EXECUTION COPY
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT dated as of March 7, 1997 by
and among REGENCY REALTY CORPORATION (the "Borrower"), each of the Guarantors
signatory hereto (the "Guarantors"), each of the Lenders signatory hereto (the
"Lenders") and XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking
association and successor in interest to Xxxxx Fargo Realty Advisors Funding,
Incorporated, as Agent (the "Agent").
WHEREAS, the Borrower, the Lenders and the Agent are parties to that
certain Credit Agreement dated as of May 17, 1996 (as amended prior to the date
hereof, the "Credit Agreement");
WHEREAS, the Borrower has advised the Lenders and the Agent that the
Borrower has entered into that certain Contribution Agreement and Plan of
Reorganization dated as of February 10, 1997 (the "Contribution Agreement") by
and among Branch Properties, L.P., Branch Realty, Inc. and the Borrower,
pursuant to which the Borrower proposes to consummate the transaction as more
particularly described by the Borrower to the Lenders and the Agent on Exhibit A
attached hereto (the "Branch Transaction"); and
WHEREAS, in connection with the Branch Transaction, the Borrower has
requested that the Lenders and the Agent amend certain provisions of the Credit
Agreement on the terms and conditions contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto hereby agree as follows:
Section 1. Specific Amendments to Credit Agreement.
(a) The Credit Agreement is hereby amended by deleting from Section 1.1 the
definition of the term "Development Property" and substituting in its place the
following:
"Development Property" means either a real estate project
acquired by a Loan Party as unimproved real estate to be developed as a
Property or a Property acquired by a Loan Party on which such Loan
Party is to increase materially the rentable square footage of such
Property, in each case for which an 85% Occupancy Rate has not been
achieved; provided, however, that "Development Property" shall not
include any build-to-suit Property which is 100% preleased by a single
tenant having an investment grade rating assigned to its senior
long-term unsecured debt obligations by a nationally recognized
securities rating agency.
(b) The Credit Agreement is amended by deleting the first sentence of the
last paragraph of Section 9.7 in its entirety and substituting in its place the
following:
Additionally, the aggregate amount of the Construction Budgets for
Development Properties in which the Borrower either has a direct or indirect
ownership interest shall not exceed 15% of the Borrower's Gross Asset Value.
(c) The Credit Agreement is amended by supplementing the Schedules attached
thereto as follows:
(i) Schedule 7.2 of the Credit Agreement ["Ownership Structure"] is hereby
supplemented to add the additional information set forth on the "Supplement to
Schedule 7.2" attached hereto;
(ii) Schedule 7.6 of the Credit Agreement ["Existing Indebtedness"] is
hereby supplemented to add the additional information set forth on the
"Supplement to Schedule 7.6" attached hereto;
(iii) Schedule 7.10 of the Credit Agreement ["Material Contracts"] is
hereby supplemented to add the additional information set forth on the
"Supplement to Schedule 7.10" attached hereto; and
(iv) The representations and warranties contained in Section 7.17 of the
Credit Agreement ["Environmental Matters"] shall be deemed supplemented by the
information set forth on Schedule 7.17 attached hereto.
Section 2. Branch Transaction. The Borrower represents and warrants to
the Agent and the Lenders as follows: (a) the Branch Transaction constitutes an
Acquisition subject to the provisions of Section 8.16 of the Credit Agreement;
(b) after giving effect to the Branch Transaction and this Amendment, the
Borrower will be in compliance with the terms and conditions of the Credit
Agreement and the other Loan Documents, including without limitation, the
financial covenants contained in Article IX. of the Credit Agreement; (c) the
Borrower has delivered to the Agent a true, correct and complete copy of the
Contribution Agreement (excluding the schedules thereto); and (d) the
Contribution Agreement remains in full force and effect.
Section 3. Waiver; Limitation. The Agent and Lenders acknowledge
receipt of the Compliance Certificate provided by the Borrower pursuant to
Sections 8.16. Subject to the effectiveness of this Amendment, the Agent and the
Lenders hereby waive the requirement of Section 8.16 that the Borrower shall
have given the Agent and the Lenders at least 30 days prior written notice of
the Branch Transaction. The foregoing waiver shall not be construed to be a
waiver of any other term or condition of the Credit Agreement or a waiver of any
Default or Event of Default that may be in existence as of the date hereof.
