EXHIBIT 4.1
CREDIT AGREEMENT
DATED AS OF MARCH 13, 2003
AMONG
DEVELOPERS DIVERSIFIED REALTY CORPORATION,
AS BORROWER
BANC OF AMERICA SECURITIES, LLC AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AS JOINT LEAD ARRANGERS AND JOINT BOOKRUNNERS
AND
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT
AND
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AS SYNDICATION AGENT
EUROHYPO AG NEW YORK BRANCH
AND
COMMERZBANK AG NEW YORK AND GRAND CAYMAN BRANCHES
AS CO-DOCUMENTATION AGENTS
AND
THE SEVERAL LENDERS
FROM
TIME TO TIME PARTIES HERETO,
AS LENDERS
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS....................................................................... 1
ARTICLE II THE CREDIT....................................................................... 19
2.1 Commitments........................................................................ 19
2.2 Final Principal Payment............................................................ 19
2.3 Ratable Loans...................................................................... 19
2.4 Applicable Margins................................................................. 19
2.5 Fees............................................................................... 20
2.6 Minimum Amount of Each Advance..................................................... 20
2.7 Optional Principal Payments........................................................ 20
2.8 Method of Selecting Types and Interest Periods for New Advances.................... 20
2.9 Conversion and Continuation of Outstanding Advances................................ 21
2.10 Changes in Interest Rate, Etc................................................... 21
2.11 Rates Applicable After Default.................................................. 22
2.12 Method of Payment............................................................... 22
2.13 Notes; Telephonic Notices....................................................... 22
2.14 Interest Payment Dates; Interest and Fee Basis.................................. 23
2.15 Notification of Advances, Interest Rates and Prepayments........................ 23
2.16 Lending Installations........................................................... 23
2.17 Non-Receipt of Funds by the Administrative Agent................................ 23
2.18 Replacement of Lenders under Certain Circumstances.............................. 24
2.19 Application of Moneys Received.................................................. 24
2.20 Usury........................................................................... 25
2.21 Extension of Facility Termination Date.......................................... 25
ARTICLE III CHANGE IN CIRCUMSTANCES......................................................... 25
3.1 Yield Protection................................................................... 25
3.2 Changes in Capital Adequacy Regulations............................................ 26
3.3 Availability of Types of Advances.................................................. 27
3.4 Funding Indemnification............................................................ 27
3.5 Taxes.............................................................................. 27
3.6 Lender Statements; Survival of Indemnity........................................... 29
ARTICLE IV CONDITIONS PRECEDENT............................................................. 29
4.1 Advance............................................................................ 29
ARTICLE V REPRESENTATIONS AND WARRANTIES.................................................... 32
5.1 Existence.......................................................................... 32
5.2 Existence of JDN Realty............................................................ 32
5.3 Authorization and Validity......................................................... 32
5.4 No Conflict; Government Consent.................................................... 33
5.5 Financial Statements; Material Adverse Change...................................... 33
5.6 Taxes.............................................................................. 33
5.7 Litigation and Guarantee Obligations............................................... 33
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5.8 Subsidiaries....................................................................... 34
5.9 ERISA.............................................................................. 34
5.10 Accuracy of Information......................................................... 34
5.11 Regulation U.................................................................... 34
5.12 Material Agreements............................................................. 34
5.13 Compliance With Laws............................................................ 35
5.14 Ownership of Properties......................................................... 35
5.15 Investment Company Act.......................................................... 35
5.16 Public Utility Holding Company Act.............................................. 35
5.17 Solvency........................................................................ 35
5.18 Insurance....................................................................... 36
5.19 REIT Status..................................................................... 36
5.20 Environmental Matters........................................................... 36
ARTICLE VI COVENANTS........................................................................ 38
6.1 Financial Reporting................................................................ 38
6.2 Use of Proceeds.................................................................... 39
6.3 Notice of Default.................................................................. 39
6.4 Conduct of Business................................................................ 40
6.5 Taxes.............................................................................. 40
6.6 Insurance.......................................................................... 40
6.7 Compliance with Laws............................................................... 40
6.8 Maintenance of Properties.......................................................... 40
6.9 Inspection......................................................................... 40
6.10 Maintenance of Status........................................................... 40
6.11 Dividends....................................................................... 41
6.12 Merger; Sale of Assets.......................................................... 41
6.13 Delivery of Subsidiary Guaranties............................................... 41
6.14 Sale and Leaseback.............................................................. 41
6.15 Acquisitions and Investments.................................................... 41
6.16 Liens........................................................................... 42
6.17 Affiliates...................................................................... 42
6.18 Financial Undertakings.......................................................... 43
6.19 Variable Interest Indebtedness.................................................. 43
6.20 Consolidated Net Worth.......................................................... 43
6.21 Indebtedness and Cash Flow Covenants............................................ 43
6.22 Environmental Matters........................................................... 44
6.23 Permitted Investments........................................................... 45
ARTICLE VII DEFAULTS........................................................................ 45
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES................................. 48
8.1 Acceleration....................................................................... 48
8.2 Amendments......................................................................... 48
8.3 Preservation of Rights............................................................. 49
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ARTICLE IX GENERAL PROVISIONS............................................................... 49
9.1 Survival of Representations........................................................ 49
9.2 Governmental Regulation............................................................ 49
9.3 Taxes.............................................................................. 49
9.4 Headings........................................................................... 49
9.5 Entire Agreement................................................................... 49
9.6 Several Obligations; Benefits of this Agreement.................................... 50
9.7 Expenses; Indemnification.......................................................... 50
9.8 Numbers of Documents............................................................... 50
9.9 Accounting......................................................................... 50
9.10 Severability of Provisions...................................................... 50
9.11 Nonliability of Lenders......................................................... 50
9.12 CHOICE OF LAW................................................................... 51
9.13 CONSENT TO JURISDICTION......................................................... 51
9.14 WAIVER OF JURY TRIAL............................................................ 51
ARTICLE X THE ADMINISTRATIVE AGENT.......................................................... 51
10.1 Appointment..................................................................... 51
10.2 Powers.......................................................................... 52
10.3 General Immunity................................................................ 52
10.4 No Responsibility for Loans, Recitals, etc...................................... 52
10.5 Action on Instructions of Lenders............................................... 53
10.6 Employment of Agents and Counsel................................................ 53
10.7 Reliance on Documents; Counsel.................................................. 53
10.8 Administrative Agent's Reimbursement and Indemnification........................ 53
10.9 Rights as a Lender.............................................................. 53
10.10 Lender Credit Decision.......................................................... 54
10.11 Successor Administrative Agent.................................................. 54
ARTICLE XI SETOFF; RATABLE PAYMENTS......................................................... 55
11.1 Setoff.......................................................................... 55
11.2 Ratable Payments................................................................ 55
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS............................... 55
12.1 Successors and Assigns.......................................................... 55
12.2 Participations.................................................................. 56
12.3 Assignments..................................................................... 57
12.4 Dissemination of Information.................................................... 57
12.5 Tax Treatment................................................................... 58
12.6 Confidentiality................................................................. 58
ARTICLE XIII NOTICES........................................................................ 58
13.1 Giving Notice................................................................... 58
13.2 Change of Address............................................................... 59
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ARTICLE XIV COUNTERPARTS.................................................................... 59
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CREDIT AGREEMENT
This Credit Agreement, dated as of March 13, 2003, is among Developers
Diversified Realty Corporation, a corporation organized under the laws of the
State of Ohio (the "Borrower"), Bank of America, N.A., Xxxxx Fargo Bank,
National Association, and the several banks, financial institutions and other
entities from time to time parties to this Agreement (collectively, the
"Lenders"), Bank of America, N.A., not individually, but as "Administrative
Agent", and Xxxxx Fargo Bank, National Association, not individually, but as
"Syndication Agent," Banc of America Securities, LLC and Xxxxx Fargo Bank,
National Association, as Joint Lead Arrangers and Joint Bookrunners and Eurohypo
AG, New York Branch and Commerzbank AG as Co-Documentation Agents.
RECITALS
A. Borrower is primarily engaged in the business of purchasing,
developing, owning, operating, leasing and managing retail, office and
industrial properties.
B. Borrower is listed on the New York Stock Exchange and is
qualified as a real estate investment trust under Section 856 of the Code.
C. Borrower, JDN Realty Corporation, a Maryland corporation ("JDN
Realty"), and DDR Transitory Sub, Inc., a Maryland corporation, have entered
into an Agreement and Plan of Merger dated as of October 4, 2002 (the "Merger
Agreement"), pursuant to which JDN Realty will become a Wholly-Owned Subsidiary
of Borrower through the consummation of various merger transactions as more
particularly described in the Merger Agreement (collectively, such transactions
are referred to as the "Merger").
D. Borrower has requested that Administrative Agent act as
administrative agent for the Lenders and that the Lenders make loans available
to Borrower pursuant to the terms of this Agreement to finance the performance
of a portion of Borrower's obligations under the Merger Agreement. The
Administrative Agent and the Lenders have agreed to do so.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"ABR Applicable Margin" means, as of any date, the Applicable Margin in
effect on such date with respect to Floating Rate Advances and Floating Rate
Loans.
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or
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division thereof, whether through purchase of assets, merger or otherwise or
(ii) directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of
votes) of the securities of a corporation which have ordinary voting power for
the election of directors (other than securities having such power only by
reason of the happening of a contingency) or a majority (by percentage or voting
power) of the outstanding partnership interests of a partnership.
"Administrative Agent" means Bank of America, N.A., in its capacity as
agent for the Lenders pursuant to Article X, and not in its individual capacity
as a Lender, and any successor Administrative Agent appointed pursuant to
Article X.
"Advance" means all or any portion of the borrowing hereunder as
portions of the borrowing may be allocated among different interest rate options
from time to time in accordance with the terms hereof.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Aggregate Commitment" means the aggregate of the Commitments of all
the Lenders, which is equal to $300,000,000.
"Agreement" means this Credit Agreement, as it may be amended or
modified and in effect from time to time.
"Agreement Execution Date" means the date this Agreement has been fully
executed and delivered by all parties hereto.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Prime Rate for such day and (ii) the sum of
Federal Funds Rate for such day plus 1/2% per annum.
"Applicable Margin" means the applicable margin set forth in the table
in Section 2.4 used in calculating the interest rate applicable to the various
Types of Advances, which shall vary from time to time in accordance with
Borrower's long term unsecured debt ratings.
"Arrangers" means Bank of America, N.A., and Xxxxx Fargo Bank, National
Association, in their capacities as co-arrangers of the Facility.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Assets Under Development" means, as of any date of determination, all
Projects and expansion areas of existing Projects owned by the Consolidated
Group and the Investment Affiliates which are then treated as assets under
development under GAAP and which have been
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designated by the Borrower as "Assets Under Development" in its most recent
compliance certificate, both such land and improvements under construction to be
valued for purposes of this Agreement at (i) 100% of then-current book value, as
determined in accordance with GAAP, for each Asset Under Development owned by
members of the Consolidated Group and (ii) the applicable Consolidated Group Pro
Rata Share of then-current book value, as determined in accordance with GAAP,
for each Asset Under Development owned by an Investment Affiliate; provided,
however, in no event, except for purposes of calculating the covenant contained
in Section 6.23(e), shall Assets Under Development include any Project or any
expansion area of an existing Project for more than 540 days or any Project or
expansion area of an existing Project which is encumbered by a First Mortgage
Receivable as designated by the Borrower.
"Authorized Officer" means any of the President and Chief Executive
Officer, Executive Vice President and Chief Operating Officer, Vice President
and Chief Financial Officer or Vice President and General Counsel of the
Borrower, acting singly.
"Bank of America" means Bank of America, N.A., in its individual
capacity and its successors.
"Borrower" means Developers Diversified Realty Corporation, a
corporation organized under the laws of the State of Ohio, and its successors
and assigns.
"Borrowing Date" means the date on which the disbursement of the Loans
hereunder occurs.
"Borrowing Notice" is defined in Section 2.8.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of LIBOR Advances, a day (other than a Saturday or Sunday) on which
banks generally are open in Chicago, Illinois and New York, New York for the
conduct of substantially all of their commercial lending activities and on which
dealings in United States dollars are carried on in the London interbank market
and (ii) for all other purposes, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago, Illinois and New York, New York for
the conduct of substantially all of their commercial lending activities.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person which is not a corporation
and any and all warrants or options to purchase any of the foregoing.
"Capitalized Lease" of a Person means any lease of Property imposing
obligations on such Person, as lessee thereunder, which are required in
accordance with GAAP to be capitalized on a balance sheet of such Person.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with GAAP.
"Cash Equivalents" means, as of any date:
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(i) securities issued or directly and fully guaranteed or
insured by the United States Government or any agency
or instrumentality thereof having maturities of not
more than one year from such date;
(ii) mutual funds organized under the United States
Investment Company Act rated AAm or AAm-G by S&P, P-1
by Xxxxx'x and A by Fitch;
(iii) certificates of deposit or other interest-bearing
obligations of a bank or trust company which is a
member in good standing of the Federal Reserve System
having a short term unsecured debt rating of not less
than A-1 by S&P, not less than P-1 by Xxxxx'x and F-1
by Fitch (or in each case, if no bank or trust
company is so rated, the highest comparable rating
then given to any bank or trust company, but in such
case only for funds invested overnight or over a
weekend) provided that such investments shall mature
or be redeemable upon the option of the holders
thereof on or prior to a date one month from the date
of their purchase;
(iv) certificates of deposit or other interest-bearing
obligations of a bank or trust company which is a
member in good standing of the Federal Reserve System
having a short term unsecured debt rating of not less
than A-1+ by S&P, and not less than P-1 by Xxxxx'x
and which has a long term unsecured debt rating of
not less than A1 by Xxxxx'x (or in each case, if no
bank or trust company is so rated, the highest
comparable rating then given to any bank or trust
company, but in such case only for funds invested
overnight or over a weekend) provided that such
investments shall mature or be redeemable upon the
option of the holders thereof on or prior to a date
three months from the date of their purchase;
(v) bonds or other obligations having a short term
unsecured debt rating of not less than A-1+ by S&P
and P-1+ by Xxxxx'x and having a long term debt
rating of not less than A1 by Xxxxx'x issued by or by
authority of any state of the United States, any
territory or possession of the United States,
including the Commonwealth of Puerto Rico and
agencies thereof, or any political subdivision of any
of the foregoing;
(vi) repurchase agreements issued by an entity rated not
less than A-1+ by S&P, and not less than P-1 by
Xxxxx'x which are secured by U.S. Government
securities of the type described in clause (i) of
this definition maturing on or prior to a date one
month from the date the repurchase agreement is
entered into;
(vii) short term promissory notes rated not less than A-1+
by S&P, and not less than P-1 by Xxxxx'x maturing or
to be redeemable upon the option of the holders
thereof on or prior to a date one month from the date
of their purchase; and
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(viii) commercial paper (having original maturities of not
more than 365 days) rated at least A-1+ by S&P and
P-1 by Xxxxx'x and issued by a foreign or domestic
issuer who, at the time of the investment, has
outstanding long-term unsecured debt obligations
rated at least A1 by Xxxxx'x.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Commitment" means the obligation of the Lenders to make a Loan not
exceeding the amount set forth opposite its signature below.
"Consolidated Capitalization Value" means, as of any date, an amount
equal to the sum of (i) Consolidated Cash Flow for the most recent period of two
consecutive fiscal quarters for which the Borrower has reported results
(excluding any portion of Consolidated Cash Flow attributable to (A) Assets
Under Development, (B) Projects owned by Investment Affiliates which are
encumbered by First Mortgage Receivables, and (C) Projects acquired by the
Borrower or its Subsidiaries during such period) multiplied by 2, and divided by
0.095 plus (ii) with respect to each Project so acquired (or where development
of such Project was completed) by the Borrower or its Subsidiaries during such
period, the Borrower's estimated annual Net Operating Income for such Project
based on leases in existence at the date of such acquisition, or development
completion, as the case may be, divided by 0.095.
"Consolidated Cash Flow" means, for any period, an amount equal to (a)
Funds From Operations for such period plus (b) Consolidated Interest Expense for
such period.
"Consolidated Debt Service" means, for any period, without duplication,
(a) Consolidated Interest Expense for such period plus (b) the aggregate amount
of scheduled principal payments attributable to Consolidated Outstanding
Indebtedness (excluding optional prepayments and scheduled principal payments in
respect of any such Indebtedness which is not amortized through equal periodic
installments of principal and interest over the term of such Indebtedness)
required to be made during such period by any member of the Consolidated Group
plus (c) a percentage of all such scheduled principal payments required to be
made during such period by any Investment Affiliate on Indebtedness taken into
account in calculating Consolidated Interest Expense, equal to the greater of
(x) the percentage of the principal amount of such Indebtedness for which any
member of the Consolidated Group is liable and (y) the Consolidated Group Pro
Rata Share of such Investment Affiliate.
"Consolidated Group" means the Borrower and all Subsidiaries which are
consolidated with it for financial reporting purposes under GAAP.
"Consolidated Group Pro Rata Share" means, with respect to any
Investment Affiliate, the percentage of the total equity ownership interests
held by the Consolidated Group in the aggregate, in such Investment Affiliate
determined by calculating the greater of (i) the percentage of the issued and
outstanding stock, partnership interests or membership interests in such
Investment Affiliate held by the Consolidated Group in the aggregate and (ii)
the percentage of the total book value of such Investment Affiliate that would
be received by the Consolidated Group in the aggregate, upon liquidation of such
Investment Affiliate, after repayment in full of all Indebtedness of such
Investment Affiliate.
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"Consolidated Interest Expense" means, for any period without
duplication, the sum of (a) the amount of interest expense, determined in
accordance with GAAP, of the Consolidated Group for such period attributable to
Consolidated Outstanding Indebtedness during such period plus (b) the
Consolidated Group Pro Rata Share of any interest expense, determined in
accordance with GAAP, of any Investment Affiliate, for such period, whether
recourse or non-recourse less (c) with respect to each consolidated Subsidiary
of the Borrower in which the Borrower does not directly or indirectly hold a
100% ownership interest, a percentage of the interest expense attributable to
such consolidated Subsidiary which is included under clause (a) of this
definition and which is not related to Indebtedness which is a Guarantee
Obligation of the Borrower equal to the percentage ownership in such
consolidated Subsidiary which is not held either (i) directly or indirectly by
the Borrower, or (ii) by holders of operating partnership units in such
consolidated Subsidiary which are convertible into stock of the Borrower.
"Consolidated Market Value" means, as of any date, an amount equal to
the sum of (a) the Consolidated Capitalization Value as of such date, plus (b)
the value of Unrestricted Cash and Cash Equivalents, plus (c) the lesser of (i)
the value of Assets Under Development, or (ii) ten percent (10%) of the
Consolidated Capitalization Value plus (d) the lesser of (i) 100% of the
then-current value under GAAP of all First Mortgage Receivables or (ii) five
percent (5%) of the Consolidated Capitalization Value, plus (e) the lesser of
(i) 50% of the then-current book value, as determined in accordance with GAAP,
of Developable Land, or (ii) $30,000,000.
"Consolidated Net Income" means, for any period, consolidated net
income (or loss) of the Consolidated Group for such period determined on a
consolidated basis in accordance with GAAP; plus that portion of any amount
deducted as minority equity interest in calculating such consolidated net income
which is attributable to minority interest holders holding operating partnership
units in a member of the Consolidated Group which are convertible into stock in
the Borrower, but provided that there shall be excluded (a) the income (or
deficit) of any other Person accrued prior to the date it becomes a Subsidiary
of the Borrower or is merged into or consolidated with the Borrower or any of
its Subsidiaries and (b) the undistributed earnings of any Subsidiary which has
not furnished a Subsidiary Guaranty to the extent that the declaration or
payment of dividends or similar distributions by such Subsidiary is not at the
time permitted by the terms of any contractual obligation or requirement of law
applicable to such Subsidiary.
"Consolidated Net Worth" means, as of any date of determination, an
amount equal to (a) Consolidated Market Value minus (b) Consolidated Outstanding
Indebtedness as of such date.
"Consolidated Outstanding Indebtedness" means, as of any date of
determination, without duplication, the sum of (a) all Indebtedness of the
Consolidated Group outstanding at such date, determined on a consolidated basis
in accordance with GAAP, plus (b) the applicable Consolidated Group Pro Rata
Share of any Indebtedness of each Investment Affiliate other than Indebtedness
of such Investment Affiliate to a member of the Consolidated Group, less (c)
with respect to each consolidated Subsidiary of the Borrower in which the
Borrower does not directly or indirectly hold a 100% ownership interest, a
percentage of any Indebtedness of such consolidated Subsidiary which is not a
Guarantee Obligation of the Borrower equal to the percentage ownership interest
in such consolidated Subsidiary which is not held directly or indirectly by the
Borrower.
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"Consolidated Secured Indebtedness" means, as of any date of
determination, without duplication, the sum of (a) the aggregate principal
amount of that portion of the Consolidated Outstanding Indebtedness which is
secured by any Lien on the Property of Borrower or its Subsidiaries, without
regard to recourse, plus (b) the excess, if any, over $5,000,000, of the sum of
(x) the aggregate principal amount of all Senior Unsecured Indebtedness of the
Subsidiaries of the Borrower which have not furnished Subsidiary Guaranties,
determined on a consolidated basis in accordance with GAAP and (y) a percentage
of the aggregate principal amount of all Indebtedness of each Investment
Affiliate equal to the greater of (x) the percentage of such Indebtedness for
which any member of the Consolidated Group is liable and (z) the Consolidated
Group Pro Rata Share of such Investment Affiliate.
"Consolidated Senior Unsecured Indebtedness" means, as of any date of
determination, the aggregate principal amount of all Senior Unsecured
Indebtedness of the Consolidated Group outstanding at such date, including,
without limitation, all the outstanding Indebtedness under this Agreement and
the Revolving Credit Agreement as of such date, determined on a consolidated
basis in accordance with GAAP.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower or any of its Subsidiaries, are
treated as a single employer under Section 414 of the Code.
"Conversion/Continuation Notice" is defined in Section 2.9.
"Default" means an event described in Article VII.
"Defaulting Lender" means any Lender which fails or refuses to perform
its obligations under this Agreement within the time period specified for
performance of such obligation, or, if no time frame is specified, if such
failure or refusal continues for a period of five (5) Business Days after
written notice from the Administrative Agent; provided that if such Lender cures
such failure or refusal, such Lender shall cease to be a Defaulting Lender.
"Default Rate" means the interest rate which may apply during the
continuance of a Default pursuant to Section 2.11.
