EXHIBIT 10.1
FIRST AMENDMENT TO
THIRD AMENDED, RESTATED AND CONSOLIDATED MASTER CREDIT
AGREEMENT
THIS FIRST AMENDMENT TO THIRD AMENDED, RESTATED, AND CONSOLIDATED
MASTER CREDIT AGREEMENT (this "Amendment") made as of this 14/th/ day of August,
2001, but intended to be effective as of June 30, 2001, by and among JDN REALTY
CORPORATION, a Maryland corporation ("Borrower"), JDN DEVELOPMENT COMPANY, INC.,
a Delaware corporation ("JDN DCI"), JDN REALTY AL, INC., an Alabama corporation
("JDN AL"), JDN REALTY HOLDINGS, L.P., a Georgia limited partnership ("JDN
Holdings"), JDN REALTY LP, INC., a Delaware corporation ("JDN LP"), and the
other parties executing this Amendment as a Guarantor (JDN DCI, JDN AL, JDN
Holdings, JDN LP and such other parties are sometimes hereinafter referred to
individually as "Guarantor" and collectively as "Guarantors"), FLEET NATIONAL
BANK, individually ("Fleet"), BANKERS TRUST COMPANY ("Bankers Trust"),
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES ("Commerzbank"), FIRST
TENNESSEE BANK NATIONAL ASSOCIATION ("First Tennessee"), FIRSTAR BANK, NATIONAL
ASSOCIATION ("Firstar"), KEYBANK NATIONAL ASSOCIATION ("Keybank"), PNC BANK,
NATIONAL ASSOCIATION ("PNC"), SOUTHTRUST BANK, NATIONAL ASSOCIATION
("Southtrust"), XXXXX FARGO BANK, NATIONAL ASSOCIATION ("Xxxxx Fargo"; Fleet,
Bankers Trust, Commerzbank, First Tennessee, Firstar, Keybank, PNC, Southtrust,
and Xxxxx Fargo are sometimes hereinafter referred to collectively as
"Lenders"), and FLEET NATIONAL BANK, as Agent (the "Agent").
W I T N E S S E T H:
WHEREAS, Borrower, Fleet, Agent and the other parties thereto entered
into that certain Third Amended, Restated, and Consolidated Master Credit
Agreement, dated as of March 29, 2001 (the "Credit Agreement"); and
WHEREAS, Guarantors have executed and delivered to the Lenders and the
Agent certain of the "Loan Documents" (as defined in the Credit Agreement); and
WHEREAS, the parties hereto desire to enter into this Amendment to
modify and amend certain terms and provisions of the Credit Agreement; and
WHEREAS, as a condition to such modification, Agent and the Lenders
have required that Borrower and Guarantors execute this Amendment;
NOW, THEREFORE, for and in consideration of the sum of TEN and NO/100
DOLLARS ($10.00), and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto do hereby
covenant and agree as follows:
1. Definitions. All terms used herein which are not otherwise defined
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herein shall have the meanings set forth in the Credit Agreement.
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2. Modification of the Credit Agreement. Borrower, the Lenders,
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and Agent do hereby modify and amend the Credit Agreement as follows:
(a) By deleting in its entirety the definition of EBITDA, appearing in
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(S)1.1 of the Credit Agreement, on page 11 thereof, and inserting in lieu
thereof the following:
"EBITDA. With respect to any Person (or any asset of
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any Person) for any period, an amount equal to the sum of (a)
the Net Income of such Person (or attributable to such asset)
for such period plus (b) depreciation, amortization, interest
expensed, income taxes and any extraordinary or non-recurring
losses (including, without limitation, losses from the sale or
anticipated sale of land) deducted in calculating such Net
Income minus (c) any extraordinary or non-recurring gains
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(including, without limitation, gains from the sale or
anticipated sale of land) included in calculating such Net
Income all as determined in accordance with GAAP. The Net
Income of a Person (or any asset of a Person) shall be
adjusted to reflect such Person's (or asset's) allocable share
for the relevant period or as of the date of determination,
taking into account such Person's respective ownership
interest in other Persons or such assets. Notwithstanding
anything in this Agreement to the contrary, any loss
associated with a charge attributable to the settlement of the
litigation described as items 1, 5 and 6 in Schedule 6.7
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hereto shall, to the extent the same has been deducted in
calculating EBITDA, be added back to EBITDA for the purposes
of the covenants set forth in (S)9.2 and (S)9.7. Except as
set forth in the definition of Funds from Operations, no
similar adjustments shall be made in determining compliance
with any other covenants set forth in this Agreement."
(b) By deleting from the definition of the term Minimum Consolidated
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Tangible Net Worth, appearing in (S)1.1 of the Credit Agreement, on page 18
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thereof, the number "$450,000,000.00" and inserting in lieu thereof the number
"$400,000,000.00".
