Exhibit 4.1
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MAY 29, 2002
AMONG
DEVELOPERS DIVERSIFIED REALTY CORPORATION,
AS BORROWER
BANC ONE CAPITAL MARKETS, INC.,
AS SOLE LEAD ARRANGER/BOOK RUNNER
AND
BANK ONE, NA,
AS ADMINISTRATIVE AGENT
AND
BANK OF AMERICA, N.A.,
AS SYNDICATION AGENT
AND
FLEET BANK,
XXXXX FARGO BANK, N.A.,
DEUTSCHE BANK SECURITIES INC.,
AS DOCUMENTATION AGENTS
AND
COMMERZBANK AG,
AS DOCUMENTATION AGENT
AND
WACHOVIA BANK, NA
AS MANAGING AGENT
AND
FIRSTAR BANK, N.A.,
ING CAPITAL LLC,
X.X. XXXXXX CHASE,
AS CO-AGENTS
AND
THE SEVERAL LENDERS
FROM
TIME TO TIME PARTIES HERETO,
AS LENDERS
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS........................................................1
ARTICLE II THE CREDIT.......................................................21
2.1 Commitments; Reduction or Increase in Aggregate Commitment........21
2.2 Final Principal Payment...........................................21
2.3 Ratable and Nonratable Loans......................................22
2.4 Applicable Margins................................................22
2.5 Facility Fee......................................................23
2.6 Other Fees........................................................23
2.7 Minimum Amount of Each Advance....................................23
2.8 Optional Principal Payments.......................................23
2.9 Method of Selecting Types and Interest Periods for New Advances...23
2.10 Conversion and Continuation of Outstanding Advances...............24
2.11 Changes in Interest Rate, Etc.....................................25
2.12 Rates Applicable After Default....................................25
2.13 Method of Payment.................................................25
2.14 Notes; Telephonic Notices.........................................26
2.15 Interest Payment Dates; Interest and Fee Basis....................26
2.16 Notification of Advances, Interest Rates and Prepayments..........26
2.17 Lending Installations.............................................27
2.18 Non-Receipt of Funds by the Administrative Agent..................27
2.19 Replacement of Lenders under Certain Circumstances................27
2.20 Swingline Loans...................................................28
2.21 Competitive Bid Loans.............................................29
2.22 Agent Administered Competitive Bid Loans..........................30
2.23 Competitive Bid Loans Administered by Borrower....................34
2.24 Application of Moneys Received....................................37
2.25 Usury.............................................................37
2.25 Maximum Legal Rate................................................38
ARTICLE III CHANGE IN CIRCUMSTANCES.........................................44
3.1 Yield Protection..................................................44
3.2 Changes in Capital Adequacy Regulations...........................45
3.3 Availability of Types of Advances.................................45
3.4 Funding Indemnification...........................................46
3.5 Taxes.............................................................46
3.6 Lender Statements; Survival of Indemnity..........................48
ARTICLE IV CONDITIONS PRECEDENT.............................................49
4.1 Initial Advance...................................................49
4.2 Each Advance......................................................50
ARTICLE V REPRESENTATIONS AND WARRANTIES....................................51
5.1 Existence.........................................................51
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5.2 Authorization and Validity..........................................51
5.3 No Conflict; Government Consent.....................................51
5.4 Financial Statements; Material Adverse Change.......................52
5.5 Taxes...............................................................52
5.6 Litigation and Guarantee Obligations................................52
5.7 Subsidiaries........................................................52
5.8 ERISA...............................................................53
5.9 Accuracy of Information.............................................53
5.10 Regulation U........................................................53
5.11 Material Agreements.................................................53
5.12 Compliance With Laws................................................53
5.13 Ownership of Properties.............................................54
5.14 Investment Company Act..............................................54
5.15 Public Utility Holding Company Act..................................54
5.16 Solvency............................................................54
5.17 Insurance...........................................................54
5.18 REIT Status.........................................................55
5.19 Environmental Matters...............................................55
ARTICLE VI COVENANTS..........................................................56
6.1 Financial Reporting.................................................56
6.2 Use of Proceeds.....................................................58
6.3 Notice of Default...................................................58
6.4 Conduct of Business.................................................58
6.5 Taxes...............................................................58
6.6 Insurance...........................................................59
6.7 Compliance with Laws................................................59
6.8 Maintenance of Properties...........................................59
6.9 Inspection..........................................................59
6.10 Maintenance of Status...............................................59
6.11 Dividends...........................................................59
6.12 Merger; Sale of Assets..............................................59
6.13 Delivery of Subsidiary Guaranties...................................60
6.14 Sale and Leaseback..................................................60
6.15 Acquisitions and Investments........................................60
6.16 Liens...............................................................60
6.17 Affiliates..........................................................61
6.18 Financial Undertakings..............................................61
6.19 Variable Interest Indebtedness......................................61
6.20 Consolidated Net Worth..............................................62
6.21 Indebtedness and Cash Flow Covenants................................62
6.22 Environmental Matters...............................................62
6.23 Permitted Investments...............................................63
ARTICLE VII DEFAULTS..........................................................64
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES...................66
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8.1 Acceleration........................................................66
8.2 Amendments..........................................................67
8.3 Preservation of Rights..............................................68
ARTICLE IX GENERAL PROVISIONS.................................................68
9.1 Survival of Representations.........................................68
9.2 Governmental Regulation.............................................68
9.3 Taxes...............................................................69
9.4 Headings............................................................69
9.5 Entire Agreement....................................................69
9.6 Several Obligations; Benefits of this Agreement.....................69
9.7 Expenses; Indemnification...........................................69
9.8 Numbers of Documents................................................70
9.9 Accounting..........................................................70
9.10 Severability of Provisions..........................................70
9.11 Nonliability of Lenders.............................................70
9.12 CHOICE OF LAW.......................................................70
9.13 CONSENT TO JURISDICTION.............................................70
9.14 WAIVER OF JURY TRIAL................................................71
9.15 No Bankruptcy Proceedings...........................................71
ARTICLE X THE ADMINISTRATIVE AGENT............................................71
10.1 Appointment.........................................................71
10.2 Powers..............................................................71
10.3 General Immunity....................................................71
10.4 No Responsibility for Loans, Recitals, etc..........................72
10.5 Action on Instructions of Lenders...................................72
10.6 Employment of Agents and Counsel....................................72
10.7 Reliance on Documents; Counsel......................................72
10.8 Administrative Agent's Reimbursement and Indemnification............73
10.9 Rights as a Lender..................................................73
10.10 Lender Credit Decision..............................................74
10.11 Successor Administrative Agent......................................74
ARTICLE XI SETOFF; RATABLE PAYMENTS...........................................74
11.1 Setoff..............................................................74
11.2 Ratable Payments....................................................75
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS.................75
12.1 Successors and Assigns..............................................75
12.2 Participations......................................................75
12.3 Assignments.........................................................76
12.4 Dissemination of Information........................................77
12.5 Tax Treatment.......................................................77
12.6 Confidentiality.....................................................77
ARTICLE XIII NOTICES..........................................................78
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13.1 Giving Notice.......................................................78
13.2 Change of Address...................................................78
ARTICLE XIV COUNTERPARTS......................................................78
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FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
This Fourth Amended and Restated Credit Agreement, dated as of May 29,
2002, is among Developers Diversified Realty Corporation, a corporation
organized under the laws of the State of Ohio (the "BORROWER"), Bank One, NA, a
national banking association, and the several banks, financial institutions and
other entities from time to time parties to this Agreement (collectively, the
"LENDERS"), Bank One, NA, not individually, but as "Administrative Agent", Bank
of America, N.A. not individually, but as "Syndication Agents", Commerzbank AG,
Deutsche Bank Securities Inc., Fleet Bank, Xxxxx Fargo Bank, N.A. not
individually but as "Documentation Agents", Wachovia Bank, NA, not individually,
but as Managing Agent, Firstar Bank, N.A., ING Capital LLC, XX Xxxxxx Chase, not
individually but as "Co-Agents."
RECITALS
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A. The Borrower is primarily engaged in the business of purchasing,
developing, owning, operating, leasing and managing retail, office and
industrial properties. The Borrower is listed on the New York Stock Exchange and
is qualified as a real estate investment trust under Section 856 of the Code.
B. The Borrower, the Administrative Agent, and certain of the
Lenders entered into a Third Amended and Restated Credit Agreement dated as of
June 27, 2000 (the "PRIOR AGREEMENT"), pursuant to which the Lenders that are
parties thereto agreed to make loans to the Borrower in the aggregate amount of
up to $650,000,000.
C. The Borrower has requested that the Lenders adjust the amount of
loans that are available to the Borrower to the aggregate amount of
$650,000,000, pursuant to the terms of this Agreement, and that the
Administrative Agent act as administrative agent for the Lenders and that
certain other changes be made to the Prior 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
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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.
"Absolute Interest Period" means, with respect to a Competitive Bid
Loan made at an Absolute Rate, a period of up to 180 days as requested by
Borrower and confirmed by a Lender
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but in no event extending beyond the Facility Termination Date. If an Absolute
Interest Period would end on a day which is not a Business Day, such Absolute
Interest Period shall end on the next succeeding Business Day.
"Absolute Rate" means a fixed rate of interest (rounded to the nearest
1/100 of 1%) for an Absolute Interest Period with respect to a Competitive Bid
Loan offered by a Lender and accepted by the Borrower at such rate.
"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 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 One, NA 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 a borrowing hereunder consisting of the aggregate
amount of the several Loans (including without limitation Competitive Bid Loans
and Swingline Loans) made by one or more of the Lenders to the Borrower of the
same Type and, in the case of Fixed Rate Advances, for the same Interest Period.
"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, as of any date, the aggregate of the
then-current Commitments of all the Lenders, which is, as of the Agreement
Execution Date, $650,000,000.
"Agreement" means this Fourth Amended and Restated 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.
"Allocated Facility Amount" means, at any time, the sum of all then
outstanding Advances and the then Facility Letter of Credit Obligations.
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"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 Effective 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.
"Arranger" means Banc One Capital Markets, Inc.
"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 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 One" means Bank One, NA 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 a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in SECTION 2.9.
"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.
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"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:
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;
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;
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;
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;
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;
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)
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of this definition maturing on or prior to a date one month from the date the
repurchase agreement is entered into;
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
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, for each Lender, the obligation of such Lender to
make Loans not exceeding the amount set forth opposite its signature below or as
set forth in any Notice of Assignment relating to any assignment that has become
effective pursuant to SECTION 12.3.2, as such amount may be modified from time
to time pursuant to the terms hereof.
"Competitive Bid Borrowing Notice" is defined in SECTION 2.22(E).
"Competitive Bid Lender" means a Lender which has a Competitive Bid
Loan outstanding.
"Competitive Bid Loan" is a Loan made pursuant to SECTION 2.21 hereof.
"Competitive Bid Note" means the new or amended and restated promissory
note payable to the order of each Lender in the form attached hereto as EXHIBIT
A-2 to be used to evidence any Competitive Bid Loans which such Lender elects to
make (collectively, the "Competitive Bid Notes").
"Competitive Bid Quote" means a response submitted by a Lender to the
Administrative Agent or the Borrower, as the case may be with respect to an
Invitation for Competitive Bid Quotes in the form attached as EXHIBIT I-3 or
J-2.
"Competitive Bid Quote Request" means a written request from Borrower
to Administrative Agent in the form attached as EXHIBIT I-1.
"Competitive LIBOR Margin" means, with respect to any Competitive Bid
Loan for a LIBOR Interest Period, the percentage established in the applicable
Competitive Bid Quote which is to be used to determine the interest rate
applicable to such Competitive Bid Loan.
"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)
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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.
"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
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(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.
"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 as of
such date, determined on a consolidated basis in accordance with GAAP.
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"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 2.10.
"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 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 2.12.
"Designated Lender" means any Person who has been designated by a
Lender to fund Competitive Bid Loans pursuant to a Designation Agreement in the
form attached hereto as EXHIBIT L.
"Developable Land" means land which is appropriately zoned, has access
to all necessary utilities and has access to publicly dedicated streets.
"Duff & Xxxxxx" means Duff & Xxxxxx, Inc. and its successors.
"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.
"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 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 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,
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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 Fee" is defined in SECTION 2.5.
"Facility Fee Rate" is, as of any date, the percentage established in
accordance with the terms of SECTION 2.4.
"Facility Letter of Credit" means a Letter of Credit issued hereunder
in U.S. Dollars.
"Facility Letter of Credit Fee" is defined in Section 2A.8.
"Facility Letter of Credit Obligation" means, as at the time of
determination thereof, all liabilities, whether actual or contingent, of the
Borrower with respect to Facility Letters of Credit, including the sum of (a)
the Reimbursement Obligations and (b) the aggregate undrawn face amount of the
then outstanding Facility Letters of Credit.
"Facility Termination Date" means May 29, 2005.
"Federal Funds Effective Rate" means, for any day, an interest 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 for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10 a.m. (Chicago
time) on such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"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) 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 delivery of customary assignment and assumption agreements
from the transferor and transferee,
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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 Investor Services, 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.
"Fixed Rate" means the Absolute Rate or the LIBOR Rate.
"Fixed Rate Advance" means an Advance which bears interest at a Fixed
Rate.
"Fixed Rate Loan" means a Loan which bears interest at a Fixed Rate.
"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.
"Funded Percentage" means, with respect to any Lender at any time, a
percentage equal to a fraction the numerator of which is the amount actually
disbursed and outstanding to Borrower by such Lender at such time (including
Swingline Loans and Competitive Bid Loans),
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and the denominator of which is the total amount disbursed and outstanding to
Borrower by all of the Lenders at such time (including Swingline Loans and
Competitive Bid Loans).
"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 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.
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"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
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 an Absolute Interest Period or 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.
"Invitation for Competitive Bid Quotes" means a written notice to the
Lenders from the Administrative Agent in the form attached as EXHIBIT I-2 for
Competitive Bid Loans made pursuant to SECTION 2.22, and a written notice to the
Lenders from the Borrower in the form of EXHIBIT J-1 for Competitive Bid Loans
made pursuant to SECTION 2.23.
"Issuance Date" is defined in Section 2A.4.
"Issuance Notice" is defined in Section 2A.4.
"Issuing Bank" means, with respect to each Facility Letter of Credit,
the Lender which issues such Facility Letter of Credit.
"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 and the
Designated Lenders, if any, provided that the term "Lender" shall exclude each
such Designated Lender when used in the reference to the Commitments or terms
relating to the Commitments.
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"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.
"Letter of Credit Collateral Account" is defined in Section 2A.9.
"Letter of Credit Request" is defined in Section 2A.4.
"LIBOR Advance" means an Advance that bears interest at the LIBOR Rate,
whether a ratable Advance based on the LIBOR Applicable Margin or a Competitive
Bid Loan based on a Competitive LIBOR Margin.
"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 Bank One 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 such LIBOR Interest Period, in the
approximate amount of Bank One'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
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such LIBOR Interest Period, plus (ii) in the case of ratable LIBOR Advances, the
LIBOR Applicable Margin in effect from time to time during such LIBOR Interest
Period, or in the case of LIBOR Advances made as Competitive Bid Loans, the
Competitive LIBOR Margin established in the Competitive Bid Quote applicable to
such Competitive Bid Loan. 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 portion of any
Advance.
"Loan Documents" means this Agreement, the Notes, the Subsidiary
Guaranty, 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.
"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 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.
"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
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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 new (in the case of Lenders not parties to the Prior
Agreement) or an amended and restated (in the case of Lenders parties to the
Prior Agreement) promissory note, in substantially the form of EXHIBIT A-1
hereto, duly executed by the Borrower and payable to the order of a Lender in
the amount of its Commitment, including any amendment, modification, renewal or
replacement of such promissory note.
"Notice of Assignment" is defined in SECTION 12.3.2.
"Obligations" means the Advances, the Facility Letter of Credit
Obligations and all accrued and unpaid fees and all other obligations of
Borrower to the Administrative Agent or the Lenders arising under this Agreement
or any of the other Loan Documents.
"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.
"Payment Date" means, with respect to the payment of interest accrued
on any Advance, the first day of each calendar month.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Percentage" means for each Lender the ratio that such Lender's
Commitment bears to the Aggregate Commitment, expressed as a percentage.
"Permitted Acquisitions" are defined in SECTION 6.15.
"Permitted Liens" are defined in SECTION 6.16.
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"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 Bank One or its parent 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.
"Prior Agreement" is defined in RECITAL C.
"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.
"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
-16-
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.
"Reimbursement Obligations" means at any time, the aggregate of the
Obligations of the Borrower to the Lenders, the Issuing Bank and the
Administrative Agent in respect of all unreimbursed payments or disbursements
made by the Lenders, the Issuing Bank and the Administrative Agent under or in
respect of the Facility Letters of Credit.
"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 having at least 66
2/3% of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding at least 66 2/3% of the aggregate
unpaid principal amount of the outstanding Advances.
"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.
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"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 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.
"Swingline Advances" means, as of any date, collectively, all Swingline
Loans then outstanding under this Facility.
"Swingline Lender" shall mean Administrative Agent, in its capacity as
a Lender.
"Swingline Loans" means loans of up to $40,000,000 made by the
Swingline Lender in accordance with SECTION 2.20 hereof.
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"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 held by the Borrower
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.
"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
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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
$50,000,000. 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.
ARTICLE II
THE CREDIT
----------
2.1 Commitments; Reduction or Increase in Aggregate Commitment. Subject
to the terms and conditions of this Agreement, Lenders severally agree to make
Advances through the Administrative Agent to Borrower from time to time prior to
the Facility Termination Date, provided that the making of any such Advance will
not cause the outstanding principal balance of all Loans (including all
Advances, Swingline Loans and Competitive Bid Loans) and the Facility Letter of
Credit Obligations to exceed the then-current Aggregate Commitment. The
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Advances may be ratable Floating Rate Advances, ratable Fixed Rate Advances,
non-pro rata Swingline Loans or non-pro rata Competitive Bid Loans. Except for
Swingline Loans and Competitive Bid Loans, each Lender shall fund its Percentage
of each such Advance and no Lender will be required to fund any amounts which,
when aggregated with such Lender's Percentage of (i) all other Advances (other
than Competitive Bid Loans) then outstanding, (ii) Facility Letter of Credit
Obligations, and (iii) all Swingline Advances, would exceed such Lender's
then-current Commitment. This facility ("Facility") is a revolving credit
facility and, subject to the provisions of this Agreement, Borrower may request
Advances hereunder, repay such Advances and reborrow Advances at any time prior
to the Facility Termination Date.
The Borrower shall have the right, upon not less than five (5) Business
Days' irrevocable notice to the Administrative Agent, to terminate the Aggregate
Commitment in its entirety or, from time to time, to reduce the amount of the
Aggregate Commitment PROVIDED that no such termination or reduction shall be
permitted if, after giving effect thereto and to any payments of Advances made
on the effective date thereof, the aggregate principal amount of the Advances
then outstanding would exceed the remaining Aggregate Commitment, subject to the
provisions of the following grammatical paragraph. Any such reduction shall be
in an amount equal to $5,000,000 or a whole multiple thereof and shall reduce
permanently the Aggregate Commitment. Any such reduction shall reduce the
Commitments of all of the Lenders ratably in proportion to their respective
Commitments and, unless otherwise agreed by the Swingline Lender, shall reduce
the maximum amount of Swingline Advances permitted hereunder by the same
proportion.
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 AND NONRATABLE LOANS. Each Advance hereunder shall consist
of Loans made from the several Lenders ratably in proportion to their respective
Percentages, except for Swingline Loans which shall be made by the Swingline
Lender in accordance with Section 2.20 and Competitive Bid Loans which may be
made on a non-pro rata basis by one or more of the Lenders in accordance with
SECTIONS 2.22 and 2.23.
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 and the Facility Fee Rate to be used in calculating
the Facility Fee shall vary from time to time in accordance with the higher of
Borrower's then applicable Xxxxx'x debt rating and S&P's 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 and the average
of the two different Facility Fee Rates shall be used. The Applicable Margins
shall be adjusted effective on the next Business Day following any change in
Borrower's Xxxxx'x debt rating and/or S&P's debt rating, as the case may be. The
applicable debt ratings, the Applicable Margins and Facility Fee Rate are set
forth in the following table:
--------------------------------------------------------------------------------
LIBOR ABR
APPLICABLE APPLICABLE FACILITY
S&P RATING XXXXX'X RATING MARGIN MARGIN FEE RATE
--------------------------------------------------------------------------------
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A- or higher A3 or higher 0.75% 0.00% 0.15%
--------------------------------------------------------------------------------
BBB+ Baa1 0.90% 0.00% 0.15%
--------------------------------------------------------------------------------
BBB Baa2 1.00% 0.00% 0.20%
--------------------------------------------------------------------------------
BBB- Baa3 1.15% 0.15% 0.20%
--------------------------------------------------------------------------------
Less than BBB- Less than Baa3 1.50% 0.50% 0.25%
--------------------------------------------------------------------------------
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 debt rating from another
substitute rating agency reasonably satisfactory to the Administrative Agent 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 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 determine the
Applicable Margin and the Facility Fee Rate. If the 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 and the
Facility Fee to be used for the calculation of the Facility Fee shall be the
highest rate shown above.
If a rating agency downgrade or discontinuance results in an increase
in the ABR Applicable Margin or the LIBOR Applicable Margin or in the Facility
Fee Rate and if such increase is reversed and the affected Applicable Margin or
Facility Fee Rate is restored within ninety (90) days thereafter, at Borrower's
request, Borrower shall receive a credit against interest next due the Lenders
equal to (i) interest accrued at the differential between such Applicable
Margins plus (ii) the differential in the Facility Fees accruing from time to
time during such period of downgrade or discontinuance.
If a rating agency upgrade results in decrease in the ABR Applicable
Margin or the LIBOR Applicable Margin or in the Facility Fee Rate and if such
upgrade is reversed and the affected Applicable Margin or Facility Fee Rate 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 and
the differential on the Facility Fees during such period of upgrade.
2.5 FACILITY FEE. The Borrower agrees to pay to the Administrative
Agent for the account of each Lender a facility fee (the "FACILITY FEE")
calculated for each day after the Agreement Execution Date through the Facility
Termination Date at a per annum rate equal to the Facility Fee Rate in effect
for such day (converted to a per diem rate) times the Aggregate Commitment as of
such day. The Facility Fee shall be payable quarterly in arrears on the last day
of each calendar quarter hereafter beginning June 30, 2002 (for the period from
the Agreement Execution Date through June 30, 2002) and continuing on the last
day of each calendar quarter thereafter, with any accrued and unpaid Facility
Fee due and payable on the Facility Termination Date. Notwithstanding the
foregoing, all accrued Facility Fees shall be payable on the effective date of
any reduction in the Aggregate Commitment or any termination of the obligations
of the Lenders to make Loans hereunder.
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2.6 OTHER FEES. The Borrower agrees to pay all fees payable to the
Administrative Agent and the Arranger pursuant to the Borrower's letter
agreement with the Administrative Agent and the Arranger dated April 8, 2002.
The Borrower shall also pay the fee due to the Administrative Agent in
connection with certain Competitive Bid Loans as provided in Section 2.22
hereof.
2.7 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); provided, however, that any Floating Rate Advance may be in the amount
of the unused Aggregate Commitment.
2.8 OPTIONAL PRINCIPAL PAYMENTS. The Borrower may from time to time
pay, without penalty or premium, all or any part of outstanding Floating Rate
Advances without prior notice to the Administrative Agent. A Fixed Rate 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. Notwithstanding the
foregoing, in no event shall Borrower have the right to prepay a Competitive Bid
Loan without the consent of the applicable Competitive Bid Lender.
2.9 METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR NEW ADVANCES.
The Borrower shall select the Type of Advance and, in the case of each Fixed
Rate Advance, the Interest Period applicable to each Advance from time to time.
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 of each Floating Rate Advance, (ii) not later than 10:00 a.m. Chicago time,
at least three (3) Business Days before the Borrowing Date for each LIBOR
Advance, and (iii) not later than 2:00 p.m. Chicago time on the Borrowing Date
for each Swingline Loan, 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 (which must be a
Floating Rate Advance in the case of the Swingline Loans), and
(iv) in the case of each Fixed Rate Advance, the
Interest Period applicable thereto.