"Developable Land" means land which is appropriately zoned, has access
to all necessary utilities and has access to publicly dedicated streets.
"Environmental Laws" means any and all foreign, Federal, state, local
or municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect, in each case to the extent the
foregoing are applicable to the Borrower or any Subsidiary or any of their
respective assets or Projects.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Equity Value" means, with respect to a Subsidiary owned as of the
Agreement Execution Date or owned and in operation for a period of two (2) or
more consecutive full fiscal quarters after the Agreement Execution Date, by the
Borrower or one of its other Subsidiaries, an amount equal to (A) the product of
(i) the sum of net income (or loss) for the most recent two (2) consecutive
fiscal quarters without giving effect to depreciation and amortization, gains or
losses from extraordinary items, gains or losses on sales of real estate, and
gains or losses on investments in marketable securities for such period, plus
the amount of interest expense for such period on the aggregate principal amount
of the Indebtedness of such Subsidiary, multiplied by (ii) 2, divided by (B)
0.095, and then minus (C) Indebtedness of the Subsidiary as of the date of
determination. For any Subsidiary formed or purchased after the Agreement
Execution Date, until it or its Properties have been owned and operated by the
Borrower or one of its other Subsidiaries for two or more consecutive full
fiscal quarters, "Equity Value" shall mean the Borrower's estimated annual Net
Operating Income for the Projects owned by such Subsidiary based on leases in
existence at the date such Subsidiary is formed or purchased divided by 0.095,
and then minus the Indebtedness of such Subsidiary as of the date of
determination.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Administrative Agent, taxes imposed on its overall
net income, and franchise taxes imposed on it, by any jurisdiction with taxing
authority over the Lender.
"Facility Termination Date" means March 13, 2004, subject to extension
pursuant to Section 2.21.
"Federal Funds Rate" means, for any day, the rate per annum equal to
the weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate (rounded upward,
if necessary, to a whole multiple of 1/100 of 1%) charged to Administrative
Agent on such day on such transactions as determined by the Administrative
Agent.
"Financeable Ground Lease" means, a ground lease satisfactory to the
Required Lenders and the Administrative Agent's counsel in their reasonable
discretion, which must provide protections for a potential leasehold mortgagee
("Mortgagee") which include, among other things (i) a remaining term, including
any optional extension terms exercisable unilaterally by the tenant, of no less
than 25 years from the Agreement Execution Date, (ii) that the ground lease will
not be terminated until the Mortgagee has received notice of a default, has had
a reasonable opportunity to cure or complete foreclosure, and has failed to do
so, (iii) a provision for a new lease on the same terms to the Mortgagee as
tenant if the ground lease is terminated for any reason, (iv) non-merger of the
fee and leasehold estates, (v) transferability of the tenant's interest under
the ground lease without any requirement for consent of the ground lessor unless
based on reasonable objective criteria as to the creditworthiness or line of
business of the transferee or
-8-
delivery of customary assignment and assumption agreements from the transferor
and transferee, and (vi) that insurance proceeds and condemnation awards (from
the fee interest as well as the leasehold interest) will be applied pursuant to
the terms of the applicable leasehold mortgage.
"Financial Contract" of a Person means (i) any exchange - traded or
over-the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics, or (ii) any Rate Management
Transaction.
"Financial Undertaking" of a Person means (i) any transaction which is
the functional equivalent of or takes the place of borrowing but which does not
constitute a liability on the consolidated balance sheet of such Person, or (ii)
any agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, exchange rates or
forward rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, interest rate exchange agreements,
forward currency exchange agreements, interest rate cap or collar protection
agreements, forward rate currency or interest rate options.
"First Mortgage Receivable" means any Indebtedness owing to a member of
the Consolidated Group which is secured by a first-priority mortgage or deed of
trust on commercial real estate having a value in excess of the amount of such
Indebtedness and which has been designated by the Borrower as a "First Mortgage
Receivable" in its most recent compliance certificate.
"Fitch" means Fitch, Inc. and its successors.
"Fixed Charges" shall mean, for any period, the sum of (i) Consolidated
Interest Expense, (ii) all scheduled principal payments due on account of
Consolidated Outstanding Indebtedness (excluding balloon payments), (iii) all
dividends payable on account of preferred stock or preferred operating
partnership units of the Borrower or any other Person in the Consolidated Group
and (iv) all ground lease payments to the extent not deducted as an expense in
calculating Consolidated Cash Flow.
"Floating Rate" means, for any day, a rate per annum equal to (i) the
Alternate Base Rate for such day plus (ii) ABR Applicable Margin for such day,
in each case changing when and as the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which bears interest at the
Floating Rate.
"Floating Rate Loan" means a Loan which bears interest at the Floating
Rate.
"Funds From Operations" means, for any period, the sum of (i)
Consolidated Net Income for such period, excluding (A) gains (losses) on sales
of property, (B) non-recurring charges and extraordinary items, and (C) non-cash
charges (including, without limitation, depreciation and amortization, and
equity gains (losses) from each Investment Affiliate included therein, but
excluding any amortization of deferred finance costs), plus (ii) the applicable
Consolidated Group Pro Rata Share of funds from operations of each Investment
Affiliate that is due to the Consolidated Group for such period, all determined
on a consistent basis. With regard to the foregoing sentence, for each
consolidated Subsidiary of the Borrower in which the Borrower
-9-
does not directly or indirectly hold a 100% ownership interest, each of clauses
(A), (B) and (C) shall exclude the prorata share of such item attributable to
minority interest holders which do not hold operating partnership units
convertible to stock in the Borrower.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time, applied in a manner consistent
with that used in preparing the financial statements referred to in Section 6.1.
"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.
"Guarantee Obligation" means, as to any Person (the "guaranteeing
person"), any obligation (determined without duplication) of (a) the
guaranteeing person or (b) another Person (including, without limitation, any
bank under any Letter of Credit) to induce the creation of which the
guaranteeing person has issued a reimbursement, counter-indemnity or similar
obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
of any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the term
Guarantee Obligation shall not include endorsements of instruments for deposit
or collection in the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the maximum stated
amount of the primary obligation relating to such Guarantee Obligation (or, if
less, the maximum stated liability set forth in the instrument embodying such
Guarantee Obligation), provided, that in the absence of any such stated amount
or stated liability, the amount of such Guarantee Obligation shall be such
guaranteeing person's maximum reasonably anticipated liability in respect
thereof as determined by the Borrower in good faith.
"Indebtedness" of any Person at any date means without duplication, (a)
all indebtedness of such Person for borrowed money including without limitation
any repurchase obligation or liability of such Person with respect to
securities, accounts or notes receivable sold by such Person, (b) all
obligations of such Person for the deferred purchase price of property or
services (other than current trade liabilities incurred in the ordinary course
of business and payable in accordance with customary practices), to the extent
such obligations constitute indebtedness for the purposes of GAAP, (c) any other
indebtedness of such Person which is evidenced by a note, bond, debenture or
similar instrument, (d) all Capitalized Lease Obligations, (e) all obligations
of such Person in respect of acceptances issued or created for the account of
such Person, (f) all Guarantee Obligations of such Person (excluding in any
calculation of consolidated Indebtedness of the Consolidated Group, Guarantee
Obligations of one member of the Consolidated Group in respect of primary
obligations of any other member of the Consolidated Group), (g) all
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reimbursement obligations of such Person for letters of credit and other
contingent liabilities, (h) any Net Xxxx-to-Market Exposure and (i) all
liabilities secured by any lien (other than liens for taxes not yet due and
payable) on any property owned by such Person even though such Person has not
assumed or otherwise become liable for the payment thereof.
"Interest Period" means a LIBOR Interest Period.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade), deposit account or contribution of capital by such Person to any other
Person or any investment in, or purchase or other acquisition of, the stock,
partnership interests, notes, debentures or other securities of any other Person
made by such Person.
"Investment Affiliate" means any Person in which the Consolidated
Group, directly or indirectly, has an ownership interest, whose financial
results are not consolidated under GAAP with the financial results of the
Consolidated Group.
"JDN Realty" is defined in Recital C.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement, their respective successors and assigns, any other lending
institutions that subsequently become parties to this Agreement.
"Lending Installation" means, with respect to a Lender, any office,
branch, subsidiary or affiliate of such Lender.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"LIBOR Advance" means an Advance that bears interest at the LIBOR Rate.
"LIBOR Applicable Margin" means, as of any date with respect to any
LIBOR Interest Period, the Applicable Margin in effect for such LIBOR Interest
Period as determined in accordance with Section 2.4 hereof.
"LIBOR Base Rate" means, with respect to a LIBOR Advance for the
relevant LIBOR Interest Period, the applicable British Bankers' Association
LIBOR rate for deposits in U.S. dollars as reported by any generally recognized
financial information service as of 11:00 a.m. (London time) two Business Days
prior to the first day of such LIBOR Interest Period, and having a maturity
equal to such LIBOR Interest Period, provided that, if no such British Bankers'
Association LIBOR rate is available to the Administrative Agent, the applicable
LIBOR Base Rate for the relevant LIBOR Interest Period shall instead be the rate
determined by the Administrative Agent to be the rate at which Administrative
Agent or one of its Affiliate banks offers to place deposits in U.S. dollars
with first-class banks in the London interbank market at approximately 11:00
a.m. (London time) two Business Days prior to the first day of
-11-
such LIBOR Interest Period, in the approximate amount of Administrative Agent's
relevant LIBOR Loan and having a maturity equal to such LIBOR Interest Period.
"LIBOR Interest Period" means a period of one, two, three or six months
commencing on a Business Day selected by the Borrower pursuant to this
Agreement. Such LIBOR Interest Period shall end on (but exclude) the day which
corresponds numerically to such date one, two, three or six months thereafter,
provided, however, that if there is no such numerically corresponding day in
such next, second, third or sixth succeeding month, such LIBOR Interest Period
shall end on the last Business Day of such next, second, third or sixth
succeeding month. If a LIBOR Interest Period would otherwise end on a day which
is not a Business Day, such LIBOR Interest Period shall end on the next
succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such LIBOR Interest Period shall end
on the immediately preceding Business Day.
"LIBOR Loan" means a Loan which bears interest at a LIBOR Rate.
"LIBOR Rate" means, with respect to a LIBOR Advance for the relevant
LIBOR Interest Period, the sum of (i) the quotient of (a) the LIBOR Base Rate
applicable to such LIBOR Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such LIBOR Interest Period,
plus (ii) the LIBOR Applicable Margin in effect from time to time during such
LIBOR Interest Period. The LIBOR Rate shall be rounded to the next higher 1/100
of 1% if the rate is not a multiple of 1/100 of 1%.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan" means, with respect to a Lender, such Lender's pro rata portion
of any Advance.
"Loan Documents" means this Agreement, the Notes, the Subsidiary
Guaranties, and any other document from time to time evidencing or securing
indebtedness incurred by the Borrower under this Agreement, as any of the
foregoing may be amended or modified from time to time.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property or condition (financial or otherwise) of the Borrower and its
Subsidiaries taken as a whole, (ii) the ability of the Borrower to perform its
obligations under the Loan Documents, or (iii) the validity or enforceability of
any of the Loan Documents.
"Materials of Environmental Concern" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation or any toxic mold.
"Maximum Legal Rate" means the maximum nonusurious interest rate, if
any, that at any time or from time to time may be contracted for, taken,
reserved, charged or received on the
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indebtedness evidenced by the Note and as provided for herein or in the Note or
other Loan Documents, under the laws of such state or states whose laws are held
by any court of competent jurisdiction to govern the interest rate provisions of
the Loan.
"Merger" is defined in Recital C.
"Merger Agreement" is defined in Recital C.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"Net Xxxx-to-Market Exposure" of a Person means, as of any date of
determination, the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from Rate Management Transactions or any other
Financial Contract. "Unrealized losses" means the fair market value of the cost
to such Person of replacing such Rate Management Transaction or other Financial
Contract as of the date of determination (assuming the Rate Management
Transaction or other Financial Contract were to be terminated as of that date),
and "unrealized profits" means the fair market value of the gain to such Person
of replacing such Rate Management Transaction or other Financial Contract as of
the date of determination (assuming such Rate Management Transaction or other
Financial Contract were to be terminated as of that date).
"Net Operating Income" means, with respect to any Project for any
period, "property rental and other income" (as determined by GAAP) attributable
to such Project accruing for such period minus the amount of all expenses (as
determined in accordance with GAAP) incurred in connection with and directly
attributable to the ownership and operation of such Project for such period,
including, without limitation, Management Fees and amounts accrued for the
payment of real estate taxes and insurance premiums, but excluding interest
expense or other debt service charges and any non-cash charges such as
depreciation or amortization of financing costs. As used herein "Management
Fees", means, with respect to each Project for any period, an amount equal to
(i) three percent (3%) of the aggregate base rent and percentage rent due and
payable under leases with anchor tenants at such Project, plus (ii) three
percent (3%) of the aggregate base rent and percentage rent due and payable
under leases with tenants other than anchor tenants at such Project.
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" means a promissory note, in substantially the form of Exhibit A
hereto, duly executed by the Borrower and payable to the order of a Lender in
the amount of its Loans, including any amendment, modification, renewal or
replacement of such promissory note.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Notes, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Borrower to the Lenders
or to any Lender, the Syndication Agent, the Administrative Agent or any
indemnified party hereunder arising under the Loan Documents.
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"Other Taxes" is defined in Section 3.5(ii).
"Participants" is defined in Section 12.2.1.
"Passive Non-Real Estate Investments" means stock or other equity
interests in or debt of entities not primarily involved in commercial real
estate development or ownership.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Percentage" means for each Lender the ratio that such Lender's
outstanding Loans bears to the aggregate outstanding balance of all Loans,
expressed as a percentage.
"Permitted Acquisitions" are defined in Section 6.15.
"Permitted Liens" are defined in Section 6.16.
"Person" means any natural person, corporation, firm, joint venture,
partnership, association, enterprise, trust or other entity or organization, or
any government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Borrower or any member of the Controlled Group may have any
liability.
"Prime Rate" means a rate per annum equal to the prime rate of interest
publicly announced from time to time by Administrative Agent as its prime rate
(which is not necessarily the lowest rate charged to any customer), changing
when and as said prime rate changes. In the event that there is a successor to
the Administrative Agent by merger, or the Administrative Agent assigns its
duties and obligations to an Affiliate, then the term "Prime Rate" as used in
this Agreement shall mean the prime rate, base rate or other analogous rate of
the new Administrative Agent.
"Pre-Leased Project Under Construction" means a Project under
development (in accordance with GAAP) on which construction of buildings has
been commenced but which has not been substantially completed and occupied and
over 50% of which has been leased to a tenant or tenants pursuant to fully
executed and binding leases.
"Project" means any real estate asset owned by Borrower or any of its
Subsidiaries or any Investment Affiliate, and operated or intended to be
operated as a retail, office or industrial property.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Purchasers" is defined in Section 12.3.1.
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"Qualifying Jointly-Owned Subsidiary" means a Subsidiary which (i) is a
Subsidiary Guarantor but is not a Wholly-Owned Subsidiary, (ii) is governed by
organizational documents which prohibit voluntary sales of such Subsidiary's
Projects for a certain period of time after the contribution of such Project to
such Subsidiary or require approval from one or more of its limited partners or
non-managing members (other than a Wholly-Owned Subsidiary) for such voluntary
sales, and (iii) is governed by organizational documents which expressly
authorize the Borrower or the Wholly-Owned Subsidiary which is its general
partner or managing member to cause such Subsidiary to guaranty, or pledge such
Subsidiary's assets to secure, indebtedness of the Borrower.
"Rate Management Transaction" means any transaction (including an
agreement with respect thereto) now existing or hereafter entered into by the
Borrower which is a rate swap, basis swap, forward rate transaction, commodity
swap, commodity option, equity or equity index swap, equity or equity index
option, bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, forward transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
these transactions) or any combination thereof, whether linked to one or more
interest rates, foreign currencies, commodity prices, equity prices or other
financial measures.
"Recourse Indebtedness" means any Indebtedness of Borrower or any of
its Subsidiaries with respect to which the liability of the obligor is not
limited to the obligor's interest in specified assets securing such
Indebtedness, subject to customary limited exceptions for certain acts or types
of liability.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event, provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Required Lenders" means Lenders in the aggregate holding at least 66
2/3% of the aggregate unpaid principal amount of the outstanding Advances.
-15-
"Reserve Requirement" means, with respect to a LIBOR Loan and LIBOR
Interest Period, that percentage (expressed as a decimal) which is in effect on
such day, as prescribed by the Federal Reserve Board or other governmental
authority or agency having jurisdiction with respect thereto for determining the
maximum reserves (including, without limitation, basic, supplemental, marginal
and emergency reserves) for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D) maintained by a member bank of the
Federal Reserve System.
"Revolving Credit Agreement" means that certain Fourth Amended and
Restated Credit Agreement dated as of May 29, 2002, as amended from time to
time, among Borrower, Bank One, NA, as administrative agent, and the lenders
that are parties thereto, pursuant to which the lenders that are parties thereto
have agreed to make revolving loans to Borrower in the aggregate amount of up to
$650,000,000.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Senior Unsecured Indebtedness" means all Indebtedness other than
Subordinated Indebtedness of any Person that is not secured by a Lien on any
asset of such Person.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"S&P" means Standard & Poor's Ratings Group and its successors.
"Subordinated Indebtedness" means Indebtedness which is contractually
subordinated to the Obligations on customary subordination terms reasonably
acceptable to the Administrative Agent.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, association, joint venture or similar business
organization more than 50% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled. Unless otherwise
expressly provided, all references herein to a "Subsidiary" shall mean a
Subsidiary of the Borrower.
"Subsidiary Guarantor" means each Subsidiary of the Borrower which is
required to execute a Subsidiary Guaranty pursuant to Section 6.13.
"Subsidiary Guaranty" means the guaranty to be executed and delivered
by certain Subsidiaries of the Borrower, substantially in the form of Exhibit F,
as the same may be amended, supplemented or otherwise modified from time to
time.
"Substantial Portion" means, with respect to the Property of the
Borrower and its Subsidiaries, Property which (i) represents more than 10% of
the assets of the Consolidated Group as would be shown in the consolidated
financial statements of the Consolidated Group as at the beginning of the
twelve-month period ending with the month immediately preceding the
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month in which such determination is made, or (ii) is responsible for more than
10% of the consolidated net sales or of the consolidated net income of the
Consolidated Group as reflected in the financial statements referred to in
clause (i) above.
"Syndication Agent" means Xxxxx Fargo Bank, National Association, in
its capacity as Syndication Agent and not in its individual capacity as a
Lender, and any successor Syndication Agent.
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but excluding Excluded Taxes and Other Taxes.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a Floating
Rate Advance or LIBOR Advance.
"Unencumbered Asset" means, any Project located in the United States
100% of which is owned in fee simple or ground leased by the Borrower or a
Subsidiary Guarantor (provided that a Project which is ground leased shall be
included as an Unencumbered Asset only if such ground lease is a Financeable
Ground Lease) which, as of any date of determination, (a) is not subject to any
Liens or claims (including restrictions on transferability or assignability) of
any kind (including any such Lien, claim or restriction imposed by the
organizational documents of any Subsidiary Guarantor) other than (i) Permitted
Liens set forth in Sections 6.16(i) through 6.16(iv)), and (ii) restrictions on
transferability in the case of a Qualifying Jointly-Owned Subsidiary (b) is not
subject to any agreement (including (i) any agreement governing Indebtedness
incurred in order to finance or refinance the acquisition of such asset, and
(ii) if applicable, the organizational documents of any Subsidiary Guarantor)
which prohibits or limits the ability of the Borrower or any Subsidiary
Guarantor to create, incur, assume or suffer to exist any Lien upon any assets
or Capital Stock of the Borrower or any Subsidiary Guarantor, including, without
limitation, any negative pledge or similar covenant or restriction, (c) is not
subject to any agreement (including any agreement governing Indebtedness
incurred in order to finance or refinance the acquisition of such asset) which
entitles any Person to the benefit of any Lien (other than Permitted Liens set
forth in Sections 6.16(i) through 6.16(iv)) on any assets or Capital Stock of
the Borrower or any Subsidiary Guarantor, or would entitle any Person to the
benefit of any Lien (other than Permitted Liens set forth in Sections 6.16(i)
through 6.16(iv)) on such assets or Capital Stock upon the occurrence of any
contingency (including, without limitation, pursuant to an "equal and ratable"
clause), and (d) either has been improved with an income-producing building or
buildings which are substantially completed and occupied or is a Pre-Leased
Project Under Construction. For the purposes of this Agreement, any Project of a
Subsidiary Guarantor shall not be deemed to be unencumbered unless (i) both such
Project and all Capital Stock of such Subsidiary Guarantor (and any intervening
entity between the Borrower and such Subsidiary Guarantor) is unencumbered and
(ii) each intervening entity between the Borrower and such Subsidiary Guarantor
does not have any Indebtedness for borrowed money or, if such entity has any
Indebtedness, such Indebtedness is unsecured and the entity is a Subsidiary
Guarantor.
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"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested nonforfeitable benefits under all Single Employer Plans
exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Unrestricted Cash and Cash Equivalents" means, in the aggregate, all
cash and Cash Equivalents which are not pledged or otherwise restricted for the
benefit of any creditor and which are owned by members of the Consolidated Group
or Investment Affiliates, to be valued for purposes of this Agreement at (i)
100% of its then-current book value, as determined under GAAP, for any such
items owned by a member of the Consolidated Group or (ii) the applicable
Consolidated Group Pro Rata Share of its then-current book value, as determined
under GAAP, for any such items owned by an Investment Affiliate.
"Value of Unencumbered Assets" means, as of any date, the sum of (A)
the amount determined by dividing the Net Operating Income for each Project
which is an Unencumbered Asset as of such date for a calculation period which
shall be either the immediately preceding two (2) full fiscal quarters or, if so
requested by Borrower or the Administrative Agent, the one (1) immediately
preceding full fiscal quarter and the then current partial quarter (in all cases
as annualized) by 0.095 (provided that not more than 15% of the Value of
Unencumbered Assets with respect to Projects shall be attributable to
Unencumbered Assets which are ground leased) plus (B) for each Pre-Leased
Project Under Construction, 100% of the then-current book value, as determined
in accordance with GAAP, of such Pre-Leased Project Under Construction, provided
that the aggregate amount added to value under this clause (B) shall not exceed
ten percent (10%) of the total Value of Unencumbered Assets. If a Project has
been acquired during such calculation period then Borrower shall be entitled to
include pro forma Net Operating Income (based on leases in existence at the date
of such acquisition) from such Project for the entire calculation period in the
foregoing calculation, except for purposes of the financial covenant comparing
the Net Operating Income from Unencumbered Assets to Consolidated Interest
Expense under Section 6.21(v). If a Project is no longer owned as of the date of
determination, then no value shall be included based on capitalizing Net
Operating Income from such Project, except for purposes of such financial
covenant comparing the Net Operating Income from Unencumbered Assets to
Consolidated Interest Expense under Section 6.21(v).