Further, foregoing waiver shall not be construed as a waiver of, or consent to
departure from, any future obligations under the above-referenced covenant or
any of the other terms and conditions of the Credit Agreement or any other Loan
Document, nor shall the Borrower, by receipt of foregoing waiver, expect that
any such waiver will be given in the future.
Section 4. Copies of Certain Notices, Etc. Under Contribution
Agreement. The Borrower shall deliver to the Agent and each Lender the
following: (a) promptly upon the execution and delivery thereof, a copy of any
amendment, supplement, other modification, waiver or consent of or relating to
the Contribution Agreement; (b) promptly upon the giving or receipt thereof, any
notice alleging a breach or other failure to comply with the terms of the
Contribution Agreement on the part of any party to the Contribution Agreement
and (c) promptly upon the giving or receipt thereof, any notice given under
Section 5.13 of the Contribution Agreement
Section 5. Effectiveness of Amendments and Waivers. The effectiveness of
Section 1 and the effectiveness of the waivers set forth in Section 3 are both
subject to satisfaction of the following conditions precedent:
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(a) Receipt by the Agent of each of the following in form and substance
satisfactory to the Agent:
(i) Counterparts of this Amendment executed by each of the parties hereto;
(ii) A copy of the resolutions of the board of directors of the Borrower
authorizing the execution and delivery of this Amendment, certified by the
Secretary or an Assistant Secretary of the Borrower; and
(iii) Such other documents and instruments as the Agent may reasonably
request; and
(b) All consents, waivers, exemptions and approvals required to be
obtained by the parties to the Contribution Agreement in connection with the
First Closing (as defined in the Contribution Agreement) shall have been
obtained, and the First Closing shall have been consummated without waiver of
any condition precedent to the occurrence thereof (other than those waived with
the written concurrence of the Required Lenders).
Section 6. Representations of the Borrower. The Borrower represents and
warrants to the Agent and the Lenders that:
(a) Authorization. The Borrower has the right and power, and has taken
all necessary action to authorize it, to execute and deliver this Amendment and
to perform its obligations hereunder and under the Credit Agreement, as amended
by this Amendment, in accordance with their respective terms. This Amendment has
been duly executed and delivered by a duly authorized officer of the Borrower
and each of this Amendment and the Credit Agreement, as amended by this
Amendment, is a legal, valid and binding obligation of the Borrower enforceable
against the Borrower in accordance with its respective terms except as the same
may be limited by bankruptcy, insolvency, and other similar laws affecting the
rights of creditors generally and the availability of equitable remedies for the
enforcement of certain obligations contained herein or therein may be limited by
equitable principles generally.
(b) Compliance with Laws, etc. The execution and delivery by the
Borrower of this Amendment and the performance by the Borrower of this Amendment
and the Credit Agreement, as amended by this Amendment, in accordance with their
respective terms, do not and will not, by the passage of time, the giving of
notice or otherwise: (i) require any Government Approval or violate any
Applicable Law relating to the Borrower the failure to possess or to comply with
which would have a Materially Adverse Effect; (ii) conflict with, result in a
breach of or constitute a default under the Borrower's articles of incorporation
or by-laws or any indenture, agreement or other instrument to which the Borrower
is a party or by which it or any of its properties may be bound and the
violation of which would have a Materially Adverse Effect; or (iii) result in or
require the creation or imposition of any Lien upon or with respect to any
property now owned or hereafter acquired by the Borrower other than Permitted
Liens.
Section 7. Reaffirmation by Borrower. The Borrower hereby repeats and
reaffirms all representations and warranties made by the Borrower to the Agent
and the Lenders in the Credit Agreement and the other Loan Documents to which it
is a party on and as of the date hereof (and after giving effect to this
Amendment) with the same force and effect as if such representations and
warranties were set forth in this Amendment in full.