The Administrative Agent shall provide a copy to the Lenders by
facsimile of each 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 to the Administrative Agent at its address specified pursuant to ARTICLE
XIII on each Borrowing Date not later than (i) 10:00 a.m. (Chicago time), in the
case of Floating Rate Advances which have been requested by a Borrowing Notice
given to the Administrative Agent not later than 3:00 p.m. (Chicago time) on the
Business Day immediately preceding such Borrowing Date, or (ii) noon (Chicago
time) in the case of all other Advances (other than Swingline Loans), and 4:00
p.m. (Chicago time) for all Swingline Loans. The Administrative Agent will make
the funds so received from the Lenders available to the Borrower at the
Administrative Agent's aforesaid address.
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No Interest Period may end after the Facility Termination Date and,
unless the Lenders otherwise agree in writing, in no event may there be more
than ten (10) different Interest Periods for LIBOR Advances outstanding at any
one time.
2.10 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 Fixed Rate Advances. Each Fixed Rate Advance of
any Type shall continue as a Fixed Rate Advance of such Type until the end of
the then applicable Interest Period therefor, at which time such Fixed Rate
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 Fixed Rate
Advance either continue as a Fixed Rate Advance of such Type for the same or
another Interest Period or be converted to an Advance of another Type. Subject
to the terms of SECTION 2.7, 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 Fixed Rate Advance shall be made
on, and only on, the last day of the Interest Period applicable thereto. The
Borrower shall give the Administrative Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion of an Advance to a Fixed
Rate Advance or continuation of a Fixed Rate Advance not later than 10:00 a.m.
(Chicago time) at least one Business Day, or three Business Days, in the case of
a conversion into or continuation of a LIBOR Advance, prior to the date of the
requested conversion or continuation, 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; 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 Fixed Rate Advance,
the duration of the Interest Period applicable thereto.
2.11 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 Fixed Rate
Advance into a Floating Rate Advance pursuant to SECTION 2.10 to but excluding
the date it becomes due or is converted into a Fixed Rate Advance pursuant to
SECTION 2.10 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 Advance will take effect simultaneously with each change in
the Alternate Base Rate. Each Fixed Rate 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 Fixed Rate Advance.
2.12 RATES APPLICABLE AFTER DEFAULT. Notwithstanding anything to the
contrary contained in SECTION 2.9 or 2.10, 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
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unanimous consent of the Lenders to changes in interest rates), declare that no
Advance may be made as, converted into or continued as a Fixed Rate 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 Fixed Rate 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.
2.13 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.
(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 Effective Rate from the date due until the date
paid. The Administrative Agent is hereby authorized to charge
the account of the Borrower maintained with Bank One for each
payment of principal, interest and fees as it becomes due
hereunder.
2.14 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 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.
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2.15 INTEREST PAYMENT DATES; INTEREST AND FEE BASIS. Interest accrued
on each Advance (other than Competitive Bid Loans) shall be payable on each
Payment Date, commencing with the first such date to occur after the date
hereof, at maturity, whether by acceleration or otherwise, and upon any
termination of the Aggregate Commitment in its entirety under SECTION 2.1
hereof. Interest accrued on each Competitive Bid Loan shall be payable on the
last day of the Interest Period applicable to such Competitive Bid Loan (or, if
such Interest Period is in excess of three months, on the 90th day of such
Interest Period) or any earlier date on which such Competitive Bid Loan is
repaid, at maturity, whether by acceleration or otherwise, and upon any
termination of the Aggregate Commitment in its entirety under SECTION 2.1
hereof. Interest and Facility Fees 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.
2.16 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 Fixed Rate Advance promptly
upon determination of such interest rate and will give each Lender prompt notice
of each change in the Alternate Base Rate.
2.17 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.
2.18 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 it 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 annum equal to (i) in the case of payment by a Lender,
the Federal Funds Effective 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
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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.
2.19 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 Fixed Rate 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 Fixed Rate 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.
2.20 SWINGLINE LOANS. In addition to the other options available to
Borrower hereunder, up to $40,000,000 of the Swingline Lender's Commitment,
shall be available for Swingline Loans subject to the following terms and
conditions. Swingline Loans shall be made available for same day borrowings
provided that notice is given in accordance with SECTION 2.9 hereof. Unless
otherwise approved in writing by the Required Lenders, no Swingline Loan may be
made by the Swingline Lender if the Swingline Lender has either given or
received written notice that a Default has occurred prior to making such
Swingline Loan unless such Default has theretofore been cured or waived in
accordance with the terms hereof. All Swingline Loans shall bear interest at the
Floating Rate and shall be deemed to be Floating Rate Advances. In no event
shall the Swingline Lender be required to fund a Swingline Loan if it would
increase the total aggregate outstanding Loans (including Swingline Loans but
not including Competitive Bid Loans) by Swingline Lender hereunder plus its
Percentage of Facility Letter of Credit Obligations to an amount in excess of
its Commitment. Upon request of the Swingline Lender made to all the Lenders,
each Lender irrevocably agrees to purchase its Percentage of any Swingline Loan
made by the Swingline Lender regardless of whether the conditions for
disbursement are satisfied at the time of such purchase, including the existence
of an Event of Default hereunder provided no Lender shall be required to have
total outstanding Loans (other than Competitive Bid Loans) in an amount greater
than its Commitment. Such purchase shall take place on the date of the request
by Swingline Lender so long as such request is made by noon (Chicago time),
otherwise on the Business Day following such request. All requests for purchase
shall be in writing. From and after the date it is so purchased, each such
Swingline Loan shall, to the extent purchased, (i) be treated as a Loan made by
the purchasing Lenders and not by the selling Lender for all purposes under this
Agreement and the payment of the purchase price by a Lender shall be deemed to
be the making of a Loan by such Lender and shall constitute outstanding
principal under such Lender's Note, and (ii) shall no longer be considered
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a Swingline Loan except that all interest accruing on or attributable to such
Swingline Loan for the period prior to the date of such purchase shall be paid
when due by the Borrower to the Administrative Agent for the benefit of the
Swingline Lender and all such amounts accruing on or attributable to such Loans
for the period from and after the date of such purchase shall be paid when due
by the Borrower to the Administrative Agent for the benefit of the purchasing
Lenders. If prior to purchasing its Percentage of a Swingline Loan one of the
events described in SECTION 7.7 or 7.8 shall have occurred and such event
prevents the consummation of the purchase contemplated by preceding provisions,
each Lender will purchase an undivided participating interest in the outstanding
Swingline Loan in an amount equal to its Percentage of such Swingline Loan. From
and after the date of each Lender's purchase of its participating interest in a
Swingline Loan, if the Swingline Lender receives any payment on account thereof,
the Swingline Lender will distribute to such Lender its participating interest
in such amount (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's participating interest was
outstanding and funded); provided, however, that in the event that such payment
was received by the Swingline Lender and is required to be returned to the
Borrower, each Lender will return to the Swingline Lender any portion thereof
previously distributed by the Swingline Lender to it. If any Lender fails to so
purchase its Percentage of any Swingline Loan, such Lender shall be deemed to be
a Defaulting Lender hereunder. No Swingline Loan shall be outstanding for more
than five (5) days at a time and Swingline Loans shall not be outstanding for
more than a total of ten (10) days during any month.
2.21 COMPETITIVE BID LOANS.
(a) COMPETITIVE BID OPTION. In addition to ratable Advances
pursuant to SECTION 2.3, but subject to the terms and conditions
of this Agreement (including, without limitation the limitation
set forth in SECTION 2.1 as to the maximum amount of all
outstanding Advances, including Swingline Loans and Competitive
Bid Loans), the Borrower may, as set forth in SECTIONS 2.22 or
2.23, request the Lenders, prior to the Facility Termination Date,
to make offers to make Competitive Bid Loans to the Borrower. Each
Lender may, but shall have no obligation to, make such offers and
the Borrower may, but shall have no obligation to, accept any such
offers in the manner set forth in SECTION 2.22 or SECTION 2.23, as
the case may be. Competitive Bid Loans shall be evidenced by the
Competitive Bid Notes. Borrower shall not have the right to
request a Competitive Bid Loan at any time that a Default exists.
If Borrower elects to have Administrative Agent administer the
Competitive Bid Loan process, the procedures set forth in SECTION
2.22 shall apply. If Borrower elects to administer the Competitive
Bid Loan process itself, the procedures set forth in SECTION 2.23
shall apply.
(b) GENERAL TERMS. Any Competitive Bid Loan shall not reduce
the Commitment of the Lender making such Competitive Bid Loan, and
each such Lender shall continue to be obligated to fund its full
Percentage of all pro rata Advances under the Facility. In no
event can the aggregate amount of all Competitive Bid Loans at any
time exceed fifty percent (50%) of the then Aggregate Commitment.
Notwithstanding anything to the contrary in SECTION 2.10,
Competitive Bid Loans may not be continued or converted and, if
not repaid at the end of the Interest Period applicable thereto,
shall (subject to the
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conditions set forth in this Agreement) be replaced by new
Competitive Bid Loans made in accordance with SECTION 2.22 or
SECTION 2.23 or by ratable Advances in accordance with SECTION
2.9.
(c) FUNDING OF COMPETITIVE BID LOANS. Each Lender that is to
make a Competitive Bid Loan shall, before 2:00 p.m. (Chicago time)
on the date of such Competitive Bid Loan specified in the notice
received from the Borrower make available the amount of such
Competitive Bid Loan to the Administrative Agent. If such Lender
also has an outstanding Competitive Bid Loan that is payable on
such date, the Borrower agrees that such Lender may fund only the
net increase, if any, in such new Competitive Bid Loan over the
principal balance of such outstanding Competitive Bid Loan and
such outstanding Competitive Bid Loan shall be deemed advanced by
the Lender to the Borrower on the terms of the new Competitive Bid
Loan. Upon fulfillment of the applicable conditions to
disbursement and after receipt of such funds, the Administrative
Agent will make such funds available to the Borrower at the
Administrative Agent's aforesaid address.
2.22 AGENT ADMINISTERED COMPETITIVE BID LOANS.
(a) COMPETITIVE BID QUOTE REQUEST. When the Borrower wishes
to request offers to make Competitive Bid Loans under this SECTION
2.22, it shall transmit to the Administrative Agent by telecopy a
Competitive Bid Quote Request substantially in the form of EXHIBIT
I-1 hereto so as to be received no later than (i) 10:00 a.m.
(Chicago time) at least five Business Days prior to the Borrowing
Date proposed therein, in the case of a request for a Competitive
LIBOR Margin or (ii) 9:00 a.m. (Chicago time) at least one
Business Day prior to the Borrowing Date proposed therein, in the
case of a request for an Absolute Rate specifying:
(i) the proposed Borrowing Date for the proposed
Competitive Bid Loan,
(ii) the requested aggregate principal amount of such
Competitive Bid Loan which shall be at least $5,000,000 and in
an integral multiple of $1,000,000,
(iii) whether the Competitive Bid Quotes requested
are to set forth a Competitive LIBOR Margin or an Absolute
Rate, or both, and
(iv) the LIBOR Interest Period, if a Competitive
LIBOR Margin is requested, or the Absolute Interest Period, if
an Absolute Rate is requested.
The Borrower may request offers to make Competitive Bid Loans for more
than one (but not more than five) Interest Periods in a single
Competitive Bid Quote Request. No Competitive Bid Quote Request shall
be given within five Business Days (or such other number of days as the
Borrower and the Administrative Agent may agree) of any other
Competitive Bid Quote Request or Invitation for Competitive Bid Quotes.
A
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Competitive Bid Quote Request that does not conform substantially to
the form of EXHIBIT I-1 hereto shall be rejected, and the
Administrative Agent shall promptly notify the Borrower of such
rejection by telecopy.
(b) INVITATION FOR COMPETITIVE BID QUOTES. Promptly and in
any event before the close of business on the same Business Day of
receipt of a Competitive Bid Quote Request that is not rejected
pursuant to SECTION 2.22(a), the Administrative Agent shall send
to each of the Lenders by telecopy an Invitation for Competitive
Bid Quotes substantially in the form of EXHIBIT I-2 hereto, which
shall constitute an invitation by the Borrower to each Lender to
submit Competitive Bid Quotes offering to make the Competitive Bid
Loans to which such Competitive Bid Quote Request relates in
accordance with this SECTION 2.22.
(c) SUBMISSION AND CONTENTS OF COMPETITIVE BID QUOTES.
(i) Each Lender may, in its sole discretion, submit a
Competitive Bid Quote containing an offer or offers to make
Competitive Bid Loans in response to any Invitation for
Competitive Bid Quotes. Each Competitive Bid Quote must
comply with the requirements of this SECTION 2.22(c) and
must be submitted to the Administrative Agent by telex or
telecopy at its offices not later than (a) 2:00 p.m.
(Chicago time) at least four Business Days prior to the
proposed Borrowing Date, in the case of a request for a
Competitive LIBOR Margin or (b) 9:00 a.m. (Chicago time) on
the proposed Borrowing Date, in the case of a request for an
Absolute Rate (or, in either case upon reasonable prior
notice to the Lenders, such other time and date as the
Borrower and the Administrative Agent may agree); PROVIDED
that Competitive Bid Quotes submitted by Bank One may only
be submitted if the Administrative Agent or Bank One
notifies the Borrower of the terms of the offer or offers
contained therein no later than 30 minutes prior to the
latest time at which the relevant Competitive Bid Quotes
must be submitted by the other Lenders. Subject to the
Borrower's compliance with all other conditions to
disbursement herein, any Competitive Bid Quote so made shall
be irrevocable except with the written consent of the
Administrative Agent given on the instructions of the
Borrower.
(ii) Each Competitive Bid Quote shall be in
substantially the form of EXHIBIT I-3 hereto and shall in
any case specify:
(a) the proposed Borrowing Date, which shall be the
same as that set forth in the applicable Invitation for
Competitive Bid Quotes,
(b) the principal amount of the Competitive Bid
Loan for which each such offer is being made, which
principal amount (1) may be greater than, less than or
equal to the Commitment of the quoting Lender, (2) must
be at least $5,000,000 and an integral multiple of
$1,000,000, and (3) may not exceed the principal amount
of Competitive Bid Loans for which offers are requested,
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(c) as applicable, the Competitive LIBOR Margin and
Absolute Rate offered for each such Competitive Bid
Loan,
(d) the minimum amount, if any, of the Competitive
Bid Loan which may be accepted by the Borrower, and
(e) the identity of the quoting Lender, provided
that such Competitive Bid Loan may be funded by such
Lender's Designated Lender as provided in Section
2.22(h), regardless of whether that is specified in the
Competitive Bid Quote.
(iii) The Administrative Agent shall reject any
Competitive Bid Quote that:
(a) is not substantially in the form of EXHIBIT I-3
hereto or does not specify all of the information
required by SECTION 2.22(c)(ii),
(b) contains qualifying, conditional or similar
language, other than any such language contained in
EXHIBIT I-3 hereto,
(c) proposes terms other than or in addition to
those set forth in the applicable Invitation for
Competitive Bid Quotes, or
(d) arrives after the time set forth in SECTION
2.22(c)(i).
If any Competitive Bid Quote shall be rejected pursuant to this SECTION
2.22(c)(iii), then the Administrative Agent shall notify the relevant
Lender of such rejection as soon as practical.
(d) NOTICE TO BORROWER. The Administrative Agent shall
promptly notify the Borrower of the terms (i) of any Competitive
Bid Quote submitted by a Lender that is in accordance with SECTION
2.22(c) and (ii) of any Competitive Bid Quote that amends,
modifies or is otherwise inconsistent with a previous Competitive
Bid Quote submitted by such Lender with respect to the same
Competitive Bid Quote Request. Any such subsequent Competitive Bid
Quote shall be disregarded by the Administrative Agent unless such
subsequent Competitive Bid Quote specifically states that it is
submitted solely to correct a manifest error in such former
Competitive Bid Quote. The Administrative Agent's notice to the
Borrower shall specify the aggregate principal amount of
Competitive Bid Loans for which offers have been received for each
Interest Period specified in the related Competitive Bid Quote
Request and the respective principal amounts and Competitive LIBOR
Margins or Absolute Rate, as the case may be, so offered.
(e) ACCEPTANCE AND NOTICE BY BORROWER. Not later than (i)
6:00 p.m. (Chicago time) at least four Business Days prior to the
proposed Borrowing Date in the case of a request for a Competitive
LIBOR Margin or (ii) 10:00 a.m. (Chicago time) on the proposed
Borrowing Date, in the case of a request for an Absolute Rate (or,
in either case upon reasonable prior notice to the Lenders, such
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other time and date as the Borrower and the Administrative Agent
may agree), the Borrower shall notify the Administrative Agent of
its acceptance or rejection of the offers so submitted to it
pursuant to SECTION 2.22(d); PROVIDED, HOWEVER, that the failure
by the Borrower to give such notice to the Administrative Agent
shall be deemed to be a rejection of all such offers. In the case
of acceptance, such notice (a "COMPETITIVE BID BORROWING NOTICE")
shall specify the aggregate principal amount of offers for each
Interest Period that are accepted and the applicable interest
rate. The Administrative Agent shall immediately advise the
Lenders making the accepted offers of the contents of the
Competitive Bid Borrowing Notice. The Borrower may accept any
Competitive Bid Quote in whole or in part (subject to the terms of
SECTION 2.22(c)(iii)); PROVIDED that:
(i) the aggregate principal amount of all Competitive
Bid Loans to be disbursed on a given Borrowing Date may not
exceed the applicable amount set forth in the related
Competitive Bid Quote Request,
(ii) acceptance of offers may only be made on the basis
of ascending Competitive LIBOR Margins or Absolute Rates, as
the case may be, and
(iii) the Borrower may not accept any offer that is
described in SECTION 2.22(c)(iii) or that otherwise fails to
comply with the requirements of this Agreement.
(f) ALLOCATION BY ADMINISTRATIVE AGENT. If offers are made
by two or more Lenders with the same Competitive LIBOR Margins or
Absolute Rates, as the case may be, for a greater aggregate
principal amount than the amount in respect of which offers are
accepted for the related Interest Period, the principal amount of
Competitive Bid Loans in respect of which such offers are accepted
shall be allocated by the Administrative Agent among such Lenders
as nearly as possible (in such multiples, not greater than
$1,000,000, as the Administrative Agent may deem appropriate) in
proportion to the aggregate principal amount of such offers
PROVIDED, however, that no Lender shall be allocated any
Competitive Bid Loan which is less than the minimum amount which
such Lender has indicated that it is willing to accept.
Allocations by the Administrative Agent of the amounts of
Competitive Bid Loans shall be conclusive in the absence of
manifest error. The Administrative Agent shall promptly, but in
any event on the same Business Day, notify each Lender of its
receipt of a Competitive Bid Borrowing Notice and the principal
amounts of the Competitive Bid Loans allocated to each
participating Lender.
(g) ADMINISTRATIVE FEE. The Borrower hereby agrees to pay to
the Administrative Agent an administration fee as provided in
Borrower's letter agreement with the Administrative Agent dated
April 8, 2002 per each Competitive Bid Quote Request transmitted
by the Borrower to the Administrative Agent pursuant to SECTION
2.22(a). Such administration fees, if not paid at the time of the
applicable Competitive Bid Quote Request shall be payable monthly
in arrears on the first Business Day of each month and on the
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Facility Termination Date (or such earlier date on which the
Aggregate Commitment shall terminate or be cancelled).
(h) DESIGNATED LENDERS. A Lender may designate its
Designated Lender to fund a Competitive Bid Loan on its behalf as
described in SECTION 2.22(c)(ii)(e). Any Designated Lender which
funds a Competitive Bid Loan shall on and after the time of such
funding become the obligee under such Competitive Bid Loan and be
entitled to receive payments thereof when due. No Lender shall be
relieved of its obligation to fund a Competitive Bid Loan, and no
Designated Lender shall assume such obligation, prior to the time
such Competitive Bid Loan is funded.
2.23 COMPETITIVE BID LOANS ADMINISTERED BY BORROWER.
(a) COMPETITIVE BID QUOTE REQUEST. When the Borrower wishes
to request offers to make Competitive Bid Loans under this SECTION
2.23, it shall transmit to the Lenders and Administrative Agent by
telecopy an Invitation for Competitive Bid Quote substantially in
the form of EXHIBIT J-1 hereto so as to be received no later than
(i) 10:00 a.m. (Chicago time) at least five Business Days prior to
the Borrowing Date proposed therein, in the case of a request for
a Competitive LIBOR Margin or (ii) 9:00 a.m. (Chicago time) at
least one Business Day prior to the Borrowing Date proposed
therein, in the case of a request for an Absolute Rate specifying:
(i) the proposed Borrowing Date for the proposed
Competitive Bid Loan,
(ii) the requested aggregate principal amount of such
Competitive Bid Loan which shall be at least $5,000,000 and
in an integral multiple of $1,000,000,
(iii) whether the Competitive Bid Quotes requested are
to set forth a Competitive LIBOR Margin or an Absolute Rate,
or both, and
(iv) the LIBOR Interest Period, if a Competitive LIBOR
Margin is requested, or the Absolute Interest Period, if an
Absolute Rate is requested.
The Borrower may request offers to make Competitive Bid Loans for more
than one (but not more than five) Interest Periods in a single
Competitive Bid Quote. No Invitation for Competitive Bid Quote shall be
given within five Business Days (or such other number of days as the
Borrower and the Administrative Agent may agree) of any other
Invitation for Competitive Bid Quote.
(b) Submission and Contents of Competitive Bid Quotes.
(i) Each Lender may, in its sole discretion, submit a
Competitive Bid Quote containing an offer or offers to make
Competitive Bid Loans in response to any Invitation for
Competitive Bid Quotes. Each Competitive Bid Quote must
comply with the requirements of this
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SECTION 2.23(b) and must be submitted to the Borrower by
telex or telecopy at its offices not later than (a) 2:00
p.m. (Chicago time) at least four Business Days prior to the
proposed Borrowing Date, in the case of a request for a
Competitive LIBOR Margin or (b) 9:00 a.m. (Chicago time) on
the proposed Borrowing Date, in the case of a request for an
Absolute Rate (or, in either case upon reasonable prior
notice to the Lenders, such other time and date as the
Borrower and the Administrative Agent may agree). Subject to
the Borrower's compliance with all other conditions to
disbursement herein, any Competitive Bid Quote so made shall
be irrevocable except with the written consent of the
Administrative Agent given on the instructions of the
Borrower.
(ii) Each Competitive Bid Quote shall be in
substantially the form of EXHIBIT J-2 hereto and shall in
any case specify:
(iii) the proposed Borrowing Date, which shall be the
same as that set forth in the applicable Invitation for
Competitive Bid Quotes,
(a) the principal amount of the Competitive Bid
Loan for which each such offer is being made, which
principal amount (1) may be greater than, less than or
equal to the Commitment of the quoting Lender, (2) must
be at least $5,000,000 and an integral multiple of
$1,000,000, and (3) may not exceed the principal amount
of Competitive Bid Loans for which offers are requested,
(b) as applicable, the Competitive LIBOR Margin and
Absolute Rate offered for each such Competitive Bid
Loan,
(c) the minimum amount, if any, of the Competitive
Bid Loan which may be accepted by the Borrower, and
(d) the identity of the quoting Lender, provided
that such Competitive Bid Loan may be funded by such
Lender's Designated Lender as provided in SECTION
2.23(e), regardless of whether that is specified in the
Competitive Bid Quote.
(iv) The Borrower shall reject any Competitive Bid Quote
that:
(a) is not substantially in the form of EXHIBIT J-2
hereto or does not specify all of the information
required by SECTION 2.23(b)(ii),
(b) contains qualifying, conditional or similar
language, other than any such language contained in
EXHIBIT J-2 hereto,
(c) proposes terms other than or in addition to
those set forth in the applicable Invitation for
Competitive Bid Quotes, or
(d) arrives after the time set forth in SECTION
2.23(b)(i).
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If any Competitive Bid Quote shall be rejected pursuant to this SECTION
2.23(b)(iii), then the Borrower shall notify the relevant Lender of
such rejection as soon as practical.