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, association, joint venture
or similar business organization 100% of the ownership interests having ordinary
voting power of which shall at the time be so owned or controlled.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
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ARTICLE II
THE CREDIT
2.1 Commitments. This Facility ("Facility") is a one-year single
draw unsecured term loan in the maximum amount of the Aggregate Commitment.
Subject to the terms and conditions of this Agreement, each Lender severally
agrees to make a single disbursement through the Administrative Agent to
Borrower (the "Disbursement") in an amount not to exceed its Commitment. This
Facility is not a revolving credit facility and, except as provided in Section
3.3, any part of the Loans repaid may not be reborrowed. The commitment to lend
hereunder shall expire on March 21, 2003.
2.2 Final Principal Payment. Any outstanding Advances and all
other unpaid Obligations shall be paid in full by the Borrower on the Facility
Termination Date.
2.3 Ratable Loans. Each Advance hereunder shall consist of Loans
made from the several Lenders ratably in proportion to their respective
Percentages. The Advances may be Floating Rate Advances or LIBOR Advances, or a
combination thereof, selected by Borrower in accordance with Sections 2.8 and
2.9.
2.4 Applicable Margins. Each of the ABR Applicable Margin and the
LIBOR Applicable Margin to be used in calculating the interest rate applicable
to different Types of Advances shall vary from time to time in accordance with
the higher of Borrower's then applicable Xxxxx'x long-term unsecured debt rating
and S&P's long-term unsecured debt rating unless one of such two ratings is more
than one rating category lower than the other, in which case the average of the
two different Applicable Margins shall be used. The Applicable Margins shall be
adjusted effective on the next Business Day following any change in Borrower's
Xxxxx'x long-term unsecured debt rating and/or S&P's long-term unsecured debt
rating, as the case may be. The applicable debt ratings and the Applicable
Margins are set forth in the following table:
===============================================================
LIBOR ABR
Applicable Applicable
S&P Rating Xxxxx'x Rating Margin Margin
---------- -------------- ------ ------
A- or higher A3 or higher 0.75% 0.00%
-------------------------------------------------------------
BBB+ Baa1 0.90% 0.00%
--------------------------- ---------------------------------
BBB Baa2 1.00% 0.00%
-------------------------------------------------------------
BBB- Baa3 1.15% 0.15%
-------------------------------------------------------------
Less than BBB- Less than Baa3 1.50% 0.50%
===============================================================
In the event that either S&P or Xxxxx'x shall discontinue their ratings of the
REIT industry or the Borrower, the Borrower may seek a long-term unsecured debt
rating from another substitute rating agency reasonably satisfactory to the
Arrangers and the Borrower. For the period from the date of such discontinuance
until the first to occur of (i) the date the Borrower receives a long-term
unsecured debt rating from such new rating agency or (ii) a date 180 days after
such discontinuance, the single rating from S&P or Xxxxx'x, as the case may be,
shall be used to
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determine the Applicable Margin. If the long-term unsecured debt rating of the
Borrower from such new rating agency is not received within such 180 day period,
or if both S&P and Xxxxx'x shall discontinue their ratings of the REIT industry
or the Borrower, the Applicable Margin to be used for the calculation of
interest on Advances hereunder shall be the highest Applicable Margin for each
Type.
If a rating agency downgrade or discontinuance results in an increase
in the ABR Applicable Margin or the LIBOR Applicable Margin and if such increase
is reversed and the affected Applicable Margin is restored within ninety (90)
days thereafter, at Borrower's request, Borrower shall receive a credit against
interest next due the Lenders equal to interest accrued at the differential
between such Applicable Margins during such period of downgrade discontinuance.
If a rating agency upgrade results in a decrease in the ABR Applicable
Margin or the LIBOR Applicable Margin and if such upgrade is reversed and the
affected Applicable Margin is restored within ninety (90) days thereafter,
Borrower shall be required to pay an amount to the Lenders equal to the interest
differential on the Advances during such period of upgrade.
2.5 Fees. The Borrower agrees to pay all fees payable to the
Administrative Agent and the Arrangers pursuant to the Borrower's letter
agreement with the Administrative Agent and the Arrangers dated January 23,
2003.
2.6 Minimum Amount of Each Advance. Each Advance shall be in the
minimum amount of $1,000,000 (and in multiples of $100,000 if in excess
thereof).
2.7 Optional Principal Payments. The Borrower may from time to
time pay, without penalty or premium, all or any part of outstanding Floating
Rate Advances provided notice is given to the Administrative Agent not later
than 11 a.m. on the date of payment. A LIBOR Advance may be paid on the last day
of the applicable Interest Period or, if and only if the Borrower pays any
amounts due to the Lenders under Sections 3.4 and 3.5 as a result of such
prepayment, on a day prior to such last day, provided notice is given to the
Administrative Agent not later than 11 a.m. on the Business Day preceding the
date of prepayment. All prepayments shall be in a minimum amount of $1,000,000
(and in multiples of $100,000).
2.8 Method of Selecting Types and Interest Periods for New
Advances. The Borrower shall select the Type of Advance and, in the case of each
LIBOR Advance, the Interest Period applicable to each Advance. The Borrower
shall give the Administrative Agent irrevocable notice (a "Borrowing Notice")
(i) not later than 9:00 a.m. Chicago time on the Borrowing Date if the
disbursement is comprised entirely of a Floating Rate Advance, and (ii) not
later than 10:00 a.m. Chicago time, at least three (3) Business Days before the
Borrowing Date if the disbursement includes one or more LIBOR Advances
specifying:
(i) the Borrowing Date, which shall be a Business Day, of
such Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
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(iv) in the case of each LIBOR Advance, the Interest
Period applicable thereto.
The Administrative Agent shall provide a copy to the Lenders by
facsimile of its standard notice regarding the Advances selected pursuant to the
Borrowing Notice and each Conversion/Continuation Notice not later than the
close of business on the Business Day it is received. Each Lender shall make
available its Loan or Loans, in funds immediately available in Chicago, Illinois
to the Administrative Agent at its address specified pursuant to Article XIII on
the Borrowing Date not later than noon (Chicago time). The Administrative Agent
will make the funds so received from the Lenders available to the Borrower at
the Administrative Agent's aforesaid address.
No Interest Period may end after the Facility Termination Date and
unless all Lenders agree in writing, in no event may there be more than five (5)
different Interest Periods for LIBOR Advances outstanding at any one time.
2.9 Conversion and Continuation of Outstanding Advances. Floating
Rate Advances shall continue as Floating Rate Advances unless and until such
Floating Rate Advances are converted into LIBOR Advances. Each LIBOR Advance
shall continue as a LIBOR Advance until the end of the then applicable Interest
Period therefor, at which time such LIBOR Advance shall be automatically
converted into a Floating Rate Advance unless the Borrower shall have given the
Administrative Agent a Conversion/Continuation Notice requesting that, at the
end of such Interest Period, such LIBOR Advance either continue as a LIBOR
Advance for the same or another Interest Period or be converted to Floating Rate
Advance. Subject to the terms of Section 2.6, the Borrower may elect from time
to time to convert all or any part of an Advance of any Type into any other Type
or Types of Advances; provided that any conversion of any LIBOR Advance shall be
made on, and only on, the last day of the Interest Period applicable thereto.
Borrower shall give the Administrative Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion/continuation of an Advance
not later than 10:00 a.m. (Chicago time) at least three (3) Business Days prior
to the date of the requested conversion into, or continuation of a LIBOR Advance
specifying:
(i) the requested date which shall be a Business Day, of
such conversion or continuation;
(ii) the aggregate amount and Type of the Advance which is
to be converted or continued (the amount of each Advance shall be
subject to the minimum amount and increments set forth in Section 2.6);
and
(iii) the amount and Type(s) of Advance(s) into which such
Advance is to be converted or continued and, in the case of a
conversion into or continuation of a LIBOR Advance, the duration of the
Interest Period applicable thereto.
2.10 Changes in Interest Rate, Etc. Each Floating Rate Advance
shall bear interest on the outstanding principal amount thereof, for each day
from and including the date such Advance is made or is converted from a LIBOR
Advance into a Floating Rate Advance pursuant to Section 2.9 to but excluding
the date it becomes due or is converted into a LIBOR Advance pursuant to Section
2.9 hereof, at a rate per annum equal to the Floating Rate for such day. Changes
in the rate of interest on that portion of any Advance maintained as a Floating
Rate
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Advance will take effect simultaneously with each change in the Alternate Base
Rate. Each LIBOR Advance shall bear interest from and including the first day of
the Interest Period applicable thereto to (but not including) the last day of
such Interest Period at the interest rate determined as applicable to such LIBOR
Advance.
2.11 Rates Applicable After Default. Notwithstanding anything to
the contrary contained in Section 2.8 or 2.9, during the continuance of a
Default or Unmatured Default the Required Lenders may, at their option, by
notice to the Borrower (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to changes in interest rates), declare that no
Advance may be converted into or continued as a LIBOR Advance. During the
continuance of a Default the Required Lenders may, at their option, by notice to
the Borrower (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that (i) each LIBOR Advance shall
bear interest for the remainder of the applicable Interest Period at the rate
otherwise applicable to such Interest Period plus 2% per annum and (ii) each
Floating Rate Advance shall bear interest at a rate per annum equal to the
Floating Rate otherwise applicable to the Floating Rate Advance plus 2% per
annum.
2.12 Method of Payment.
(i) All payments of the Obligations hereunder shall be
made, without setoff, deduction, or counterclaim, in immediately
available funds to the Administrative Agent at the Administrative
Agent's address specified pursuant to Article XIII, or at any other
Lending Installation of the Administrative Agent specified in writing
by the Administrative Agent to the Borrower, by noon (local time) on
the date when due and shall be applied ratably by the Administrative
Agent among the Lenders in accordance with their respective
Percentages.
(ii) As provided elsewhere herein, all Lenders' interests
in the Advances and the Loan Documents shall be ratable undivided
interests and none of such Lenders' interests shall have priority over
the others. Each payment delivered to the Administrative Agent for the
account of any Lender or amount to be applied or paid by the
Administrative Agent to any Lender shall be paid promptly (on the same
day as received by the Administrative Agent if received prior to noon
(local time) on such day and otherwise on the next Business Day) by the
Administrative Agent to such Lender in the same type of funds that the
Administrative Agent received at its address specified pursuant to
Article XIII or at any Lending Installation specified in a notice
received by the Administrative Agent from such Lender. Payments
received by the Administrative Agent but not timely funded to the
Lenders shall bear interest payable by the Administrative Agent at the
Federal Funds Rate from the date due until the date paid. The
Administrative Agent is hereby authorized to charge any account of the
Borrower maintained with the Administrative Agent for each payment of
principal, interest and fees as it becomes due hereunder.
2.13 Notes; Telephonic Notices. Each Lender is hereby authorized to
record the principal amount of each of its Loans and each repayment on the
schedule attached to its Note, provided, however, that the failure to so record
shall not affect the Borrower's obligations under
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such Note. The Borrower hereby authorizes the Lenders and the Administrative
Agent to extend, convert or continue Advances, effect selections of Types of
Advances and to transfer funds based on telephonic notices made by any
Authorized Officer. The Borrower agrees to deliver promptly to the
Administrative Agent a written confirmation, if such confirmation is requested
by the Administrative Agent or any Lender, of each telephonic notice signed by
an Authorized Officer. If the written confirmation differs in any material
respect from the action taken by the Administrative Agent and the Lenders, the
records of the Administrative Agent and the Lenders shall govern absent manifest
error.
2.14 Interest Payment Dates; Interest and Fee Basis. Interest
accrued on each Advance shall be payable on the last day of each month, upon any
prepayment, whether by acceleration or otherwise, and at the Facility
Termination Date. Interest shall be calculated for actual days elapsed on the
basis of a 360-day year. Interest shall be payable for the day an Advance is
made but not for the day of any payment on the amount paid if payment is
received prior to noon (local time) at the place of payment. If any payment of
principal of or interest on an Advance shall become due on a day which is not a
Business Day, such payment shall be made on the next succeeding Business Day
and, in the case of a principal payment, such extension of time shall be
included in computing interest in connection with such payment.
2.15 Notification of Advances, Interest Rates and Prepayments. The
Administrative Agent will notify each Lender of the contents of each Borrowing
Notice, Conversion/Continuation Notice, and repayment notice received by it
hereunder not later than the close of business on the Business Day such notice
is received by the Administrative Agent. The Administrative Agent will notify
each Lender of the interest rate applicable to each LIBOR Advance promptly upon
determination of such interest rate and will give each Lender prompt notice of
each change in the Alternate Base Rate.
2.16 Lending Installations. Subject to Section 3.6, each Lender may
book its Loans at any Lending Installation selected by such Lender and may
change its Lending Installation from time to time. All terms of this Agreement
shall apply to any such Lending Installation and the Notes shall be deemed held
by each Lender for the benefit of such Lending Installation. Each Lender may, by
written or telex notice to the Administrative Agent and the Borrower, designate
a Lending Installation through which Loans will be made by it and for whose
account Loan payments are to be made.
2.17 Non-Receipt of Funds by the Administrative Agent. Unless the
Borrower or a Lender, as the case may be, notifies the Administrative Agent
prior to the time at which it is scheduled to make payment to the Administrative
Agent of (i) in the case of a Lender, the proceeds of a Loan or (ii) in the case
of the Borrower, a payment of principal, interest or fees to the Administrative
Agent for the account of the Lenders, that Borrower or such Lender does not
intend to make such payment, the Administrative Agent may assume that such
payment has been made. The Administrative Agent may, but shall not be obligated
to, make the amount of such payment available to the intended recipient in
reliance upon such assumption. If such Lender or the Borrower, as the case may
be, has not in fact made such payment to the Administrative Agent, the recipient
of such payment shall, on demand by the Administrative Agent, repay to the
Administrative Agent the amount so made available together with interest thereon
in respect of each day during the period commencing on the date such amount was
so made available by the Administrative Agent until the date the Administrative
Agent recovers such amount at a rate per
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annum equal to (i) in the case of payment by a Lender, the Federal Funds Rate
for such day or (ii) in the case of payment by the Borrower, the interest rate
applicable to the relevant Loan. If such Lender so repays such amount and
interest thereon to the Administrative Agent within one Business Day after such
demand, all interest accruing on the Loan not funded by such Lender during such
period shall be payable to such Lender when received from the Borrower.
2.18 Replacement of Lenders under Certain Circumstances. The
Borrower shall be permitted to replace any Lender which (a) is not capable of
receiving payments without any deduction or withholding of United States federal
income tax pursuant to Section 3.5, or (b) cannot maintain its LIBOR Loans at a
suitable Lending Installation pursuant to Section 3.3, with a replacement bank
or other financial institution; provided that (i) such replacement does not
conflict with any applicable legal or regulatory requirements affecting the
Lenders, (ii) no Default or (after notice thereof to Borrower) no Unmatured
Default shall have occurred and be continuing at the time of such replacement,
(iii) the Borrower shall repay (or the replacement bank or institution shall
purchase, at par) all Loans and other amounts owing to such replaced Lender
prior to the date of replacement, (iv) the Borrower shall be liable to such
replaced Lender under Sections 3.4 and 3.6 if any LIBOR Loan owing to such
replaced Lender shall be prepaid (or purchased) other than on the last day of
the Interest Period relating thereto, (v) the replacement bank or institution,
if not already a Lender, and the terms and conditions of such replacement, shall
be reasonably satisfactory to the Administrative Agent, (vi) the replaced Lender
shall be obligated to make such replacement in accordance with the provisions of
Section 12.3 (provided that the Borrower shall be obligated to pay the
processing fee referred to therein), (vii) until such time as such replacement
shall be consummated, the Borrower shall pay all additional amounts (if any)
required pursuant to Section 3.5 and (viii) any such replacement shall not be
deemed to be a waiver of any rights which the Borrower, the Administrative Agent
or any other Lender shall have against the replaced Lender.
2.19 Application of Moneys Received. All moneys collected or
received by the Administrative Agent on account of the Facility directly or
indirectly, shall be applied in the following order of priority:
(i) to the payment of all reasonable costs incurred in
the collection of such moneys of which the Administrative Agent shall
have given notice to the Borrower;
(ii) to the reimbursement of any yield protection due to
any of the Lenders in accordance with Section 3.1;
(iii) to the payment of all fees to the Administrative
Agent;
(iv) first to interest then due to the Lenders (other than
Defaulting Lenders) until paid in full and then to principal for all
Lenders (other than Defaulting Lenders) in accordance with the
Percentages of the Lenders;
(v) any other sums due to the Administrative Agent or any
Lender under any of the Loan Documents; and
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(vi) to the payment of any sums due to each Defaulting
Lender as their respective Percentages appear (provided that
Administrative Agent shall have the right to set-off against such sums
any amounts due from such Defaulting Lender).
2.20 Usury. This Agreement and each Note are subject to the express
condition that at no time shall Borrower be obligated or required to pay
interest on the principal balance of the Loan at a rate which could subject any
Lender to either civil or criminal liability as a result of being in excess of
the Maximum Legal Rate. If by the terms of this Agreement or the Loan Documents,
Borrower is at any time required or obligated to pay interest on the principal
balance due hereunder at a rate in excess of the Maximum Legal Rate, the
interest rate or the Default Rate, as the case may be, shall be deemed to be
immediately reduced to the Maximum Legal Rate and all previous payments in
excess of the Maximum Legal Rate shall be deemed to have been payments in
reduction of principal and not on account of the interest due hereunder. All
sums paid or agreed to be paid to Lender for the use, forbearance, or detention
of the sums due under the Loan, shall, to the extent permitted by applicable
law, be amortized, prorated, allocated, and spread throughout the full stated
term of the Loan until payment in full so that the rate or amount of interest on
account of the Loan does not exceed the Maximum Legal Rate of interest from time
to time in effect and applicable to the Loan for so long as the Loan is
outstanding.
2.21 Extension of Facility Termination Date. Borrower shall have
two (2) options to extend the Facility Termination Date for successive periods
of six (6) months each, upon satisfaction of the following conditions precedent:
(i) Borrower shall provide Administrative Agent with
written notice of Borrower's intent to exercise each extension option
at least 30 days prior to the existing Facility Termination Date (and
Administrative Agent will promptly thereafter notify Lenders);
(ii) As of the date of Borrower's delivery of notice of
its intent to exercise each extension option, and as of the Facility
Termination Date, no Default or Unmatured Default shall have occurred
and be continuing, and Borrower shall so certify in writing; and
(iii) Concurrently with Borrower's delivery of its notice
of its intent to exercise each extension option, Borrower shall pay to
Administrative Agent for the ratable benefit of the Lenders an
extension fee in an amount equal to 0.075% of the aggregate principal
balance of all Loans outstanding hereunder.
ARTICLE III
CHANGE IN CIRCUMSTANCES
3.1 Yield Protection. If, on or after the date of this Agreement,
the adoption of any law or any governmental or quasi-governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law), or any change in the interpretation or administration thereof by any
governmental or quasi-governmental authority, central bank or comparable
-25-
agency charged with the interpretation or administration thereof, or compliance
by any Lender or applicable Lending Installation with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency:
(i) subjects any Lender or any applicable Lending
Installation to any Taxes, or changes the basis of taxation of payments
(other than with respect to Excluded Taxes) to any Lender in respect of
its LIBOR Loans or participations therein, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation (other
than reserves and assessments taken into account in determining the
interest rate applicable to LIBOR Advances), or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending Installation
of making, funding or maintaining its LIBOR Loans, or reduces any
amount receivable by any Lender or any applicable Lending Installation
in connection with its LIBOR Loans or participations therein, or
requires any Lender or any applicable Lending Installation to make any
payment calculated by reference to the amount of LIBOR Loans or
participations therein held or interest received by it, by an amount
deemed material by such Lender,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation, of making or maintaining its LIBOR Loans or to
reduce the return received by such Lender or applicable Lending Installation in
connection with such LIBOR Loans or participations therein, then, within 30 days
of demand by such Lender, the Borrower shall pay such Lender such additional
amount or amounts as will compensate such Lender for such increased cost or
reduction in amount received.
3.2 Changes in Capital Adequacy Regulations. If a Lender in good
faith determines the amount of capital required or expected to be maintained by
such Lender, any Lending Installation of such Lender or any corporation
controlling such Lender is increased as a result of a Change (as hereinafter
defined), then, within 30 days of demand by such Lender, the Borrower shall pay
such Lender the amount necessary to compensate for any shortfall in the rate of
return on the portion of such increased capital which such Lender in good faith
determines is attributable to this Agreement, its outstanding Loans or its
obligation to make Loans (after taking into account such Lender's policies as to
capital adequacy). "Change" means (i) any change after the date of this
Agreement in the Risk-Based Capital Guidelines (as hereinafter defined) or (ii)
any adoption of or change in any other law, governmental or quasi-governmental
rule, regulation, policy, guideline, interpretation, or directive (whether or
not having the force of law) after the date of this Agreement which affects the
amount of capital required or expected to be maintained by any Lender or any
Lending Installation or any corporation controlling any Lender. "Risk-Based
Capital Guidelines" means (i) the risk-based capital guidelines in effect in the
United States on the date of this Agreement, including transition rules, and
(ii) the corresponding capital regulations promulgated by regulatory authorities
outside the United States implementing the July 1988 report of the Basle
Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted prior
to the date of this Agreement.
-26-
3.3 Availability of Types of Advances. If any Lender in good faith
determines that maintenance of any of its LIBOR Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation or directive,
whether or not having the force of law, the Administrative Agent shall suspend
the availability of the affected Type of Advance and require any LIBOR Advances
of the affected Type to be repaid; or if the Required Lenders in good faith
determine that (i) deposits of a type or maturity appropriate to match fund
LIBOR Advances are not available, the Administrative Agent shall suspend the
availability of the affected Type of Advance with respect to any LIBOR Advances
made after the date of any such determination, or (ii) an interest rate
applicable to a Type of Advance does not accurately reflect the cost of making a
LIBOR Advance of such Type, then, if for any reason whatsoever the provisions of
Section 3.1 are inapplicable, the Administrative Agent shall suspend the
availability of the affected Type of Advance with respect to any LIBOR Advances
made after the date of any such determination. If the Borrower is required to so
repay a LIBOR Advance, the Borrower may concurrently with such repayment borrow
from the Lenders, in the amount of such repayment, a Loan bearing interest at
the Alternate Base Rate.