Notwithstanding the foregoing, in the event that the U.S.
District Court for the Northern District of Georgia, Atlanta Division (the
"Court") declines to approve that certain Stipulation and Agreement of
Settlement, in re: JDN Realty Corporation Securities Litigation, Master File No.
1:00-CV-0396-RWS, dated August 13, 2001, filed with the Court on or about August
14, 2001 (the "Settlement Agreement") or in the event the settlement described
in the Settlement Agreement is materially modified or for any reason not finally
consummated, the amendment to (S)1.1 of the Credit Agreement described in this
Paragraph 2(b) shall not be effective, and the definition of Minimum
Consolidated Tangible Net Worth set forth in (S)1.1 of the Credit Agreement as
originally executed shall remain in full force and effect.
(c) By deleting from (S)9.2 of the Credit Agreement, appearing on
page 82 thereof, the ratio "1.60", and inserting in lieu thereof the ratio
"1.40".
3. References to Credit Agreement. All references in the Loan
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Documents to the Credit Agreement shall be deemed a reference to the Credit
Agreement as modified and amended herein.
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4. Amendments to Security Documents. The Borrower and Guarantors shall
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upon the request of the Agent enter into such amendments to the Security
Documents as Agent may request to evidence the amendment to the Credit Agreement
set forth herein, and shall at their expense cause the same to be recorded and
obtain and deliver to Agent endorsements to the Title Policies in form and
substance satisfactory to Agent insuring the Mortgages, as amended, without any
intervening claims or matters.
5. Consent of Guarantor. By execution of this Amendment, Guarantors hereby
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expressly consent to the modifications and amendments relating to the Credit
Agreement as set forth herein, and Borrower and Guarantors hereby acknowledge,
represent and agree that the Loan Documents (including without limitation the
Guaranty) remain in full force and effect and constitute the valid and legally
binding obligation of Borrower and Guarantors, respectively, enforceable against
such Persons in accordance with their respective terms, and that the Guaranty
extends to and applies to the foregoing documents as modified.
6. Representations. Borrower and Guarantors represent and warrant to
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Agent and the Lenders as follows:
(a) Authorization. The execution, delivery and performance of this
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Amendment and the transactions contemplated hereby (i) are within the authority
of Borrower and Guarantors, (ii) have been duly authorized by all necessary
proceedings on the part of such Persons, (iii) do not and will not conflict with
or result in any breach or contravention of any provision of law, statute, rule
or regulation to which any of such Persons is subject or any judgment, order,
writ, injunction, license or permit applicable to such Persons, (iv) do not and
will not conflict with or constitute a default (whether with the passage of time
or the giving of notice, or both) under any provision of the partnership
agreement, articles of incorporation or other charter documents or bylaws of, or
any agreement or other instrument binding upon, any of such Persons or any of
its properties, and (v) do not and will not result in or require the imposition
of any lien or other encumbrance on any of the properties, assets or rights of
such Persons. This Amendment has been duly executed by Borrower and Guarantors.
(b) Enforceability. This Amendment constitutes the valid and legally
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binding obligations of Borrower and Guarantors enforceable in accordance with
the respective terms and provisions hereof, except as enforceability is limited
by bankruptcy, insolvency, reorganization, moratorium or other laws relating to
or affecting generally the enforcement of creditors' rights and the effect of
general principles of equity.
(c) Approvals. The execution, delivery and performance of this
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Amendment and the transactions contemplated hereby do not require the approval
or consent of any person or the authorization, consent, approval of or any
license or permit issued by, or any filing or registration with, or the giving
of any notice to, any court, department, board, commission or other governmental
agency or authority other than those already obtained.
7. No Default. By execution hereof, the Borrower and Guarantors certify
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that the Borrower and Guarantors are and will be in compliance with all
covenants under the Loan
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Documents after the execution and delivery of this Amendment, and that no
Default or Event of Default has occurred and is continuing.
8. Waiver of Claims. Borrower and Guarantors acknowledge, represent and
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agree that Borrower and Guarantors have no defenses, setoffs, claims,
counterclaims or causes of action of any kind or nature whatsoever with respect
to the Loan Documents, the administration or funding of the Loans or with
respect to any acts or omissions of Agent or any of the Lenders, or any past or
present officers, agents or employees of Agent or any of the Lenders, and each
of Borrower and Guarantors does hereby expressly waive, release and relinquish
any and all such defenses, setoffs, claims, counterclaims and causes of action,
if any.