Section 8. Reaffirmation by Guarantor. Each Guarantor hereby reaffirms
its continuing obligations to the Agent and the Lenders under the Guaranty to
which it is a party, and agrees that the transactions contemplated by this
Amendment shall not in any way affect the validity and enforceability of such
Guaranty, or reduce, impair or discharge the obligations of such Guarantor
thereunder.
Section 9. References to the Credit Agreement. Each reference to the Credit
Agreement in any of the Loan Documents (including the Credit Agreement) shall be
deemed to be a reference to the Credit Agreement, as amended by this Amendment.
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Section 10. Benefits. This Amendment shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
assigns.
Section 11. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
Section 12. Effect. Except as expressly herein amended, the terms and
conditions of the Credit Agreement and the other Loan Documents shall remain in
full force and effect.
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Section 13. Effective Date. This Amendment shall not be effective until its
execution and delivery by all of the parties hereto whereupon its shall be
deemed effective as of the date first written above.
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Section 14. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original and shall be
binding upon all parties, their successors and assigns.
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Section 15. Definitions. All capitalized terms not otherwise defined herein
are used herein with the respective definitions given them in the Credit
Agreement.
[Signatures on Next Page]
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment
to Credit Agreement to be executed as of the date first above written.
BORROWER:
REGENCY REALTY CORPORATION
By:
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
GUARANTORS:
RRC FL ONE, INC.
RRC FL TWO, INC.
REGENCY CENTERS, INC.
(f/k/a/ RRC FL Three, Inc.)
RRC FL SEVEN, INC.
By:
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
REGENCY OFFICE PARTNERSHIP, L.P.
UNIVERSITY MARKETPLACE
By: RRC FL One, Inc.,
its General Partner
By :...............................
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
[Signatures Continued on Following Page]
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AD970510.265
[Signature Page to Third Amendment to Credit Agreement dated
as of February 28, 1997 for Regency Realty Corporation]
AGENT AND LENDERS:
XXXXX FARGO BANK, NATIONAL ASSOCIATION, individually and as Agent
By:
Name: Xxxx Xxx Xxxxx
Title: Vice President
FIRST UNION NATIONAL BANK OF FLORIDA
By:
Name:
Title:
WACHOVIA BANK OF GEORGIA, N.A.
By:
Name:
Title:
XXXXXXX BANK, N.A.
By:
Name:
Title:
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AD970510.265
EXHIBIT A
Branch Transaction
Pursuant to the Contribution Agreement, the Borrower will indirectly
acquire from Branch Properties, L.P. (the "Transferor"), among other things, (1)
twenty existing shopping centers, including seven which are owned through
subpartnerships with outside investors, (2) six shopping centers under
development or redevelopment (one of which is expected to be resold to a third
party) and (3) certain property management contracts, in consideration of the
assumption by Regency Retail Partnership, L.P. (the "Partnership"), a newly
formed partnership of which Regency Atlanta, Inc., a wholly owned subsidiary of
the Borrower, will become the sole general partner at closing, of approximately
$121,900,000 of debt (net of minority interest) and the issuance of 3,373,801
partnership units of the Partnership exchangeable for the Borrower's common
stock and 155,797 shares of Borrower's common stock to be issued as part of a C
reorganization on the part of Branch Realty, Inc., the Transferor's general
partner. Such units and shares have an aggregate value of approximately
$78,100,000 based on an agreed exchange ratio pegged at $22.125 per share of
Borrower's common stock and approximately $95,300,000 based on a current trading
price of $27 per share. In addition, the Transferor shall have the right to earn
an additional $23,300,000 (which is based on a price of $22.125 per unit/share
and includes an estimated $750,000 based on revenues from certain third-party
management business transferred by Transferor) paid in up to 1,053,000
Partnership units/shares during the three years following the closing.
A-1
AD970510.265
SUPPLEMENT TO SCHEDULE 7.2
Ownership Structure
[To be provided by Borrower]
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AD970510.265
SUPPLEMENT TO SCHEDULE 7.6
Existing Indebtedness
[To be provided by Borrower]
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AD970510.265
SUPPLEMENT TO SCHEDULE 7.10
Material Contracts
[To be provided by Borrower]
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AD970510.265
SCHEDULE 7.17
Environmental Matters
[To be provided by Borrower]
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AD970510.265