3.4 Funding Indemnification. If any payment of a LIBOR Advance
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment or otherwise, or a LIBOR Advance is
not made on the date specified by the Borrower for any reason other than default
by the Lenders or as a result of unavailability pursuant to Section 3.3, the
Borrower will indemnify each Lender for any loss or cost incurred by it
resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain the LIBOR Advance
and shall pay all such losses or costs within fifteen (15) days after written
demand therefor. Without limitation of any losses arising from changes in the
LIBOR Rate adverse to the Lenders, in no event will the administrative cost
payable by the Borrower as a result of such early payment or failure to make an
advance exceed $250 per occurrence per Lender.
3.5 Taxes.
(i) All payments by the Borrower to or for the account of
any Lender or the Administrative Agent hereunder or under any Note
shall be made free and clear of and without deduction for any and all
Taxes. If the Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder to any Lender or the
Administrative Agent, (a) the sum payable shall be increased as
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section
3.5) such Lender or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (b) the Borrower shall make such deductions, (c)
the Borrower shall pay the full amount deducted to the relevant
authority in accordance with applicable law and (d) the Borrower shall
furnish to the Administrative Agent the original copy of a receipt
evidencing payment thereof within 30 days after such payment is made.
(ii) In addition, the Borrower hereby agrees to pay any
present or future stamp or documentary taxes and any other excise or
property taxes, charges or similar levies which arise from any payment
made hereunder or under any Note or from the execution or delivery of,
or otherwise with respect to, this Agreement or any Note ("Other
Taxes").
-27-
(iii) The Borrower hereby agrees to indemnify the
Administrative Agent and each Lender for the full amount of Taxes or
Other Taxes (including, without limitation, any Taxes or Other Taxes
imposed on amounts payable under this Section 3.5) paid by the
Administrative Agent or such Lender and any liability (including
penalties, interest and expenses) arising therefrom or with respect
thereto. Payments due under this indemnification shall be made within
30 days of the date the Administrative Agent or such Lender makes
demand therefor pursuant to Section 3.6.
(iv) Each Lender that is not incorporated under the laws
of the United States of America or a state thereof (each a "Non-U.S.
Lender") agrees that it will, not more than ten Business Days after the
date of this Agreement, (i) deliver to each of the Borrower and the
Administrative Agent two duly completed copies of United States
Internal Revenue Service Form W-8BEN or W-8ECI, certifying in either
case that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal
income taxes, and (ii) deliver to each of the Borrower and the
Administrative Agent a United States Internal Revenue Form W-8 or W-9,
as the case may be, and certify that it is entitled to an exemption
from United States backup withholding tax. Each Non-U.S. Lender further
undertakes to deliver to each of the Borrower and the Administrative
Agent (x) renewals or additional copies of such form (or any successor
form) on or before the date that such form expires or becomes obsolete,
and (y) after the occurrence of any event requiring a change in the
most recent forms so delivered by it, such additional forms or
amendments thereto as may be reasonably requested by the Borrower or
the Administrative Agent. All forms or amendments described in the
preceding sentence shall certify that such Lender is entitled to
receive payments under this Agreement without deduction or withholding
of any United States federal income taxes, unless an event (including
without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise
be required which renders all such forms inapplicable or which would
prevent such Lender from duly completing and delivering any such form
or amendment with respect to it and such Lender advises the Borrower
and the Administrative Agent that it is not capable of receiving
payments without any deduction or withholding of United States federal
income tax.
(v) For any period during which a Non-U.S. Lender has
failed to provide the Borrower with an appropriate form pursuant to
clause (iv), above (unless such failure is due to a change in treaty,
law or regulation, or any change in the interpretation or
administration thereof by any Governmental Authority, occurring
subsequent to the date on which a form originally was required to be
provided), such Non-U.S. Lender shall not be entitled to
indemnification under this Section 3.5 with respect to Taxes imposed by
the United States.
(vi) Any Lender that is entitled to an exemption from or
reduction of withholding tax with respect to payments under this
Agreement or any Note pursuant to the law of any relevant jurisdiction
or any treaty shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by
applicable law as will
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permit such payments to be made without withholding or at a reduced
rate following receipt of such documentation.
(vii) If the U.S. Internal Revenue Service or any other
Governmental Authority of the United States or any other country or any
political subdivision thereof asserts a claim that the Administrative
Agent did not properly withhold tax from amounts paid to or for the
account of any Lender (because the appropriate form was not delivered
or properly completed, because such Lender failed to notify the
Administrative Agent of a change in circumstances which rendered its
exemption from withholding ineffective, or for any other reason), such
Lender shall indemnify the Administrative Agent fully for all amounts
paid, directly or indirectly, by the Administrative Agent as tax,
withholding therefor, or otherwise, including penalties and interest,
and including taxes imposed by any jurisdiction on amounts payable to
the Administrative Agent under this subsection, together with all costs
and expenses related thereto (including, but not limited to, attorneys
fees and time charges of attorneys for the Administrative Agent, which
attorneys may be employees of the Administrative Agent). The
obligations of the Lenders under this Section 3.5(vii) shall survive
the payment of the Obligations and termination of this Agreement and
any such Lender obligated to indemnify the Administrative Agent shall
not be entitled to indemnification from the Borrower with respect to
such amounts, whether pursuant to this Article or otherwise, except to
the extent the Borrower participated in the actions giving rise to such
liability.
3.6 Lender Statements; Survival of Indemnity. To the extent
reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its LIBOR Loans to reduce any liability of the
Borrower to such Lender under Sections 3.1, 3.2 and 3.5 or to avoid the
unavailability of LIBOR Advances under Section 3.3, so long as such designation
is not, in the reasonable judgment of such Lender, disadvantageous to such
Lender. Each Lender shall deliver a written statement of such Lender to the
Borrower (with a copy to the Administrative Agent) as to the amount due, if any,
under Section 3.1, 3.2, 3.4 or 3.5. Such written statement shall set forth in
reasonable detail the calculations upon which such Lender determined such amount
and such amount shall be final, conclusive and binding on the Borrower in the
absence of manifest error. Determination of amounts payable under such Sections
3.1, 3.2 and 3.5 in connection with a LIBOR Loan shall be calculated as though
each Lender funded its LIBOR Loan through the purchase of a deposit of the type
and maturity corresponding to the deposit used as a reference in determining the
LIBOR Rate applicable to such Loan, whether in fact that is the case or not.
Unless otherwise provided herein, the amount specified in the written statement
of any Lender shall be payable on demand after receipt by the Borrower of such
written statement. The obligations of the Borrower under Sections 3.1, 3.2, 3.4
and 3.5 shall survive payment of the Obligations and termination of this
Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 Advance. The Lenders shall not be required to make the single
disbursement contemplated hereunder unless:
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(i) the Borrower shall, prior to or concurrently with
such disbursement, shall have paid all fees due and payable to the
Lenders and the Administrative Agent hereunder;
(ii) the Borrower shall have furnished to the
Administrative Agent, with sufficient copies for the Lenders, the
following:
(a) The duly executed originals of the Loan
Documents, including the Notes, payable to the order of each
of the Lenders, this Agreement and the Subsidiary Guaranty;
(b) (1) Certificates of good standing for the
Borrower and each Subsidiary Guarantor created since the
closing under the Revolving Credit Agreement, from the State
of Ohio for the Borrower and the states of organization of
each Subsidiary Guarantor (including JDN Realty), certified by
the appropriate governmental officer and dated not more than
thirty (30) days prior to the Agreement Execution Date, and
(2) foreign qualification certificates for the Borrower and
each Subsidiary Guarantor created since the closing under the
Revolving Credit Agreement, certified by the appropriate
governmental officer and dated not more than two years prior
to the Agreement Execution Date (with telephonic updates as
practical not more than 10 days prior to the Agreement
Execution Date), for each other jurisdiction where the failure
of the Borrower or such Subsidiary Guarantor to so qualify or
be licensed (if required) would have a Material Adverse
Effect;
(c) Copies of the formation documents (including
code of regulations, if appropriate) of the Borrower, JDN
Realty and the top three Subsidiary Guarantors (in addition to
JDN Realty) by aggregate assets owned, certified by an officer
of the Borrower or such Subsidiary Guarantor, as appropriate,
together with all amendments thereto;
(d) Incumbency certificates, executed by
officers of the Borrower, JDN Realty, and the top three
Subsidiary Guarantors (in addition to JDN Realty), which shall
identify by name and title and bear the signature of the
Persons authorized to sign the Loan Documents and to make
borrowings hereunder on behalf of the Borrower, upon which
certificate the Administrative Agent and the Lenders shall be
entitled to rely until informed of any change in writing by
the Borrower or any such Subsidiary Guarantor;
(e) Copies, certified by a Secretary or an
Assistant Secretary of the Borrower and each Subsidiary
Guarantor, of the Board of Directors' resolutions (and
resolutions of other bodies, if any are reasonably deemed
necessary by counsel for any Lender) authorizing the Advances
provided for herein, with respect to the Borrower, and the
execution, delivery and performance of the Loan Documents to
be executed and delivered by the Borrower and each Subsidiary
Guarantor hereunder;
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(f) A written opinion of the Borrower's and
Subsidiary Guarantors' counsel, addressed to the Lenders in
substantially the form of Exhibit B hereto or such other form
as the Administrative Agent may reasonably approve;
(g) A certificate, signed by an officer of the
Borrower, stating that on the Borrowing Date no Default or
Unmatured Default has occurred and is continuing and that all
representations and warranties of the Borrower are true and
correct as of the Borrowing Date provided that such
certificate is in fact true and correct;
(h) The most recent financial statements of the
Borrower;
(i) UCC financing statement, judgment, and tax
lien searches with respect to the Borrower from the State of
Ohio;
(j) Written money transfer instructions, in
substantially the form of Exhibit E hereto, addressed to the
Administrative Agent and signed by an Authorized Officer,
together with such other related money transfer authorizations
as the Administrative Agent may have reasonably requested;
(k) A true, correct and complete copy of the
Merger Agreement, together with such evidence as the
Administrative Agent may require that all conditions precedent
and approvals (including, without limitation, any approvals
required for Borrower to assume the Indebtedness of JDN
Realty) to the Merger shall have been satisfied (or waived
with the approval of the Administrative Agent) or obtained, as
the case may be, and that the transactions contemplated by the
Merger Agreement (in full) shall have closed simultaneously
with the disbursement of the Facility; and
(l) Such other documents as any Lender or its
counsel may have reasonably requested, the form and substance
of which documents shall be reasonably acceptable to the
parties and their respective counsel;
(iii) There exists no Default or Unmatured Default;
(iv) The representations and warranties contained in
Article V are true and correct as of such Borrowing Date with respect
to Borrower and to any Subsidiary in existence on such Borrowing Date
(taking into account the effect of the Merger), except to the extent
any such representation or warranty is stated to relate solely to an
earlier date, in which case such representation or warranty shall be
true and correct on and as of such earlier date;
(v) There shall have been no change in the business,
Property or condition (financial or otherwise) of the Borrower and its
Subsidiaries from the preparation date of the most recent consolidated
financial statements which could reasonably be expected to have a
Material Adverse Effect;
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(vi) There shall have been no material adverse change in
the primary and secondary loan syndication markets or capital markets
generally that could impair syndication of the Facility;
(vii) There shall be no injunction or temporary restraining
order which, in the judgment of the Administrative Agent would prohibit
the making of the Loans or the consummation of the Merger, and there
shall also be no litigation that would reasonably be expected to result
in a material adverse effect on the business currently conducted by JDN
Realty;
(viii) The Borrowing Notice shall constitute a
representation and warranty by the Borrower that all such conditions
have been satisfied or waived in accordance with the terms hereof or
will have been satisfied or waived in accordance with the terms hereof
concurrently with the funding; and
(ix) The Borrower shall provide the Lenders with an
amendment to the covenants in the Revolving Credit Agreement which, but
for such amendment, would otherwise be breached upon closing of the
transactions contemplated by the Merger Agreement or this Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1 Existence. Borrower is a corporation duly organized and
validly existing under the laws of the State of Ohio, with its principal place
of business in Beachwood, Ohio and is duly qualified as a foreign corporation,
properly licensed (if required), in good standing and has all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted, except where the failure to be so qualified, licensed and in good
standing and to have the requisite authority would not have a Material Adverse
Effect. Each of Borrower's Subsidiaries is duly incorporated, validly existing
and in good standing under the laws of its jurisdiction of incorporation and has
all requisite authority to conduct its business in each jurisdiction in which
its business is conducted.
5.2 Existence of JDN Realty. JDN Realty is a corporation duly
organized and validly existing under the laws of the State of Maryland and is
duly qualified as a foreign corporation, properly licensed (if required), in
good standing and has all requisite authority to conduct its business in each
jurisdiction in which its business is conducted, except where the failure to be
so qualified, licensed and in good standing and to have the requisite authority
would not have a Material Adverse Effect.
5.3 Authorization and Validity. The Borrower has the corporate
power and authority and legal right to execute and deliver the Loan Documents
and to perform its obligations thereunder. The execution and delivery by the
Borrower of the Loan Documents and the
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performance of its obligations thereunder have been duly authorized by proper
corporate proceedings, and the Loan Documents constitute legal, valid and
binding obligations of the Borrower enforceable against the Borrower in
accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally.
5.4 No Conflict; Government Consent. Neither the execution and
delivery by the Borrower of the Loan Documents, nor the consummation of the
transactions therein contemplated, nor compliance with the provisions thereof
will violate any law, rule, regulation, order, writ, judgment, injunction,
decree or award binding on the Borrower or any of its Subsidiaries or the
Borrower's or any Subsidiary's articles of incorporation or by-laws, or the
provisions of any indenture, instrument or agreement to which the Borrower or
any of its Subsidiaries is a party or is subject, or by which it, or its
Property, is bound, or conflict with or constitute a default thereunder, except
where such violation, conflict or default would not have a Material Adverse
Effect, or result in the creation or imposition of any Lien in, of or on the
Property of the Borrower or a Subsidiary pursuant to the terms of any such
indenture, instrument or agreement. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any governmental or public body or authority, or any subdivision
thereof, is required to authorize, or is required in connection with the
execution, delivery and performance of, or the legality, validity, binding
effect or enforceability of, any of the Loan Documents other than the filing of
a copy of this Agreement, or the filing of information concerning this
Agreement, with the Securities and Exchange Commission.
5.5 Financial Statements; Material Adverse Change. All
consolidated financial statements of the Borrower and its Subsidiaries
heretofore or hereafter delivered to the Lenders were prepared in accordance
with GAAP in effect on the preparation date of such statements and fairly
present in all material respects the consolidated financial condition and
operations of the Borrower and its Subsidiaries at such date and the
consolidated results of their operations for the period then ended, subject, in
the case of interim financial statements, to normal and customary year-end
adjustments. From the preparation date of the most recent financial statements
delivered to the Lenders through the Agreement Execution Date, there was no
change in the business, properties, or condition (financial or otherwise) of the
Borrower and its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect.
5.6 Taxes. The Borrower and its Subsidiaries have filed all United
States federal tax returns and all other tax returns which are required to be
filed and have paid all taxes due pursuant to said returns or pursuant to any
assessment received by the Borrower or any of its Subsidiaries except such
taxes, if any, as are being contested in good faith and as to which adequate
reserves have been provided. No tax liens have been filed and remain outstanding
for amounts in excess of $250,000. The charges, accruals and reserves on the
books of the Borrower and its Subsidiaries in respect of any taxes or other
governmental charges are adequate.
5.7 Litigation and Guarantee Obligations. Except as set forth on
Schedule 3 hereto or as set forth in written notice to the Administrative Agent
from time to time, there is no litigation, arbitration, governmental
investigation, proceeding or inquiry pending or, to the knowledge of any of
their officers, threatened against or affecting the Borrower or any of its
Subsidiaries which could reasonably be expected to have a Material Adverse
Effect. Notwithstanding the disclosure of the litigation identified on Schedule
3 or in a notice to Administrative Agent, unless such
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disclosure has been approved by the Required Lenders, the Borrower, based on
consultation with its counsel, represents that the Borrower is unlikely to
suffer any material adverse result in such litigation. The Borrower has no
material contingent obligations not provided for or disclosed in the financial
statements referred to in Section 6.1 or as set forth in written notices to the
Administrative Agent given from time to time after the Agreement Execution Date
on or about the date such material contingent obligations are incurred.
5.8 Subsidiaries. Schedule 1 hereto contains, as of the Agreement
Execution Date, an accurate list of all of the presently existing Subsidiaries
of the Borrower, setting forth their respective jurisdictions of incorporation
or formation and the percentage of their respective capital stock or partnership
or membership interest owned by the Borrower or other Subsidiaries. Schedule 6
hereto contains, as of the Agreement Execution Date (after giving effect to the
Merger), an accurate list of all of the presently existing Subsidiaries of the
Borrower which own one or more Projects that are not single purpose entities
formed solely for the purpose of owning Projects in connection with securitized
Indebtedness which also have restrictions on the creation of additional
Indebtedness and other safeguards typically imposed on such single-purpose
entities in securitized financings. All of the issued and outstanding shares of
capital stock of such Subsidiaries that are corporations have been duly
authorized and issued and are fully paid and non-assessable.
5.9 ERISA. The Unfunded Liabilities of all Single Employer Plans
do not in the aggregate exceed $1,000,000. Neither the Borrower nor any other
member of the Controlled Group has incurred, or is reasonably expected to incur,
any withdrawal liability to Multiemployer Plans in excess of $250,000 in the
aggregate. Each Plan complies in all material respects with all applicable
requirements of law and regulations, no Reportable Event has occurred with
respect to any Plan, neither the Borrower nor any other members of the
Controlled Group has withdrawn from any Plan or initiated steps to do so, and no
steps have been taken to reorganize or terminate any Plan.
5.10 Accuracy of Information. All factual information heretofore or
contemporaneously furnished by or on behalf of the Borrower or any of its
Subsidiaries to the Administrative Agent or any Lender for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all other such factual information hereafter furnished by or on behalf of the
Borrower or any of its Subsidiaries to the Administrative Agent or any Lender
will be, to the knowledge of Borrower, true and accurate (taken as a whole) on
the date as of which such information is dated or certified and not incomplete
by omitting to state any material fact necessary to make such information (taken
as a whole) not misleading in light of the circumstances and purposes for which
such information was provided at such time.
5.11 Regulation U. The Borrower has not used the proceeds of any
Advance to buy or carry any margin stock (as defined in Regulation U) in
violation of the terms of this Agreement.
5.12 Material Agreements. Neither the Borrower nor any Subsidiary
is a party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect. Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in (i) any agreement to which it is a party, which default
could
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have a Material Adverse Effect, or (ii) any agreement or instrument evidencing
or governing Indebtedness, which default would constitute a Default hereunder.
5.13 Compliance With Laws. The Borrower and its Subsidiaries have
complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
Governmental Authority, having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property, except for any
non-compliance which would not have a Material Adverse Effect. Neither the
Borrower nor any Subsidiary has received any notice to the effect that its
operations are not in material compliance with any of the requirements of
applicable federal, state and local environmental, health and safety statutes
and regulations or the subject of any federal or state investigation evaluating
whether any remedial action is needed to respond to a release of any toxic or
hazardous waste or substance into the environment.
5.14 Ownership of Properties. Except as set forth on Schedule 2
hereto, on the date of this Agreement, the Borrower and its Subsidiaries will
have good and marketable title, free of all Liens other than those permitted by
Section 6.16, to all of the Property and assets reflected in the financial
statements as owned by it, and will contemporaneously with the disbursement
hereunder and the consummation of the Merger, have good and marketable (or the
equivalent) title, free of all Liens other than those permitted by Section 6.16,
to all of the Property and assets reflected in the financial statements of JDN
Realty as owned by JDN Realty.
5.15 Investment Company Act. Neither the Borrower nor any
Subsidiary is an "investment company" or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
5.16 Public Utility Holding Company Act. Neither the Borrower nor
any Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
5.17 Solvency.
(i) Immediately after the Agreement Execution Date and
taking into account the Merger and the Indebtedness incurred hereunder,
(a) the fair value of the assets of the Borrower and its Subsidiaries
on a consolidated basis, at a fair valuation, will exceed the debts and
liabilities, subordinated, contingent or otherwise, of the Borrower and
its Subsidiaries on a consolidated basis; (b) the present fair saleable
value of the Property of the Borrower and its Subsidiaries on a
consolidated basis will be greater than the amount that will be
required to pay the probable liability of the Borrower and its
Subsidiaries on a consolidated basis on their debts and other
liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (c) the Borrower and its
Subsidiaries on a consolidated basis will be able to pay their debts
and liabilities, subordinated, contingent or otherwise, as such debts
and liabilities become absolute and matured; and (d) the Borrower and
its Subsidiaries on a consolidated basis will not have unreasonably
small capital with which to conduct the businesses in which they are
engaged as such businesses are now conducted and are proposed to be
conducted after the date hereof.
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(ii) The Borrower does not intend to, or to permit any of
its Subsidiaries to, and does not believe that it or any of its
Subsidiaries will, incur debts beyond its ability to pay such debts as
they mature, taking into account the timing of and amounts of cash to
be received by it or any such Subsidiary and the timing of the amounts
of cash to be payable on or in respect of its Indebtedness or the
Indebtedness of any such Subsidiary.
5.18 Insurance. The Borrower and its Subsidiaries carry insurance
on their Projects with financially sound and reputable insurance companies, in
such amounts, with such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses and owning similar Projects
in localities where the Borrower and its Subsidiaries operate, including,
without limitation:
(i) Property and casualty insurance (including coverage
for flood and other water damage for any Project located within a
100-year flood plain) in the amount of the replacement cost of the
improvements at the Project (to the extent replacement cost insurance
is maintained by companies engaged in similar business and owning
similar properties);
(ii) Builder's risk insurance for any Project under
construction in the amount of the construction cost of such Project;
(iii) Loss of rental income insurance in the amount not
less than one year's gross revenues from the Projects; and
(iv) Comprehensive general liability insurance in the
amount of $20,000,000 per occurrence.
5.19 REIT Status. The Borrower is in good standing on the New York
Stock Exchange, is qualified as a real estate investment trust under Section 856
of the Code and currently is in compliance in all material respects with all
provisions of the Code applicable to the qualification of the Borrower as a real
estate investment trust.