(c) ACCEPTANCE AND NOTICE BY BORROWER. Not later than (i)
6:00 p.m. (Chicago time) at least four Business Days prior to the
proposed Borrowing Date in the case of a request for a Competitive
LIBOR Margin or (ii) 10:00 a.m. (Chicago time) on the proposed
Borrowing Date, in the case of a request for an Absolute Rate (or,
in either case upon reasonable prior notice to the Lenders, such
other time and date as the Borrower and the Administrative Agent
may agree), the Borrower shall notify the Lenders and
Administrative Agent of its acceptance or rejection of the offers
submitted to it pursuant to SECTION 2.23(b); PROVIDED, HOWEVER,
that the failure by the Borrower to give such notice to the
Lenders and Administrative Agent shall be deemed to be a rejection
of all such offers. In the case of acceptance, such notice to each
Lender and the Administrative Agent shall specify the aggregate
principal amount of offers for each Interest Period that are
accepted and the applicable interest rate. The Borrower may accept
any Competitive Bid Quote in whole or in part (subject to the
terms of SECTION 2.23(b)(iii)); PROVIDED that:
(i) the aggregate principal amount of all Competitive
Bid Loans to be disbursed on a given Borrowing Date may not
exceed the applicable amount set forth in the related
Invitation for Competitive Bid Quote,
(ii) acceptance of offers may only be made on the basis
of ascending Competitive LIBOR Margins or Absolute Rates, as
the case may be, and
(iii) the Borrower may not accept any offer that is
described in SECTION 2.23(b)(iii) or that otherwise fails to
comply with the requirements of this Agreement.
(d) ALLOCATION BY BORROWER. If offers are made by two or
more Lenders with the same Competitive LIBOR Margins or Absolute
Rates, as the case may be, for a greater aggregate principal
amount than the amount in respect of which offers are accepted for
the related Interest Period, the principal amount of Competitive
Bid Loans in respect of which such offers are accepted shall be
allocated by the Borrower among such Lenders as nearly as possible
(in such multiples, not greater than $1,000,000, as the
Administrative Agent may deem appropriate) in proportion to the
aggregate principal amount of such offers PROVIDED, however, that
no Lender shall be allocated any Competitive Bid Loan which is
less than the minimum amount which such Lender has indicated that
it is willing to accept. Allocations by the Borrower of the
amounts of Competitive Bid Loans shall be conclusive in the
absence of manifest error.
(e) DESIGNATED LENDERS. A Lender may designate its
Designated Lender to fund a Competitive Bid Loan on its behalf as
described in SECTION 2.23(b)(ii)(e). Any Designated Lender which
funds a Competitive Bid Loan shall on and after the time of such
funding become the obligee under such
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Competitive Bid Loan and be entitled to receive payments thereof
when due. No Lender shall be relieved of its obligation to fund a
Competitive Bid Loan, and no Designated Lender shall assume such
obligation, prior to the time such Competitive Bid Loan is funded.
2.24 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 any fee due pursuant to Section
2A.8(b) in connection with the issuance of a Facility Letter of
Credit to the Issuing Bank, to the payment of the Facility Fee to
the Lenders, if then due, and to the payment of all fees to the
Administrative Agent;
(iv) to payment of the full amount of interest and principal
on the Swingline Loans;
(v) first to interest and the Facility Letter of Credit Fee
then due to the Lenders until paid in full and then to principal
for all Lenders (other than Defaulting Lenders) (i) as allocated
by the Borrower (unless a Default exists) between Competitive Bid
Loans and ratable Advances (the amount allocated to ratable
Advances to be distributed in accordance with the Percentages of
the Lenders) or (ii) if an Event of Default exists, in accordance
with the respective Funded Percentages of the Lenders until
principal is paid in full and then to the Letter of Credit
Collateral Account until the full amount of Facility Letter of
Credit Obligations is on deposit therein;
(vi) any other sums due to the Administrative Agent or any
Lender under any of the Loan Documents; and
(vii) 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).
2.25 USURY. This Agreement and each Note and Competitive Bid 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 (including the Swingline 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,
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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.
ARTICLE IIA
THE LETTER OF CREDIT SUBFACILITY
--------------------------------
2A.1 OBLIGATION TO ISSUE. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of the
Borrower herein set forth, the Issuing Bank hereby agrees to issue for the
account of the Borrower, one or more Facility Letters of Credit in accordance
with this ARTICLE 2A, from time to time during the period commencing on the date
hereof and ending on the fifth Business Day prior to the Facility Termination
Date. Any Lender shall have the right to decline to be the Issuing Bank for a
Facility Letter of Credit provided that if no other Lender agrees to be the
Issuing Bank then the Administrative Agent shall agree to do so.
2A.2 TYPES AND AMOUNTS. The Issuing Bank shall not have any obligation
to:
(i) issue any Facility Letter of Credit if the aggregate maximum
amount then available for drawing under Letters of Credit issued by
such Issuing Bank, after giving effect to the Facility Letter of Credit
requested hereunder, shall exceed any limit imposed by law or
regulation upon such Issuing Bank;
(ii) issue any Facility Letter of Credit if, after giving effect
thereto, the Facility Letter of Credit Obligations would exceed
$20,000,000 or the Allocated Facility Amount would exceed the Aggregate
Commitment;
(iii) issue any Facility Letter of Credit having an expiration
date, or containing automatic extension provisions to extend such date,
to a date which is later than five (5) Business Days prior to the
Facility Termination Date; or
(iv) issue any Facility Letter of Credit having an expiration
date, or containing automatic extension provisions to extend such date,
to a date which is more than twelve (12) months after the date of its
issuance.
2A.3 CONDITIONS. In addition to being subject to the satisfaction of
the conditions contained in SECTION 4.2 hereof, the obligation of the Issuing
Bank to issue any Facility Letter of Credit is subject to the satisfaction in
full of the following conditions:
(i) the Borrower shall have delivered to the Issuing Bank at such
times and in such manner as the Issuing Bank may reasonably prescribe
such documents and materials as may be reasonably required pursuant to
the terms of the proposed Facility Letter of Credit (it being
understood that if any inconsistency exists between such documents and
the Loan Documents, the terms of the Loan Documents shall control) and
the proposed
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Facility Letter of Credit shall be reasonably satisfactory to the
Issuing Bank as to form and content; and
(ii) as of the date of issuance, no order, judgment or decree of
any court, arbitrator or governmental authority shall purport by its
terms to enjoin or restrain the Issuing Bank from issuing the requested
Facility Letter of Credit and no law, rule or regulation applicable to
the Issuing Bank and no request or derivative (whether or not having
the force of law) from any governmental authority with jurisdiction
over the Issuing Bank shall prohibit or request that the Issuing Bank
refrain from the issuance of Letters of Credit generally or the
issuance of the requested Facility Letter of Credit in particular.
2A.4 PROCEDURE FOR ISSUANCE OF FACILITY LETTERS OF CREDIT.
(i) Borrower shall give the Issuing Bank and the Administrative
Agent at least five (5) Business Days' prior written notice of any
requested issuance of a Facility Letter of Credit under this Agreement
(a "Letter of Credit Request") (except that, in lieu of such written
notice, the Borrower may give the Issuing Bank and the Administrative
Agent telephonic notice of such request if confirmed in writing by
delivery to the Issuing Bank and the Administrative Agent (i)
immediately (A) of a telecopy of the written notice required hereunder
which has been signed by an authorized officer, or (B) of a telex
containing all information required to be contained in such written
notice and (ii) promptly (but in no event later than the requested date
of issuance) of the written notice required hereunder containing the
original signature of an authorized officer); such notice shall be
irrevocable and shall specify:
(i) the stated amount of the Facility Letter of Credit
requested (which stated amount shall not be less than $50,000);
(ii) the effective date (which day shall be a Business Day)
of issuance of such requested Facility Letter of Credit (the
"Issuance Date");
(iii) the date on which such requested Facility Letter of
Credit is to expire (which date shall be a Business Day and shall
in no event be later than the earlier of twelve months after the
Issuance Date and five (5) Business Days prior to the Facility
Termination Date);
(iv) the purpose for which such Facility Letter of Credit is
to be issued;
(v) the full name and the address of the Person for whose
benefit the requested Facility Letter of Credit is to be issued;
and
At the time such request is made, the Borrower shall also provide the
Administrative Agent and the Issuing Bank with a copy of the form of
the Facility Letter of Credit that the Borrower is requesting be
issued, which shall be subject to the approval of the Issuing Bank and
Administrative Agent. Such notice, to be effective, must be received by
such Issuing Bank and the Administrative Agent not later than 2:00 p.m.
(Chicago time) on the last Business Day on which notice can be given
under this SECTION 2A.4(a).
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Administrative Agent shall promptly give a copy of the Letter of Credit
Request to the other Lenders.
(b) Subject to the terms and conditions of this ARTICLE IIA and
provided that the applicable conditions set forth in SECTION 4.2 hereof
have been satisfied, such Issuing Bank shall, on the Issuance Date,
issue a Facility Letter of Credit on behalf of the Borrower in
accordance with the Letter of Credit Request and the Issuing Bank's
usual and customary business practices unless the Issuing Bank has
actually received (i) written notice from the Borrower specifically
revoking the Letter of Credit Request with respect to such Facility
Letter of Credit, (ii) written notice from a Lender, which complies
with the provisions of SECTION 2A.6(a), or (iii) written or telephonic
notice from the Administrative Agent stating that the issuance of such
Facility Letter of Credit would violate SECTION 2A.2.
(c) The Issuing Bank shall give the Administrative Agent and the
Borrower written or telex notice, or telephonic notice confirmed
promptly thereafter in writing, of the issuance of a Facility Letter of
Credit (the "ISSUANCE NOTICE") and the Administrative Agent shall
promptly give a copy of the Issuance Notice to the other Lenders.
(d) The Issuing Bank shall not extend or amend any Facility Letter
of Credit unless the requirements of this SECTION 2A.4 are met as
though a new Facility Letter of Credit was being requested and issued.
2A.5 REIMBURSEMENT OBLIGATIONS; DUTIES OF ISSUING BANK.
(a) The Issuing Bank shall promptly notify the Borrower and the
Administrative Agent of any draw under a Facility Letter of Credit, and
the Administrative Agent shall promptly notify the other Lenders that
such draw has occurred. Any such draw shall constitute an Advance in
the amount of the Reimbursement Obligation with respect to such
Facility Letter of Credit and shall bear interest from the date of the
relevant drawing(s) under the pertinent Facility Letter of Credit at a
rate selected by Borrower in accordance with SECTION 2.9 hereof;
provided that if a Default or an Unmatured Default exists at the time
of any such drawing(s), then the Borrower shall reimburse the Issuing
Bank for drawings under a Facility Letter of Credit issued by the
Issuing Bank no later than the next succeeding Business Day after the
payment by the Issuing Bank and until repaid such Reimbursement
Obligation shall bear interest from the date funded at the Default
Rate.
(b) Any action taken or omitted to be taken by the Issuing Bank
under or in connection with any Facility Letter of Credit, if taken or
omitted in the absence of willful misconduct or gross negligence, shall
not put the Issuing Bank under any resulting liability to the Borrower
or any Lender or, provided that such Issuing Bank has complied with the
procedures specified in SECTION 2A.4 and such Lender has not given a
notice contemplated by SECTION 2A.6(a) that continues in full force and
effect, relieve a Lender of its obligations hereunder to the Issuing
Bank. In determining whether to pay under any Facility Letter of
Credit, the Issuing Bank shall have no obligation relative to the
Lenders other than to confirm that any documents required to be
delivered under such Letter of
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Credit appear to have been delivered in compliance, and that they
appear to comply on their face, with the requirements of such Letter of
Credit.
2A.6 PARTICIPATION.
(a) Immediately upon issuance by the Issuing Bank of any Facility
Letter of Credit in accordance with the procedures set forth in SECTION
2A.4, each Lender shall be deemed to have irrevocably and
unconditionally purchased and received from the Issuing Bank, without
recourse, representation or warranty, an undivided interest and
participation equal to such Lender's Percentage in such Facility Letter
of Credit (including, without limitation, all obligations of the
Borrower with respect thereto) and any security therefor or guaranty
pertaining thereto; PROVIDED that a Letter of Credit issued by the
Issuing Bank shall not be deemed to be a Facility Letter of Credit for
purposes of this SECTION 2A.6 if the Issuing Bank shall have received
written notice from any Lender on or before the Business Day prior to
the date of its issuance of such Letter of Credit that one or more of
the conditions contained in SECTION 2A.2 is not then satisfied, and in
the event the Issuing Bank receives such a notice it shall have no
further obligation to issue any Facility Letter of Credit until such
notice is withdrawn by that Lender or the Issuing Bank receives a
notice from the Administrative Agent that such condition has been
effectively waived in accordance with the provisions of this Agreement.
Each Lender's obligation to make further Loans to the Borrower (other
than any payments such Lender is required to make under subparagraph
(b) below) or issue any letters of credit on behalf of Borrower shall
be reduced by such Lender's pro rata share of each Facility Letter of
Credit outstanding.
(b) In the event that the Issuing Bank makes any payment under any
Facility Letter of Credit and the Borrower shall not have repaid such
amount to the Issuing Bank pursuant to SECTION 2A.7 hereof, the Issuing
Bank shall promptly notify the Administrative Agent, which shall
promptly notify each Lender of such failure, and each Lender shall
promptly and unconditionally pay to the Administrative Agent for the
account of the Issuing Bank the amount of such Lender's Percentage of
the unreimbursed amount of such payment, and the Administrative Agent
shall promptly pay such amount to the Issuing Bank. The failure of any
Lender to make available to the Administrative Agent for the account of
any Issuing Bank its Percentage of the unreimbursed amount of any such
payment shall not relieve any other Lender of its obligation hereunder
to make available to the Administrative Agent for the account of such
Issuing Bank its Percentage of the unreimbursed amount of any payment
on the date such payment is to be made, but no Lender shall be
responsible for the failure of any other Lender to make available to
the Administrative Agent its Percentage of the unreimbursed amount of
any payment on the date such payment is to be made. Any Lender which
fails to make any payment required pursuant to this SECTION 2A.6(b)
shall be deemed to be a Defaulting Lender hereunder.
(c) Whenever the Issuing Bank receives a payment on account of a
Reimbursement Obligation, including any interest thereon, the Issuing
Bank shall promptly pay to the Administrative Agent and the
Administrative Agent shall promptly pay to each Lender which has funded
its participating interest therein, in immediately available funds, an
amount equal to such Lender's Percentage thereof.
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(d) Upon the request of the Administrative Agent or any Lender, an
Issuing Bank shall furnish to the Administrative Agent or such Lender
copies of any Facility Letter of Credit to which that Issuing Bank is
party and such other documentation as may reasonably be requested by
the Administrative Agent or such Lender.
(e) The obligations of a Lender to make payments to the
Administrative Agent for the account of each Issuing Bank with respect
to a Facility Letter of Credit shall be absolute, unconditional and
irrevocable, not subject to any counterclaim, set-off, qualification or
exception whatsoever other than a failure of any such Issuing Bank to
comply with the terms of this Agreement relating to the issuance of
such Facility Letter of Credit and shall be made in accordance with the
terms and conditions of this Agreement under all circumstances.
2A.7 PAYMENT OF REIMBURSEMENT OBLIGATIONS.
(a) The Borrower agrees to pay to each Issuing Bank the amount of
all Reimbursement Obligations, interest and other amounts payable to
such Issuing Bank under or in connection with any Facility Letter of
Credit when due in accordance with SECTION 2A.5(a) above, irrespective
of any claim, set-off, defense or other right which the Borrower may
have at any time against any Issuing Bank or any other Person, under
all circumstances, including without limitation any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement
or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other
right which the Borrower may have at any time against a
beneficiary named in a Facility Letter of Credit or any transferee
of any Facility Letter of Credit (or any Person for whom any such
transferee may be acting), the Administrative Agent, the Issuing
Bank, any Lender, or any other Person, whether in connection with
this Agreement, any Facility Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including any
underlying transactions between the Borrower and the beneficiary
named in any Facility Letter of Credit);
(iii) any draft, certificate or any other document presented
under the Facility Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect of any
statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents; or
(v) the occurrence of any Default or Unmatured Default.
(b) In the event any payment by the Borrower received by the
Issuing Bank with respect to a Facility Letter of Credit and
distributed by the Administrative Agent to the Lenders on account of
their participations is thereafter set aside, avoided or recovered from
the Issuing Bank in connection with any receivership, liquidation,
reorganization or bankruptcy proceeding, each Lender which received
such distribution shall, upon demand
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by the Issuing Bank, contribute such Lender's Percentage of the amount
set aside, avoided or recovered together with interest at the rate
required to be paid by the Issuing Bank upon the amount required to be
repaid by the Issuing Bank.
2A.8 COMPENSATION FOR FACILITY LETTERS OF CREDIT.
(a) The Borrower shall pay to the Administrative Agent, for the
ratable account of the Lenders, based upon the Lenders' respective
Percentages, a per annum fee (the "FACILITY LETTER OF CREDIT FEE") with
respect to each Facility Letter of Credit that is equal to the LIBOR
Applicable Margin. The Facility Letter of Credit Fee relating to any
Facility Letter of Credit shall be due and payable in arrears in equal
installments on each Payment Date and, to the extent any such fees are
then due and unpaid, on the Facility Termination Date. The
Administrative Agent shall promptly remit such Facility Letter of
Credit Fees, when paid, to the other Lenders in accordance with their
Percentages thereof.
(b) The Issuing Bank also shall have the right to receive solely
for its own account an issuance fee of 0.125% of the face amount of
each Facility Letter of Credit, payable by the Borrower on the Issuance
Date for each such Facility Letter of Credit. The Issuing Bank shall
also be entitled to receive its reasonable out-of-pocket costs and the
Issuing Bank's standard charges of issuing, amending and servicing
Facility Letters of Credit and processing draws thereunder. The
Borrower shall pay such issuance fee and other amounts when due to the
Issuing Bank.
2A.9 LETTER OF CREDIT COLLATERAL ACCOUNT. The Borrower hereby agrees
that it will, until the Facility Termination Date, maintain a special collateral
account (the "LETTER OF CREDIT COLLATERAL ACCOUNT") at the Administrative
Agent's office at the address specified pursuant to ARTICLE XIII, in the name of
the Borrower but under the sole dominion and control of the Administrative
Agent, for the benefit of the Lenders, and in which the Borrower shall have no
interest other than as set forth in SECTION 8.1. Such Letter of Credit
Collateral Account shall be funded to the extent required by SECTION 8.1. In
addition to the foregoing, the Borrower hereby grants to the Administrative
Agent, for the benefit of the Lenders, a properly perfected security interest in
and to the Letter of Credit Collateral Account, any funds that may hereafter be
on deposit in such account and the proceeds thereof.
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 agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation or the Issuing Bank 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 or
the Issuing Bank to any Taxes, or changes the basis of taxation of
payments (other than with respect
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to Excluded Taxes) to any Lender or the Issuing Bank in respect of its
LIBOR Loans, Facility Letters of Credit 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 or the
Issuing Bank (other than reserves and assessments taken into account in
determining the interest rate applicable to Fixed Rate Advances), or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending Installation
or the Issuing Bank of making, funding or maintaining its Fixed Rate
Loans, or of issuing or participating in Facility Letters of Credit, or
reduces any amount receivable by any Lender or any applicable Lending
Installation or the Issuing Bank in connection with its Fixed Rate
Loans, Facility Letters of Credit or participations therein, or
requires any Lender or any applicable Lending Installation or the
Issuing Bank to make any payment calculated by reference to the amount
of Fixed Rate Loans, Facility Letters of Credit or participations
therein held or interest or Facility Letter of Credit Fees received by
it, by an amount deemed material by such Lender or the Issuing Bank as
the case may be,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation or the Issuing Bank, as the case may be, of
making or maintaining its Fixed Rate Loans or Commitment or of issuing or
participating in Facility Letters of Credit or to reduce the return received by
such Lender or applicable Lending Installation or the Issuing Bank, as the case
may be, in connection with such Fixed Rate Loans, Commitment, Facility Letters
of Credit or participations therein, then, within 30 days of demand by such
Lender or the Issuing Bank, as the case may be, the Borrower shall pay such
Lender or the Issuing Bank, as the case may be, such additional amount or
amounts as will compensate such Lender or the Issuing Bank, as the case may be,
for such increased cost or reduction in amount received.
3.2 CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender or the Issuing
Bank in good faith determines the amount of capital required or expected to be
maintained by such Lender or the Issuing Bank, any Lending Installation of such
Lender or the Issuing Bank or any corporation controlling such Lender or the
Issuing Bank is increased as a result of a Change (as hereinafter defined),
then, within 30 days of demand by such Lender or the Issuing Bank, the Borrower
shall pay such Lender or the Issuing Bank the amount necessary to compensate for
any shortfall in the rate of return on the portion of such increased capital
which such Lender or the Issuing Bank in good faith determines is attributable
to this Agreement, its Outstanding Credit Exposure or its obligation to make
Loans and issue or participate in Facility Letters of Credit, as the case may
be, hereunder (after taking into account such Lender's or the Issuing Bank'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 the Issuing Bank or any Lending Installation or any
corporation controlling any Lender or the Issuing Bank. "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
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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.
3.3 AVAILABILITY OF TYPES OF ADVANCES. If any Lender in good faith
determines that maintenance of any of its Fixed Rate 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 Fixed Rate
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 Fixed Rate Advances are not available, the Administrative Agent shall
suspend the availability of the affected Type of Advance with respect to any
Fixed Rate 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 Fixed Rate 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 Fixed Rate Advances made after the date of any such
determination. If the Borrower is required to so repay a Fixed Rate 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 ratable Fixed Rate
Advance or a Competitive Bid Loan occurs on a date which is not the last day of
the applicable Interest Period, whether because of acceleration, prepayment or
otherwise, or a ratable Fixed Rate Advance or a Competitive Bid Loan 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 ratable Fixed Rate Advance
or Competitive Bid Loan, as the case may be, 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 Fixed 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. Nothing in this SECTION 3.4 shall authorize the prepayment of a
Competitive Bid Loan prior to the end of the applicable Interest Period.
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)
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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").
(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.
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(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 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 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 Fixed Rate 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 Fixed
Rate 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 shall be final,
conclusive and binding on the Borrower in the absence of manifest error.
Determination of amounts payable under such Sections in connection with a Fixed
Rate Loan shall be calculated as though each Lender funded its Fixed Rate Loan
through the purchase of a deposit of the type and maturity corresponding to the
deposit used as a reference in determining the Fixed 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.
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ARTICLE IV
CONDITIONS PRECEDENT
--------------------
4.1 INITIAL ADVANCE. The Lenders shall not be required to make the
initial Advance hereunder unless (a) the Borrower shall, prior to or
concurrently with such initial Advance, have paid all fees due and payable to
the Lenders and the Administrative Agent hereunder, and (b) the Borrower shall
have furnished to the Administrative Agent, with sufficient copies for the
Lenders, the following:
(i) 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;
(ii) (A) Certificates of good standing for the Borrower and
each Subsidiary Guarantor, from the State of Ohio for the Borrower and
the states of organization of each Subsidiary Guarantor, certified by
the appropriate governmental officer and dated not more than thirty
(30) days prior to the Agreement Execution Date, and (B) foreign
qualification certificates for the Borrower and each Subsidiary
Guarantor, 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;
(iii) Copies of the formation documents (including code of
regulations, if appropriate) of the Borrower and the top three
Subsidiary Guarantors by aggregate assets owned, certified by an
officer of the Borrower or such Subsidiary Guarantor, as appropriate,
together with all amendments thereto;
(iv) Incumbency certificates, executed by officers of the
Borrower and the top three Subsidiary Guarantors, 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;
(v) 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;
(vi) 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;
(vii) A certificate, signed by an officer of the Borrower,
stating that on the initial Borrowing Date no Default or Unmatured
Default has occurred and is continuing
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and that all representations and warranties of the Borrower are true
and correct as of the initial Borrowing Date provided that such
certificate is in fact true and correct;
(viii) The most recent financial statements of the Borrower;
(ix) UCC financing statement, judgment, and tax lien searches
with respect to the Borrower from the State of Ohio;
(x) 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;
(xi) A pro forma compliance certificate in the form of EXHIBIT
C as of March 31, 2002, executed by the Borrower's chief financial
officer or chief accounting officer prepared on the assumption that the
other Indebtedness of Borrower being repaid by the initial Advance
hereunder was replaced by Advances hereunder for the period covered by
such certificate;
(xii) Evidence that the Commitments of any lenders under the
Prior Agreement which are not Lenders under this Agreement (the
"EXITING LENDERS") have been properly terminated and all amounts due to
the Exiting Lenders have been paid, or will be paid out of the proceeds
of the initial Advance hereunder;
(xiii) Evidence that all upfront fees due to each of the
Lenders under the terms of their respective commitment letters have
been paid, or will be paid out of the proceeds of the initial Advance
hereunder; and
(xiv) 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.