9. Ratification. Except as hereinabove set forth, all terms, covenants and
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provisions of the Credit Agreement remain unaltered and in full force and
effect, and the parties hereto do hereby expressly ratify and confirm the Credit
Agreement as modified and amended herein. Nothing in this Amendment shall be
deemed or construed to constitute, and there has not otherwise occurred, a
novation, cancellation, satisfaction, release, extinguishment or substitution of
the indebtedness evidenced by the Notes or the other obligations of Borrower and
Guarantors under the Loan Documents (including without limitation the Guaranty).
10. Amendment as Loan Document. This amendment shall constitute a Loan
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Document.
11. Counterparts. This Amendment may be executed in any number of
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counterparts which shall together constitute but one and the same agreement.
12. Miscellaneous. This Amendment shall be construed and enforced in
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accordance with the laws of the Commonwealth of Massachusetts. This Amendment
shall be effective upon the execution and delivery hereof by Borrower,
Guarantors, Agent and the Required Lenders. This Amendment shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
permitted successors, successors-in-title and assigns as provided in the Loan
Documents. All captions in this Amendment are included herein for convenience of
reference only and shall not constitute part of this Amendment for any other
purpose.
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IN WITNESS WHEREOF, the parties hereto have hereto set their hands and
affixed their seals as of the day and year first above written.
BORROWER:
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JDN REALTY CORPORATION, a Maryland corporation
By:________________________________________
Name:
Title:
[SEAL]
GUARANTORS:
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JDN DEVELOPMENT COMPANY, INC.,
a Delaware corporation
By:
________________________________________
Name:
______________________________________
Title:
_____________________________________
[CORPORATE SEAL]
JDN REALTY AL, INC.,
an Alabama corporation
By:
________________________________________
Name:
______________________________________
Title:
_____________________________________
[CORPORATE SEAL]
[SIGNATURES CONTINUED ON NEXT PAGE]
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JDN REALTY HOLDINGS, L.P.,
a Georgia limited partnership,
By: JDN Realty Corporation, a Maryland corporation,
its sole general partner
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
[SEAL]
JDN REALTY LP, INC.,
a Delaware corporation
By:
-----------------------------------------------------
Name:
---------------------------------------------------
Title:
--------------------------------------------------
[CORPORATE SEAL]
[SIGNATURES CONTINUED ON NEXT PAGE]
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JDN REAL ESTATE-ASHEVILLE, L.P.
JDN REAL ESTATE-BRIDGEWOOD
FORT WORTH, L.P.
JDN REAL ESTATE-XXXXXXX, X.X.
JDN REAL ESTATE-CUMMING, L.P.
JDN REAL ESTATE-ERIE, L.P.
JDN REAL ESTATE-FAYETTEVILLE, L.P.
JDN REAL ESTATE-FRISCO, L.P.
JDN REAL ESTATE-GULF BREEZE II, L.P.
JDN REAL ESTATE-XXXXXXXX, X.X.
JDN REAL ESTATE-HICKORY CREEK, L.P.
JDN REAL ESTATE-LAKELAND, L.P.
JDN REAL ESTATE-MCDONOUGH II, L.P.
JDN REAL ESTATE-XXXXXXXX, X.X.
JDN REAL ESTATE-MESQUITE, L.P.
JDN REAL ESTATE-OVERLAND PARK, L.P.
JDN REAL ESTATE-XXXXXX PAVILIONS, L.P.
JDN REAL ESTATE-PENSACOLA, L.P.
JDN REAL ESTATE-PIONEER HILLS, L.P.
JDN REAL ESTATE-PIONEER HILLS II, L.P.
JDN REAL ESTATE-XXXXXX, X.X.
JDN REAL ESTATE-SACRAMENTO, L.P.
JDN REAL ESTATE-XXXXXX HILL, L.P.
JDN REAL ESTATE-WEST LAFAYETTE, L.P.
JDN REAL ESTATE-WEST LANSING, L.P.
JDN REAL ESTATE-STONE MOUNTAIN, L.P.