5.20 Environmental Matters. Each of the following representations
and warranties is true and correct on and as of the Agreement Execution Date
(after giving effect to the Merger) except to the extent that the facts and
circumstances giving rise to any such failure to be so true and correct, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect:
(a) To the best knowledge of the Borrower, the
Projects of the Borrower and its Subsidiaries do not contain
any Materials of Environmental Concern in amounts or
concentrations which constitute a violation of, or could
reasonably give rise to liability of the Borrower or any
Subsidiary under, Environmental Laws.
(b) To the best knowledge of the Borrower, (i)
the Projects of the Borrower and its Subsidiaries and all
operations at the Projects are in compliance with all
applicable Environmental Laws, and (ii) with respect to all
Projects
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owned by the Borrower and/or its Subsidiaries (x) for at least
two (2) years, have in the last two years, or (y) for less
than two (2) years, have for such period of ownership, been in
compliance in all material respects with all applicable
Environmental Laws.
(c) Neither the Borrower nor any of its
Subsidiaries has received any notice of violation, alleged
violation, non-compliance, liability or potential liability
regarding environmental matters or compliance with
Environmental Laws with regard to any of the Projects, nor
does the Borrower have knowledge or reason to believe that any
such notice will be received or is being threatened.
(d) To the best knowledge of the Borrower,
Materials of Environmental Concern have not been transported
or disposed of from the Projects of the Borrower and its
Subsidiaries in violation of, or in a manner or to a location
which could reasonably give rise to liability of the Borrower
or any Subsidiary under, Environmental Laws, nor have any
Materials of Environmental Concern been generated, treated,
stored or disposed of at, on or under any of the Projects of
the Borrower and its Subsidiaries in violation of, or in a
manner that could give rise to liability of the Borrower or
any Subsidiary under, any applicable Environmental Laws.
(e) No judicial proceedings or governmental or
administrative action is pending, or, to the knowledge of the
Borrower, threatened, under any Environmental Law to which the
Borrower or any of its Subsidiaries is or, to the best of
Borrower's knowledge, will be named as a party with respect to
the Projects of the Borrower and its Subsidiaries, nor are
there any consent decrees or other decrees, consent orders,
administrative order or other orders, or other administrative
of judicial requirements outstanding under any Environmental
Law with respect to the Projects of the Borrower and its
Subsidiaries.
(f) To the best knowledge of the Borrower, there
has been no release or threat of release of Materials of
Environmental Concern at or from the Projects of the Borrower
and its Subsidiaries, or arising from or related to the
operations of the Borrower and its Subsidiaries in connection
with the Projects in violation of or in amounts or in a manner
that could give rise to liability under Environmental Laws.
5.21 Pro-forma Covenant Compliance. As of the date the Merger is
consummated, the Borrower will be in compliance with each of its covenants
contained in Section 6.19, 6.20, 6.21 and 6.23 after giving effect to the
Merger. The pro-forma covenant calculation attached hereto as Exhibit C-1 was
prepared on the assumption that the Merger will have been consummated and is, to
the best knowledge of Borrower, an accurate estimation of Borrower's compliance
with such financial covenants for the time periods specified.
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ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1 Financial Reporting. The Borrower will maintain, for itself
and each Subsidiary, a system of accounting established and administered in
accordance with GAAP, and furnish to the Lenders:
(i) As soon as available, but in any event not later than
45 days after the close of each fiscal quarter, for the Borrower and
its Subsidiaries, an unaudited consolidated balance sheet as of the
close of each such period and the related unaudited consolidated
statements of income and retained earnings and of cash flows of the
Borrower and its Subsidiaries for such period and the portion of the
fiscal year through the end of such period, setting forth in each case
in comparative form the figures for the previous year, all certified by
the Borrower's chief financial officer or chief accounting officer;
(ii) As soon as available, but in any event not later than
45 days after the close of each fiscal quarter, for the Borrower and
its Subsidiaries, the following reports in form and substance
reasonably satisfactory to the Lenders, all certified by the entity's
chief financial officer or chief accounting officer: a statement of
Funds From Operations, a statement of cash flows for each individual
Project, a statement detailing Consolidated Outstanding Indebtedness,
Consolidated Secured Indebtedness, and Consolidated Senior Unsecured
Indebtedness, Consolidated Cash Flow (with a breakdown between
Unencumbered Assets and other assets), a listing of capital
expenditures, a report listing and describing all newly acquired
Projects, including their Net Operating Income, cash flow, cost and
secured or unsecured Indebtedness assumed in connection with such
acquisition, if any, summary information and such other information on
all Projects as may be reasonably requested by Administrative Agent;
(iii) As soon as available, but in any event not later than
90 days after the close of each fiscal year, for the Borrower and its
Subsidiaries, audited financial statements (including a consolidated
balance sheet as at the end of such year and the related consolidated
statements of income and retained earnings and of cash flows for such
year), setting forth in each case in comparative form the figures for
the previous year, without a "going concern" or like qualification or
exception, or qualification arising out of the scope of the audit,
prepared by PricewaterhouseCoopers (or other independent certified
public accountants of nationally recognized standing reasonably
acceptable to the Arrangers);
(iv) As soon as available, but in any event not later than
90 days after the close of each fiscal year, for the Borrower and its
Subsidiaries, a statement detailing the contributions to Consolidated
Cash Flow from each individual Project for the prior fiscal year in
form and substance reasonably satisfactory to the Required Lenders,
certified by the entity's chief financial officer or chief accounting
officer;
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(v) Together with the quarterly and annual financial
statements required hereunder, a compliance certificate in
substantially the form of Exhibit C-2 hereto signed by the Borrower's
chief financial officer or chief accounting officer showing the
calculations and computations necessary to determine compliance with
this Agreement and stating that, to such officer's knowledge, no
Default or Unmatured Default exists, or if, to such officer's
knowledge, any Default or Unmatured Default exists, stating the nature
and status thereof;
(vi) As soon as possible and in any event within 10 days
after a responsible officer of the Borrower knows that any Reportable
Event has occurred with respect to any Plan, a statement, signed by the
chief financial officer of the Borrower, describing said Reportable
Event and the action which the Borrower proposes to take with respect
thereto;
(vii) As soon as possible and in any event within 10 days
after receipt by a responsible officer of the Borrower, a copy of (a)
any notice or claim to the effect that the Borrower or any of its
Subsidiaries is or may be liable to any Person as a result of the
release by the Borrower, any of its Subsidiaries, or any other Person
of any toxic or hazardous waste or substance into the environment, and
(b) any notice alleging any violation of any federal, state or local
environmental, health or safety law or regulation by the Borrower or
any of its Subsidiaries, which, in either case, could have a Material
Adverse Effect;
(viii) Promptly upon the furnishing thereof to the
shareholders of the Borrower, copies of all financial statements,
reports and proxy statements so furnished;
(ix) Promptly upon the filing thereof, copies of all
registration statements and annual, quarterly, monthly or other reports
and any other public information which the Borrower or any of its
Subsidiaries files with the Securities Exchange Commission; and
(x) Such other information (including, without
limitation, financial statements for the Borrower and non-financial
information) as the Administrative Agent or any Lender may from time to
time reasonably request.
6.2 Use of Proceeds. The Borrower will use the proceeds of the
Facility solely to finance costs incurred in completing the Merger, including,
without limitation, the refinancing of certain indebtedness of JDN. The Borrower
will not, nor will it permit any Subsidiary to, use any of the proceeds of the
Advances (i) to purchase or carry any "margin stock" (as defined in Regulation
U) if such usage could constitute a violation of Regulation U by any Lender,
(ii) to fund any purchase of, or offer for, any Capital Stock of any Person,
unless such Person has consented to such offer prior to any public announcements
relating thereto, or (iii) to make any Acquisition other than a Permitted
Acquisition.
6.3 Notice of Default. The Borrower will give, and will cause each
of its Subsidiaries to give, prompt notice in writing to the Administrative
Agent and the Lenders of the occurrence of any Default or Unmatured Default and
of any other development, financial or otherwise, which could reasonably be
expected to have a Material Adverse Effect.
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6.4 Conduct of Business. The Borrower will do, and will cause each
of its Subsidiaries to do, all things necessary to remain duly incorporated or
duly qualified, validly existing and in good standing as a real estate
investment trust, corporation, limited liability company, general partnership or
limited partnership, as the case may be, in its jurisdiction of
incorporation/formation (except with respect to mergers in accordance with
Section 6.12 and Permitted Acquisitions) and maintain all requisite authority to
conduct its business in each jurisdiction in which its business is conducted and
to carry on and conduct their businesses in substantially the same manner as
they are presently conducted where the failure to do so could reasonably be
expected to have a Material Adverse Effect and, specifically, neither the
Borrower nor its Subsidiaries may undertake any business other than the
acquisition, development, ownership, management, operation and leasing of
retail, office or industrial properties, and ancillary businesses specifically
related to such types of properties.
6.5 Taxes. The Borrower will pay, and will cause each of its
Subsidiaries to pay, when due all taxes, assessments and governmental charges
and levies upon them of their income, profits or Projects, except those which
are being contested in good faith by appropriate proceedings and with respect to
which adequate reserves have been set aside.
6.6 Insurance. The Borrower will, and will cause each of its
Subsidiaries to, maintain insurance which is consistent with the representation
contained in Section 5.17 on all their Property and the Borrower will furnish to
any Lender upon reasonable request full information as to the insurance carried.
6.7 Compliance with Laws. The Borrower will, and will cause each
of its Subsidiaries to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which they may be subject, the
violation of which could reasonably be expected to have a Material Adverse
Effect.
6.8 Maintenance of Properties. The Borrower will, and will cause
each of its Subsidiaries to, do all things necessary to maintain, preserve,
protect and keep their respective Projects and Properties, reasonably necessary
for the continuous operation of the Projects, in good repair, working order and
condition, ordinary wear and tear excepted.
6.9 Inspection. The Borrower will, and will cause each of its
Subsidiaries to, permit the Lenders upon reasonable notice, by their respective
representatives and agents, to inspect any of the Projects, corporate books and
financial records of the Borrower and each of its Subsidiaries, to examine and
make copies of the books of accounts and other financial records of the Borrower
and each of its Subsidiaries, and to discuss the affairs, finances and accounts
of the Borrower and each of its Subsidiaries with officers thereof, and to be
advised as to the same by, their respective officers at such reasonable times
and intervals as the Lenders may designate.
6.10 Maintenance of Status. The Borrower shall at all times (i)
remain a corporation listed and in good standing on the New York Stock Exchange,
and (ii) maintain its status as a real estate investment trust in compliance
with all applicable provisions of the Code relating to such status.
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6.11 Dividends. Provided there is no then-existing Default or
(after notice thereof to Borrower) Unmatured Default hereunder, the Borrower and
its Subsidiaries shall be permitted to declare and pay dividends on their
Capital Stock from time to time in amounts determined by Borrower, provided,
however, that in no event shall Borrower declare or pay dividends on its Capital
Stock if (a) dividends paid on account of any fiscal quarter, in the aggregate,
would exceed 95% of Funds From Operations for such fiscal quarter, or (b)
dividends paid on account of any fiscal year, in the aggregate, would exceed 90%
of Funds From Operations for such fiscal year. Notwithstanding the foregoing,
the Borrower shall be permitted at all times to distribute whatever amount of
dividends is necessary to maintain its tax status as a real estate investment
trust.
6.12 Merger; Sale of Assets. The Borrower will not, nor will it
permit any of its Subsidiaries to, enter into any merger (other than mergers in
which such entity is the survivor and mergers of Subsidiaries (but not the
Borrower) as part of transactions that are Permitted Acquisitions provided that
following such merger the target entity becomes a Wholly-Owned Subsidiary of
Borrower), consolidation, reorganization or liquidation or transfer or otherwise
dispose of all or a Substantial Portion of their Properties, except for (a) the
Merger, (b) such transactions that occur between Wholly-Owned Subsidiaries or
between Borrower and a Wholly-Owned Subsidiary, (c) mergers solely to change the
jurisdiction of organization of a Subsidiary Guarantor, and (d) as otherwise
approved in advance by the Required Lenders.
6.13 Delivery of Subsidiary Guaranties. Borrower shall cause each
of its existing Subsidiaries listed on Schedule 6, with the exception of Parcel
J 1B Limited Partnership, to execute and deliver to the Agent the Subsidiary
Guaranty. Within 10 days after the later of the date Borrower forms or acquires
any Subsidiary or the date such Subsidiary first owns a Project (other than a
Subsidiary which is a single-purpose entity which owns only Projects subject to
securitized Indebtedness and which has restrictions on the creation of
additional Indebtedness and other safeguards typically imposed on such
single-purpose entities in securitized financings), Borrower shall cause such
Subsidiary to execute and deliver to the Administrative Agent a Subsidiary
Guaranty.
6.14 Sale and Leaseback. The Borrower will not, nor will it permit
any of its Subsidiaries to, sell or transfer a Substantial Portion of its
Property in order to concurrently or subsequently lease such Property as lessee.
6.15 Acquisitions and Investments. The Borrower will not, nor will
it permit any Subsidiary to, make or suffer to exist any Investments (including
without limitation, loans and advances to, and other Investments in,
Subsidiaries), or commitments therefor, or become or remain a partner in any
partnership or joint venture, or to make any Acquisition of any Person, (except
in connection with the consummation of the Merger), except:
(i) Cash Equivalents;
(ii) Investments in existing Subsidiaries, Investments in
Subsidiaries formed for the purpose of developing or acquiring
Properties, Investments in joint ventures and partnerships engaged
solely in the business of purchasing, developing, owning, operating,
leasing and managing retail properties and office and industrial
properties, and Investments in existence on the date hereof and
described in Schedule 1 hereto;
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(iii) transactions permitted pursuant to Section 6.12; and
(iv) Acquisitions of Persons whose primary operations
consist of the ownership, development, operation and management of
retail, office or industrial properties;
provided that, after giving effect to such Acquisitions and Investments,
Borrower continues to comply with all its covenants herein. Acquisitions
permitted pursuant to this Section 6.15 shall be deemed to be "Permitted
Acquisitions".
6.16 Liens. The Borrower will not, nor will it permit any of its
Subsidiaries to, create, incur, or suffer to exist any Lien in, of or on the
Property of the Borrower or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges
or levies on its Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are being
contested in good faith and by appropriate proceedings and for which
adequate reserves shall have been set aside on its books;
(ii) Liens imposed by law, such as carriers',
warehousemen's materialman's and mechanics' liens and other similar
liens arising in the ordinary course of business which secure payment
of obligations not more than 60 days past due or which are being
contested in good faith by appropriate proceedings and for which
adequate reserves shall have been set aside on its books;
(iii) Liens arising out of pledges or deposits under
workers' compensation laws, unemployment insurance, old age pensions,
or other social security or retirement benefits, or similar
legislation;
(iv) Easements, restrictions and such other encumbrances
or charges against real property as are of a nature generally existing
with respect to properties of a similar character and which do not in
any material way affect the marketability of the same or interfere with
the use thereof in the business of the Borrower or its Subsidiaries;
(v) Liens on Projects existing on the date hereof which
secure Indebtedness as described in Schedule 2 hereto; and
(vi) Liens other than Liens described in subsections (i)
through (iv) above arising in connection with any Indebtedness
permitted hereunder to the extent such Liens will not result in a
Default in any of Borrower's covenants herein.
Liens permitted pursuant to this Section 6.16 shall be deemed to be "Permitted
Liens".
6.17 Affiliates. The Borrower will not, nor will it permit any of
its Subsidiaries to, enter into any transaction (including, without limitation,
the purchase or sale of any Property or service) with, or make any payment or
transfer to, any Affiliate except in the ordinary course of business and
pursuant to the reasonable requirements of the Borrower's or such Subsidiary's
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business and upon fair and reasonable terms no less favorable to the Borrower or
such Subsidiary than the Borrower or such Subsidiary would obtain in a
comparable arms-length transaction.
6.18 Financial Undertakings. The Borrower will not enter into or
remain liable upon, nor will it permit any Subsidiary to enter into or remain
liable upon, any Financial Undertaking, except to the extent required to protect
the Borrower and its Subsidiaries against increases in interest payable by them
under variable interest Indebtedness.
6.19 Variable Interest Indebtedness. The Borrower and its
Subsidiaries shall not at any time permit the outstanding principal balance of
Indebtedness which bears interest at an interest rate that is not fixed through
the maturity date of such Indebtedness to exceed $1,100,000,000, unless all of
such Indebtedness in excess of $1,100,000,000 is subject to a Rate Management
Transaction approved by the Administrative Agent that effectively converts the
interest rate on such excess to a fixed rate.
6.20 Consolidated Net Worth. The Borrower shall maintain a
Consolidated Net Worth of not less than the sum of (i) $1,300,000,000 plus (ii)
ninety percent (90%) of the aggregate proceeds received by the Borrower (net of
customary related fees and expenses) in connection with any offering of stock,
including, without limitation, perpetual preferred stock and all other preferred
stock, in the Borrower after May 29, 2002, and on or prior to the date such
determination of Consolidated Net Worth is made provided that no proceeds shall
be deemed received to the extent that such offering involves only the
replacement or reissuance of common or preferred stock.
6.21 Indebtedness and Cash Flow Covenants. The Borrower on a
consolidated basis with its Subsidiaries, shall not permit:
(i) Consolidated Outstanding Indebtedness to exceed (A)
fifty-eight percent (58%) of Consolidated Market Value, as of any date
through and including December 30, 2003, or (B) fifty-five percent
(55%) of Consolidated Market Value, as of any date thereafter;
(ii) Consolidated Secured Indebtedness to exceed
thirty-five percent (35%) of Consolidated Market Value, as of the last
day of any fiscal quarter;
(iii) Subordinated Indebtedness to exceed ten percent (10%)
of the Value of Unencumbered Assets, as of any date;
(iv) the Value of Unencumbered Assets to be less than 1.75
times the Consolidated Senior Unsecured Indebtedness, as of any date;
(v) the aggregate Net Operating Income for the two (2)
most recent fiscal quarters of the Consolidated Group for which results
have been reported under Section 6.1 from all Unencumbered Assets
qualifying for inclusion in the Value of Unencumbered Assets as of the
date of determination to be less than 1.75 times the portion of
Consolidated Interest Expense for such two (2) most recent fiscal
quarters attributable to Consolidated Senior Unsecured Indebtedness, as
of the last day of any fiscal quarter;
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(vi) Consolidated Cash Flow to be less than 2.0 times the
Consolidated Debt Service, based on the most recent two (2) fiscal
quarters, for which the Consolidated Group has reported results under
Section 6.1, annualized, as of the last day of any fiscal quarter; or
(vii) Consolidated Cash Flow to be less than 1.5 times
Fixed Charges, based on the most recent two (2) fiscal quarters, as of
the last day of any fiscal quarter.
6.22 Environmental Matters. Borrower and its Subsidiaries shall:
(a) Comply with, and use all reasonable efforts
to ensure compliance by all tenants and subtenants, if any,
with, all applicable Environmental Laws and obtain and comply
with and maintain, and use all reasonable efforts to ensure
that all tenants and subtenants obtain and comply with and
maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental
Laws, except to the extent that failure to do so could not be
reasonably expected to have a Material Adverse Effect;
provided that in no event shall the Borrower or its
Subsidiaries be required to modify the terms of leases, or
renewals thereof, with existing tenants (i) at Projects owned
by the Borrower or its Subsidiaries as of the date hereof, or
(ii) at Projects hereafter acquired by the Borrower or its
Subsidiaries as of the date of such acquisition, to add
provisions to such effect.
(b) Conduct and complete all investigations,
studies, sampling and testing, and all remedial, removal and
other actions required under Environmental Laws and promptly
comply in all material respects with all lawful orders and
directives of all Governmental Authorities regarding
Environmental Laws, except to the extent that (i) the same are
being contested in good faith by appropriate proceedings and
the pendency of such proceedings could not be reasonably
expected to have a Material Adverse Effect, or (ii) the
Borrower has determined in good faith that contesting the same
is not in the best interests of the Borrower and its
Subsidiaries and the failure to contest the same could not be
reasonably expected to have a Material Adverse Effect.
(c) Defend, indemnify and hold harmless
Administrative Agent, the Arrangers and each Lender, and their
respective officers and directors, from and against any
claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature known
or unknown, contingent or otherwise, arising out of, or in any
way relating to the violation of, noncompliance with or
liability under any Environmental Laws applicable to the
operations of the Borrower, its Subsidiaries or the Projects,
or any orders, requirements or demands of Governmental
Authorities related thereto, including, without limitation,
attorney's and consultant's fees, investigation and laboratory
fees, response costs, court costs and litigation expenses,
except to the extent that any of the foregoing arise out of
the gross negligence or willful misconduct of the party
seeking indemnification therefor. This indemnity shall
continue in full force and effect regardless of the
termination of this Agreement.
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(d) Prior to the acquisition of a new Project
after the Agreement Execution Date, perform or cause to be
performed an environmental investigation which investigation
shall at a minimum comply with the specifications and
procedures attached hereto as Exhibit G. In connection with
any such investigation, Borrower shall cause to be prepared a
report of such investigation, to be made available to any
Lenders upon reasonable request, for informational purposes
and to assure compliance with the specifications and
procedures.
6.23 Permitted Investments.
(a) The Consolidated Group's Investment in
Investment Affiliates, as determined in accordance with GAAP,
shall not at any time exceed thirty percent (30%) of
Consolidated Market Value.
(b) The Consolidated Group's Investment in
Developable Land (with each asset valued at the lower of its
acquisition cost and its fair market value) shall not at any
time exceed seven and one half percent (7.5%) of Consolidated
Capitalization Value.
(c) The Consolidated Group's Investment in
Passive Non-Real Estate Investments (with each asset valued at
the lower of its acquisition cost and its fair market value)
shall not at any time exceed seven and one half percent (7.5%)
of Consolidated Capitalization Value.
(d) The Consolidated Group's Investment in First
Mortgage Receivables (with each asset valued at the lower of
its acquisition cost and its fair market value) shall not at
any time exceed five percent (5%) of Consolidated
Capitalization Value.
(e) The Consolidated Group's Investment in
Assets Under Development shall not at any time exceed fifteen
percent (15%) of Consolidated Capitalization Value.
(f) The Consolidated Group's aggregate
Investment in Developable Land, Passive Non-Real Estate
Investments, First Mortgage Receivables and Assets Under
Development shall not at any time exceed twenty-five (25%) of
Consolidated Capitalization Value.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1 Nonpayment of any principal payment on any Note when due.
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7.2 Nonpayment of interest upon any Note or other payment
Obligations under any of the Loan Documents within five (5) Business Days after
the same becomes due.
7.3 The breach of any of the terms or provisions of Sections 6.2
through 6.21 and 6.23.