Notwithstanding anything in this SECTION 4.1 to the contrary, Borrower shall not
have to furnish or cause to be furnished to the Administrative Agent any
certificates or other documentation listed in this SECTION 4.1 to the extent
such documentation was provided to the Administrative Agent in connection with
the Prior Agreement and Borrower certifies, in form and substance reasonably
satisfactory to the Administrative Agent, that there has been no material change
in the facts and circumstances described in the documentation since the date it
was previously furnished to the Administrative Agent in connection with the
Prior Agreement.
4.2 EACH ADVANCE. The Lenders shall not be required to make any Advance
unless on the applicable Borrowing Date:
(i) There exists no Default or Unmatured Default; and
(ii) 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, 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.
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Each Borrowing Notice with respect to each such Advance shall
constitute a representation and warranty by the Borrower that the conditions
contained in SECTIONS 4.2(i) and (ii) have been satisfied.
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 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 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.
5.3 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.
5.4 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
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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.
5.5 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.
5.6 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 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.
5.7 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, 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.
5.8 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.
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5.9 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.
5.10 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.
5.11 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 have a Material Adverse Effect, or (ii) any agreement or instrument
evidencing or governing Indebtedness, which default would constitute a Default
hereunder.
5.12 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
agency thereof, 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, which non-compliance or
remedial action could have a Material Adverse Effect.
5.13 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.
5.14 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.
5.15 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.
5.16 SOLVENCY.
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(i) Immediately after the Agreement Execution Date and
immediately following the making of each Loan and after giving effect
to the application of the proceeds of such Loans, (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.
(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.
5.17 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.
5.18 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.
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5.19 ENVIRONMENTAL MATTERS. Each of the following representations and
warranties is true and correct on and as of the Agreement Execution Date 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 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 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
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in amounts or in a manner that could give rise to liability
under Environmental Laws.
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;
(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 Administrative Agent);
(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
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year in form and substance reasonably satisfactory to the Lenders,
certified by the entity's chief financial officer or chief accounting
officer;
(v) Together with the quarterly and annual financial
statements required hereunder, a compliance certificate in
substantially the form of EXHIBIT C 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, and will cause each of its
Subsidiaries to, use the proceeds of the Advances for the general corporate
purposes of the Borrower, including working capital needs, the repayment of
Indebtedness, financing for property acquisitions of new Projects, construction
of new improvements or expansions of existing improvements on Projects, and to
repay outstanding Advances. 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.
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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.
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, general partnership or limited partnership, as the case may
be, in its jurisdiction of incorporation/formation (except with respect to
mergers permitted pursuant to 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
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real estate investment trust in compliance with all applicable provisions of the
Code relating to such status.
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. 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) such
transactions that occur between Wholly-Owned Subsidiaries or between Borrower
and a Wholly-Owned Subsidiary, (b) mergers solely to change the jurisdiction of
organization of a Subsidiary Guarantor, and (c) 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 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:
(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
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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;
(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
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
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business and pursuant to the reasonable requirements of the Borrower's or such
Subsidiary's 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 $800,000,000, unless all of such
Indebtedness in excess of $800,000,000 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 the Agreement Execution Date 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 fifty-five
percent (55%) of Consolidated Market Value;
(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) fiscal quarters attributable to
Consolidated Senior Unsecured Indebtedness, as of the last day of any
fiscal quarter;
(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
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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 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.
(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
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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.
7.2 Nonpayment of interest upon any Note or of any Facility Fee or
other payment Obligations under any of the Loan Documents within five (5)
Business Days after the same becomes due.
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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.
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
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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.
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 of the Lenders to make Loans and
of the Issuing Bank to issue Facility Letters of Credit hereunder shall
automatically terminate and the Obligations shall
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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, at any time prior to the date that such Default has been fully
cured, may terminate or suspend the obligations of the Lenders to make Loans
hereunder and to issue Facility Letters of Credit, or declare the Obligations to
be due and payable, or both, whereupon if the Required Lenders elected to
accelerate (i) 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 and (ii) 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.
In addition to the foregoing, following the occurrence of a Default and
so long as any Facility Letter of Credit has not been fully drawn and has not
been cancelled or expired by its terms, upon demand by the Administrative Agent,
the Borrower shall deposit in the Letter of Credit Collateral Account cash in an
amount equal to the aggregate undrawn face amount of all outstanding Facility
Letters of Credit and all fees and other amounts due or which may become due
with respect thereto. The Borrower shall have no control over funds in the
Letter of Credit Collateral Account, which funds will be invested by the
Administrative Agent from time to time under the Facility Letters of Credit.
Such funds, if any, remaining in the Letter of Credit Collateral Account
following the payment of all Obligations in full shall, unless the
Administrative Agent is otherwise directed by a court of competent jurisdiction,
be promptly paid over to the Borrower.
If, after acceleration of the maturity of the Obligations or
termination of the obligations of the Lenders to make Loans hereunder or to
issue Facility Letters of Credit as a result of any Default (other than any
Default as described in SECTION 7.7 or 7.8 with respect to the Borrower) 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 and the
right of the Borrower, solely with the agreement of the Administrative Agent and
such new banks or existing Lenders as may provide new or increased Commitments,
to increase the Aggregate Commitment as described in Section 2.1 above, 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 or forgive all or any
portion of the principal amount of any Loan or accrued interest thereon
or the Facility Fee, reduce the Applicable Margins or any accepted
Absolute Rate (or modify any definition herein which would have the
effect of reducing the Applicable Margins or any accepted Absolute
Rate) or the underlying interest rate options or extend the time of
payment of any such principal, interest or Facility Fees.
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(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 $650,000,000.
(v) Permit the Borrower to assign its rights under this
Agreement.
(vi) Amend SECTIONS 2.3, 2.13(ii), 2.24, 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. Each Lender which has been designated a Designated Lender may act on
behalf of such Designated Lender with respect to any rights of such Designated
Lender to grant or withhold any consent hereunder to the fullest extent it has
been so delegated to act by such Designated Lender pursuant to its Designation
Agreement.
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.
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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.
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
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 in connection with the amendment, modification, and
enforcement of the Loan Documents. The Borrower also agrees to reimburse the
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, the Documentation Agent, 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, the
Documentation Agent 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.
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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 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.
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9.15 NO BANKRUPTCY PROCEEDINGS. Each of the Borrower, the Lenders and
the Administrative Agent agrees that it will not institute against any
Designated Lender or join any other Person in instituting against any Designated
Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding under any federal or state bankruptcy of similar law, for one year
and one day after the payment in full of the latest maturing commercial paper
note issued by such Designated Lender.
ARTICLE X
THE ADMINISTRATIVE AGENT
------------------------
10.1 APPOINTMENT. Bank One, NA is hereby appointed Administrative Agent
hereunder and under each other Loan Document, and 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.
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 and Commitments 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
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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.
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
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 Commitments (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
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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, and provided further that no Designated Lender shall be liable for any
payment under this Section 10.8 so long as, and to the extent that, the Lender
designating such Designated Lender makes such payment. 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
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 Commitment or its 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. Except as otherwise provided
below, Bank One shall serve as Administrative Agent at all times during the term
of this Facility. Bank One may resign as Administrative Agent in the event (x)
Bank One and Borrower shall mutually agree in writing or (y) an Event of Default
shall occur and be continuing under the Loan Documents, or (z) Bank One shall
determine, in its sole reasonable discretion, that because of its other banking
relationships with Borrower and/or Borrower's Affiliates at the time of such
decision Bank One's resignation as Administrative Agent would be necessary in
order to avoid creating an appearance of impropriety on the part of Bank One.
Bank One shall also resign as
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Administrative Agent, within 30 days after receipt of a written request from the
Required Lenders, if the Administrative Agent's Commitment, after giving effect
to any assignments or reductions hereunder, is less than 5% of the then-current
Aggregate Commitment. Bank One (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
One (or any successor Administrative Agent) of its duties as Administrative
Agent hereunder) or for gross negligence or willful misconduct. Upon any such
resignation, 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. No successor Administrative Agent shall be deemed to be appointed
hereunder until such successor Administrative Agent has accepted the
appointment. 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 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 XI 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 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
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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
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, any Commitment of 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 or Commitment 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
Commitment or
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postpones any date fixed for any regularly-scheduled payment of principal of, or
interest or fees on, any such Loan or Commitment 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.
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.
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.
12.3.2 EFFECT; EFFECTIVE DATE. Upon (i) delivery to the
Administrative Agent of a notice of assignment, substantially in the form
attached as Exhibit "I" to EXHIBIT D hereto (a "NOTICE OF 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 Notice of Assignment shall contain a
representation by the Purchaser to the effect that none of the consideration
used to make the purchase of the Commitment and 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 Aggregate Commitment and 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
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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, in each case in principal amounts reflecting their Commitment, as
adjusted pursuant to such assignment.
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 information in such Lender's possession
concerning the creditworthiness of 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 and undertake 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. The Borrower hereby consents to
the disclosure of any non-public information with respect to it which is related
to this transaction by any Designated Lender to any rating agency, commercial
paper dealer, or provider of a surety, guaranty or credit or liquidity
enhancement to such Designated Lender.
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ARTICLE XIII
NOTICES
-------
13.1 GIVING NOTICE. Except as otherwise permitted by SECTION 2.14 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).
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
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxx 00000
Phone: 216/000-0000
Facsimile: 216/755-1506
Attention: Xxxxx X. Xxxxxxxx
S-1
COMMITMENTS: BANK ONE, NA,
$50,000,000 Individually and as Administrative Agent
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Print Name: Xxxxxxx X. Xxxxx
Title: Director, Capital Markets
1 Bank One Plaza, IL 1-0315
Xxxxxxx, Xxxxxxxx 00000
Phone: 312/000-0000
Facsimile: 312/732-5939
Attention: Corporate Real Estate
S-2
BANK OF AMERICA, N.A.,
$50,000,000 Individually and as Syndication Agent
By: /s/ Xxxxxxxx X. Xxxxxxxxx
--------------------------------------
Print Name: Xxxxxxxx X. Xxxxxxxxx
Title: Managing Director
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Phone: 312/000-0000
Facsimile: 312/828-4970
Attention: Ms. Xxxxxx Xxxx
S-3
$50,000,000 COMMERZBANK AG,
Individually and as Documentation Agent
By: /s/ Xxxxxxxxx Xxxxx
--------------------------------------
Print Name: Xxxxxxxxx Xxxxx
Title: Assistant Vice President
and by:
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Print Name: Xxxxx X. Xxxxx
Title: Vice President
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Phone: 212/400/7569
Facsimile: 212/266-7565
Attention: Xx. Xxxxxxx Xxxxxxx
S-4
$50,000,000 DEUTSCHE BANK SECURITIES, INC.
Individually and as Documentation Agent
By: /S/ XXXXXXX X. LAPHAR
-------------------------------
Print Name: Xxxxxxx X. Laphar
Title: President
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Phone: 646/000-0000
Facsimile: 646/324-7450
Attention: Xx. Xxxxx Xxxxxxxxx
S-5
$50,000,000 FLEET BANK,
Individually and as Documentation Agent
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Print Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Phone: 617/000-0000
Facsimile: 617/434-6384
Attention: Mr. Xxxxx Xxxxxx
S-6
$50,000,000 XXXXX FARGO BANK, N.A.,
Real Estate Finance Group,
Individually and as Documentation Agent
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Print Name: Xxxxx X. Xxxxx
Title: Vice President
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Phone: 312/000-0000
Facsimile: 312/782-0969
Attention: Xx. Xxxxx Xxxxx
S-7
$40,000,000 WACHOVIA BANK, NA.,
Individually and as Managing Agent
By: /s/ Xxxxx Xxxxxxxx
-------------------------------
Print Name: Xxxxx Xxxxxxxx
Title: Vice President
Mail Code GA-31281, 28th Floor
000 Xxxxxxxxx Xx., X.X.
Xxxxxxx, XX 00000
Phone: 404/000-0000
Facsimile: 404/332-4066
Attention: Xx. Xxxx Xxxxxxxxxxx
S-8
$35,000,000 FIRSTAR BANK, N.A.,
Individually and as Co-Agent
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Print Name: Xxxxxx X. Xxxxx
Title: Vice President
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Phone: 216/000-0000
Facsimile: 216/241-0164
Attention: Xx. Xxxxxx Xxxxx
S-9
$30,000,000 ING CAPITAL LLC,
Individually and as Co-Agent
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Print Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Phone: 646/000-0000
Facsimile: 212/424/6210
Attention: Xx. Xxxxx Xxxxxxxx
S-10
$30,000,000 XX XXXXXX CHASE,
Individually and as Co-Agent
By: /s/ Xxxx X. Mix
--------------------------------------
Print Name: Xxxx X. Mix
Title: Vice President
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Phone: 212/000-0000
Facsimile: 212/270-9440
Attention: Xx. Xxxxx Xxxxxxx
S-11
$22,000,000 AM SOUTH BANK
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Print Name: Xxxxxx Xxxxx
Title: Vice President
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Phone: 205/000-0000
Facsimile: 205/326-4075
Attention: Mr. Xxxxxx Xxxxx
S-12
$22,000,000 THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxx
--------------------------------------
Print Name: Xxxxxxx X. Xxxx
Title: Vice President
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Phone: 216/000-0000
Facsimile: 216/515-6369
Attention: Xx. Xxxxxxx Xxxx
S-13
$22,000,000 LA SALLE BANK, N.A.
By: /s/ Xxx Xxxxxx
--------------------------------------
Print Name: Xxx Xxxxxx
Title: Assistant Vice President
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Phone: 312/000-0000
Facsimile: 312/904-6691
Attention: Mr. Xxxx Xxxxx
S-14
$22,000,000 XXXXXX COMMERCIAL PAPER INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Print Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
000 Xxxx Xxx., 0xx Xxxxx
Xxx Xxxx, XX 00000
Phone: 212/000-0000
Facsimile: 000-000-0000
Attention: Xx. Xxx Xxxxx
S-15
$22,000,000 PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Print Name: Xxxxxxx X. Xxxxx
Title: Vice President
One PNC Plaza
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Phone: 412/000-0000
Facsimile: 412/762-6500
Attention: Mr. Xxxxxx Xxxxx
S-16
$15,000,000 CITICORP REAL ESTATE, INC.
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Print Name: Xxxxx Xxxxxx
Title: Vice President
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Phone: 212/000-0000
Facsimile: 212/723-8380
Attention: Xx. Xxxxx Xxxxxx
S-17
$15,000,000 ERSTE BANK
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Print Name: Xxxxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Print Name: Xxxx Xxxxxxx
Title: Managing Director
000 Xxxx Xxxxxx
Xxxx Xxxxxxxx
Xxx Xxxx, XX 00000
Phone: 212/000-0000
Facsimile: 212/984-5627
Attention: Xx. Xxxxxxx Xxxxxx
S-18
$15,000,000 MELLON BANK, N.A.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Print Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
Xxxxx 0000
Xxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Phone: 412/000-0000
Facsimile: 412/234-8657
Attention: Xx. Xxxxxx Xxxxxxxx
S-19
$15,000,000 THE NORTHERN TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Print Name: Xxxxxx X. Xxxxxx
Title: V.P.
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Phone: 312/000-0000
Facsimile: 312/444-7028
Attention: Xx. Xxxxxx Xxxxxx
S-20
$15,000,000 SOUTHTRUST BANK
By: /s/ Xxxxxx X. Xxxxxxxx, XX
--------------------------------------
Print Name: Xxxxxx X. Xxxxxxxx, XX
Title: Assistant Vice President
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
Phone: 205/000-0000
Facsimile: 205/254-8270
Attention: Xx. Xxxxxx Xxxxxxxx
S-21
$10,000,000 ALLIED IRISH BANKS, P.L.C.
New York Branch
By: /s/ Xxxxxxx X'Xxxxxx
------------------------------
Print Name: Xxxxxxx X'Xxxxxx
Title: Vice President
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Phone: 212/000-0000
Facsimile: 212/339-8325
Attention: Xx. Xxxxxxx X'Xxxxxx
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------
Print Name: Xxxxxx Xxxxxxxxx
Title: Assistant Vice President
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Phone: 212/000-0000
Facsimile: 212/339/8325
Attention: Xx. Xxxxxx Xxxxxxxxx
S-22
$10,000,000 XXXXX XXX BANK
By: /s/ Chen-Xx Xxxx
Print Name: Chen-Xx Xxxx
Title: VP& Deputy General Manager
000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Phone: 718/000-0000
Facsimile: 718/242-7159
Attention: Xxxxxx Xxxx
S-23
$10,000,000 COMPASS BANK
By: /S/ XXXXXXX XXXX XXXXX
------------------------------------
Print Name: Xxxxxxx Xxxx Xxxxx
Title: Senior Vice President
00 Xxxxx 00xx Xxxxxx
00xx Xxxxx
Xxxxxxxxxx, XX 00000
Phone: 205/000-0000
Facsimile: 205/297-7994
Attention: Xxxxxxx Xxxxx
S-24
EXHIBIT A-1
[AMENDED AND RESTATED] NOTE
_________, 2002
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 (other than Competitive Bid Loans) made by the Lender to the
Borrower pursuant to Article II of the Fourth Amended and Restated 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 One, NA
in Chicago, Illinois, 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 amends and restates in its entirety that certain [Amended
and Restated] Note dated June 27, 2000 made by the Borrower in favor of the
Lender in the maximum principal amount of $ .]
This Note is one of the Notes issued pursuant to, and is entitled to
the benefits of, the Fourth Amended and Restated Credit Agreement, dated as of
________, 2002 among the Borrower, Bank One, NA, individually and as
Administrative 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
A1-1
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.
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:
--------------------------------------
A1-2
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO [THIRD] [SECOND] [AMENDED AND RESTATED]
NOTE OF DEVELOPERS DIVERSIFIED REALTY CORPORATION,
DATED ____________, 2002
Maturity
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
---- ------------- ------------- ------------ -------
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A1-3
EXHIBIT A-2
-----------
FORM OF [SECOND] [AMENDED AND RESTATED]
---------------------------------------
COMPETITIVE BID NOTE
--------------------
________, 2002
On or before the last day of each "Interest Period" applicable to a
"Competitive Bid Loan", as defined in that certain Fourth Amended and Restated
Credit Agreement dated as of __________, 2002, as amended from time to time
hereafter (the "AGREEMENT") among DEVELOPERS DIVERSIFIED REALTY CORPORATION, a
Ohio corporation ("BORROWER"), Bank One, NA, a national bank organized under the
laws of the United States of America, individually and as Administrative Agent
for the Lenders (as such terms are defined in the Agreement) and certain other
Lenders which are parties thereto, Borrower promises to pay to the order of
_________________________ (the "Lender"), or its successors and assigns, the
unpaid principal amount of such Competitive Bid Loan made by the Lender to the
Borrower pursuant to SECTION 2.21 of the Agreement, in immediately available
funds at the office of the Administrative Agent in Chicago, Illinois, 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 any remaining unpaid
principal amount of such Competitive Bid Loans under this Competitive Bid Note
("NOTE") in full on or before the Facility Termination Date or such earlier date
as may be required in accordance with the terms of 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, amount and due date of each Competitive Bid Loan and the date and
amount of each principal payment hereunder.
[This Note amends and restates in its entirety that certain [Amended
and Restated] Competitive Bid Note dated June 27, 2000 made by the Borrower in
favor of the Lender.]
This Note is issued pursuant to, and is entitled to the security under
and benefits of, the Agreement and the other Loan Documents, to which Agreement
and Loan Documents, as they may be amended from time to time, reference is
hereby made for, INTER ALIA, a statement of 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 Lender exercises its remedies provided under the Agreement and/or any of the
Loan Documents, then in addition to all amounts recoverable by the Lender under
such documents, Lender shall be entitled to receive reasonable attorneys fees
and expenses incurred by Lender in exercising such remedies.
Borrower and all endorsers severally waive presentment, protest and
demand, notice of protest, demand and of dishonor and nonpayment of this Note
(except as otherwise expressly provided for in the Agreement), and any and all
lack of diligence or delays in collection or
A2-1
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 of 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.
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 PROMISSORY 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 COURT AND NOT
BEFORE A JURY.
DEVELOPERS DIVERSIFIED REALTY CORPORATION,
an Ohio corporation
By:
-------------------------------------------
Print Name:
------------------------------------
Title:
-----------------------------------------
A2-2
PAYMENTS OF PRINCIPAL
---------------------
Unpaid
Principal Notation
Date Balance Made by
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A2-3
EXHIBIT B
---------
FORM OF OPINION
---------------
B-1
EXHIBIT C
---------
C-1
EXHIBIT D
---------
ASSIGNMENT AGREEMENT
--------------------
This Assignment Agreement (this "Assignment Agreement") between
_____________ (the "Assignor") and ________________ (the "Assignee") is dated as
of ___________, __. The parties hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Fourth Amended
and Restated Credit Agreement (which, as it may be amended, modified, renewed or
extended from time to time is herein called the "Credit Agreement") described in
Item 1 of Schedule 1 attached hereto ("Schedule 1"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings attributed to
them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the Assignor,
an interest in and to the Assignor's rights and obligations under the Credit
Agreement such that after giving effect to such assignment the Assignee shall
have purchased pursuant to this Assignment Agreement the percentage interest
specified in Item 3 of Schedule 1 of all outstanding rights and obligations
under the Credit Agreement and the other Loan Documents. The aggregate
Commitment (or Loans, if the applicable Commitment has been terminated)
purchased by the Assignee hereunder is set forth in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"Effective Date") shall be the later of the date specified in Item 5 of Schedule
1 or two (2) Business Days (or such shorter period agreed to by the Agent) after
a Notice of Assignment substantially in the form of Exhibit "I" attached hereto
has been delivered to the Agent. Such Notice of Assignment must include the
consent of the Agent required by SECTION 12.3.1 of the Credit Agreement. In no
event will the Effective Date occur if the payments required to be made by the
Assignee to the Assignor on the Effective Date under SECTIONS 4 AND 5 hereof are
not made on the proposed Effective Date. The Assignor will notify the Assignee
of the proposed Effective Date no later than the Business Day prior to the
proposed Effective Date. As of the Effective Date, (i) the Assignee shall have
the rights and obligations of a Lender under the Loan Documents with respect to
the rights and obligations assigned to the Assignee hereunder and (ii) the
Assignor shall relinquish its rights and be released from its corresponding
obligations under the Loan Documents with respect to the rights and obligations
assigned to the Assignee hereunder.
