acknowledgments. The Borrower hereby
confirms and acknowledges that (a) the Lender does not have any fiduciary or
similar relationship to the Borrower by virtue of this Agreement and the
transactions contemplated herein and that the relationship established by this
Agreement between the Lender and the Borrower is solely that of creditor and
debtor and (b) no joint venture exists between the Borrower and the Lender by
virtue of this Agreement and the transactions contemplated herein.
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Section 10.09. Separability. In case any one or more of the
provisions contained in this Agreement shall be invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby.
Section 10.10. Parties in Interest. This Agreement shall be
binding upon and inure to the benefit of the Borrower and the Lender and their
respective successors and assigns, except that the Borrower may not assign any
of its rights hereunder without the prior written consent of the Lender, and any
purported assignment by the Borrower without such consent shall be void.
Section 10.11. Execution in Counterparts. This Agreement may
be executed in any number of counterparts and by the different parties hereto on
separate counterparts, each of which when so executed and delivered shall be an
original, but all the counterparts shall together constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
VORNADO OPERATING L.P., as Borrower
By: Vornado Operating Company,
its general partner
By:___________________________
Name:
Title:
VORNADO REALTY L.P., as
Lender
By: VORNADO REALTY TRUST,
its general partner
By:___________________________
Name:
Title:
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