7.4 Any representation or warranty made or deemed made by or on
behalf of the Borrower or any of its Subsidiaries to the Lenders or the
Administrative Agent under or in connection with this Agreement, any Loan, or
any material certificate or information delivered in connection with this
Agreement or any other Loan Document shall be materially false on the date as of
which made.
7.5 The breach by the Borrower (other than a breach which
constitutes a Default under Section 7.1, 7.2, 7.3 or 7.4) of any of the terms or
provisions of this Agreement which is not remedied within fifteen (15) days
after written notice from the Administrative Agent or any Lender.
7.6 Failure of the Borrower or any of its Subsidiaries to pay when
due (A) any Recourse Indebtedness in excess of $10,000,000 in the aggregate or
(B) any Indebtedness, whether or not Recourse Indebtedness, in excess of
$40,000,000 in the aggregate; or the default by the Borrower or any of its
Subsidiaries in the performance of any term, provision or condition contained in
any agreement, or any other event shall occur or condition exist, which causes
or permits (A) any Recourse Indebtedness of the Borrower or any of its
Subsidiaries in excess of $10,000,000 in the aggregate or (B) any Indebtedness,
whether or not Recourse Indebtedness, in excess of $40,000,000 in the aggregate
to be due and payable or required to be prepaid (other than by a regularly
scheduled payment) prior to the stated maturity thereof (provided that the
failure to pay any such Indebtedness shall not constitute a Default so long as
the Borrower or its Subsidiaries is diligently contesting the payment of the
same by appropriate legal proceedings and the Borrower or its Subsidiaries have
set aside, in a manner reasonably satisfactory to Administrative Agent, a
sufficient reserve to repay such Indebtedness plus all accrued interest thereon
calculated at the default rate thereunder and costs of enforcement in the event
of an adverse outcome).
7.7 The Borrower, or any Subsidiary having more than $10,000,000
of Equity Value, shall (i) have an order for relief entered with respect to it
under the Federal bankruptcy laws as now or hereafter in effect, (ii) make an
assignment for the benefit of creditors, (iii) apply for, seek, consent to, or
acquiesce in, the appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any Substantial Portion of its
Property, (iv) institute any proceeding seeking an order for relief under the
Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate
it as a bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors or fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (v) take any corporate
action to authorize or effect any of the foregoing actions set forth in this
Section 7.7, (vi) fail to contest in good faith any appointment or proceeding
described in Section 7.8 or (vii) admit in writing its inability to pay its
debts generally as they become due.
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7.8 A receiver, trustee, examiner, liquidator or similar official
shall be appointed for the Borrower or any Subsidiary having more than
$10,000,000 of Equity Value, or for any Substantial Portion of the Property of
the Borrower or such Subsidiary, or a proceeding described in Section 7.7(iv)
shall be instituted against the Borrower or any such Subsidiary and such
appointment continues undischarged or such proceeding continues undismissed or
unstayed for a period of ninety (90) consecutive days.
7.9 The Borrower or any of its Subsidiaries shall fail within
sixty (60) days to pay, bond or otherwise discharge any judgments or orders for
the payment of money in an amount which, when added to all other judgments or
orders outstanding against Borrower or any Subsidiary would exceed $10,000,000
in the aggregate, which have not been stayed on appeal or otherwise
appropriately contested in good faith.
7.10 The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that it has incurred
withdrawal liability to such Multiemployer Plan in an amount which, when
aggregated with all other amounts required to be paid to Multiemployer Plans by
the Borrower or any other member of the Controlled Group as withdrawal liability
(determined as of the date of such notification), exceeds $1,000,000 or requires
payments exceeding $500,000 per annum.
7.11 The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within the
meaning of Title IV of ERISA, if as a result of such reorganization or
termination the aggregate annual contributions of the Borrower and the other
members of the Controlled Group (taken as a whole) to all Multiemployer Plans
which are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
respective plan years of each such Multiemployer Plan immediately preceding the
plan year in which the reorganization or termination occurs by an amount
exceeding $500,000.
7.12 Failure to remediate within the time period permitted by law
or governmental order, after all administrative hearings and appeals have been
concluded (or within a reasonable time in light of the nature of the problem if
no specific time period is so established), environmental problems at Properties
owned by the Borrower or any of its Subsidiaries or Investment Affiliates if the
estimated costs of remediation at all such Properties in the aggregate exceed
$20,000,000.
7.13 The occurrence of any "Default" as defined in any Loan
Document or the breach of any of the terms or provisions of any Loan Document,
which default or breach continues beyond any period of grace therein provided.
7.14 The occurrence of any Material Adverse Effect.
7.15 The occurrence of a "Default" as such term is defined in the
Revolving Credit Agreement.
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ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1 Acceleration. If any Default described in Section 7.7 or 7.8
occurs with respect to the Borrower, the Obligations shall immediately become
due and payable without any election or action on the part of the Administrative
Agent or any Lender. If any other Default occurs, the Required Lenders, may
declare the Obligations to be due and payable, whereupon the Obligations shall
become immediately due and payable, without presentment, demand, protest or
notice of any kind, all of which the Borrower hereby expressly waives. If any
automatic or optional acceleration has occurred, the Administrative Agent, as
directed by the Required Lenders (or if no such direction is given within 30
days after a request for direction, as the Administrative Agent deems in the
best interests of the Lenders, in its sole discretion), shall use its good faith
efforts to collect, including without limitation, by filing and diligently
pursuing judicial action, all amounts owed by the Borrower and any Subsidiary
Guarantor under the Loan Documents.
If, after acceleration of the maturity of the Obligations and before
any judgment or decree for the payment of the Obligations due shall have been
obtained or entered, all of the Lenders (in their sole discretion) shall so
direct, the Administrative Agent shall, by notice to the Borrower, rescind and
annul such acceleration and/or termination.
8.2 Amendments. Subject to the provisions of this Article VIII,
the Required Lenders (or the Administrative Agent with the consent in writing of
the Required Lenders) and the Borrower may enter into agreements supplemental
hereto for the purpose of adding or modifying any provisions to the Loan
Documents or changing in any manner the rights of the Lenders or the Borrower
hereunder or waiving any Default hereunder; provided, however, that no such
supplemental agreement or waiver shall, without the consent of all Lenders:
(i) Extend the Facility Termination Date (subject to the
provisions of Section 2.21) or forgive all or any portion of the
principal amount of any Loan or accrued interest thereon, reduce the
Applicable Margins (or modify any definition herein which would have
the effect of reducing the Applicable Margins) or the underlying
interest rate options or extend the time of payment of any such
principal, interest or fees.
(ii) Release any Subsidiary Guarantor (other than a
Subsidiary Guarantor that has liquidated all of its assets and applied
all of the proceeds of such liquidation in accordance with its
organizational documents) from the Subsidiary Guaranty or any other
future guarantor (other than a Subsidiary Guarantor that has liquidated
all of its assets and applied all of the proceeds of such liquidation
in accordance with its organizational documents) from any liability it
may undertake with respect to the Obligations.
(iii) Reduce the percentage specified in the definition of
Required Lenders.
(iv) Increase the Aggregate Commitment beyond
$300,000,000.
(v) Permit the Borrower to assign its rights under this
Agreement.
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(vi) Amend Sections 2.3, 2.12, 2.19, 8.1, 8.2, 11.2 or the
definition of Required Lenders.
No amendment of any provision of this Agreement relating to the Administrative
Agent shall be effective without the written consent of the Administrative
Agent.
8.3 Preservation of Rights. No delay or omission of the Lenders or
the Administrative Agent to exercise any right under the Loan Documents shall
impair such right or be construed to be a waiver of any Default or an
acquiescence therein, and the making of a Loan notwithstanding the existence of
a Default or the inability of the Borrower to satisfy the conditions precedent
to such Loan shall not constitute any waiver or acquiescence. Any single or
partial exercise of any such right shall not preclude other or further exercise
thereof or the exercise of any other right, and no waiver, amendment or other
variation of the terms, conditions or provisions of the Loan Documents
whatsoever shall be valid unless in writing signed by the Lenders required
pursuant to Section 8.2, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan Documents or by law
afforded shall be cumulative and all shall be available to the Administrative
Agent and the Lenders until the Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1 Survival of Representations. All representations and
warranties of the Borrower contained in this Agreement shall survive delivery of
the Notes and the making of the Loans herein contemplated.
9.2 Governmental Regulation. Anything contained in this Agreement
to the contrary notwithstanding, no Lender shall be obligated to extend credit
to the Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
9.3 Taxes. Any taxes (excluding taxes on the overall net income of
any Lender) or other similar assessments or charges made by any governmental or
revenue authority in respect of the Loan Documents shall be paid by the
Borrower, together with interest and penalties, if any.
9.4 Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
9.5 Entire Agreement. The Loan Documents embody the entire
agreement and understanding among the Borrower, the Administrative Agent and the
Lenders and supersede all prior commitments, agreements and understandings among
the Borrower, the Administrative Agent and the Lenders relating to the subject
matter thereof.
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9.6 Several Obligations; Benefits of this Agreement. The
respective obligations of the Lenders hereunder are several and not joint and no
Lender shall be the partner or agent of any other (except to the extent to which
the Administrative Agent is authorized to act as such). The failure of any
Lender to perform any of its obligations hereunder shall not relieve any other
Lender from any of its obligations hereunder. This Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement and their respective successors and assigns.
9.7 Expenses; Indemnification. The Borrower shall reimburse the
Arrangers and Administrative Agent for any costs, internal charges and
out-of-pocket expenses (including, without limitation, all reasonable fees for
consultants and fees and reasonable expenses for attorneys for the
Administrative Agent, which attorneys may be employees of the Administrative
Agent) paid or incurred by the Administrative Agent and Arrangers in connection
with the preparation, negotiation, execution, delivery, syndication, review,
amendment or modification of the Loan Documents. The Borrower also agrees to
reimburse the Arrangers, Administrative Agent and the Lenders for any reasonable
costs, internal charges and out-of-pocket expenses (including, without
limitation, all fees and reasonable expenses for attorneys for the
Administrative Agent and the Lenders, which attorneys may be employees of the
Administrative Agent or the Lenders) paid or incurred by the Administrative
Agent or any Lender in connection with the collection and enforcement of the
Loan Documents (including, without limitation, any workout). The Borrower
further agrees to indemnify the Administrative Agent, the Syndication Agent,
Arrangers, each Lender and their Affiliates, and their directors and officers
against all losses, claims, damages, penalties, judgments, liabilities and
expenses (including, without limitation, all fees and reasonable expenses for
attorneys of the indemnified parties, all expenses of litigation or preparation
therefor whether or not the Administrative Agent, the Syndication Agent either
Arranger or any Lender is a party thereto) which any of them may pay or incur
arising out of or relating to this Agreement, the other Loan Documents, the
Projects, the transactions contemplated hereby or the direct or indirect
application or proposed application of the proceeds of any Loan hereunder,
except to the extent that any of the foregoing arise out of the gross negligence
or willful misconduct of the party seeking indemnification therefor. The
obligations of the Borrower under this Section shall survive the termination of
this Agreement.
9.8 Numbers of Documents. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Administrative Agent
with sufficient counterparts so that the Administrative Agent may furnish one to
each of the Lenders.
9.9 Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with GAAP.
9.10 Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
9.11 Nonliability of Lenders. The relationship between the
Borrower, on the one hand, and the Lenders and the Administrative Agent, on the
other, shall be solely that of borrower and
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lender. Neither the Administrative Agent nor any Lender shall have any fiduciary
responsibilities to the Borrower. Neither the Administrative Agent nor any
Lender undertakes any responsibility to the Borrower to review or inform the
Borrower of any matter in connection with any phase of the Borrower's business
or operations.
9.12 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING
A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS,
BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
9.13 CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR
ILLINOIS STATE COURT SITTING IN CHICAGO IN ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES
THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR
HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL
LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO BRING PROCEEDINGS
AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL
PROCEEDING BY THE BORROWER AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER OR ANY
AFFILIATE OF THE ADMINISTRATIVE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS.
9.14 WAIVER OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT
AND EACH LENDER HEREBY WAIVE 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 ANY LOAN
DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
ARTICLE X
THE ADMINISTRATIVE AGENT
10.1 Appointment. Bank of America, N.A. is hereby appointed
Administrative Agent hereunder and under each other Loan Document, and subject
to Sections 10.9 and 10.11, each of the Lenders irrevocably authorizes the
Administrative Agent to act as the agent of such Lender. The Administrative
Agent agrees to act as such upon the express conditions contained in this
Article X. The Administrative Agent shall not have a fiduciary relationship in
respect of the Borrower or any Lender by reason of this Agreement.
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10.2 Powers. The Administrative Agent shall have and may exercise
such powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties to the Lenders, or any obligation to the Lenders to take any
action thereunder except any action specifically provided by the Loan Documents
to be taken by the Administrative Agent. The Administrative Agent shall
administer this Agreement in the same manner and with the same standard of care
as it administers similar agreements for its own account.
10.3 General Immunity. Neither the Administrative Agent nor any of
its directors, officers, agents or employees shall be liable to the Borrower,
the Lenders or any Lender for (i) 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; or
(ii) any determination by the Administrative Agent that compliance with any law
or any governmental or quasi-governmental rule, regulation, order, policy,
guideline or directive (whether or not having the force of law) requires the
Advances hereunder to be classified as being part of a "highly leveraged
transaction". The foregoing shall not limit the liability of the Administrative
Agent for a breach of its express obligations and undertakings to the Lenders
hereunder which continues after written notice to the Administrative Agent of
such breach and its failure to cure such breach within a reasonable time after
such notice.
10.4 No Responsibility for Loans, Recitals, etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into, or verify
(i) any statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (ii) the performance or observance of any
of the covenants or agreements of any obligor under any Loan Document,
including, without limitation, any agreement by an obligor to furnish
information directly to each Lender; (iii) the satisfaction of any condition
specified in Article IV, except receipt of items required to be delivered to the
Administrative Agent; or (iv) the validity, effectiveness or genuineness of any
Loan Document or any other instrument or writing furnished in connection
therewith. Except as otherwise specifically provided herein, the Administrative
Agent shall have no duty to disclose to the Lenders information that is not
required to be furnished by the Borrower to the Administrative Agent at such
time, but is voluntarily furnished by the Borrower to the Administrative Agent
(either in its capacity as Administrative Agent or in its individual capacity).
Notwithstanding anything to the contrary herein, Administrative Agent shall make
available promptly after the Agreement Execution Date to any Lender copies of
all Loan Documents in its possession which are requested by any such Lender.
Administrative Agent shall also furnish to all Lenders promptly after such items
are available in final form copies of Default notices issued to the Borrower,
amendments to any Loan Documents being proposed by the Administrative Agent or
the Borrower, financial statements of the Borrower required hereunder,
compliance certificates from the Borrower required by this Agreement or any
other notice or communication from the Borrower specifically relating to this
Agreement which is actually received by the Administrative Agent. Promptly after
the Administrative Agent has actual knowledge of the occurrence of a Default
hereunder, the Administrative Agent shall so notify the Lenders.
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10.5 Action on Instructions of Lenders. Notwithstanding anything
herein to the contrary, the Administrative Agent shall in all cases be fully
protected in so acting, or refraining from acting, hereunder and under any other
Loan Document in accordance with written instructions signed by the Required
Lenders or all of the Lenders, as the case may be, and such instructions and any
action taken or failure to act pursuant to such written instructions shall be
binding on all of the Lenders and on all holders of Notes and on the
Administrative Agent.
10.6 Employment of Agents and Counsel. The Administrative Agent may
execute any of its duties as Administrative Agent hereunder and under any other
Loan Document by or through employees, agents, and attorneys-in-fact and shall
not be answerable to the Lenders, except as to money or securities received by
it or its authorized agents, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The Administrative Agent,
acting in good faith, shall be entitled to advice of counsel concerning all
matters pertaining to the agency hereby created and its duties hereunder and
under any other Loan Document.
10.7 Reliance on Documents; Counsel. The Administrative Agent shall
be entitled to rely upon any Note, notice, consent, certificate, affidavit,
letter, telegram, statement, paper or document believed by it to be genuine and
correct and to have been signed or sent by the proper person or persons, and, in
respect to legal matters, upon the opinion of counsel selected by the
Administrative Agent, which counsel may be employees of the Administrative
Agent.
10.8 Administrative Agent's Reimbursement and Indemnification. The
Lenders agree to reimburse and indemnify the Administrative Agent ratably in
proportion to their respective Percentage (i) for any amounts not reimbursed by
the Borrower for which the Administrative Agent is entitled to reimbursement by
the Borrower under the Loan Documents, (ii) for any other expenses incurred by
the Administrative Agent on behalf of the Lenders, in connection with the
preparation, execution, delivery, administration and enforcement of the Loan
Documents, if not paid by Borrower and (iii) for any 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 the Administrative Agent in any way relating to
or arising out of the Loan Documents or any other document delivered in
connection therewith or the transactions contemplated thereby, or the
enforcement of any of the terms thereof or of any such other documents, provided
that no Lender shall be liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct or a breach of the
Administrative Agent's express obligations and undertakings to the Lenders which
is not cured after written notice and within the period described in Section
10.3. To the extent any amounts so paid by Lenders are thereafter recovered by
the Administrative Agent from the Borrower or any Subsidiary Guarantor or
otherwise, such recovered amount shall be remitted to the Lenders making such
payment on a pro rata basis in accordance with their respective portions of such
payment. The obligations of the Lenders and the Administrative Agent under this
Section 10.8 shall survive payment of the Obligations and termination of this
Agreement.
10.9 Rights as a Lender. In the event the Administrative Agent is a
Lender, the Administrative Agent shall have the same rights and powers hereunder
and under any other Loan Document as any Lender and may exercise the same as
though it were not the Administrative Agent, and the term "Lender" or "Lenders"
shall, at any time when the Administrative Agent is a Lender, unless the context
otherwise indicates, include the Administrative Agent in its individual
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capacity. The Administrative Agent may accept deposits from, lend money to, and
generally engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Borrower or any of its Subsidiaries in which the Borrower or such
Subsidiary is not restricted hereby from engaging with any other Person. The
Administrative Agent, in its individual capacity, is not obligated to remain a
Lender but if the Administrative Agent is no longer a Lender, the Administrative
Agent shall resign and a successor shall be appointed as described in Section
10.11. The rights and duties of the Administrative Agent are separate from its
rights and duties as a Lender and no transfer of all or any part of the
Administrative Agent's Percentage interest as a Lender in the Loans hereunder
shall be deemed to transfer any of its rights and duties as Administrative Agent
to its successor or successors as a Lender.
10.10 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
10.11 Successor Administrative Agent. The Administrative Agent may
resign at any time by giving written notice thereof to the Lenders and the
Borrower, such resignation to be effective upon the appointment of a successor
Administrative Agent or, if no successor Administrative Agent has been
appointed, forty-five days after the retiring Administrative Agent gives notice
of its intention to resign. Bank of America (or any successor Administrative
Agent) may be removed as Administrative Agent by written notice received by
Administrative Agent from the Required Lenders at any time with cause (i.e., a
breach by Bank of America (or any successor Administrative Agent) of its duties
as Administrative Agent hereunder) or for gross negligence or willful
misconduct. Upon any such resignation or removal, the Required Lenders shall
have the right to appoint, on behalf of the Borrower and the Lenders, a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Required Lenders within thirty days after the resigning
Administrative Agent's giving notice of its intention to resign or receiving
such a request to resign, then the resigning Administrative Agent shall, prior
to the effective date of its resignation, appoint, on behalf of the Borrower and
the Lenders, a successor Administrative Agent which shall be a Lender, so long
as a Lender agrees to accept such appointment. No successor Administrative Agent
shall be deemed to be appointed hereunder until such successor Administrative
Agent has accepted the appointment. If the Administrative Agent has resigned or
been removed and no successor Administrative Agent has been appointed, the
Lenders may perform all the duties of the Administrative Agent hereunder and the
Borrower shall make all payments in respect of the Obligations to the applicable
Lender and for all other purposes shall deal directly with the Lenders. Any such
successor Administrative Agent shall be a commercial bank having capital and
retained earnings of at least $500,000,000. 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 resigning
Administrative Agent. Upon the effectiveness of the resignation of the
Administrative
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Agent, the resigning Administrative Agent shall be discharged from its duties
and obligations hereunder and under the Loan Documents. After the effectiveness
of the resignation of an Administrative Agent, the provisions of this Article X
shall continue in effect for the benefit of such Administrative Agent in respect
of any actions taken or omitted to be taken by it while it was acting as the
Administrative Agent hereunder and under the other Loan Documents.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1 Setoff. In addition to, and without limitation of, any rights
of the Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default occurs, any and all deposits (including all account
balances, whether provisional or final and whether or not collected or
available) and any other Indebtedness at any time held or owing by any Lender or
any of its Affiliates to or for the credit or account of the Borrower or any
Subsidiary Guarantor may be offset and applied toward the payment of the
Obligations owing to such Lender at any time prior to the date that such Default
has been fully cured, whether or not the Obligations, or any part hereof, shall
then be due.
11.2 Ratable Payments. If any Lender, whether by setoff or
otherwise, has payment made to it upon its Loans (other than payments received
pursuant to Sections 3.1, 3.2 or 3.4) in a greater proportion than that received
by any other Lender, such Lender agrees, promptly upon demand, to purchase a
portion of the Loans held by the other Lenders so that after such purchase each
Lender will hold its ratable proportion of Loans. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or otherwise,
receives collateral or other protection for its Obligations or such amounts
which may be subject to setoff, such Lender agrees, promptly upon demand, to
take such action necessary such that all Lenders share in the benefits of such
collateral ratably in proportion to their Loans. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments shall
be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that (i) the
Borrower shall not have the right to assign its rights or obligations under the
Loan Documents and (ii) any assignment by any Lender must be made in compliance
with Section 12.3. Notwithstanding clause (ii) of this Section, any Lender may
at any time, without the consent of the Borrower or the Administrative Agent,
assign all or any portion of its rights under this Agreement and its Notes to a
Federal Reserve Bank; provided, however, that no such assignment shall release
the transferor Lender from its obligations hereunder. The Administrative Agent
may treat the payee of any Note as the owner thereof for all purposes hereof
unless and until such payee complies with Section 12.3 in the case of an
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assignment thereof or, in the case of any other transfer, a written notice of
the transfer is filed with the Administrative Agent. Any assignee or transferee
of a Note agrees by acceptance thereof to be bound by all the terms and
provisions of the Loan Documents. Any request, authority or consent of any
Person, who at the time of making such request or giving such authority or
consent is the holder of any Note, shall be conclusive and binding on any
subsequent holder, transferee or assignee of such Note or of any Note or Notes
issued in exchange therefor.