4. PAYMENTS OBLIGATIONS. On and after the Effective Date, the Assignee
shall be entitled to receive from the Agent all payments of principal, interest
and fees with respect to the interest assigned hereby. The Assignee shall
advance funds directly to the Agent with respect to all Loans and reimbursement
payments made on or after the Effective Date with respect to the interest
assigned hereby. [In consideration for the sale and assignment of Loans
hereunder, (i) the Assignee shall pay the Assignor, on the Effective Date, an
amount equal to the principal amount of the portion of all Floating Rate Loans
assigned to the Assignee hereunder and (ii) with respect to each Fixed Rate Loan
made by the Assignor and assigned to the Assignee
D-1
hereunder which is outstanding on the Effective Date, (a) on the last day of the
Interest Period therefor or (b) on such earlier date agreed to by the Assignor
and the Assignee or (c) on the date on which any such Fixed Rate Loan either
becomes due (by acceleration or otherwise) or is prepaid (the date as described
in the foregoing clauses (a), (b) or (c) being hereinafter referred to as the
"Fixed Rate Due Date"), the Assignee shall pay the Assignor an amount equal to
the principal amount of the portion of such Fixed Rate Loan assigned to the
Assignee which is outstanding on the Fixed Rate Due Date. If the Assignor and
the Assignee agree that the applicable Fixed Rate Due Date for such Fixed Rate
Loan shall be the Effective Date, they shall agree, solely for purposes of
dividing interest paid by the Borrower on such Fixed Rate Loan, to an alternate
interest rate applicable to the portion of such Loan assigned hereunder for the
period from the Effective Date to the end of the related Interest Period (the
"Agreed Interest Rate") and any interest received by the Assignee in excess of
the Agreed Interest Rate, with respect to such Fixed Rate Loan for such period,
shall be remitted to the Assignor. [In the event interest for any period from
the Effective Date to but not including the Fixed Rate Due Date is not paid when
due by the Borrower with respect to any Fixed Rate Loan sold by the Assignor to
the Assignee hereunder, the Assignee shall pay to the Assignor interest for such
period on the portion of such Fixed Rate Loan sold by the Assignor to the
Assignee hereunder at the applicable rate provided by the Credit Agreement.] In
the event a prepayment of any Fixed Rate Loan which is existing on the Effective
Date and assigned by the Assignor to the Assignee hereunder occurs after the
Effective Date but before the applicable Fixed Rate Due Date, the Assignee shall
remit to the Assignor any excess of the funding indemnification amount paid by
the Borrower under Section 3.4 of the Credit Agreement an account of such
prepayment with respect to the portion of such Fixed Rate Loan assigned to the
Assignee hereunder over the amount which would have been paid if such prepayment
amount were calculated based on the Agreed Interest Rate and only covered the
portion of the Interest Period after the Effective Date. The Assignee will
promptly remit to the Assignor (i) the portion of any principal payments
assigned hereunder and received from the Agent with respect to any Fixed Rate
Loan prior to its Fixed Rate Due Date and (ii) any amounts of interest on Loans
and fees received from the Agent which relate to the portion of the Loans
assigned to the Assignee hereunder for periods prior to the Effective Date, in
the case of Floating Rate Loans or fees, or the Fixed Rate Due Date, in the case
of Fixed Rate Loans, and not previously paid by the Assignee to the Assignor.]*
In the event that either party hereto receives any payment to which the other
party hereto is entitled under this Assignment Agreement, then the party
receiving such amount shall promptly remit it to the other party hereto.
*EACH ASSIGNOR MAY INSERT ITS STANDARD PAYMENT PROVISIONS IN LIEU OF THE PAYMENT
TERMS INCLUDED IN THIS EXHIBIT.
5. FEES PAYABLE BY THE ASSIGNEE. The Assignee shall pay to the Assignor
a fee on each day on which a payment of interest or Facility Fees is made under
the Credit Agreement with respect to the amounts assigned to the Assignee
hereunder (other than a payment of interest or Facility Fees attributable to the
period prior to the Effective Date or, in the case of Fixed Rate Loans, the
Payment Date, which the Assignee is obligated to deliver to the Assignor
pursuant to SECTION 4 hereof). The amount of such fee shall be the difference
between (i) the interest or fee, as applicable, paid with respect to the amounts
assigned to the Assignee hereunder and (ii) the interest or fee, as applicable,
which would have been paid with respect to the amounts assigned to the Assignee
hereunder if each interest rate was calculated at the rate of __% rather than
the actual percentage used to calculate the interest rate paid by the Borrower
or if
D-2
the Facility Fee was calculated at the rate of __% rather than the actual
percentage used to calculate the Facility Fee paid by the Borrower, as
applicable. In addition, the Assignee agrees to pay % of the fee required to
be paid to the Agent in connection with this Assignment Agreement.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder, that such
interest is free and clear of any adverse claim created by the Assignor and that
it has all necessary right and authority to enter into this Assignment. It is
understood and agreed that the assignment and assumption hereunder are made
without recourse to the Assignor and that the Assignor makes no other
representation or warranty of any kind to the Assignee. Neither the Assignor nor
any of its officers, directors, employees, agents or attorneys shall be
responsible for (i) the due execution, legality, validity, enforceability,
genuineness, sufficiency or collectability of any Loan Document, including
without limitation, documents granting the Assignor and the other Lenders a
security interest in assets of the Borrower or any guarantor, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of the
Borrower or any guarantor, (iv) the performance of or compliance with any of the
terms or provisions of any of the Loan Documents, (v) inspecting any of the
Property, books or records of the Borrower, (vi) the validity, enforceability,
perfection, priority, condition, value or sufficiency of any collateral securing
or purporting to secure the Loans or (vii) any mistake, error of judgment, or
action taken or omitted to be taken in connection with the Loans or the Loan
Documents.
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee (i) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements requested by the Assignee and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment Agreement, (ii) agrees that it will,
independently and without reliance upon the Agent, the Assignor or any other
Lender and based on such documents and information at it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, (iii) appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under the Loan
Documents as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto, (iv) agrees that 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, (v) agrees that
its payment instructions and notice instructions are as set forth in the
attachment to Schedule 1, (vi) 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,
[and (vii) attaches the forms prescribed by the Internal Revenue Service of the
United States certifying that the Assignee is entitled to receive payments under
the Loan Documents without deduction or withholding of any United States federal
income taxes].**
**TO BE INSERTED IF THE ASSIGNEE IS NOT INCORPORATED UNDER THE LAWS OF THE
UNITED STATES, OR A STATE THEREOF.
D-3
8. INDEMNITY. The Assignee agrees to indemnify and hold the Assignor
harmless against any and 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 Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee shall
have the right pursuant to SECTION 12.3.1 of the Credit Agreement to assign the
rights which are assigned to the Assignee hereunder to any entity or person,
provided that (i) any such subsequent assignment does not violate any of the
terms and conditions of the Loan Documents or any law, rule, regulation, order,
writ, judgment, injunction or decree and that any consent required under the
terms of the Loan Documents has been obtained and (ii) unless the prior written
consent of the Assignor is obtained, the Assignee is not thereby released from
its obligations to the Assignor hereunder, if any remain unsatisfied, including,
without limitation, its obligations under SECTIONS 4, 5 AND 8 hereof.
10. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the
Aggregate Commitment occurs between the date of this Assignment Agreement and
the Effective Date, the percentage interest specified in Item 3 of Schedule 1
shall remain the same, but the dollar amount purchased shall be recalculated
based on the reduced Aggregate Commitment.
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached Notice
of Assignment embody the entire agreement and understanding between the parties
hereto and supersede all prior agreements and understandings between the parties
hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of Illinois.
13. NOTICES. Notices shall be given under this Assignment Agreement in
the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered) shall be
the address set forth in the attachment to Schedule 1.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
[NAME OF ASSIGNOR]
By:
-------------------------------------------
Title:
---------------------------------------
---------------------------------------
---------------------------------------
D-4
[NAME OF ASSIGNEE]
By:
------------------------------------------
Title:
---------------------------------------
---------------------------------------
---------------------------------------
D-5
SCHEDULE 1
to Assignment Agreement
Description and Date of Credit Agreement:
Date of Assignment Agreement: ___, ___
3. Amounts (As of Date of Item 2 above):
a. Aggregate Commitment
(Loans)* under
Credit Agreement $________________________
b. Assignee's Percentage
of the Aggregate Commitment
purchased under this
Assignment Agreement** ________________________%
4. Amount of Assignee's (Loan Amount)**
Commitment Purchased under this
Assignment Agreement: $________________________
5. Proposed Effective Date: ________________________
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
---------------------------------------- ---------------------------------------------------
Title: Title:
------------------------------------- ------------------------------------------------
* If a Commitment has been terminated, insert outstanding Loans in place
of Commitment
** Percentage taken to 10 decimal places
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet, which must
include notice address for the Assignor and the Assignee
EXHIBIT "I"
to Assignment Agreement
NOTICE OF ASSIGNMENT
--------------------
----------------, ----
To: Bank One, NA, as Agent
Xxx Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Real Estate Finance Department
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that Fourth Amended and Restated Credit
Agreement (the "Credit Agreement") described in Item 1 of Schedule 1 attached
hereto ("Schedule 1"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and
delivered to the Agent pursuant to SECTION 12.3.2 of the Credit Agreement.
3. The Assignor and the Assignee have entered into an
Assignment Agreement, dated as of , (the "Assignment"), pursuant to which, among
other things, the Assignor has sold, assigned, delegated and transferred to the
Assignee, and the Assignee has purchased, accepted and assumed from the Assignor
the percentage interest specified in Item 3 of Schedule 1 of all outstandings,
rights and obligations under the Credit Agreement. The Effective Date of the
Assignment shall be the later of the date specified in Item 5 of Schedule 1 or
two (2) Business Days (or such shorter period as agreed to by the Agent) after
this Notice of Assignment and any fee required by SECTION 12.3.2 of the Credit
Agreement have been delivered to the Agent, provided that the Effective Date
shall not occur if any condition precedent agreed to by the Assignor and the
Assignee has not been satisfied.
4. The Assignor and the Assignee hereby give to the Agent
notice of the assignment and delegation referred to herein. The Assignor will
confer with the Agent before the date specified in Item 5 of Schedule 1 to
determine if the Assignment Agreement will become effective on such date
pursuant to SECTION 3 hereof, and will confer with the Agent to determine the
Effective Date pursuant to SECTION 3 hereof if it occurs thereafter. The
Assignor shall notify the Agent if the Assignment Agreement does not become
effective on any proposed Effective Date as a result of the failure to satisfy
the conditions precedent agreed to by the Assignor and the Assignee. At the
request of the Agent, the Assignor will give the Agent written confirmation of
the satisfaction of the conditions precedent.
I-1
5. The Assignor or the Assignee shall pay to the Agent on or
before the Effective Date the processing fee of $3,500 required by SECTION
12.3.2 of the Credit Agreement.
6. If Notes are outstanding on the Effective Date, the
Assignor and the Assignee request and direct that the Agent prepare and cause
the Borrower to execute and deliver new Notes or, as appropriate, replacements
notes, to the Assignor and the Assignee. The Assignor and, if applicable, the
Assignee each agree to deliver to the Agent the original Note received by it
from the Borrower upon its receipt of a new Note in the appropriate amount.
7. The Assignee advises the Agent that notice and payment
instructions are set forth in the attachment to Schedule 1.
8. The Assignee hereby represents and warrants that none of
the funds, monies, assets or other consideration being used to make the purchase
pursuant to the Assignment 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.
9. The Assignee authorizes the Agent to act as its agent under
the Loan Documents in accordance with the terms thereof. The Assignee
acknowledges that the Agent has no duty to supply information with respect to
the Borrower or the Loan Documents to the Assignee until the Assignee becomes a
party to the Credit Agreement.*
*May be eliminated if Assignee is a party to the Credit Agreement prior to the
Effective Date.
NAME OF ASSIGNOR NAME OF ASSIGNEE
By: By:
------------------------- -----------------------------------------
Title: Title:
---------------------- --------------------------------------
I-2
ACKNOWLEDGED AND, IF REQUIRED BY THE
CREDIT AGREEMENT, CONSENTED TO BY
BANK ONE, NA, as Agent
By:
------------------------------
Title:
---------------------------
[Attach photocopy of Schedule 1 to Assignment]
I-3
EXHIBIT E
---------
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To: Bank One, NA,
as Administrative Agent (the "Agent")
under the Credit Agreement Described Below
Re: Fourth Amended and Restated Credit Agreement, dated ________, 2002 (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 2.14 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
----------------------------
--------------------------------------------- ----------------------------
(Please Print) Signature
Bank Officer Name Date
----------------------------
--------------------------------------------- ----------------------------
(Please Print) Signature
(Deliver Completed Form to Credit Support Staff For Immediate Processing)
E-1
EXHIBIT F
---------
SUBSIDIARY GUARANTY
-------------------
This Guaranty is made as of _________, 2002 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 One,
NA, individually ("BANK ONE") 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 revolving credit facility available to
Borrower in an aggregate principal amount of $650,000,000 (the "FACILITY").
B. The Lenders have agreed to make available the Facility to Borrower
pursuant to the terms and conditions set forth in a Fourth Amended and Restated
Credit Agreement of even date herewith between Borrower, Bank One, individually,
and as Administrative 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 Commitment
and promissory notes in the principal amount, if any, of each Lender's
Competitive Bid Loan 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 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 Subsidiary Guarantors' obligations hereunder shall not
exceed the greater of: (i) the aggregate amount of all monies received, directly
or indirectly, by Subsidiary Guarantors 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 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 Subsidiary
Guarantors are not deemed to have received valuable consideration, fair value or
reasonably equivalent value for its obligations hereunder, each 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 determined, 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. 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 as principal for payment of the Facility Indebtedness and performance of
the Obligations until all
F-3
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 its obligations hereunder shall be joint and several with 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.
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
F-4
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 Event of Default exists under
the Credit Agreement or the Loan Documents, and any such payments to Subsidiary
Guarantors made while any Default or Event of 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 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
F-5
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 One as Administrative Agent and as a Lender:
Bank One, NA
Xxx Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Director, Capital Markets
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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 __________, 2001 executed for the benefit of Bank One,
NA, 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.
G-1
EXHIBIT I-1
-----------
FORM OF COMPETITIVE BID QUOTE REQUEST
-------------------------------------
(Section 2.22(a))
----
To: Bank One, NA,
as administrative agent (the "Agent")
From: Developers Diversified Realty Corporation (the "Borrower")
Re: Fourth Amended and Restated Credit Agreement dated as of _________,
2002, as amended among the Borrower, the lenders from time to time
party thereto, and Bank One, NA, individually and as Administrative
Agent for the lenders (as amended, supplemented or otherwise modified
from time to time through the date hereof, the "Agreement")
1. Capitalized terms used herein have the meanings assigned to them in
the Agreement.
2. We hereby give notice pursuant to SECTION 2.22(a) of the Agreement
that we request Competitive Bid Quotes for the following proposed Competitive
Bid Loan(s):
Borrowing Date:
------------------, ------
Principal Amount(1) Interest Period(2)
3. Such Competitive Bid Quotes should offer [a Competitive LIBOR
Margin] [an Absolute Rate].
4. Upon acceptance by the undersigned of any or all of the Competitive
Bid Loans offered by Lenders in response to this request, the undersigned shall
be deemed to affirm as of the Borrowing Date thereof the representations and
warranties made in ARTICLE V of the Agreement.
DEVELOPERS DIVERSIFIED REALTY
CORPORATION, an Ohio corporation
By:
-------------------------------------
Print Name:
-----------------------------
Title:
----------------------------------
----------
(1) Amount must be at least $5,000,000 and an integral multiple of $1,000,000.
(2) One, two, three or six months (Competitive LIBOR Margin) or up to 180 days
(Absolute Rate), subject to the provisions of the definitions of LIBOR Interest
Period and Absolute Interest Period.
I1-1
EXHIBIT I-2
-----------
INVITATION FOR COMPETITIVE BID QUOTES
-------------------------------------
(Section 2.22(b))
----
To: Each of the Lenders party to
The Agreement referred to below
From: Invitation for Competitive Bid Quotes to
Developers Diversified Realty Corporation (the "Borrower")
Pursuant to SECTION 2.22(b) of the Fourth Amended and Restated Credit
Agreement dated as of __________, 2002, as amended from time to time, among the
Borrower, the lenders from time to time party thereto, and Bank One, NA,
individually and as Administrative Agent for the lenders (as amended,
supplemented or otherwise modified from time to time through the date hereof,
the "Agreement"), we are pleased on behalf of the Borrower to invite you to
submit Competitive Bid Quotes to the Borrower for the following proposed
Competitive Bid Loan(s):
Borrowing Date: ,
--------------------------- -------
Principal Amount Interest Period
Such Competitive Bid Quotes should offer [a Competitive LIBOR Margin]
[an Absolute Rate]. Your Competitive Bid Quote must comply with SECTION 2.22(c)
of the Agreement and the foregoing. Capitalized terms used herein have the
meanings assigned to them in the Agreement.
Please respond to this invitation by no later than [2:00 p.m.] [9:00
a.m.] (Chicago time) on ________________, ____.
BANK ONE, NA,
as Administrative Agent
By:
----------------------------------------------
Print Name:
--------------------------------------
Title:
-------------------------------------------
I2-1
EXHIBIT I-3
-----------
COMPETITIVE BID QUOTE
---------------------
(Section 2.22(c))
----
_____________, ____
To: Bank One, NA,
as Administrative Agent
From: Competitive Bid Quote to Developers Diversified Realty Corporation
(the "Borrower")
In response to your invitation on behalf of the Borrower dated
___________, ____, we hereby make the following Competitive Bid Quote pursuant
to SECTION 2.22(c) of the Agreement hereinafter referred to and on the following
terms:
Quoting Lender:
2. Person to contact at Quoting Lender:
--------------------------------
3. Borrowing Date: (3)
-----------------------------------------------------
We hereby offer to make Competitive Bid Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
---------- ----------- ------------------ ----------- -----------------
Principal Interest [Competitive [Absolute Minimum Amount(8)
Amount(4) Period(5) LIBOR Margin(6)] Rate(7)]
---------- ----------- ------------------ ----------- -----------------
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Fourth Amendment
and Restated Credit Agreement dated as of ________, 2002, among the Borrower,
the lenders from time to time party thereto, and Bank One, NA, individually and
as Administrative Agent for the lenders (as amended, supplemented or otherwise
modified from time to time through the date hereof, the "Agreement"),
irrevocably obligates us to make the Competitive Bid Loan(s) for which any
----------
(3) As specified in the related Invitation For Competitive Bid Quotes.
(4) Principal amount bid for each Interest Period may not exceed the principal
amount request. Bids must be made for at least $5,000,000 and integral multiples
of $1,000,000.
(5) One, two, three or six months or up to 180 days, as specified in the related
Invitation For Competitive Bid Quotes.
(6) Competitive LIBOR Margin for the applicable LIBOR Interest Period. Specify
percentage (rounded to the nearest 1/100 of 1%) and specify whether "PLUS" or
MINUS".
(7) Specify rate of interest per annum (rounded to the nearest 1/100 of 1%).
(8) Specify minimum amount, if any, which the Borrower may accept (see SECTION
2.22(c)(ii)(d)).
I3-1
offer(s) are accepted, in whole or in part. Capitalized terms used herein and
not otherwise defined herein shall have their meanings as defined in the
Agreement.
Very truly yours,
[NAME OF LENDER]
By:
--------------------------------------
Title:
-----------------------------------
I3-2
EXHIBIT J-1
-----------
INVITATION FOR COMPETITIVE BID QUOTES
-------------------------------------
(Section 2.23(a))
----
To: Each of the Lenders party to
the Agreement referred to below
From: Invitation for Competitive Bid Quotes to
Developers Diversified Realty Corporation (the "Borrower")
Pursuant to SECTION 2.23(a) of the Fourth Amended and Restated Credit
Agreement dated as of ________, 2002, as amended from time to time, among the
Borrower, the lenders from time to time party thereto, and Bank One, NA,
individually and as Administrative Agent for the lenders (as amended,
supplemented or otherwise modified from time to time through the date hereof,
the "Agreement"), we are pleased to invite you to submit Competitive Bid Quotes
to the Borrower for the following proposed Competitive Bid Loan(s):
Borrowing Date: ,
--------------------------- -------
Principal Amount(9) Interest Period(10)
Such Competitive Bid Quotes should offer [a Competitive LIBOR Margin]
[an Absolute Rate]. Your Competitive Bid Quote must comply with SECTION 2.23(a)
of the Agreement and the foregoing. Capitalized terms used herein have the
meanings assigned to them in the Agreement.
Please respond to this invitation by no later than [2:00 p.m.] [9:00
a.m.] (Chicago time) on ______________, ____.
----------
(9) Amount must be at least $5,000,000 and an integral multiple of $1,000,000.
(10) One, two, three or six months (Competitive LIBOR Margin) or up to 180 days
(Absolute Rate), subject to the provisions of the definitions of LIBOR Interest
Period and Absolute Interest Period.
J1-1
Upon acceptance by the undersigned of any or all of the Competitive Bid
Loans offered by Lenders in response to this request, the undersigned shall be
deemed to affirm as of the Borrowing Date thereof the representations and
warranties made in ARTICLE V of this Agreement.
DEVELOPERS DIVERSIFIED REALTY CORPORATION,
an Ohio corporation
By:
------------------------------------------------
Print Name:
----------------------------------------
Title:
---------------------------------------------
J1-2
EXHIBIT J-2
-----------
COMPETITIVE BID QUOTE
(Section 2.23(b))
----
___________________, ____
To: Developers Diversified Realty Corporation
Re: Competitive Bid Quote
In response to your invitation dated ______________, ____, we hereby
make the following Competitive Bid Quote pursuant to SECTION 2.23(b) of the
Agreement hereinafter referred to and on the following terms:
Quoting Lender:
2. Person to contact at Quoting Lender:
------------------------------
3. Borrowing Date: (11)
---------------------------------------------------
4. We hereby offer to make Competitive Bid Loan(s) in the following
principal amounts, for the following Interest Periods and at the
following rates:
---------- ----------- ------------------- --------- -------------------
Principal Interest [Competitive [Absolute Minimum Amount(16)
Amount(12) Period(13) LIBOR Margin(14)] Rate(15)]
---------- ----------- ------------------- --------- -------------------
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Fourth Amendment
and Restated Credit Agreement dated as of ________, 2002, among the Borrower,
the lenders from time to time party thereto, and Bank One, NA, individually and
as Administrative Agent for the lenders (as amended, supplemented or otherwise
modified from time to time through the date hereof, the "Agreement"),
irrevocably obligates us to make the Competitive Bid Loan(s) for which any
----------
(11) As specified in the related Invitation For Competitive Bid Quotes.
(12) Principal amount bid for each Interest Period may not exceed the principal
amount request. Bids must be made for at least $5,000,000 and integral multiples
of $1,000,000.
(13) One, two, three or six months or up to 180 days, as specified in the
related Invitation For Competitive Bid Quotes.
(14) Competitive LIBOR Margin for the applicable LIBOR Interest Period. Specify
percentage (rounded to the nearest 1/100 of 1%)and specify whether "PLUS" or
MINUS".
(15) Specify rate of interest per annum (rounded to the nearest 1/100 of 1%).
(16) Specify minimum amount, if any, which the Borrower may accept (see SECTION
2.23(b)(ii)(d)).
J2-1
offer(s) are accepted, in whole or in part. Capitalized terms used herein and
not otherwise defined herein shall have their meanings as defined in the
Agreement.
Very truly yours,
[NAME OF LENDER]
By:
--------------------------------------
Title:
-----------------------------------
J2-2
EXHIBIT K
AMENDMENT TO FOURTH AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
This Amendment to the Fourth Amendment and Restated Revolving Credit
Agreement (the "Agreement") is made as of _________________________ , ____, by
and among Developers Diversified Realty Corporation ("Borrower"), Bank One, NA,
individually and as "Administrative Agent," and one or more new or existing
"Lenders" shown on the signature pages hereof.
R E C I T A L S
A. Borrower, Administrative Agent and certain other Lenders have entered into a
Fourth Amended and Restated Credit Agreement dated as of _________, 2002 (as
amended, the "Credit Agreement"). All capitalized terms used herein and not
otherwise defined shall have the meanings given to them in the Credit Agreement.
B. Pursuant to the terms of the Credit Agreement, the Lenders initially agreed
to provide Borrower with a revolving credit facility in an aggregate principal
amount of up to $650,000,000. The Borrower, the Administrative Agent and the
Lenders now desire to amend the Credit Agreement in order to, among other things
(i) increase the Aggregate Commitment to $__________________; and (ii) admit
[name of new banks] as "Lenders" under the Credit Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
AGREEMENTS
1. The foregoing Recitals to this Amendment hereby are incorporated into and
made part of this Amendment.
2. From and after _________, ____ (the "Effective Date") (i) [name of new banks]
shall be considered as "Lenders" under the Credit Agreement and the Loan
Documents, and (ii) [name of existing lenders] shall each be deemed to have
increased its Commitment to the amount shown next to their respective signatures
on the signature pages of this Amendment, each having a Commitment in the amount
shown next to their respective signatures on the signature pages of this
Amendment. The Borrower shall, on or before the Effective Date, execute and
deliver to each of such new or existing Lenders a new or amended and restated
Note in the amount of such Commitment (and in the case of a new Lender, a
Competitive Bid Note as well).