JDN REAL ESTATE-XXXXXXX, X.X.,
each a Georgia limited partnership
By: JDN Development Investment, L.P.,
a Georgia limited partnership,
their sole general partner
By: JDN Development Company, Inc.,
its sole general partner
By:
----------------------------------
Name:
----------------------------
Title:
---------------------------
[SEAL]
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JDN REAL ESTATE-XXXXXXXXX, X.X.,
a Georgia limited partnership
By: JDN Realty Holdings, L.P.,
a Georgia limited partnership,
its sole general partner
By: JDN Realty Corporation,
a Maryland corporation,
its sole general partner
By:
----------------------------------
Name:
----------------------------
Title:
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[CORPORATE SEAL]
CHESTERFIELD EXCHANGE, LLC
FAYETTEVILLE EXCHANGE, LLC,
each a Georgia limited liability company
By: JDN Realty Corporation,
a Maryland corporation, their manager
By:
-------------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
[CORPORATE SEAL]
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HICKORY HOLLOW EXCHANGE, LLC,
a Georgia limited liability company
By: JDN Development Company, Inc.,
a Delaware corporation,
its manager
By:
-------------------------------------
Name:
-------------------------------
Title:
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[CORPORATE SEAL]
JDN INTERMOUNTAIN DEVELOPMENT PIONEER HILLS, LLC,
a Georgia limited liability company
By: JDN Real Estate-Pioneer Hills, L.P.,
a Georgia limited partnership,
its manager
By: JDN Development Investment, L.P.,
a Georgia limited partnership,
its sole general partner
By: JDN Development Company, Inc.,
a Delaware corporation,
its sole general partner
By:
----------------------------
Name:
-----------------------
Title:
----------------------
[CORPORATE SEAL]
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JDN INTERMOUNTAIN DEVELOPMENT, XXXXXX
PAVILION, LLC,
a Georgia limited liability company
By: JDN Real Estate-Xxxxxx Pavilions, L.P.,
a Georgia limited partnership,
its manager
By: JDN Development Investment, L.P.,
a Georgia limited partnership,
its sole general partner
By: JDN Development Company, Inc.,
a Delaware corporation,
its sole general partner
By:
---------------------------
Name:
-----------------------
Title:
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[CORPORATE SEAL]
CANAL STREET PARTNERS, L.L.C.,
a Michigan limited liability company
By: JDN Realty Corporation,
a Maryland corporation,
its manager
By:
---------------------------------------
Name:
--------------------------------
Title:
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[CORPORATE SEAL]
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BLACK CHERRY LIMITED LIABILITY COMPANY, a Colorado
limited liability company
By: JDN Realty Corporation,
a Maryland corporation,
its sole member
By:______________________________________________
Name:_________________________________________
Title:________________________________________
[CORPORATE SEAL]
GEORGIA FINANCE CORPORATION,
a Delaware corporation
By:___________________________________________________
Name:______________________________________________
Title:_____________________________________________
[CORPORATE SEAL]
JDN REALTY CORPORATION GP, INC.,
a Delaware corporation
By:___________________________________________________
Name:______________________________________________
Title:_____________________________________________
[CORPORATE SEAL]
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JDN INTERMOUNTAIN DEVELOPMENT CORP.,
a Delaware corporation
By:_______________________________________________
Name:__________________________________________
Title:_________________________________________
[CORPORATE SEAL]
JDN DEVELOPMENT LP, INC.,
a Delaware corporation
By:_______________________________________________
Name:__________________________________________
Title:_________________________________________
[CORPORATE SEAL]
JDN OF ALABAMA REALTY CORPORATION,
an Alabama corporation
By:_______________________________________________
Name:__________________________________________
Title:_________________________________________
[CORPORATE SEAL]
WHF, INC.,
a Georgia corporation
By:_______________________________________________
Name:__________________________________________
Title:_________________________________________
[CORPORATE SEAL]
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XXXXXXXX XXXXXX ASSOCIATES, INC.,
a Georgia corporation
By:_______________________________________________
Name:__________________________________________
Title:_________________________________________
[CORPORATE SEAL]
FAYETTEVILLE BLACK INVESTMENT, INC.,
a Georgia corporation
By:_______________________________________________
Name:__________________________________________
Title:_________________________________________
[CORPORATE SEAL]
JDN DEVELOPMENT INVESTMENT, L.P.,
a Georgia limited partnership
By: JDN Development Company, Inc.,
its sole general partner
By:__________________________________________
Name:_____________________________________
Title:____________________________________
[CORPORATE SEAL]
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LENDERS:
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FLEET NATIONAL BANK, individually and as Agent
By:___________________________________________
Name:
Title:
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BANKERS TRUST COMPANY
By:_______________________________________
Name:
Title:
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XXXXXXXXXXX XX, XXX XXXX AND
GRAND CAYMAN BRANCHES
By:__________________________________
Name:
Title:
By:__________________________________
Name:
Title:
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FIRST TENNESSEE BANK NATIONAL
ASSOCIATION
By:____________________________________
Name:
Title:
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FIRSTAR BANK, NATIONAL ASSOCIATION
By:________________________________
Name:
Title:
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KEYBANK NATIONAL ASSOCIATION
By:_________________________________
Name:
Title:
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PNC BANK, NATIONAL ASSOCIATION
By:______________________________
Name:
Title:
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SOUTHTRUST BANK
By:________________________
Name:
Title:
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XXXXX FARGO BANK, NATIONAL
ASSOCIATION
By:___________________________
Name:
Title:
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