12.2 Participations.
12.2.1 Permitted Participants; Effect. Any Lender may, in
the ordinary course of its business and in accordance with applicable
law, at any time sell to one or more banks, financial institutions,
pension funds, or any other funds or entities ("Participants")
participating interests in any Loan owing to such Lender, any Note held
by such Lender or any other interest of such Lender under the Loan
Documents. In the event of any such sale by a Lender of participating
interests to a Participant, such Lender's obligations under the Loan
Documents shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, such Lender shall remain the holder of any such Note for
all purposes under the Loan Documents, all amounts payable by the
Borrower under this Agreement shall be determined as if such Lender had
not sold such participating interests, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations
under the Loan Documents.
12.2.2 Voting Rights. Each Lender shall retain the sole
right to approve, without the consent of any Participant, any
amendment, modification or waiver of any provision of the Loan
Documents other than any amendment, modification or waiver with respect
to any Loan in which such Participant has an interest which forgives
principal, interest or fees or reduces the interest rate or fees
payable with respect to any such Loan or postpones any date fixed for
any regularly-scheduled payment of principal of, or interest or fees
on, any such Loan or releases any Subsidiary from the Subsidiary
Guaranty.
12.2.3 Benefit of Setoff. The Borrower agrees that each
Participant which has previously advised the Borrower in writing of its
purchase of a participation in a Lender's interest in its Loans shall
be deemed to have the right of setoff provided in Section 11.1 in
respect of its participating interest in amounts owing under the Loan
Documents to the same extent as if the amount of its participating
interest were owing directly to it as a Lender under the Loan
Documents. Each Lender shall retain the right of setoff provided in
Section 11.1 with respect to the amount of participating interests sold
to each Participant, provided that such Lender and Participant may not
each setoff amounts against the same portion of the Obligations, so as
to collect the same amount from the Borrower twice. The Lenders agree
to share with each Participant, and each Participant, by exercising the
right of setoff provided in Section 11.1, agrees to share with each
Lender, any amount received pursuant to the exercise of its right of
setoff, such amounts to be shared in accordance with Section 11.2 as if
each Participant were a Lender.
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12.3 Assignments.
12.3.1 Permitted Assignments. Any Lender may, in the
ordinary course of its business and in accordance with applicable law,
at any time assign to any of such Lender's affiliates or to one or more
banks, financial institutions or pension funds, or with the prior
approval of the Borrower, which shall not be unreasonably withheld or
delayed, any other entity ("Purchasers") all or any portion of its
rights and obligations under the Loan Documents. Each such assignment
shall (unless each of Borrower and Administrative Agent otherwise
consents) be in the amount not less than the lesser of (i) $5,000,000,
or (ii) the remaining principal amount of the Loans due to the
assigning Lender (calculated on the date of such assignment).
Notwithstanding the foregoing, no approval of the Borrower shall be
required for any such assignment if a Default has occurred and is then
continuing. Such assignment shall be substantially in the form of
Exhibit D hereto or in such other form as may be agreed to by the
parties thereto. The consent of the Administrative Agent shall be
required prior to an assignment becoming effective with respect to a
Purchaser which is not a Lender or an Affiliate thereof. Such consent
shall not be unreasonably withheld. Anything in this Agreement to the
contrary notwithstanding, and without the need to comply with any of
the formal or procedural requirements of this Agreement, including this
Section, Lender may at any time and from time to time pledge and assign
all or any portion of its any rights under all or any of the Loan
Documents to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from its obligations thereunder.
12.3.2 Effect; Effective Date. Upon (i) delivery to the
Administrative Agent of an assignment, together with any consents
required by Section 12.3.1, and (ii) payment of a $3,500 fee by the
assignor or assignee to the Administrative Agent for processing such
assignment, such assignment shall become effective on the effective
date specified in such Notice of Assignment. The assignment shall
contain a representation by the Purchaser to the effect that none of
the consideration used to make the purchase of the Loans under the
applicable assignment agreement are "plan assets" as defined under
ERISA and that the rights and interests of the Purchaser in and under
the Loan Documents will not be "plan assets" under ERISA. On and after
the effective date of such assignment, such Purchaser shall for all
purposes be a Lender party to this Agreement and any other Loan
Document executed by the Lenders and shall have all the rights and
obligations of a Lender under the Loan Documents, to the same extent as
if it were an original party hereto, and no further consent or action
by the Borrower, the Lenders or the Administrative Agent shall be
required to release the transferor Lender, and the transferor Lender
shall automatically be released on the effective date of such
assignment, with respect to the percentage of the Loans assigned to
such Purchaser. Upon the consummation of any assignment to a Purchaser
pursuant to this Section 12.3.2, the transferor Lender, the
Administrative Agent and the Borrower shall make appropriate
arrangements so that replacement Notes are issued to such transferor
Lender and new Notes or, as appropriate, replacement Notes, are issued
to such Purchaser.
12.4 Dissemination of Information. The Borrower authorizes each
Lender to disclose to any Participant or Purchaser or any other Person acquiring
an interest in the Loan Documents by operation of law (each a "Transferee") and
any prospective Transferee any and all
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information in such Lender's possession concerning the Borrower and its
Subsidiaries, subject to Section 12.6.
12.5 Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 3.5.
12.6 Confidentiality. The Administrative Agent and Lenders agree to
take normal and reasonable precautions and exercise due care to maintain the
confidentiality of all non-public information provided to them by the Borrower
or by any other Person on the Borrower's behalf in connection with the Loan
Documents and agree that neither they nor any of their Affiliates shall disclose
any such information for any purpose or in any manner other than pursuant to the
terms contemplated by the Loan Documents. The Administrative Agent and each
Lender may disclose such information (1) at the request of any regulatory
authority with jurisdiction over the Administrative Agent and/or the Lenders or
in connection with an examination of such Person by any such authority, (2)
pursuant to subpoena or other process of a court having jurisdiction over the
Administrative Agent and/or the Lenders, (3) when required to do so in
accordance with the provisions of any applicable law, (4) at the express
direction of any other governmental authority, with jurisdiction over the
Administrative Agent and/or the Lenders, of any State of the United States of
America or of any other jurisdiction in which such Person conducts its business,
(5) to such Person's independent auditors, attorneys and other professional
advisors, (6) if such information has become public other than through
disclosure by such Person or any Lender, (7) in connection with any litigation
involving such Person, and (8) to any Affiliate of such Person which agrees to
be bound by this Section 12.6. Notwithstanding the foregoing, the Borrower
authorizes each of the Administrative Agent and each Lender to disclose to any
prospective or actual Transferee such financial and other information in its
possession (i) which has been delivered to such Person pursuant to the Loan
Documents or which has been delivered to such Person by the Borrower prior to
entering into the Loan Documents, or (ii) which is reasonably necessary to
effectuate the purposes of this Agreement and the Loan Documents; provided that,
unless otherwise agreed by the Borrower, such Transferee shall agree to keep
such information confidential to the same extent required to the Administrative
Agent or any Lender, as applicable, hereunder.
ARTICLE XIII
NOTICES
13.1 Giving Notice. Except as otherwise permitted by Section 2.13
with respect to borrowing notices, all notices and other communications provided
to any party hereto under this Agreement or any other Loan Document shall be in
writing or by telex or by facsimile and addressed or delivered to such party at
its address set forth below its signature hereto or at such other address (or to
counsel for such party) as may be designated by such party in a notice to the
other parties. Any notice, if mailed and properly addressed with postage
prepaid, shall be deemed given when received; any notice, if transmitted by
telex or facsimile, shall be deemed given when transmitted (answerback confirmed
in the case of telexes).
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13.2 Change of Address. The Borrower, the Administrative Agent and
any Lender may each change the address for service of notice upon it by a notice
in writing to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower, the
Administrative Agent and the Lenders and each party has notified the
Administrative Agent by telex or telephone, that it has taken such action.
(Remainder of page intentionally left blank.)
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IN WITNESS WHEREOF, the Borrower, the Lenders and the Administrative
Agent have executed this Agreement as of the date first above written.
DEVELOPERS DIVERSIFIED REALTY CORPORATION
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Print Name: Xxxx X. Xxxxxxx
Title: Senior Vice President and Secretary
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxx 00000
Phone: 216/000-0000
Facsimile: 216/755-1506
Attention: Xxxxx X. Xxxxxxxx
S-1
COMMITMENTS:
$30,000,000 BANK OF AMERICA, N.A.,
Individually and as Administrative Agent
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------
Print Name: Xxxxxxx Xxxxxxx
Title: Managing Director
Bank of America
000 X. XxXxxxx Xxxxxx
XX0-000-00-00
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
With a copy to:
Bank of America
Agency Management
000 Xxxx Xxxxxx, 00xx Xxxxx
XX0-000-00-0
Xxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxx
S-2
$30,000,000 XXXXX FARGO BANK, NATIONAL
ASSOCIATION
Individually and as Syndication Agent
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Print Name: Xxxxx X. Xxxxx
Title: Vice President
Xxxxx Fargo
Real Estate Finance Group
000 X. Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxx
S-3
$30,000,000 COMMERZBANK AG NEW YORK and
GRAND CAYMAN BRANCHES, Individually and
as Co-Documentation Agent
By: /s/ Xxxxxxxxx Xxxxx
--------------------------------------
Print Name: Xxxxxxxxx Xxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxxxxx
--------------------------------------
Print Name: Xxxxx Xxxxxxxxx
Title: Vice President
Commerzbank AG New York and Grand Cayman
Branches
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxxxx Xxxxx
S-4
$30,000,000 EUROHYPO AG, NEW YORK BRANCH,
Individually and as Co-Documentation Agent
By: /s/ Johannes Bocckmann
--------------------------------------
Print Name: Johannes Bocckmann
Title: Managing Director
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Print Name: Xxxxx Xxxxxxx
Title: Director
Eurohypo AG, New York Branch
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxx
S-5
$25,000,000 SOVEREIGN BANK
By: /s/ T. Xxxxxxx Xxxxxxx
--------------------------------------
Print Name: T. Xxxxxxx Xxxxxxx
Title: Vice President
Sovereign Bank
00 Xxxxx Xxxxxx
XX 1 SST 0411
Xxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: T. Xxxxxxx Xxxxxxx
S-6
$25,000,000 SOUTHTRUST BANK
By: /s/ Xxxxxx X. Xxxxxxxx, XX
--------------------------------------
Print Name: Xxxxxx X. Xxxxxxxx, XX
Title: Assistant Vice President
SouthTrust Bank
A-001-TW-1105
000 Xxxxx 00xx Xxxxxx
00xx Xxxxx
Xxxxxxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx
S-7
$25,000,000 SUNTRUST BANK
By: /s/ Xxxxxxx X. Herstman
--------------------------------------
Print Name: Xxxxxxx X. Herstman
Title: Senior Vice President
SunTrust Bank
0000 Xxxxx Xxxx.
Xxxxx 000
Xxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
S-8
$25,000,000 ING CAPITAL LLC
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Print Name: Xxxxx X. Xxxxxxxx
Title: Vice President
ING CAPITAL LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
X-0
$25,000,000 LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Print Name: Xxxxxx Xxxxxxx
Title: Commercial Loan Officer
LaSalle Bank, National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
S-10
$20,000,000 DEUTSCHE BANK TRUST COMPANY
AMERICAS
By: /s/ Xxxxx Xxxx
--------------------------------------
Print Name: Xxxxx Xxxx
Title: Vice President
Deutsche Bank Trust Company Americas
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxx
S-11
$15,000,000 BANK ONE, NA
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------
Print Name: Xxxxxxx X. Xxxxx
Title: Director Capital Markets
Bank One, NA
1 Bank Xxx Xxxxx
Xxxxx XX 0-0000
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
S-12
$15,000,000 PNC BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Print Name: Xxxxxxx X. Xxxxx
Title: Vice President
PNC Bank, NA
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
S-13
$5,000,000 THE NORTHERN TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Print Name: Xxxxxx X. Xxxxxx
Title: Vice President
The Northern Trust Company
00 Xxxxx XxXxxxx
Xxxxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxx
S-14
EXHIBIT A
NOTE
_________, 2003
Developers Diversified Realty Corporation, a corporation organized
under the laws of the State of Ohio (the "Borrower"), promises to pay to the
order of _________________________ (the "Lender") the aggregate unpaid principal
amount of all Loans made by the Lender to the Borrower pursuant to Article II of
the Credit Agreement (as the same may be amended or modified, the "Agreement")
hereinafter referred to, in immediately available funds at the main office of
Bank of America, N.A. in _____________, as Agent, together with interest on the
unpaid principal amount hereof at the rates and on the dates set forth in the
Agreement. The Borrower shall pay remaining unpaid principal of and accrued and
unpaid interest on the Loans in full on the Facility Termination Date or such
earlier date as may be required under the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to
the benefits of, the Credit Agreement, dated as of ________, 2003 among the
Borrower, Bank of America, N.A, individually and as Administrative Agent, Xxxxx
Fargo Bank, National Association, individually and as Syndication Agent and the
other Lenders named therein, to which Agreement, as it may be amended from time
to time, reference is hereby made for a statement of the terms and conditions
governing this Note, including the terms and conditions under which this Note
may be prepaid or its maturity date accelerated. Capitalized terms used herein
and not otherwise defined herein are used with the meanings attributed to them
in the Agreement.
If there is a Default under the Agreement or any other Loan Document
and Agent exercises the remedies provided under the Agreement and/or any of the
Loan Documents for the Lenders, then in addition to all amounts recoverable by
the Agent and the Lenders under such documents, Agent and the Lenders shall be
entitled to receive reasonable attorneys fees and expenses incurred by Agent and
the Lenders in connection with the exercise of such remedies.
Borrower and all endorsers severally waive presentment, protest and
demand, notice of protest, demand and of dishonor and nonpayment of this Note,
and any and all lack of diligence or delays in collection or enforcement of this
Note, and expressly agree that this Note, or any payment hereunder, may be
extended from time to time, and expressly consent to the release of any party
liable for the obligation secured by this Note, the release of any of the
security for this Note, the acceptance of any other security therefor, or any
other indulgence or forbearance whatsoever, all without notice to any party and
without affecting the liability of the Borrower and any endorsers hereof.
A2-1
This Note shall be governed and construed under the internal laws of
the State of Illinois.
BORROWER AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHT UNDER THIS NOTE OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO OR ARISING
FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS NOTE AND AGREE THAT
ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A JUDGE AND NOT BEFORE A
JURY.
DEVELOPERS DIVERSIFIED REALTY CORPORATION,
an Ohio corporation
By:_________________________________________
Print Name:_________________________________
Title:______________________________________
A2-2
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO NOTE OF DEVELOPERS DIVERSIFIED REALTY CORPORATION,
DATED ____________, 2003
Maturity
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
---- --------- ----------- --------- -------
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A2-3
EXHIBIT B
FORM OF OPINION
X-0
XXXXXXX X
X-0
XXXXXXX X
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption (the "Assignment and Assumption") is
dated as of the Effective Date set forth below and is entered into by and
between [Insert name of Assignor] (the "Assignor") and [Insert name of Assignee]
(the "Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (as amended, the
"Credit Agreement"), receipt of a copy of which is hereby acknowledged by the
Assignee. The Terms and Conditions set forth in Annex 1 attached hereto are
hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Terms and
Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below, the interest in and to all of the
Assignor's rights and obligations in its capacity as a Lender under the Credit
Agreement and any other documents or instruments delivered pursuant thereto that
represents the amount and percentage interest identified below of all of the
Assignor's outstanding rights and obligations under the respective facilities
identified below (including without limitation any letters of credit, guaranties
and swingline loans included in such facilities and, to the extent permitted to
be assigned under applicable law, all claims (including without limitation
contract claims, tort claims, malpractice claims, statutory claims and all other
claims at law or in equity), suits, causes of action and any other right of the
Assignor against any Person whether known or unknown arising under or in
connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby) (the
"Assigned Interest"). Such sale and assignment is without recourse to the
Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by the Assignor.
1. Assignor:
2. Assignee:_______________________________[and is an Affiliate/Approved
Fund of [identify Lender](1)
3. Borrower(s):
4. Administrative Agent:_________________________________, as the agent
under the Credit Agreement.
5. Credit Agreement: The [amount] Credit Agreement dated as of ___________
among [name of Borrower(s)], the Lenders party thereto, [name of
Administrative Agent], as Administrative Agent, and the other agents
party thereto.
-----------------------
(1) Select as applicable.
D-1
6. Assigned Interest:
------------------------------- ---------------------------- ---------------------------- ----------------------------
Aggregate Amount of Amount of
Commitment/Loans for all Commitment/Loans Percentage Assigned of
Facility Assigned Lenders* Assigned* Commitment/Loans(2)
------------------------------- ---------------------------- ---------------------------- ----------------------------
____________(3) $ $ _______%
------------------------------- ---------------------------- ---------------------------- ----------------------------
___________ $ $ _______%
------------------------------- ---------------------------- ---------------------------- ----------------------------
___________ $ $ _______%
------------------------------- ---------------------------- ---------------------------- ----------------------------
7. Trade Date: _________________________________________________ (4)
Effective Date: ____________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE
AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER BY THE
ADMINISTRATIVE AGENT.]
The terms set forth in this Assignment and Assumption are hereby agreed
to:
ASSIGNOR
[NAME OF ASSIGNOR]
By: ______________________________________
Title: ___________________________________
ASSIGNEE
[NAME OF ASSIGNEE]
By: ______________________________________
Title: ___________________________________
[Consented to and](5) Accepted:
[NAME OF ADMINISTRATIVE AGENT], as Administrative Agent
By: ________________________________________
Title: _____________________________________
[Consented to:](6)
*Amount to be adjusted by the counterparties to take into account any payments
or prepayments made between the Trade Date and the Effective Date.
(2) Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans
of all Lenders thereunder.
(3) Fill in the appropriate terminology for the types of facilities under the
Credit Agreement that are being assigned under this Assignment (e.g. "Revolving
Credit Commitment," "Term Loan Commitment,", etc.)
(4) Insert if satisfaction of minimum amounts is to be determined as of the
Trade Date.
D-2
(5) To be added only if the consent of the Administrative Agent is required by
the terms of the Credit Agreement.
(6) To be added only if the consent of the Borrower and/or other parties is
required by the terms of the Credit Agreement.
[NAME OF RELEVANT PARTY]
By: ________________________________________
Title: _____________________________________
D-3
ANNEX 1
TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor represents and warrants that (i) it is
the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby. Neither the Assignor nor any of its officers,
directors, employees, agents or attorneys shall be responsible for (i) any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency, perfection, priority,
collectibility, or value of the Loan Documents or any collateral thereunder,
(iii) the financial condition of the Borrower, any of its Subsidiaries or
Affiliates or any other Person obligated in respect of any Loan Document, (iv)
the performance or observance by the Borrower, any of its Subsidiaries or
Affiliates or any other Person of any of their respective obligations under any
Loan Document, (v) inspecting any of the property, books or records of the
Borrower, or any guarantor, or (vi) any mistake, error of judgment, or action
taken or omitted to be taken in connection with the Loans or the Loan Documents.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) from
and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of the Assigned Interest,
shall have the obligations of a Lender thereunder, (iii) agrees that its payment
instructions and notice instructions are as set forth in Schedule 1 to this
Assignment and Assumption, (iv) confirms that none of the funds, monies, assets
or other consideration being used to make the purchase and assumption hereunder
are "plan assets" as defined under ERISA and that its rights, benefits and
interests in and under the Loan Documents will not be "plan assets" under ERISA,
(v) agrees to indemnify and hold the Assignor harmless against all losses, costs
and expenses (including, without limitation, reasonable attorneys' fees) and
liabilities incurred by the Assignor in connection with or arising in any manner
from the Assignee's non-performance of the obligations assumed under this
Assignment and Assumption, (vi) it has received a copy of the Credit Agreement,
together with copies of financial statements and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase the
Assigned Interest on the basis of which it has made such analysis and decision
independently and without reliance on the Administrative Agent or any other
Lender, and (vii) attached as Schedule 1 to this Assignment and Assumption is
any documentation required to be delivered by the Assignee with respect to its
tax status pursuant to the terms of the Credit Agreement, duly completed and
executed by the Assignee and (b) agrees that (i) it will, independently and
without reliance on the Administrative Agent, the Assignor or any other Lender,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.
D-4
2. Payments. The Assignee shall pay the Assignor, on the
Effective Date, the amount agreed to by the Assignor and the Assignee. From and
after the Effective Date, the Administrative Agent shall make all payments in
respect of the Assigned Interest (including payments of principal, interest,
fees and other amounts) to the Assignor for amounts which have accrued to but
excluding the Effective Date and to the Assignee for amounts which have accrued
from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption. This Assignment
and Assumption shall be governed by, and construed in accordance with, the law
of the State of Illinois.
D-5
EXHIBIT E
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To: Bank of America, N.A.
as Administrative Agent (the "Agent")
under the Credit Agreement Described Below
Re: Credit Agreement, dated ________, 2003 (as the same may be amended or
modified, the "Credit Agreement"), among Developers Diversified Realty
Corporation, a corporation organized under the laws of the State of
Ohio (the "Borrower"), the Agent, and the Lenders named therein. Terms
used herein and not otherwise defined shall have the meanings assigned
thereto in the Credit Agreement.
The Agent is specifically authorized and directed to act upon the
following standing money transfer instructions with respect to the proceeds of
Advances or other extensions of credit from time to time until receipt by the
Agent of a specific written revocation of such instructions by the Borrower,
provided, however, that the Agent may otherwise transfer funds as hereafter
directed in writing by the Borrower in accordance with Section 13.1 of the
Credit Agreement or based on any telephonic notice made in accordance with
Section 2.13 of the Credit Agreement.
Facility Identification Number(s) ______________________________________________
Customer/Account Name __________________________________________________________
Transfer Funds To ______________________________________________________________
______________________________________________________________
For Account No. ________________________________________________________________
Reference/Attention To _________________________________________________________
Authorized Officer (Customer Representative) Date ____________________
_________________________
_________________________________ Signature
(Please Print)
Bank Officer Name Date ____________________
_________________________
Signature
__________________________________
(Please Print)
(Deliver Completed Form to Credit Support Staff For Immediate Processing)
E-1
EXHIBIT F
SUBSIDIARY GUARANTY
This Guaranty is made as of _________, 2003 by the parties identified
in the signature pages thereto, and any Joinder to Guaranty hereafter delivered
(collectively, the "Subsidiary Guarantors"), to and for the benefit of Bank of
America, N.A., individually and as administrative agent ("Administrative Agent")
for itself and the lenders under the Credit Agreement (as defined below) and
their respective successors and assigns (collectively, the "Lenders").