3. From and after the Effective Date, the Aggregate Commitment shall equal
__________ Million Dollars ($___,000,000).
K-1
4. For purposes of Section 13.1 of the Credit Agreement (Giving Notice), the
address(es) and facsimile number(s) for [name of new banks] shall be as
specified below their respective signature(s) on the signature pages of this
Amendment.
5. The Borrower hereby represents and warrants that, as of the Effective Date,
there is no Default or Unmatured Default, the representations and warranties
contained in Article V of the Credit Agreement are true and correct as of such
and the Borrower has no offsets or claims against any of the Lenders.
6. As expressly modified as provided herein, the Credit Agreement shall continue
in full force and effect.
7. This Amendment 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 Amendment by signing any such counterpart.
IN WITNESS WHEREOF, the parties have executed and delivered this Amendment as of
the date first written above.
DEVELOPERS DIVERSIFIED REALTY CORPORATION
By:
Print Name:
Title:
Developers Diversified Realty Corporation
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK ONE, NA, Individually and as Administrative Agent
By:
Print Name:
Title:
0 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Phone: 312/000-0000
Facsimile: 312/732-1117
Attention: Real Estate Finance Department Amount of Commitment: $
K-2
[NAME OF NEW LENDER]
By:
Print Name:
Title:
[Address of New Lender]
Phone:
Facsimile:
Attention:
K-3
EXHIBIT L
---------
FORM OF DESIGNATION AGREEMENT
-----------------------------
Dated ,
-------------------------- ------
Reference is made to the Fourth Amended and Restated Revolving Credit
Agreement dated as of _________, 2002 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement") among Developers Diversified
Realty Corporation, an Ohio corporation (the "Borrower"), Bank One, NA and the
several banks, financial institutions and other entities from time to time
parties to this Agreement (collectively, the "Lenders"), and Bank One, NA, not
individually, but as Administrative Agent (the "Administrative Agent") for the
Lenders. Terms defined in the Credit Agreement are used herein with the same
meaning.
[NAME OF DESIGNOR] (the "Designor"), [NAME OF DESIGNATED LENDER] (the
"Designee"), the Administrative Agent and the Borrower agree as follows:
1. The Designor hereby designates the Designee, and the Designee hereby
accepts such designation, to have a right to make Competitive Bid Loans pursuant
to Section 2.21 of the Credit Agreement. Any assignment by Designor to Designee
of its rights to make a Competitive Bid Loan pursuant to such Section 2.21 shall
be effective at the time of the funding for such Competitive Bid Loan and not
before such time.
2. Except as set forth in Section 7 below, the Designor makes no
representation or warranty and assumes no responsibility pursuant to this
Designation Agreement with respect to (a) any statements, warranties or
representations made in or in connection with any Loan Document or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of any Loan Document or any other instrument and document furnished pursuant
thereto and (b) the financial condition of the Borrower or the performance or
observance by Borrower of any of its obligations under any Loan Documents or any
other instrument or document furnished pursuant thereto. (It is acknowledged
that the Designor may make representations and warranties of the type described
above in other agreements to which the Designor is a party).
3. The Designee (a) confirms that it has received a copy of each Loan
Document, together with copies of the financial statements referred to in
Section 6.1 of the Credit Agreement and such other documents and information as
it has deemed appropriate to make its own independent credit analysis and
decision to enter into this Designation Agreement, (b) agrees that it will,
independently and without reliance upon the Administrative Agent, the Designor
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 any Loan Document; (c) confirms that it is a Designated
Lender; (d) appoints and authorizes the Administrative Agent to take such action
as agent on its behalf and to exercise such powers and discretion under any Loan
Document as are delegated to the Administrative Agent by the terms thereof,
together with such powers and discretion as are reasonably incidental thereto,
and (e) agrees that it will perform in accordance with their terms all of the
obligations which by the terms of any Loan Document are required to be performed
by it as a Lender.
L-1
4. The Designee hereby appoints the Designor as the Designee's agent
and attorney in fact, and grants to the Designor an irrevocable power of
attorney, to deliver and receive all communications and notices under the Credit
Agreement and other Loan Documents and to exercise on the Designee's behalf all
rights to vote and to grant and make approvals, waivers, consents or amendment
to or under the Credit Agreement or other Loan Documents. Any document executed
by the Designor on the Designee's behalf in connection with the Credit Agreement
or other Loan Documents shall be binding on the Designee. The Borrower, the
Administrative Agent and each of the Lenders may rely on and are beneficiaries
of the preceding provisions.
5. Following the execution of this Designation Agreement by the
Designor and its Designee, it will be delivered to the Administrative Agent for
acceptance and recording by the Administrative Agent and the Borrower. The
effective date for this Designation Agreement (the "Effective Date") shall be
the date of acceptance hereof by the Administrative Agent and the Borrower,
unless otherwise specified on the signature pages thereto.
6. The Administrative Agent shall not institute or join any other
person in instituting against the Designee any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding under any federal or state
bankruptcy or similar law, for one year and one day after the payment in full of
the latest maturing commercial paper note issued by the Designee.
7. The Borrower shall not institute or join any other person in
instituting against the Designee any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding under any federal or state bankruptcy or
similar law, for one year and one day after the payment in full of the latest
maturing commercial paper note issued by the Designee.
8. The Designor unconditionally agrees to pay or reimburse the Designee
and save the Designee harmless against all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed or asserted by any of the
parties to the Loan Documents against the Designee, in its capacity as such, in
any way relating to or arising out of this Designation Agreement or any other
Loan Documents or any action taken or omitted by the Designee hereunder or
thereunder, PROVIDED that the Designor shall not be liable for any portion of
such liabilities, obligations, losses, damage, penalties, actions, judgments,
suits, costs, expenses or disbursements if the same results from the Designee's
gross negligence or willful misconduct.
9. Upon such acceptance and recording of this Designation Agreement by
the Borrower and the Administrative Agent, as of the Effective Date, the
Designee shall be entitled to the benefits of the Credit Agreement with a right
to fund and receive payment of the principal and interest on Competitive Bid
Loans pursuant to Section 2.21 of the Credit Agreement and otherwise with the
same rights and obligations it would have if it were a Participant or Designor
thereunder rather than a direct Lender pursuant to this Designation Agreement.
10. This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of Illinois, without reference to the
provisions thereof regarding conflicts of law.
L-2
11. This Designation Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Designation Agreement by facsimile
transmission shall be effective as of delivery of a manually executed
counterpart of this Designation Agreement.
IN WITNESS WHEREOF, the Designor and the Designee, intending to be
legally bound, have caused this Designation Agreement to be executed by their
officers thereunto duly authorized as of the date first above written.
Effective Date(17) __________, ____, ____
[NAME OF DESIGNOR], as Designor
By:
------------------------------
Title:
---------------------------
[NAME OF DESIGNATED LENDER],
as Designee
By:
------------------------------
Title:
---------------------------
Accepted this ____ day of _______, ____
BANK ONE, NA, DEVELOPERS DIVERSIFIED REALTY
not individually but as Administrative CORPORATION
By: By:
------------------------------------ ------------------------------
Title: Title:
--------------------------------- ---------------------------
----------
(17) This date should be no earlier than five Business Days after the delivery
of this Designation Agreement to the Administrative Agent.
L-3
SCHEDULE 1
----------
SUBSIDIARIES
------------
-1-
DEVELOPERS DIVERSIFIED REALTY CORPORATION AND
---------------------------------------------
LIST OF SUBSIDIARIES/AFFILIATES
-------------------------------
AND STATES WHERE FORMED AND QUALIFIED
-------------------------------------
(NOTE: DDR SUBSIDIARIES THAT ARE MEMBERS OR GENERAL/LIMITED PARTNERS OF AN
ENTITY ARE DESIGNATED BY A * NEXT TO THE NAME.)
1. DEVELOPERS DIVERSIFIED REALTY CORPORATION - Ohio corporation
STATES WHERE QUALIFIED TO DO BUSINESS:
-------------------------------------
1) Arizona 2) California 3) Colorado 4) Connecticut
5) Florida 6) Georgia 7) Indiana 8) Iowa
9) Kansas 10) Kentucky 11) Massachusetts 12) Michigan
13) Minnesota 14) Mississippi 15) Missouri 16) New Hampshire
17) New Mexico 18) North Carolina 19) North Dakota 20) Oregon
21) Pennsylvania 22) South Carolina 23) Utah 24) Vermont
25) Virginia 26) Idaho
THE FOLLOWING IS A LIST OF SUBSIDIARIES OF DDR:
-----------------------------------------------
2. AIP/GREENBRIER GP, INC., a Texas corporation
DDR 100% Sole shareholder
3. AIP OFFICE FLEX I LLC - Ohio limited liability company (fka DDR Office Flex I LLC-name changed on
6/21/99.) (DISSOLVED 6/13/01.)
4. AIP OFFICE FLEX II LLC - Ohio limited liability company (fka DDR Office Flex II LLC-name changed on
6/21/99.) * American Industrial Properties REIT 100% Sole Member and Manager
5. AIP OPERATING, L.P., a Delaware limited partnership (TO BE DISSOLVED.)
* American Industrial Properties REIT 1.00% (General partner)
* American Industrial Properties REIT 99.00% (Limited partner)
6. AIP/POST OFFICE GP, INC., a Delaware corporation
DDR 100% Sole shareholder
7. AIP PROPERTIES #1, L.P., a Delaware limited partnership
* AIP Tamarac, Inc. 1.00% (General partner)
* American Industrial Properties REIT 99.00% (Limited partner)
8. AIP PROPERTIES #3, L.P., a Delaware limited partnership
* AIP Properties #3 GP, Inc. 1.00% (General partner)
* American Industrial Properties REIT 99.00% (Limited partner)
9. AIP PROPERTIES #3 GP, INC., a Texas corporation
DDR 100% Sole shareholder
10. AIP-SWAG GP, INC., a Texas corporation
DDR 100% Sole shareholder
11. AIP-SWAG OPERATING PARTNERSHIP, L.P., a Delaware limited partnership
* AIP-SWAG GP, Inc. 1.00% (General partner)
* American Industrial Properties REIT 99.00% (Limited partner)
12. AIP TAMARAC, INC., a Texas corporation
DDR 100% Sole shareholder
13. AMERICAN INDUSTRIAL PROPERTIES REIT - Texas real estate investment trust
(MERGED INTO DDR TRANSITORY SUB INC. ON MAY 14, 2001, AS SURVIVING ENTITY.)
DDR 100% Sole shareholder
14. AMERICAN INDUSTRIAL PROPERTIES REIT, INC., a Maryland corporation
DDR 100% Sole shareholder
15. ARIZONA CROSSING LIMITED LIABILITY COMPANY (FKA ARROWHEAD CROSSING COMPANY LTD.) - Ohio limited
liability company (DISSOLVED 4/7/99. Property transferred to DDRA Community Centers Five, L.P.)
1) Arizona (under the name of Arrowhead Crossing Company Ltd.)
16. BANDERA COVENTRY LLC - Ohio limited liability company (Formed 11/13/00.)
(FKA COVENTRY BANDERA LLC-NAMED CHANGED ON 11/27/00)
* Coventry Real Estate Partners, Ltd. 100% Sole owner and manager
1) Texas (Qualified 12/7/00.)
17. BIG V ASSOCIATES, LTD. - Utah limited partnership (CANCELED 12/31/99.)
18. CHELMSFORD ASSOCIATES LLC, a Delaware limited liability company
* American Industrial Properties REIT 55.84% (Managing member)
USAA Real Estate Company 44.16% (Member)
19. COMMUNITY I LLC - a Delaware limited liability company (SECURITIZED)
* MZ I Community I LLC 100% Sole Member and Manager
1) California 3) Illinois
2) Georgia 4) Virginia
20. COMMUNITY CENTERS ONE L.L.C. - Delaware limited liability company (SECURITIZED)
* DD Community Centers One, Inc. 2.00% ownership interest (Managing Member)
* DD Community Centers
-2-
Investments LLC 48.00% (As of 2/29/00.)
DRA Opportunity Fund 28.95%
DD Retail Partners II, L.P. 10.05%
DD Retail Partners III, L.P. 5.50%
DD Retail Partners IV, L.P. 5.50%
1) California 2) Colorado 3) Florida 4) Georgia
5) Illinois 6) North Carolina 7) Virginia
21. COMMUNITY CENTERS TWO L.L.C. - Delaware limited liability company (SECURITIZED)
* DD Community Centers Two, Inc. 2.00% ownership interest (Managing Member)
* DD Community Centers
0 Investments LLC 48.00% (As of 2/29/00.)
DRA Opportunity Fund 28.95%
DD Retail Partners II, L.P. 10.05%
DD Retail Partners III, L.P. 5.50%
DD Retail Partners IV, L.P. 5.50%
1) Georgia 2) Missouri
22. COMMUNITY CENTERS THREE, L.L.C. - Delaware limited liability company (SECURITIZED)
DDR 2.00% ownership interest (Managing Member)
* DD Community Centers
Investments LLC 48.00% (As of 2/29/00.)
DRA Opportunity Fund 28.95%
DD Retail Partners II, L.P. 10.05%
DD Retail Partners III, L.P. 5.50%
DD Retail Partners IV, L.P. 5.50%
1) Connecticut 2) Minnesota (?) 3) Massachusetts (As of 3/23/01.)
23. CONTINENTAL SAWMILL LIMITED LIABILITY COMPANY - Ohio limited liability company
* DDR Continental LP 63.42 % (Member) - VOTING INTEREST IS LESS THAN 50%
Xxx X. Xxxxx III 16.79 % (Member)
Xxxxx X. Xxxxxx III 8.395% (Member
Estate of Xxxxxx X. Xxxxxxxxx (As of 1/17/99) 1.0 % (Member)
Xxxxxxx X. Xxxxx 2.0 % (Member)
QTIP Trust under the Will of
Xxxxx X. Xxxxxx, Xx. 8.395% (Member)
24. CONTINENTAL SAWMILL LIMITED PARTNERSHIP - Ohio limited partnership
* DDR Continental LP .05% (General partner)
* Continental Sawmill, Inc. .05% (General partner)
* DDR Continental LP 79.512% (Limited partner) - VOTING INTEREST IS LESS THAN 50%
Xxxxx Xxxxx Xxxxxx, Trustee 2.722% (Limited partner)
-3-
Xxxxxxx X. Xxxxx 1.006% (Limited partner)
Estate of Xxxxxx X. Xxxxxxxxx (As of 1/17/99) 0.505% (Limited partner)
Xxxxx Realty Investments-Dublin
Village Limited 7.09 % (Limited partner)
Columbus Realty Investments, Ltd. 8.165% (Limited partner) (As of 9/30/99)
25. XXXX RAPIDS RIVERDALE VILLAGE LLC - Ohio limited liability company
DLA Ventures LLC 100% Sole Member (As of 4/13/00.)
1) Minnesota
26. COVENTRY LONG BEACH PLAZA LLC, a Delaware limited liability company
(Prudential's counsel formed this entity.) (Formed on December 3, 1998.)
Retail Value Investment Program Limited Partnership III 100% Managing Member
27. COVENTRY REAL ESTATE PARTNERS, LTD. (FKA RETAIL VALUE MANAGEMENT LTD.) - Ohio limited liability
company
Class A Units:
--------------
DDR 79 Units 79% (Member)
Xxxxx Xxxxxx 15 Units 15% (Member)
Xxxxx Xxxxx 3 Units 3% (Member)
Xxx Xxxxxxxx 1 Unit 1% (Member)
Xxxxxx Xxxx 1 Unit 1% (Member)
Xxxx Xxxxxx 1 Unit 1% (Member)
Class B Units:
* DD Development Company II, Inc. 79 Units 79% (Member)
Xxxxx Xxxxxx 15 Units 15% (Member)
Xxxxx Xxxxx 3 Units 3% (Member)
Xxx Xxxxxxxx 1 Unit 1% (Member)
Xxxxxx Xxxx 1 Unit 1% (Member)
Xxxx Xxxxxx 1 Unit 1% (Member)
1) Kansas 2) Missouri 3) Illinois (Qualified 11/22/00.)
4) North Dakota (Qualified 8/ /01.)
28. COVENTRY REAL ESTATE PARTNERS II, LTD. - an Ohio limited liability company (formed 9/1/99) (SHELL
ENTITY.) (Dissolved 11/23/99.)
29. Coventry Round Rock LLC - an Ohio limited liability company (Formed 12/21/99.)
* Coventry Real Estate Partners, Ltd. 100% (Sole Member and Manager)
1) Texas (Qualified 1/21/2000.)
30. DD COMMUNITY CENTERS ONE, INC. - Ohio corporation (SECURITIZED)
DDR 100% shareholder
-4-
1) California 2) Colorado 3) Florida 4) Georgia
5) Illinois 6) North Carolina 7) Virginia
31. DD COMMUNITY CENTERS TWO, INC. - Ohio corporation (SECURITIZED)
DDR 100% shareholder
(Note: The # designates where this entity owns property.)
1) Georgia # 2) Massachusetts 3) Missouri # 4) Tennessee
32. DD COMMUNITY CENTERS THREE, INC. - Ohio corporation (SECURITIZED)
DDR 100% shareholder
1) Massachusetts
33. DD COMMUNITY CENTERS FIVE INC. - Ohio corporation (SECURITIZED)
DDR 100% shareholder
1) Arizona 2) Minnesota 3) Oregon 4) Texas
34. DD COMMUNITY CENTERS SEVEN, INC. - a Delaware corporation (Formed 10/7/99.)
DDR 100% Shareholder
1) Arizona (Qualified 12/29/99.)
35. DD COMMUNITY CENTERS EIGHT, INC. - a Delaware corporation (Formed 1/18/2000.) (SECURITIZED)
DDR 100% Shareholder
1) Arizona (Qualified 2/4/00.)
36. DD COMMUNITY CENTERS INVESTMENTS LLC - a Delaware limited liability company (Formed 2/7/2000.)
DDR 37.500% (Managing Member)
DT Retail Partners 40, L.P. 11.151% (Member)
DT Retail Partners 60, L.P. 3.691% (Member)
DT Retail Partners 80, L.P. .923% (Member)
DT Retail Partners 70, L.P. 4.614% (Member)
DT Retail Partners 20, L.P. 35.489% (Member)
DT Retail Partners 50, L.P. 6.507% (Member)
-5-
Xxxxxxx X. Xxxxxx .050% (Member)
Xxxxx Xxxxx .050% (Member)
Xxxx XxXxxx .025% (Member
37. DD DEVELOPMENT COMPANY, INC. - an Ohio corporation
(THIS CORPORATION IS A PARTIALLY-OWNED SUBSIDIARY OF DDR.)
Class A Voting Common Shares:
-----------------------------
Xxxxx Xxxxxxxx 99 shares
DDR 1 share
---
100 shares
Class B Nonvoting Common Shares:
--------------------------------
DDR 100 shares
38. DD DEVELOPMENT COMPANY II, INC. - an Ohio corporation (Formed 1/14/2000.)
(THIS CORPORATION IS A PARTIALLY-OWNED SUBSIDIARY OF DDR.)
Class A Voting Common Shares:
-----------------------------
Xxxxx Xxxxxxxx 99 shares
DDR 1 share
---
100 shares
Class B Nonvoting Common Shares:
--------------------------------
DDR 100 shares
1) California (Qualified 12/12/00.) 2) North Dakota (Qualified 08/ /01.)
39. DDPD OPP LLC - a Maryland limited liability company (formed 6/29/99)
* DDRC PDK Hagerstown LLC 100% Sole Member
40. DDR BP OPPORTUNITY LLC - Ohio limited liability company
(DISSOLVED 3/24/99.)
41. DDR CM, INC. - A CALIFORNIA CORPORATION (Formed 7/25/00.)
(THIS CORPORATION IS AN AFFILIATE OF DDR--NOT A SUBSIDIARY.)
* DD Development Company II, Inc. 100% Sole shareholder
42. DDR CONTINENTAL INC. - Ohio corporation (SECURITIZED)
DDR 100% shareholder
43. DDR CONTINENTAL LP - Ohio limited partnership
* DDR DownREIT LLC 83.52% (General partner)
18,870,972 (General partner units) As of 1/15/02.
Xxxxxxxx X. Xxxx 5.3366% (Limited partner)
Xxxx X. Xxxxx, Xx. 5.2122% (Limited partner)
Xxxxxxx Xxxxxx 0.3571% (Limited partner)
Xxxxx Xxxxxxx 0.1571% (Limited partner)
-6-
Kass Family Limited Partnership 1.3553% (Limited partner)
Lucks Family Limited Partnership 4.0577% (Limited partner)
1) West Virginia
44. DDR DB DEVELOPMENT VENTURES LP - Texas limited partnership
* Retail Value Investment Program IIIA Limited Partnership 1% (General partner)
DDR 49% (Limited partner)
Xxxxx Xxxxxx 50% (Limited partner)
45. DDR DB OPPORTUNITY SUB, INC. - Ohio corporation
DDR 100% shareholder
1) Texas
46. DDR DB OUTLOT LP - a Texas limited partnership (Formed 12/3/99.)
Xxxxx Xxxxxx Interests, Inc. 1% (General partner) (As of 12/3/99.)
* DD Development Company, Inc. 50% (Limited partner)
Xxxxx Xxxxxx 49% (Limited partner)
47. DDR DB SA PHASE II LP - a Texas limited partnership (Formed 12/14/00.)
(This entity was formed by Xxxxx Xxxxx, counsel for Xxxxx Xxxxxx.)
* DDR DB Opportunity Sub Inc. 1.00% (General partner)
DD Development Company II, Inc. 49.00% (Limited partner)
ERA Partners, Ltd. 50.00% (Limited partner)
48. DDR DB SA VENTURES LP - a Texas limited partnership (Formed 11/10/99.)
* Retail Value Investment Program IIIC 1% (General partner)
Limited Partnership
DDR 49% (Limited partner)
ERA Partners, Ltd. 50% (Limited partner) (As of 7/17/00.)
49. DDR DOWNREIT LLC - an Ohio limited liability company (formed 8/17/99)
DDR 37,900,000 Units 76.6875% (Managing Member)
* DD Development Company, Inc. 433,333 Units .8125% (Member)
Xxxxxxx Sachs 0000 Xxxxxxxx
Xxxxx Fund, L.P. 300,000 Preferred 9.3750% (Preferred Member)
Class K Units
Xxxxxxx Xxxxx 0000 Xxxxxxxx
Xxxxx Fund, L.P. 420,000 Preferred 13.1250% (Preferred Member)
Class J Units (As of 5/25/00.)
* DDR Nassau Pavilion Inc. (Managing Member in Illinois only)
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1) Arkansas 2) Florida 3) Georgia 4) Idaho
5) Illinois 6) Indiana 7) Kentucky 8) Nevada
9) North Carolina 10) South Carolina 11) South Dakota 12) Utah
13) Virginia 14) West Virginia
50. DDR FAMILY CENTERS I INC. - Ohio corporation
DDR 100% shareholder
51. DDR FAMILY CENTERS LP - Delaware limited partnership
* DDR DownREIT LLC 72.6762% (General partner) (As of 12/30/99.)
9,656,887.121 (General partner units)
* DDR DownREIT LLC 27.3238% (Limited partner) (As of 7/3/00.)
3,630,668 (Limited partner units)
1) Idaho 2) Nevada 3) Utah 4) S. Dakota
52. DDR GG OPPORTUNITY SUB, INC. - Ohio corporation
(DISSOLVED 7/19/99.)
53. DDR HENDON NASSAU PARK II LP - Georgia limited partnership (SECURITIZED)
* DDR Nassau Park II Inc. 84.74% (General partner)
Hendon Investments, Inc. 15.17% (Limited partner)
Hendon Princeton No. 3., Inc. .09% (Limited partner)
1) New Jersey
54. DDR HERMES ASSOCIATES L.C. (FKA DDR XXX XX X.X.) - a Utah limited liability company (Formed
9/3/99. Name changed 12/29/99.) (Currently a SHELL ENTITY.)
* DDR Family Centers LP 100% (Sole and Managing Member)
55. DDR INDEPENDENCE LLC - a Delaware limited liability company
(Formed 2/04/2002)
* DDR Realty Company 100% Sole Member
1) Missouri
56. DDR INDUSTRIAL REALTY CORPORATION - Delaware corporation
(PRIVATE REIT. DISSOLVED 7/13/99.)
57. DDR KILDEER INC. - an Illinois corporation (Formed 8/16/00.)
DDR 100% Sole shareholder
58. DDR LIBERTY FAIR, INC. - a Delaware corporation (Formed 11/18/99.) (SECURITIZED)
DDR 100% Shareholder
-8-
1) Virginia (Qualified 11/22/99.)
59. DDR LONG BEACH LLC (FKA DDR OLIVERMcMILLAN LONG BEACH LLC), a Delaware limited liability
company
* DDR Urban LP 100% Sole owner and Manager
1) California
60. DDR MANAGEMENT LLC - a Delaware limited liability company
(this is an AFFILIATE of DDR not a subsidiary)
* DDR Urban LP 100% Sole Member
1) California
61. DDR MICHIGAN II LLC - an Ohio limited liability company (Formed 12/11/98.)
DDR 99.5% (Manager Member)
* DD Development Company, Inc. .5% (Member)
1) Michigan
62. DDR NASSAU PARK II INC. - Ohio corporation (SECURITIZED)
DDR 100% shareholder
1) Georgia 2) New Jersey
63. DDR Nassau Pavilion Associates LP - Georgia limited partnership
* DDR Nassau Pavilion Inc. 56.55% (General partner)
DDR 43.45% (Limited partner)
1) New Jersey
64. DDR NASSAU PAVILION INC. - Ohio corporation
DDR 100% shareholder
1) Georgia 2) New Jersey 3) Illinois
65. DDR OCEANSIDE LLC (FKA DDR OLIVERMcMILLAN OCEANSIDE LLC), a Delaware limited liability company
DDR 100% Sole owner and Manager
1) California
-9-
66. DDR OFFICE FLEX CORPORATION - Delaware corporation
DDR 100% shareholder
(NOTE: This company was formed in Ohio on 4/28/98 and then merged into American Properties
Investment Trust whereby it ceased to exist on 8/4/98. On 9/18/98, this company was formed again
in Delaware.)
1) Maryland
67. DDR OFFICE FLEX LP - Ohio limited partnership
(Shell Entity)
68. DDR OHIO OPPORTUNITY LLC - an Ohio limited liability company (formed 8/30/99)
* DDR DownREIT LLC 100% Sole owner, member and manager
69. DDR OHIO OPPORTUNITY II LLC - an Ohio limited liability company (Formed 5/12/00.)
* DDR DownREIT LLC 100% Sole Member (As of 5/25/00.)
70. DDR OHIO OPPORTUNITY III LLC - an Ohio limited liability company (Formed 5/12/00.)
DDR 100% Sole Member (As of 1/01/01.)
71. DDR OLIVERMcMILLAN MANAGEMENT SERVICES, INC. - Delaware corporation
(DISSOLVED on 3/23/01.)
72. DDR OPPORTUNITY, INC. - Ohio corporation
(DISSOLVED 7/19/99.)
73. DDR P&M ASPEN GROVE LIFESTYLE CENTER PROPERTIES, LLC, a Delaware limited liability company
(Counsel for Xxxx & XxXxxx formed this entity on October 4, 2000, fka Aspen Grove Lifestyle Center
Properties, LLC.) DDR became a Member on 4/16/01.
DDR 50% Managing Member
Xxxx & XxXxxx Lifestyle Centers-Littleton, LLC 50% Member
1) Colorado
74. DDR/POST OFFICE LIMITED PARTNERSHIP - a Virginia limited partnership
* AIP/Post Office GP, Inc. 1.00% (General Partner)
Galaxy Post Office Associates, L.L.C. 1.00% (Co-General Partner)
* American Industrial Properties REIT 49.00% (Limited Partner)
Galaxy Post Office Associates, L.L.C. 49.00% (Limited Partner)
75. DDR QUEENSWAY LLC - an Ohio limited liability company (Formed 6/21/00.)
DDR 100% Sole Member
1) California (Qualified 7/7/00.)
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76. DDR QUEENSWAY CM LLC - an Ohio limited liability company (Formed 6/22/00.)
(THIS LLC IS AN AFFILIATE OF DDR--NOT A SUBSIDIARY.)
* DD Development Company II, Inc. 100% Sole Member
1) California (Qualified 7/7/00.)
77. DDR REAL ESTATE SERVICES INC. - a California corporation (Formed 8/31/00.)
(THIS CORPORATION IS AN AFFILIATE OF DDR--NOT A SUBSIDIARY.)
* DD Development Company II, Inc. 100% Sole shareholder
1) New Mexico (Qualified 10/5/00) 2) Oregon (Qualified 10/3/00)
3) Utah (Qualified 10/3/00) 4) Washington (Qualified 10/4/00)
78. DDR REALTY COMPANY (FKA DDR REALTY TRUST, INC.) - Maryland Real Estate
Investment Trust
DDR 100% shareholder
1) Missouri (Fictitious name filing only.) 2) Iowa
## Note: In the fall of 1998, an effort was made to qualify this company in Illinois since it is
the sole member of ORIX Xxxxxxx Brentwood L.L.C. ("ORIX") which is an Illinois limited liability
company. ORIX only owns property in Missouri, but since it is an Illinois entity, our
understanding was the Managing Member had to be qualified to do business in Illinois.
Unfortunately, Illinois law does not recognize real estate investment trusts and therefore, we
were unable to qualify this company in that state.
79. DDR RENO LLC (FKA DDR OLIVERMcMILLAN RENO LLC), a Delaware limited liability company
DDR 100% Sole owner and Manager
1) Nevada
80. DDR XXXXXXX DEVELOPMENT VENTURES LLC - Missouri limited liability company
DDR 50.00% (Managing Member as of 8/27/99)
Xxxxxxx X. Xxxxxxx, Xx., Trustee 12.50% (Member)
U/A dtd 10/24/94 F/O/B Xxxxxxx
X. Xxxxxxx, Xx.
Xxxxx X. Xxxxxxx, Trustee under 12.50% (Member)
the Xxxxx X. Xxxxxxx Revocable
Living Trust dtd 9/16/91
Xxxxxxx X. Xxxxxxx, Trustee under 12.50% (Member)
the Xxxxxxx X. Xxxxxxx Revocable
Living Trust dtd 1/15/97
Xxxxxxx X. Xxxxxxx, Trustee under 12.50% (Member)
the Xxxxxxx X. Xxxxxxx Revocable
Living Trust dtd. 8/28/96
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81. DDR SM LLC - a Delaware limited liability company (does not own a Project yet)
* DD Development Company, Inc. 100% (sole Member)
82. DDR/TECH 29 LIMITED PARTNERSHIp, a Maryland limited partnership
* DDR Office Flex Corporation 1.00% (General partner)
DDR .05% (Limited partner)
* American Industrial Properties REIT 88.50% (Limited partner)
Third Party (Unknown name) 10.00% (Limited partner)
83. DDR TINTON FALLS, LLC, an Ohio limited liability company (Formed 1/09/2002)
DDR 50% (Managing member)
* DD Development Company, Inc. 50% (Member)
1) New Jersey
84. DDR TRANSITORY SUB, INC. - a Texas corporation (Formed 8/25/00.)
(MERGED INTO AMERICAN INDUSTRIAL PROPERTIES REIT ON MAY 14, 2001.)
DDR 9,999 Shares of Common Stock issued 2/12/01
Xxxxx X. Xxxxxxxx 1 Share of Common Stock issued 4/13/01
85. DDR URBAN, INC. (FKA DDR OLIVERMcMILLAN INC.) - Delaware corporation
(Name changed as of 2/9/2001.) (THIS IS AN AFFILIATE OF DDR-NOT A SUBSIDIARY.)
Class A Voting Common Stock:
----------------------------
DD Development Company II, Inc. 100 Shares (As of 2/01/00.)
Class B Nonvoting Common Stock:
-------------------------------
DD Development Company II, Inc. 1,000 Shares (As of 2/01/00.)
Series A Preferred Nonvoting Common Stock:
------------------------------------------
(Each employee of DDR and OliverMcMillan Group, LLC had owned 1 share of this stock. All 271
shares are in the process of being redeemed and cancelled. The effective date of the redemption
is as of 12/01/00.)
1) California
86. DDR URBAN LP (FKA DDR OLIVERMcMILLAN LP) - Delaware limited partnership
(Name changed as of 2/9/2001.) (THIS IS AN AFFILIATE OF DDR-NOT A SUBSIDIARY.)
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* DDR Urban, Inc. 61.6838% (General partner)
DD Development Company II, Inc. 38.3162% (Limited partner) (As of 12/1/00.)
* DDR Urban, Inc. 265 Preferred Units (Preferred limited partner)
1) California
87. DDR UNIVERSITY SQUARE ASSOCIATES L.C. (FKA DDR BIG V ASSOCIATES L.C.) - a Utah limited liability
company (Formed 9/3/99. Name changed 12/29/99.) (Currently a SHELL ENTITY.)
* DDR Family Centers LP 100% (Sole and Managing Member)
88. DDR XXX XXXX, INC. - an Ohio corporation (Formed 2/15/2002) (does not own a Project)
DDR 100% Shareholder
1) California
89. DDR/XXX XXXX OPERATING COMPANY, L.P. - a Delaware limited partnership
DDR 1 % Limited Partner
* DDR Xxx Xxxx, Inc. 99% General Partner
1) California
90. DDR VIC I L.C. - a Utah limited liability company (Formed 9/3/99.) (Currently a SHELL ENTITY.) (TO BE
CANCELED.)
* DDR Family Centers LP 100% (Managing Member)
91. DDR WATERTOWN LLC - an Ohio limited liability company (Formed 1/11/2002)
DDR 100% (Sole member)
1) South Dakota
92. DDR WILSHIRE, INC. - an Ohio corporation (Formed 11/29/99.)
DDR 100% Shareholder
1) California (Qualified 1/6/2000.)
93. DDRA COMMUNITY CENTERS FOUR, L.P. - Texas limited partnership (SECURITIZED)
* Xxxxx Community Centers, Inc. .5% (General partner)
DRDI San Antonio LLC .5% (General partner)
DDR 34.5% (Limited partner
DD Investment Partners, L.P. 64.5% (Limited partner)
94. DDRA COMMUNITY CENTERS FIVE, L.P. - Delaware limited partnership (SECURITIZED)
* DD Community Centers Five, Inc. .250% (General partner)
GT Retail Corp. .250% (General partner)
DDR 49.750% (Limited partner)
DRA Growth and Income Fund, LLC 24.875% (Limited partner)
DT CCV, Limited Partnership 24.875% (Limited partner)
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1) Arizona 2) Minnesota 3) Oregon 4) Texas
95. DDRA COMMUNITY CENTERS SIX, L.P. - a Delaware limited partnership
* DDR Realty Company 50.00% (General partner)
DD Clocktower Corp. .25% (General partner)
DD Investment Partners, L.P. 49.75% (Limited partner)
1) Missouri
96. DDRA COMMUNITY CENTERS SEVEN, L.P. - a Delaware limited partnership (Formed 10/14/99.)
* DD Community Centers Seven Inc. .025% (General partner)
GT Retail II Corp. .025% (General partner)
DDR 49.750% (Limited partner)
DRA Growth and Income Fund, LLC 24.875% (Limited partner)
DT CCVII, Limited Partnership 24.875% (Limited partner)
1) Arizona (Qualified 12/29/99.)
97. DDRA COMMUNITY CENTERS EIGHT, L.P. - a Delaware limited partnership (Formed 1/31/2000.) (SECURITIZED)
* DD Community Centers Eight, Inc. .5% (General partner)
GG Retail III Corp. .5% (General partner)
DDR 49.5% (Limited partner)
DRA Growth and Income Fund II, LLC 49.5% (Limited partner)
1) Arizona (Qualified 2/7/00.)
98. DDRA KILDEER LLC - a Delaware limited liability company
G & I III Kildeer LLC 90% (Managing Member)
* DDR Kildeer Inc. 10% (Managing Member)
1) Illinois
99. DDRC GATEWAY LLC - Delaware limited liability company
DDR 100% (sole member)
1) Massachusetts
100. DDRC GREAT NORTHERN LIMITED PARTNERSHIP - Ohio limited partnership
DDR DownREIT LLC 97.55% (General partner) As of 12/30/99.
2,657,987 (General partner units)
DD Development Company, Inc. 2.95% (Limited partner)
66,616 (Limited partner units)
Series A Preferred Partnership Units:
-------------------------------------
AEW Targeted Securities Fund, .0% Interest
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1,400,000 (Limited partner units)
101. DDRC MICHIGAN LLC - Ohio limited liability company
DDR 99.5% (Managing member)
DD Development Company .5% (Member)
1) Michigan
102. DDRC P&M DEER PARK TOWN CENTER LLC - Ohio limited liability company
* Retail Value Investment Program Limited Partnership IIIB 50% (Managing Member - as of 9/29/00)
Xxxx & XxXxxx Lifestyle Centers-- 50% (Member)
Deer Park Town Center, LLC
1) Illinois
103. DDRC PDK EASTON LLC--an Ohio limited liability company (Formed 4/13/00.)
DDR 50% Managing Member
PDK-Hagerstown, L.C. 50% Member
104. DDRC PDK HAGERSTOWN LLC - Ohio limited liability company
Retail Value Investment Program Limited Partnership IVA 50% (Managing member) (As of 3/30/00.)
PDK-Hagerstown, L.C. 50% (Member)
1) Maryland
105. DDRC PDK SALISBURY LLC - Ohio limited liability company
Phase I:
-------
DDR 100% Sole Member
Phase II:
--------
DDR 100% Sole Member
1) Maryland
106. DDRC PDK SALISBURY PHASE III LLC - an Ohio limited liability company (Formed 7/7/00.)
DDR 50% (Managing Member)
PDK-Commons Phase III, L.C. 50% (Member)
1) Maryland (Qualified 7/20/00.)
107. DDRC SALEM LLC - Delaware limited liability company
* Retail Value Investment Program Limited Partnership IIA 100% (Managing member) As of 2/26/00.
1) New Hampshire
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108. DEVELOPERS DIVERSIFIED OF ALABAMA, INC. - Alabama corporation
DDR 100% shareholder
109. DEVELOPERS DIVERSIFIED BROADVIEW VILLAGE LP - Ohio limited partnership
(DISSOLVED 3/24/99.)
110. DEVELOPERS DIVERSIFIED CENTENNIAL PROMENADE LP - Ohio limited partnership
DDR 1,804,949.80 (General partner units)
Xxxxxxx Promenade L.L.C. 126,434.74 (Limited partner units)
Xxxxxx Developments, L.L.C. 1 (Limited partner units)
Centennial Promenade, Ltd. 10 (Limited partner units)
1) Colorado
111. DEVELOPERS DIVERSIFIED XXXX'X CORNER LP - Ohio limited partnership
DDR 0.00% (General partner)
* DDR DownREIT LLC 97.85% (General partner) As of 12/30/99.
404,984 (General partner units)
Brunswick Realty Trust and
Brunswick Associates Trust,
jointly 2.15% (Limited partner)
1) Maine
112. DEVELOPERS DIVERSIFIED FINANCE CORPORATION - Ohio corporation
(MERGED INTO DDR DOWNREIT LLC 8/20/99.)
113. DEVELOPERS DIVERSIFIED OF INDIANA, INC. - Ohio corporation
DDR 100% shareholder
114. DEVELOPERS DIVERSIFIED LANSING LANDINGS LP - Ohio limited partnership
(DISSOLVED 3/24/99.)
115. DEVELOPERS DIVERSIFIED OF MISSISSIPPI, INC. - Ohio corporation
DDR 100% shareholder
1) Mississippi
116. DEVELOPERS DIVERSIFIED OF PENNSYLVANIA, INC. - Ohio corporation
DDR 100% shareholder
1) Pennsylvania
117. DEVELOPERS DIVERSIFIED OF TENNESSEE, INC. - an Ohio corporation (Formed 11/3/99.)
DDR 100% Shareholder
1) Tennessee (Qualified 11/24/99.)
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118. DLA VENTURES LLC - an Ohio limited liability company (Formed 2/25/00. Merged with DLA Ventures
LP on 4/13/00. Surviving entity.)
DDR 25.0% (Managing Member)
Xxxxxx-Xxxxx Real Estate Fund II, L.P. 27.3% (Member) (As of 4/13/00.)
Xxxxxx-Xxxxx Real Estate Parallel Fund II, L.P. 40.1% (Member) " "
Xxxxxx-Xxxxx Capital Real Estate Fund II, L.P. 7.6% (Member) " "
1) Minnesota (Qualified 5/3/00.)
119. DLA VENTURES LP- an Ohio limited partnership (Formed 9/14/99. Merged into DLA Ventures LLC on 4/13/00.)
120. DOTRS LIMITED LIABILITY COMPANY - Ohio limited liability company
DDR $11,525,731.67 Contribution (Managing Member)
The State Teachers Retirement $11,525,731.67 Contribution (Member)
Board Of Ohio
121. XXXXXX XXXXXXXXXX LIMITED LIABILITY COMPANY - Ohio limited liability company
* DDR Continental LP $188,756 (Capital Account)(Member)50%
Xxxxx X. Xxxxxx III 41,640 " " (Member) 11.03%
Xxx X. Xxxxx III 83,279 " " (Member) 22.06%
Estate of Xxxxxx X. Xxxxxxxxx (As of 1/17/99) 4,455 " " (Member) 1.176%
Xxxxxxx X. Xxxxx 8,834 " " (Member) 2.352%
Xxxxx X. Xxxxx 4,455 " " (Member) 1.176%
United Management, Inc. 4,455 " " (Member) 1.176%
QTIP Trust under the Will of
Xxxxx X. Xxxxxx, Xx. 41,639 " " (Member) 11.03%
122. XXXXXX XXXXXXXXXX LIMITED PARTNERSHIP - Ohio limited partnership (SECURITIZED)
* DDR Continental Inc. .50% (General partner)
Xxxxxx Xxxxxxxxxx, Inc. .50% (General partner)
* DDR Continental LP 49.29181 Units (Limited partner)
Xxxxx X. Xxxxxx III 10.8300 Units (Limited partner)
Xxxxx Xxxxx Xxxxxx, Trustee of
the QTIP Trust Under the Will of
Xxxxx X. Xxxxxx, Xx. 10.8300 Units (Limited partner)
Xxx X. Xxxxx III 21.70400 Units (Limited partner)
Xxxxxxx X. Xxxxx 2.53500 Units (Limited partner)
Estate of Xxxxxx X. Xxxxxxxxx 1.26773 Units (Limited partner)
Xxxxx X. Xxxxx 1.26773 Units (Limited partner)
United Management, Inc. 1.26773 Units (Limited partner)
123. EASTCHASE MARKET INC. - Ohio corporation
(DISSOLVED 7/19/99.)
124. EASTCHASE MARKET L.P. - Texas limited partnership
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(CERTIFICATE OF CANCELLATION FILED 12/22/98. Property transferred to DDRA Community Centers Five, L.P.)
125. EASTON MARKET LIMITED LIABILITY COMPANY - Delaware limited liability company
* DDR Continental LP 100% (Sole member)
1) Ohio
126. ENERGY MANAGEMENT STATEGIES, INC. - Delaware corporation (Formed 12/04/2001) (does NOT OWN a
PROJECT in terms of acting as a guarantor)
DDR 100% Sole shareholder
1) Ohio
127. FOOTHILLS TOWNE CENTER II, INC. - Ohio corporation
DISSOLVED 7/7/99. Property transferred to DDRA Community Centers Five, L.P.)
128. FOOTHILLS TOWNE CENTER III, INC. - Ohio corporation
(DISSOLVED 7/7/99. Property transferred to DDRA Community Centers Five, L.P.)
129. FORT UNION ASSOCIATES, L.C. - Utah limited liability company
* DDR Family Centers LP 99.5% (Managing member)
* DDR Family Centers I Inc. .5% (Member)
130. XX XXXXXXXX LLC, a Delaware limited liability company (SECURITIZED)
(Counsel for Xxxxxxx Sachs formed this entity on 4/11/01.)
* GS DDR LLC 100% Managing Member
131. GS BRENTWOOD LLC, a Delaware limited liability company (SECURITIZED)
(Counsel for Xxxxxxx Xxxxx formed this entity on 4/11/01.)
* GS DDR LLC 100% Managing Member
132. GS CENTENNIAL LLC, a Delaware limited liability company (SECURITIZED)
(Counsel for Xxxxxxx Sachs formed this entity on 4/11/01.)
* GS DDR LLC 100% Managing Member
133. GS DDR LLC, an Ohio limited liability company
(Counsel for Xxxxxxx Xxxxx formed this entity on 4/11/01.)
* DDR Realty Company 100% Managing Member
134. GS ERIE LLC, a Delaware limited liability company (SECURITIZED)
(Counsel for Xxxxxxx Sachs formed this entity on 4/11/01.)
* GS DDR LLC 100% Managing Member
135. GS SUNSET LLC, a Delaware limited liability company (SECURITIZED)
(Counsel for Xxxxxxx Xxxxx formed this entity on 4/11/01.)
* GS DDR LLC 100% Managing Member
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136. HAGERSTOWN DEVELOPMENT LLC - an Ohio limited liability company (Formed 9/8/99.)
DDR 50% (Member)
PDK-Hagerstown, L.C. 50% (Member)
1) Maryland
137. HAGERSTOWN TIF LLC - an Ohio limited liability company (Formed 12/13/99.)
DDR 50% (Member)
PDK-Hagerstown, L.C. 50% (Member)
138. HENDON/DDR/BP, LLC - Delaware limited liability company
* Retail Value Investment Program Limited Partnership I 83.75% (Managing member)
Hendon Best, LLC 16.25% (Member)
1) New Jersey 2) Ohio 3) North Dakota
139. HERMES ASSOCIATES - Utah general partnership
* DDR Family Centers I Inc. .5% (General partner)
* DDR Family Centers LP 99.5% (General partner)
140. HERMES ASSOCIATES, LTD. - Utah limited partnership
* DDR Family Centers LP 99.5% (General partner)
* DDR Family Centers I Inc. .5% (Limited partner)
1) Idaho 2) Nevada 3) South Dakota
141. HIGHLAND GROVE LIMITED LIABILITY COMPANY - Ohio limited liability company
DDR 99% (Manager Member)
* DD Development Company, Inc. 1% (Member)
1) Indiana
142. HISTORIC XXX XXXX LLC - California limited liability company
* DDR Xxx Xxxx, Inc. 0.1% (Managing Member)
Transamerica Occidental Life
Insurance Company 99.9% (Investor Member)
143. JEFFERSON COUNTY PLAZA LLC - a Missouri limited liability company
* DDR Xxxxxxx Development Ventures LLC 100% (Managing Member)
144. KLA/SM, L.L.C. - a Delaware limited liability company
DDR 25% (Member)
Xxxxxx-Xxxxx Real Estate Fund III, L.P. 74% (Members)
Xxxxxx-Xxxxx Real Estate Parallel Fund III, L.P.
XX Xxxxx Equity, L.P. is less than 1% (Member)
SM Opportunity, LLC is less than 1% (Member)
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145. LENNOX TOWN CENTER LIMITED - Ohio limited liability company
* DDR Continental LP 50.0000 Units (Member) 50.0%
Xxxx X. Xxxxxxx 12.5000 Units (Member) 12.5%
Columbus Realty Investments, Ltd. 37.5000 Units (Member) 37.5%
146. LIBERTY FAIR VA LP - a Virginia limited partnership (To be formed 11/24 or 11/29/99.)
(SECURITIZED)
* DDR Liberty Fair, Inc. 49.50% (General partner)
DDR .50% (General partner)
The Xxxxxx Group, Inc. 50.00% (Limited partner)
147. LIBERTY FAIR VA II LP - a Virginia limited partnership (Formed 6/14/00).
DDR .5% (General partner)
DDR 49.5% (Limited partner
The Xxxxxx Group, Inc. 50.0% (Limited partner)
148. MACEDONIA COMMONS LTD. - Ohio limited liability company
(DISSOLVED 3/24/99.)