RECITALS
A. Developers Diversified Realty Corporation, a corporation
organized under the laws of the State of Ohio ("Borrower"), and Subsidiary
Guarantors have requested that the Lenders make a term credit facility available
to Borrower in an aggregate principal amount of $300,000,000 (the "Facility").
B. The Lenders have agreed to make available the Facility to
Borrower pursuant to the terms and conditions set forth in a Credit Agreement of
even date herewith between Borrower, Bank of America, N.A., individually, and as
Administrative Agent, Xxxxx Fargo Bank, National Association, individually, and
as Syndication Agent, and the Lenders named therein (as amended, modified or
restated from time to time, the "Credit Agreement"). All capitalized terms used
herein and not otherwise defined shall have the meanings ascribed to such terms
in the Credit Agreement.
C. Borrower has executed and delivered or will execute and
deliver to the Lenders promissory notes in the principal amount of each Lender's
Loans as evidence of Borrower's indebtedness to each such Lender with respect to
the Facility (the promissory notes described above, together with any amendments
or allonges thereto, or restatements, replacements or renewals thereof, and/or
new promissory notes to new Lenders under the Credit Agreement, are collectively
referred to herein as the "Notes").
D. Subsidiary Guarantors are direct or indirect subsidiaries of
Borrower. Subsidiary Guarantors acknowledge that the extension of credit by the
Administrative Agent and the Lenders to Borrower pursuant to the Credit
Agreement will benefit Subsidiary Guarantors by making funds available to
Subsidiary Guarantors through Borrower and by enhancing the financial strength
of the consolidated group of which Subsidiary Guarantors and Borrower are
members. The execution and delivery of this Guaranty by Subsidiary Guarantors
are conditions precedent to the performance by the Lenders of their obligations
under the Credit Agreement.
AGREEMENTS
NOW, THEREFORE, Subsidiary Guarantors, in consideration of the matters
described in the foregoing Recitals, which Recitals are incorporated herein and
made a part hereof, and for other good and valuable consideration, hereby agree
as follows:
F-1
1. Subsidiary Guarantors absolutely, unconditionally, and
irrevocably guaranty to each of the Lenders:
(a) the full and prompt payment of the principal of and
interest on the Notes when due, whether at stated maturity, upon
acceleration or otherwise, and at all times thereafter, and the prompt
payment of all sums which may now be or may hereafter become due and
owing under the Notes, the Credit Agreement, and the other Loan
Documents;
(b) the payment of all Enforcement Costs (as hereinafter
defined in Paragraph 7 hereof); and
(c) the full, complete, and punctual observance,
performance, and satisfaction of all of the obligations, duties,
covenants, and agreements of Borrower under the Credit Agreement and
the Loan Documents.
All amounts due, debts, liabilities, and payment obligations described in
subparagraphs (a) and (b) of this Paragraph 1 are referred to herein as the
"Facility Indebtedness." All obligations described in subparagraph (c) of this
Paragraph 1 are referred to herein as the "Obligations." Subsidiary Guarantors
and Lenders agree that each Subsidiary Guarantor's obligations hereunder shall
not exceed the greater of: (i) the aggregate amount of all monies received,
directly or indirectly, by such Subsidiary Guarantor from Borrower after the
date hereof (whether by loan, capital infusion or other means), or (ii) the
maximum amount of the Facility Indebtedness not subject to avoidance by such
Subsidiary Guarantor under Title 11 of the United States Code, as same may be
amended from time to time, or any applicable state law (the "Bankruptcy Code").
To that end, to the extent such obligations would otherwise be subject to
avoidance under the Bankruptcy Code if such Subsidiary Guarantor are not deemed
to have received valuable consideration, fair value or reasonably equivalent
value for its obligations hereunder, such Subsidiary Guarantor's obligations
hereunder shall be reduced to that amount which, after giving effect thereto,
would not render such Subsidiary Guarantor insolvent, or leave such Subsidiary
Guarantor with an unreasonably small capital to conduct its business, or cause
such Subsidiary Guarantor to have incurred debts (or intended to have incurred
debts) beyond its ability to pay such debts as they mature, as such terms are
defined, and at the time such obligations are deemed to have been incurred,
under the Bankruptcy Code. In the event a Subsidiary Guarantor shall make any
payment or payments under this Guaranty each other guarantor of the Facility
Indebtedness shall contribute to such Subsidiary Guarantor an amount equal to
such non-paying Subsidiary Guarantor's pro rata share (based on their respective
maximum liabilities hereunder and under such other guaranty) of such payment or
payments made by such Subsidiary Guarantor, provided that such contribution
right shall be subordinate and junior in right of payment in full of all the
Facility Indebtedness to Lenders.
2. Subject to the preceding limitations, in the event of any
default by Borrower in making payment of the Facility Indebtedness, or in
performance of the Obligations, as aforesaid, in each case beyond the expiration
of any applicable grace period, Subsidiary Guarantors agree, on demand by the
Administrative Agent or the holder of a Note, to pay all the Facility
Indebtedness and to perform all the Obligations as are then or thereafter become
due and owing or are to be performed under the terms of the Notes, the Credit
Agreement, and the other Loan Documents.
F-2
3. Subsidiary Guarantors do hereby waive (i) notice of acceptance
of this Guaranty by the Administrative Agent and the Lenders and any and all
notices and demands of every kind which may be required to be given by any
statute, rule or law, (ii) any defense, right of set-off or other claim which
Subsidiary Guarantors may have against Borrower or which Subsidiary Guarantors
or Borrower may have against the Administrative Agent or the Lenders or the
holder of a Note, (iii) presentment for payment, demand for payment (other than
as provided for in Paragraph 2 above), notice of nonpayment (other than as
provided for in Paragraph 2 above) or dishonor, protest and notice of protest,
diligence in collection and any and all formalities which otherwise might be
legally required to charge Subsidiary Guarantors with liability, (iv) any
failure by the Administrative Agent and the Lenders to inform Subsidiary
Guarantors of any facts the Administrative Agent and the Lenders may now or
hereafter know about Borrower, the Facility, or the transactions contemplated by
the Credit Agreement, it being understood and agreed that the Administrative
Agent and the Lenders have no duty so to inform and that Subsidiary Guarantors
are fully responsible for being and remaining informed by Borrower of all
circumstances bearing on the existence or creation, or the risk of nonpayment of
the Facility Indebtedness or the risk of nonperformance of the Obligations, and
(v) any and all right to cause a marshalling of assets of Borrower or any other
action by any court or governmental body with respect thereto, or to cause the
Administrative Agent and the Lenders to proceed against any other security given
to a Lender in connection with the Facility Indebtedness or the Obligations.
Credit may be granted or continued from time to time by the Lenders to Borrower
without notice to or authorization from Subsidiary Guarantors, regardless of the
financial or other condition of Borrower at the time of any such grant or
continuation. The Administrative Agent and the Lenders shall have no obligation
to disclose or discuss with Subsidiary Guarantors the Lenders' assessment of the
financial condition of Borrower. Subsidiary Guarantors acknowledge that no
representations of any kind whatsoever have been made by the Administrative
Agent and the Lenders to Subsidiary Guarantors. No modification or waiver of any
of the provisions of this Guaranty shall be binding upon the Administrative
Agent and the Lenders except as expressly set forth in a writing duly signed and
delivered on behalf of the Administrative Agent and the Lenders. Subsidiary
Guarantors further agree that any exculpatory language contained in the Credit
Agreement, the Notes, and the other Loan Documents shall in no event apply to
this Guaranty, and will not prevent the Administrative Agent and the Lenders
from proceeding against Subsidiary Guarantors to enforce this Guaranty.
4. Subsidiary Guarantors further agree that Subsidiary
Guarantors' liability as guarantor shall in no way be impaired by any renewals
or extensions which may be made from time to time, with or without the knowledge
or consent of Subsidiary Guarantors of the time for payment of interest or
principal under a Note or by any forbearance or delay in collecting interest or
principal under a Note, or by any waiver by the Administrative Agent and the
Lenders under the Credit Agreement, or any other Loan Documents, or by the
Administrative Agent or the Lenders' failure or election not to pursue any other
remedies they may have against Borrower, or by any change or modification in a
Note, the Credit Agreement, or any other Loan Documents, or by the acceptance by
the Administrative Agent or the Lenders of any security or any increase,
substitution or change therein, or by the release by the Administrative Agent
and the Lenders of any security or any withdrawal thereof or decrease therein,
or by the application of payments received from any source to the payment of any
obligation other than the Facility Indebtedness, even though a Lender might
lawfully have elected to apply such payments to any part or all of the Facility
Indebtedness, it being the intent hereof that Subsidiary Guarantors shall remain
liable
F-3
as principal for payment of the Facility Indebtedness and performance of the
Obligations until all indebtedness has been paid in full and the other terms,
covenants and conditions of the Credit Agreement, and other Loan Documents and
this Guaranty have been performed, notwithstanding any act or thing which might
otherwise operate as a legal or equitable discharge of a surety. Subsidiary
Guarantors further understand and agree that the Administrative Agent and the
Lenders may at any time enter into agreements with Borrower to amend and modify
a Note, the Credit Agreement or any of the other Loan Documents, or any thereof,
and may waive or release any provision or provisions of a Note, the Credit
Agreement, or any other Loan Document and, with reference to such instruments,
may make and enter into any such agreement or agreements as the Administrative
Agent, the Lenders and Borrower may deem proper and desirable, without in any
manner impairing this Guaranty or any of the Administrative Agent and the
Lenders' rights hereunder or any of Subsidiary Guarantors' obligations
hereunder.
5. This is an absolute, unconditional, complete, present and
continuing guaranty of payment and performance and not of collection. Subsidiary
Guarantors agree that their obligations hereunder shall be joint and several,
including without limitation with respect to any and all other guarantees given
in connection with the Facility from time to time. Subsidiary Guarantors agree
that this Guaranty may be enforced by the Administrative Agent and the Lenders
without the necessity at any time of resorting to or exhausting any security or
collateral, if any, given in connection herewith or with a Note, the Credit
Agreement, or any of the other Loan Documents or by or resorting to any other
guaranties, and Subsidiary Guarantors hereby waive the right to require the
Administrative Agent and the Lenders to join Borrower in any action brought
hereunder or to commence any action against or obtain any judgment against
Borrower or to pursue any other remedy or enforce any other right. Subsidiary
Guarantors further agree that nothing contained herein or otherwise shall
prevent the Administrative Agent and the Lenders from pursuing concurrently or
successively all rights and remedies available to them at law and/or in equity
or under a Note, the Credit Agreement or any other Loan Documents, and the
exercise of any of their rights or the completion of any of their remedies shall
not constitute a discharge of any of Subsidiary Guarantors' obligations
hereunder, it being the purpose and intent of Subsidiary Guarantors that the
obligations of such Subsidiary Guarantors hereunder shall be primary, absolute,
independent and unconditional under any and all circumstances whatsoever.
Neither Subsidiary Guarantors' obligations under this Guaranty nor any remedy
for the enforcement thereof shall be impaired, modified, changed or released in
any manner whatsoever by any impairment, modification, change, release or
limitation of the liability of Borrower under a Note, the Credit Agreement or
any other Loan Document or by reason of Borrower's bankruptcy or by reason of
any creditor or bankruptcy proceeding instituted by or against Borrower. This
Guaranty shall continue to be effective and be deemed to have continued in
existence or be reinstated (as the case may be) if at any time payment of all or
any part of any sum payable pursuant to a Note, the Credit Agreement or any
other Loan Document is rescinded or otherwise required to be returned by the
payee upon the insolvency, bankruptcy, or reorganization of the payor, all as
though such payment to such Lender had not been made, regardless of whether such
Lender contested the order requiring the return of such payment. The obligations
of Subsidiary Guarantors pursuant to the preceding sentence shall survive any
termination, cancellation, or release of this Guaranty.
6. This Guaranty shall be assignable by a Lender to any assignee
of all or a portion of such Lender's rights under the Loan Documents.
F-4
7. If: (i) this Guaranty, a Note, or any of the Loan Documents
are placed in the hands of an attorney for collection or is collected through
any legal proceeding; (ii) an attorney is retained to represent the
Administrative Agent or any Lender in any bankruptcy, reorganization,
receivership, or other proceedings affecting creditors' rights and involving a
claim under this Guaranty, a Note, the Credit Agreement, or any Loan Document;
(iii) an attorney is retained to enforce any of the other Loan Documents or to
provide advice or other representation with respect to the Loan Documents in
connection with an enforcement action or potential enforcement action; or (iv)
an attorney is retained to represent the Administrative Agent or any Lender in
any other legal proceedings whatsoever in connection with this Guaranty, a Note,
the Credit Agreement, any of the Loan Documents, or any property subject thereto
(other than any action or proceeding brought by any Lender or participant
against the Administrative Agent alleging a breach by the Administrative Agent
of its duties under the Loan Documents), then Subsidiary Guarantors shall pay to
the Administrative Agent or such Lender upon demand all reasonable attorney's
fees, costs and expenses, including, without limitation, court costs, filing
fees and all other costs and expenses incurred in connection therewith (all of
which are referred to herein as "Enforcement Costs"), in addition to all other
amounts due hereunder.
8. The parties hereto intend that each provision in this Guaranty
comports with all applicable local, state and federal laws and judicial
decisions. However, if any provision or provisions, or if any portion of any
provision or provisions, in this Guaranty is found by a court of law to be in
violation of any applicable local, state or federal ordinance, statute, law,
administrative or judicial decision, or public policy, and if such court should
declare such portion, provision or provisions of this Guaranty to be illegal,
invalid, unlawful, void or unenforceable as written, then it is the intent of
all parties hereto that such portion, provision or provisions shall be given
force to the fullest possible extent that they are legal, valid and enforceable,
that the remainder of this Guaranty shall be construed as if such illegal,
invalid, unlawful, void or unenforceable portion, provision or provisions were
not contained therein, and that the rights, obligations and interest of the
Administrative Agent and the Lender or the holder of a Note under the remainder
of this Guaranty shall continue in full force and effect.
9. Any indebtedness of Borrower to Subsidiary Guarantors now or
hereafter existing is hereby subordinated to the Facility Indebtedness.
Subsidiary Guarantors will not seek, accept, or retain for Subsidiary
Guarantors' own account, any payment from Borrower on account of such
subordinated debt at any time when a Default or Unmatured Default exists under
the Credit Agreement or the Loan Documents, and any such payments to Subsidiary
Guarantors made while any Default or Unmatured Default then exists under the
Credit Agreement or the Loan Documents on account of such subordinated debt
shall be collected and received by Subsidiary Guarantors in trust for the
Lenders and shall be paid over to the Administrative Agent on behalf of the
Lenders on account of the Facility Indebtedness without impairing or releasing
the obligations of Subsidiary Guarantors hereunder.
10. Subsidiary Guarantors hereby subordinate to the Facility
Indebtedness any and all claims and rights, including, without limitation,
subrogation rights, contribution rights, reimbursement rights and set-off
rights, which Subsidiary Guarantors may have against Borrower arising from a
payment made by Subsidiary Guarantors under this Guaranty and agree that, until
the entire Facility Indebtedness is paid in full, not to assert or take
advantage of any subrogation rights of Subsidiary Guarantors or the Lenders or
any right of Subsidiary Guarantors or the Lenders to proceed against (i)
Borrower for reimbursement, or (ii) any other guarantor or
F-5
any collateral security or guaranty or right of offset held by the Lenders for
the payment of the Facility Indebtedness and performance of the Obligations, nor
shall Subsidiary Guarantors seek or be entitled to seek any contribution or
reimbursement from Borrower or any other guarantor in respect of payments made
by Subsidiary Guarantors hereunder. It is expressly understood that the
agreements of Subsidiary Guarantors set forth above constitute additional and
cumulative benefits given to the Lenders for their security and as an inducement
for their extension of credit to Borrower.
11. Any amounts received by a Lender from any source on account of
any indebtedness may be applied by such Lender toward the payment of such
indebtedness, and in such order of application, as a Lender may from time to
time elect.
12. Subsidiary Guarantors hereby submit to personal jurisdiction
in the State of Illinois for the enforcement of this Guaranty and waives any and
all personal rights to object to such jurisdiction for the purposes of
litigation to enforce this Guaranty. Subsidiary Guarantors hereby consent to the
jurisdiction of either the Circuit Court of Xxxx County, Illinois, or the United
States District Court for the Northern District of Illinois, in any action,
suit, or proceeding which the Administrative Agent or a Lender may at any time
wish to file in connection with this Guaranty or any related matter. Subsidiary
Guarantors hereby agree that an action, suit, or proceeding to enforce this
Guaranty may be brought in any state or federal court in the State of Illinois
and hereby waives any objection which Subsidiary Guarantors may have to the
laying of the venue of any such action, suit, or proceeding in any such court;
provided, however, that the provisions of this Paragraph shall not be deemed to
preclude the Administrative Agent or a Lender from filing any such action, suit,
or proceeding in any other appropriate forum.
13. All notices and other communications provided to any party
hereto under this Agreement or any other Loan Document shall be in writing or by
telex or by facsimile and addressed or delivered to such party at its address
set forth below or at such other address as may be designated by such party in a
notice to the other parties. Any notice, if mailed and properly addressed with
postage prepaid, shall be deemed given when received; any notice, if transmitted
by facsimile, shall be deemed given when transmitted. Notice may be given as
follows:
To Subsidiary Guarantors:
c/o Developers Diversified Realty Corporation
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
F-6
With a copy to:
c/o Developers Diversified Realty Corporation
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To Bank of America, N.A. as Administrative Agent and as a Lender:
_______________
_______________
Attention: ______________
Telephone: (___) _____________
Facsimile: (___) _____________
With a copy to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to any other Lender, to its address set forth in the Credit
Agreement.
14. This Guaranty shall be binding upon the heirs, executors,
legal and personal representatives, successors and assigns of Subsidiary
Guarantors and shall inure to the benefit of the Administrative Agent and the
Lenders' successors and assigns.
15. This Guaranty shall be construed and enforced under the
internal laws of the State of Illinois.
16. SUBSIDIARY GUARANTORS, THE ADMINISTRATIVE AGENT AND THE
LENDERS, BY THEIR ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY RIGHT TO A TRIAL BY
JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT UNDER THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO OR ARISING FROM THE
LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS GUARANTY AND AGREE THAT ANY
SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
F-7
17. From time to time, additional parties may execute a joinder
substantially in the form of Exhibit A hereto, and thereby become a party to
this Guaranty. From and after delivery of such joinder, the Subsidiary
delivering such joinder shall be a Subsidiary Guarantor, and be bound by all of
the terms and provisions of this Guaranty.
F-8
IN WITNESS WHEREOF, Subsidiary Guarantors have delivered this Guaranty
in the State of Illinois as of the date first written above.
___________________________________________________
By:________________________________________________
By:_______________________________________
Its:______________________________________
___________________________________________________
By:________________________________________________
By:_______________________________________
Its:______________________________________
___________________________________________________
By:________________________________________________
By:_______________________________________
Its:______________________________________
F-9
EXHIBIT A TO SUBSIDIARY GUARANTY
FORM OF JOINDER TO GUARANTY
THIS JOINDER is executed by __________, a __________ ("Subsidiary"),
which hereby agrees as follows:
1. All capitalized terms used herein and not defined in this
Joinder shall have the meanings provided in that certain Subsidiary Guaranty
(the "Guaranty") dated as of __________, 2003 executed for the benefit of Bank
of America, N.A., as agent for itself and certain other lenders, with respect to
a loan from the Lenders to Developers Diversified Realty Corporation
("Borrower").
2. As required by the Credit Agreement described in the Guaranty,
Subsidiary is executing this Joinder to become a party to the Guaranty.
3. Each and every term, condition, representation, warranty, and
other provision of the Guaranty, by this reference, is incorporated herein as if
set forth herein in full and the undersigned agrees to fully and timely perform
each and every obligation of a Subsidiary Guarantor under such Guaranty.
[INSERT SIGNATURE BLOCK]
A-1
EXHIBIT G
ENVIRONMENTAL INVESTIGATION SPECIFICATIONS AND PROCEDURES
Phase I Environmental Site Assessments to be prepared in accordance
with the ASTM Standard Practice for Environmental Site Assessments: Phase I
Environmental Site Assessment Process (ASTM Designation E1527-94), a summary of
which follows:
This ASTM practice is generally considered the industry standard for
conducting a Phase I Environmental Site Assessment (ESA). The purpose
of this standard is to "define good commercial and customary practice
in the Untied States of America for conducting an ESA of a parcel of
commercial real estate with respect to the range of contaminants within
the scope of the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA) and petroleum products." The ASTM Phase I ESA is
intended to permit a user to satisfy one of the requirements to qualify
for the innocent landowner defense to CERCLA liability; that is, the
practice that constitutes "all appropriate inquiry into the previous
ownership and uses of the property consistent with good commercial or
customary practices" as defined in 42 USC 9601(35)(B).
The goal of the ASTM Phase I ESA is to identify "recognized
environmental conditions." Recognized environmental conditions means
the presence or likely presence of any hazardous substances or
petroleum products on a property under conditions that indicate an
existing release, a past release, or a material threat of a release of
any hazardous substances or petroleum products into structures on the
property or into the ground, groundwater, or surface water of the
property. The term includes hazardous substances or petroleum products
even under conditions in compliance with laws. The term is not intended
to include de minimus conditions that generally would not be the
subject of an enforcement action if brought to the attention of
appropriate governmental agencies.
The ASTM standard indicates that a Phase I ESA should consist of four
main components: 1) Records Review; 2) Site Reconnaissance; 3)
Interviews; and 4) Report. The purpose of the records review is to
obtain and review records that will help identify recognized
environmental conditions in connection with the property. The site
reconnaissance involves physical observation of the property's exterior
and interior, as well as an observation of adjoining properties.
Interviews with previous and current owners and occupants, and local
government officials provides insight into the presence or absence of
recognized environmental conditions in connection with the property.
The final component of the ESA, the report, contains the findings of
the ESA and conclusions regarding the presence or absence of recognized
environmental conditions in connection with the property. It includes
documentation to support the analysis, opinions, and conclusions found
in the report.
While the use of this practice is intended to constitute appropriate
inquiry for purposes of CERCLA's innocent landowner defense, it is not
intended that its use be limited to that purpose. The ASTM standard is
intended to be an approach to conducting an inquiry designed to
identify recognized environmental conditions in connection with a
property, and environmental site assessments.
J2-1