149. MAPLE GROVE CROSSING LIMITED LIABILITY COMPANY - Ohio limited liability company
(DISSOLVED 3/24/99. Property transferred to DDRA Community Centers Five, L.P.)
150. MERRIAM TOWN CENTER LTD. - Ohio limited liability company
DDR 50% (Managing member)
DD Merriam LP 50% (Member)
1) Kansas
151. MZ I COMMUNITY I LLC - a Delaware limited liability company (SECURITIZED)
* MZ II Community I LLC 100% Sole Member and Manager
1) California 3) Illinois
2) Georgia 4) Virginia
152. MZ II COMMUNITY I LLC - a Delaware limited liability company (SECURITIZED)
* Community Centers One L.L.C. 100% Sole Member and Manager
1) California 3) Illinois
2) Georgia 4) Virginia
153. ORIX XXXXXXX BRENTWOOD L.L.C. - Illinois limited liability company - (shell entity)(Dissolution
Pending)
(Name was suppose to change to Xxxxxxx DDRC Brentwood LLC; however, since Illinois law does not
recognize real estate investment trusts in that state, we were unable to change the name since
DDR Realty Company is a REIT and the sole member of this limited liability company.)
* DDR Realty Company 100% (Sole member)
-20-
1) Missouri
154. PARCEL J-1B LIMITED PARTNERSHIP, a Virginia limited partnership
* AIP/Post Office GP, Inc. 1.00% (General partner)
Galaxy Post Office Associates, L.L.C. 1.00% (General partner)
* American Industrial Properties REIT 49.00% (Limited partner)
Galaxy Post Office Associates, L.L.C. 49.00% (Limited partner)
155. XXXXX COMMUNITY CENTERS, INC. - Ohio corporation (SECURITIZED)
DDR 100% shareholder
1) Texas
156. PLAINVILLE CONNECTICUT L.L.C. (FKA DDR CONNECTICUT L.L.C.) - an Ohio limited liability company
DDR 100% (Sole Member)
157. PLAINVILLE DEVELOPMENT L.P. (FKA DDR PLAINVILLE DEVELOPMENT L.P.) - an Ohio limited partnership
* Retail Value Investment Program Limited Partnership IA 1% (General partner)(As of 2/1/00.)
49% (Limited partner)
Red Oak Associates, L.P. 1% (General partner)
49% (Limited partner)
1) Xxxxxxxxxxx
000. RETAIL VALUE INVESTMENT PROGRAM LIMITED PARTNERSHIP I - Delaware limited partnership
Class A Units:
* Coventry Real Estate Partners, Ltd. 1% (General partner)
DDR 99% (Limited partner)
Class B Units:
* Coventry Real Estate Partners, Ltd. 1% (General partner)
* DD Development Company, Inc. 99% (Limited partner)
1) North Dakota
159. RETAIL VALUE INVESTMENT PROGRAM LIMITED PARTNERSHIP IA, a Delaware limited partnership
(Prudential's counsel, XxXxxxxx & English, formed this entity.)
* Coventry Real Estate Partners, Ltd. 1.00% (General partner)
The Prudential Insurance Company of America 74.25% (Limited partner)
DDR 24.75% (Limited partner)
160. RETAIL VALUE INVESTMENT PROGRAM LIMITED PARTNERSHIP IB, a Delaware limited partnership
-21-
(Prudential's counsel, XxXxxxxx & English, formed this entity.) This entity was suppose to be
used in a deal with DDRC Gateway LLC but the deal was never consummated so it is a shell entity.
* Coventry Real Estate Partners, Ltd. (General partner)
The Prudential Insurance Company of America (Limited partner)
DDR (Limited partner)
161. RETAIL VALUE INVESTMENT PROGRAM LIMITED PARTNERSHIP II - Delaware limited partnership
* Coventry Real Estate Partners, Ltd. 1.00% (General partner)
The Prudential Insurance Company
of America, solely on behalf of
the Prudential Variable Contract
Account No. 4290 74.25% (Limited partner)
DDR 24.75% (Limited partner)
162. RETAIL VALUE INVESTMENT PROGRAM LIMITED PARTNERSHIP IIA, a Delaware limited partnership
(Prudential's counsel, XxXxxxxx & English, formed this entity.)
Class A and Class B Units:
--------------------------
* Coventry Real Estate Partners, Ltd. 1.00% (General partner)
The Prudential Insurance Company of America 74.25% (Limited partner)
DDR 24.75% (Limited partner)
163. RETAIL VALUE INVESTMENT PROGRAM LIMITED PARTNERSHIP III - Delaware limited partnership
* Coventry Real Estate Partners, Ltd. 1.00% (General partner)
The Prudential Insurance Company
of America, solely on behalf of
Prudential Property Investment
Separate Account II 74.25% (Limited partner)
DDR 24.75% (Limited partner)
164. RETAIL VALUE INVESTMENT PROGRAM IIIA LIMITED PARTNERSHIP, a Delaware limited partnership
(Prudential's counsel, XxXxxxxx & English, formed this entity.) (Formed December 16, 1999.)
* Coventry Round Rock LLC 1.00% (General partner)
The Prudential Insurance Company of America 74.25% (Limited partner)
DDR 24.75% (Limited partner)
165. RETAIL VALUE INVESTMENT PROGRAM LIMITED PARTNERSHIP IIIB, a Delaware limited partnership
(Prudential's counsel, XxXxxxxx & English, formed this entity.) (Formed on March 28, 2000.)
Class A and B Units:
--------------------
* Coventry Real Estate Partners, Ltd. 1.00% (General partner)
-22-
The Prudential Insurance Company of America 74.25% (Limited partner)
DDR 24.75% (Limited partner)
166. RETAIL VALUE INVESTMENT PROGRAM IIIC LIMITED PARTNERSHIP, a Delaware limited partnership
(Prudential's counsel, XxXxxxxx & English, formed this entity.) (Formed November 21, 2000.)
Class A Units:
-------------
* Bandera Coventry LLC 1.00% (General partner)
The Prudential Insurance Company of America 74.25% (Limited partner)
DDR 24.75% (Limited partner)
Class B Units:
-------------
* Bandera Coventry LLC 1.00% (General partner)
The Prudential Insurance Company of America 74.25% (Limited partner)
* DD Development Company II, Inc. 24.75% (Limited partner)
167. RETAIL VALUE INVESTMENT PROGRAM LIMITED PARTNERSHIP IV - Delaware limited partnership
* Coventry Real Estate Partners, Ltd. 1.00% (General partner)
The Prudential Insurance Company
of America, solely on behalf of
the Prudential Variable Contract
Account entitled the "WCOT
Account", contained in Group
Annuity Contract No. GA-9032 74.25% (Limited partner)
DDR 24.75% (Limited partner)
168. RETAIL VALUE INVESTMENT PROGRAM LIMITED PARTNERSHIP IVA, a Delaware limited partnership
(Prudential's counsel, XxXxxxxx & English, formed this entity.) (Formed October 13, 1999.)
Class A Units:
-------------
Not used.
Class B Units:
-------------
* Coventry Real Estate Partners, Ltd. 1.00% (General partner)
The Prudential Insurance Company of America 74.25% (Limited partner)
* DD Development Company II, Inc. 24.75% (Limited partner)
169. RETAIL VALUE INVESTMENT PROGRAM LIMITED PARTNERSHIP V - Delaware limited partnership
* Coventry Real Estate Partners, Ltd. 1.00% (General partner)
The Prudential Insurance Company
of America, solely on behalf of
the Prudential Variable Contract
Account No. GA-8708 74.25% (Limited partner)
DDR 24.75% (Limited partner)
170. RETAIL VALUE INVESTMENT PROGRAM LIMITED PARTNERSHIP VI - Delaware limited partnership
* Coventry Real Estate Partners, Ltd. 1.00% (General partner)
-23-
The Prudential Insurance Company
of America, solely on behalf of
the Prudential Real Estate Investors 74.25% (Limited partner)
* DD Development Company, Inc. 24.75% (Limited partner)
1) Kansas 2) Missouri
171. RETAIL VALUE INVESTMENT PROGRAM VII LIMITED LIABILITY COMPANY, a Delaware limited liability
company (Formed 12/1/00.)
* Coventry Real Estate Partners, Ltd. 1.00% Managing Member
The Prudential Insurance Company of America, solely
on behalf of Prudential Property Investment Separate
Account II 79.00% Member
DDR 20.00% Member
172. RIVERDALE RETAIL ASSOCIATES L.C. - Utah limited liability company
* DDR Family Centers LP 99.5% (Managing member)
* DDR Family Centers I Inc. .5% (Member)
173. ROCKY MOUNTAIN REAL ESTATE L.L.C. - Utah limited liability company
(This entity is a subsidiary of Riverdale Retail Associates L.C.)
Family Center at Riverdale (Shopping Center Property):
------------------------------------------------------
Riverdale Retail Associates L.C. 67% (Managing member)
H&P Investments 33% (Member)
Family Center at Xxxxx (Shopping Center Property):
--------------------------------------------------
Riverdale Retail Associates L.C. 60% (Managing member)
H&P Investments 40% (Member)
174. RVIP III XXXXXXX LIMITED PARTNERSHIP - Delaware limited partnership (Formed 8/30/00).
(CANCELLED 7/12/01.)
175. RVIP CA/WA/OR PORTFOLIO LLC, a Delaware limited liability company
(Prudential's counsel formed this entity on December 1, 2000.)
* Retail Value Investment Program VII Limited Liability Company 100% Managing Member
176. RVIP OLYMPIAD PLAZA MANAGER LLC, a Delaware limited liability company
(Prudential's counsel formed this entity on June 25. 2001.)
* Retail Value Investment Program VII Limited Liability Company 100% Managing Member
-24-
177. XXXX XXXXXX HILLS LLC, a Delaware limited liability company (Prudential's counsel formed this entity on
December 15, 2000.)
XXXX Xxxxxx Hills Manager LLC .1% Member-Manager
* Retail Value Investment Program VII Limited Liability Company 99.9% Member
1) California
178. XXXX XXXXXX HILLS MANAGER LLC, a Delaware limited liability company
(Prudential's counsel formed this entity on December 15, 2000.)
* Retail Value Investment Program VII Limited Liability Company 100% Managing Member
Xxxx X. Xxxxxxxx 0% Special Member
1) California
179. RVIP PUGET PARK LLC, a Delaware limited liability company
(Prudential's counsel formed this entity on January 4, 2001.)
* Retail Value Investment Program VII Limited Liability Company 100% Managing Member
180. XXXX XXXXXXXX LLC, a Delaware limited liability company
(Prudential's counsel formed this entity on January 8, 2001.)
* Retail Value Investment Program VII Limited Liability Company 100% Managing Member
181. RVIP VALLEY CENTRAL LP, a California limited partnership
(Prudential's counsel formed this entity on January 31, 1997, fka BPP/Valley Central, L.P.)
RVIP Valley Central Manager LLC .1% General partner
* Retail Value Investment Program VII Limited Liability Company 98.9% Limited partner
Xxx Xxxxx 1.0% Limited partner
182. RVIP VALLEY CENTRAL MANAGER LLC, a Delaware limited liability company
(Prudential's counsel formed this entity on December 15, 2000.)
* Retail Value Investment Program VII Limited Liability Company 100% Managing Member
Xxxx X. Xxxxxxxx 0% Special Member
2) California
183. RVM BRYWOOD LLC, a Delaware limited liability company
(Prudential's counsel formed this entity.) (Formed on March 11, 1999.)
-25-
Retail Value Investment Program Limited Partnership VI 100% Managing Member
184. RVM CHEROKEE LLC, a Delaware limited liability company
(Prudential's counsel formed this entity.) (Formed on March 11, 1999.)
Retail Value Investment Program Limited Partnership VI 100% Managing Member
185. RVM DEVONSHIRE LLC, a Delaware limited liability company
(Prudential's counsel formed this entity.) (Formed on March 11, 1999.)
Retail Value Investment Program Limited Partnership VI 100% Managing Member
186. RVM LONG BEACH PLAZA LLC, a Delaware limited liability company
(Prudential's counsel formed this entity.) (Formed on August 4, 1998.)
Retail Value Investment Program Limited Partnership III 100% Managing Member
187. RVM TEN QUIVIRA LLC, a Delaware limited liability company
(Prudential's counsel formed this entity.) (Formed on March 11, 1999.)
Retail Value Investment Program Limited Partnership VI 100% Managing Member
188. RVM TQ PAD LLC, a Delaware limited liability company
(Prudential's counsel formed this entity.) (Formed on March 11, 1999.)
Retail Value Investment Program Limited Partnership VI 100% Managing Member
189. RVM WILLOW CREEK LLC, a Delaware limited liability company
(Prudential's counsel formed this entity.) (Formed on March 11, 1999.)
Retail Value Investment Program Limited Partnership VI 100% Managing Member
190. XXXXXXX GROUP/DDR LLC - Missouri limited liability company
Xxxxxxx Group, Inc. 50% (Member)
DDR 50% (Member)
191. SHOPPERS WORLD COMMUNITY CENTER, L.P. - Delaware limited partnership (SECURITIZED)
* DD Community Centers Three, Inc. 1.00% (General partner interest)
SW Opp Sub, Inc. 1.00% (General partner interest)
DDR 1.00% (Limited partner interest)
* DD Community Centers
Investments LLC 48.00% (Limited partner interest) (As of 2/29/00.)
DRA Opportunity Fund 27.95% (Limited partner interest)
DD Retail Partners II, L.P. 10.05% (Limited partner interest)
DD Retail Partners III, L.P. 5.50% (Limited partner interest)
DD Retail Partners IV, L.P. 5.50% (Limited partner interest)
-26-
1) Massachusetts
192. SUN CENTER LIMITED - Ohio limited liability company
* DDR Continental LP 79.44967 Units - VOTING INTEREST < 50%
KEF Limited 20.55033 Units
193. TANASBOURNE LIMITED LIABILITY COMPANY - Ohio limited liability company
(DISSOLVED 3/24/99. Property transferred to DDRA Community Centers Five, L.P.)
194. TECH CENTER 29 LIMITED PARTNERSHIP, a Maryland limited partnership
* DDR Office Flex Corporation 1.00% (General partner)
* DDR/Tech 29 Limited Partnership 99.00% (Limited partner)
195. TECH CENTER 29 PHASE II LIMITED PARTNERSHIP, a Maryland limited partnership
* DDR Office Flex Corporation 1.00% (General partner)
* DDR/Tech 29 Limited Partnership 99.00% (Limited partner)
196. TECH CENTER DEVELOPMENT ASSOCIATES LIMITED PARTNERSHIP, a Maryland limited partnership
* DDR Office Flex Corporation 1.00% (General partner)
* DDR/Tech 29 Limited Partnership 99.00% (Limited partner)
197. TFCM ASSOCIATES, LLC - Utah limited liability company
* DDR Family Centers LP 99.5% (Managing member)
* DDR Family Centers I Inc. .5% (Member)
1) To be qualified in Idaho.
198. TFCML, INC., an Idaho corporation (Formed 7/6/98.)
DD Development Company II, Inc. 1 share
(Note: This company was originally part of the Hermes Group and its only asset is a liquor
license purchase agreement. The shareholder at the time of formation was Xxxxx X. Xxxxxx and he
owned one share of Common Stock without par value. The company has authorized 100,000 shares of
Common Stock without par value. Xx. Xxxxxx has not responded to executing a Stock Power to
transfer his one share to DD Development Company II, Inc. This company was administratively
dissolved by the Idaho Secretary February 17, 2000.)
199. THE PLAZA AT SUNSET HILLS, L.L.C. - Missouri limited liability company - (shell entity) (Dissolution Pending)
* DDR Realty Company 100% (Sole member)
200. THE SHOPPES AT SUNSET HILLS, L.L.C. - Missouri limited liability company - (shell entity) (Dissolution Pending)
* DDR Realty Company 100% (Sole member)
-27-
201. TOWN CENTER PLAZA, L.L.C. - a Delaware limited liability company
DDR 50% (Managing Member)
Specialty Town Center Company, 50% (Member)
L.L.C.
1) Kansas
202. UNIVERSITY SQUARE ASSOCIATES, LTD. - Utah limited partnership.
* DDR Family Centers LP 99.5% (General partner)
* DDR Family Centers I Inc. .5% (Limited partner)
203. USAA INCOME PROPERTIES IV TRUST, a trust organized and existing under a Declaration of Trust dated 9/30/87 as filed in
Middlesex County (Northern District), Registry District of the Land Court, Massachusetts.
* American Industrial Properties REIT, Inc., Trustee
* Chelmsford Associates, LLC is the beneficiary of the Trust
204. VFP INVESTMENTS, LLC - a Nevada limited liability company (Dissolved Jan. 2002).
* DDR DownREIT LLC 100% Sole Member (As of 1/1/01.)
205. VIDALAKIS INVESTMENT COMPANY, LTD. - Utah limited partnership (CANCELED 12/31/99.)
206. VIDALAKIS INVESTMENT COMPANY II, LTD. - Utah limited partnership (CANCELED 12/31/99
-28-
SCHEDULE 2
----------
INDEBTEDNESS AND LIENS
----------------------
(SEE SECTIONS 5.13 AND 6.16)
March 31, 2002
Indebtedness Indebtedness Property Maturity and Amount
Incurred By Owed To Encumbered Of Indebtedness
----------- ------- ---------- ---------------
DDRC Massachusetts Mutual Life Bayonet Point, FL 08/06 5,327
DDRC Xxxxxxx Xxxxx Erie, PA 4/11 000,000
Xxxxxxxx, XX
Xx. Xxxxx, XX (Sunset)
St. Louis, MO (Brentwood)
Denver, CO (Centennial)
DDRC Conning Asset Management Co. Cedar Rapid, IA 01/20 10,796
DDRC The Prudential Insurance Co. St. Louis, MO (Olympic) 08/07 4,307
DDRC Triad Mortgage & Realty St. Louis, MO (Gravois) 07/12 2,491
Funding
DDRC Northland Financial Co. St. Louis, MO (Xxxxxx) 01/10 2,240
DDRC Principal Financial Group St. Louis, MO (Home Qtrs) 01/15 3,161
DDRC Xxxxx Fargo Independence, MO 08/02 27,500
DDRC Laureate Realty Mt. Pleasant, SC 04/03 6,077
DDRC Xxxxxxx & Willard Mortgage Sault Ste. Xxxxx, MI 05/07 4,820
Assocs.
DDRC Aegon USA Realty Advisors Detroit, MI 04/09 10,092
DDRC SunAmerica Life Insurance Co. Logan, UT 06/12 000
XXXX Xxxx Xxx Xxxxxxxxx, XX (North) 10/20 9,585
DDRC First Trust National Salt Lake City, UT 08/04 946
Association
DDRC Southtrust Bank NA Cool Springs, TN 02/25 16,071
DDRC Massachusetts Mutual Life Berlin, VT 08/07 4,940
DDRC First Trust National Brainerd, MN (Kmart Only) 02/05 448
Association
DDRC Midland Loan Services LID Spring Hill, FL 09/19 5,703
DDRC Massachusetts Mutual Life West Pasco, FL 02/12 4,784
DDRC Amresco Management, Inc. Princeton, NJ 03/27 26,888
DDRC American Express Financial Bellefontaine, OH 12/16 2,799
Corp.
DDRC X. Xxxxx Case & Company Dublin, OH 09/06 10,092
DDRC The Manufacturer's Life Grove City, OH 07/02 7,432
Insurance Co.
DDRC Xxxxxxxxx Mortgage Company Pataskala, OH 07/02 000
XXXX X. Xxxxx Case & Company Pickerington, OH 12/06 4,815
DDRC Aegon Mgt. Dallas, TX (Beltline) 12/03 1,594
DDRC Aegon Mgt. Houston, TX (Commerce Pk) 12/03 1,887
DDRC Aegon Mgt. Irving, TX (Gateway) 12/03 2,561
DDRC Aegon Mgt. Arlington, TX (Meridian) 12/03 1,044
DDRC Aegon Mgt. Dallas, TX (Northgate) 12/03 4,649
DDRC Aegon Mgt. Houston, TX (Plaza SW) 12/03 3,032
DDRC Aegon Mgt. Houston, TX (Westchase) 12/03 1,193
DDRC PRU Mgt. Dallas, TX (Xxxxxxxxx) 12/03 29,161
Carrier Place
Commerce Center
DFW IV
Northgate III
Parkway
Shady Trail
Valwood II
Valley View
DDRC Bank One Cheasapeake, VA (Tech) 12/03 3,996
DDRC Column Financial Silver Springs, MD (Tech 29-1) 12/03 7,255
DDRC MFG Life Silver Springs, MD (Tech 29-2) 12/03 3,685
DDRC Amresco Mgt. Silver Springs, MD (Tech 29-3) 12/03 4,233
DDRC National City Bank Toledo, OH 12/02 23,000
DDRC National City Bank Meridian, ID 09/03 30,623
DDRC Southtrust Bank Princeton, NJ 08/02 30,788
DDRC National City Bank Everett, MA 12/02 30,583
Plainville CT LLC Bank of America Plainville, CT (RVIP IA) 06/02 32,300
DDR Long Beach LLC City Bank Long Beach, CA (RVIP III) 01/04 10,841
DDR DB Development Bank One Round Rock, TX (RVIP IIIA) 01/03 55,220
Ventures LP
DRC P&M Deer Park Mellon Bank & Bank One Deer Park, IL (RIVP IIIB) 07/02 46,735
Town Center LLC
DDR DB SA Ventures Compass Bank San Antonio, TX - Bandera Point 12/02 32,438
LP (RVIP IIIC)
Hagerstown Bank One Hagerstown, MD (XXXX XXX) 01/03 34,000
Development LLC
RVIP VI
RVM Ten Quivira LLC Northland Marquette Capital Shawnee, KS 10/07 6,857
Group
RVM TQ Pad LLC Northland Marquette Capital Shawnee, KS 10/07 987
Group
RVM Cherokee LLC Northland Marquette Capital Overland Park, KS 11/07 3,169
Group
RVM Devonshire LLC Northland Marquette Capital Olathe, KS 10/07 2,198
Group
RVM Willowcreek LLC Triad Mgt. Kansas City, MO 09/05 1,304
RVM Brywood LLC Northland Marquette Capital Kansas City, MO 10/07 5,852
Group
RVIP VII LLC
BPP/Valley Central LaSalle Bank Lancaster, CA 03/22 23,601
LP
XXXX Xxxxxxx Park LP Midland Loan Cameron Park, CA 03/04 9,000
XXXX Xxxxxx Hills LaSalle Bank City of Industry, CA 03/22 30,766
LLC
XXXX Xxxxxxxx LLC NorthMarq Capital Richmond, CA 01/20 6,472
RVIP Puget Park LLC Xxxxxx, Xxxxx & Xxxxxxx Everett, WA 07/07 2,305
RVIP XX/XX/XX Xxxxxxx Xxxx Xxxxxxxx Xxxx, XX 03/04 63,000
Portfolio LLC Fullerton, CA
Bellingham, WA
San Ysidro, CA
RVIP Olympiad Plaza Prudential Financial Mission Viejo, CA 10/07 5,767
LP
COMMUNITY CENTERS
Community I, LLC Xxxxx Fargo Bank Fairfax, VA 03/04 175,000
Marietta, GA
San Diego, CA
Schamburg, IL
CC I Metropolitan Life Ins Co Denver, CO 03/05 164,500
CC II Metropolitan Life Ins Co Atlanta, GA
Shoppers World Metropolitan Life Ins Co Framingham, MA
Community Center LP
DDRA Community First Union Bank San Antonio, TX - Plaza del Norte 11/02 27,439
Centers Four, LP
DDRA Community First Union Bank Phoenix, AZ 10/05 156,000
Centers Five, LP Maple Grove, MN
Xxxxx, MN
Portland, OR
Ft. Worth, TX
DDRA Community Northmarq Capital St. Louis, MO - Clocktower 04/10 12,837
Centers Six, LP
DDRA Community Conning Asset Mgt Co Ahwatukee, AZ - Phase IV 01/05 10,000
Centers Seven, LP
XXXX Xxxxxxxxx Xxxx xx Xxxxxxx Xxxx Xxxxxx, XX 09/10 17,994
Centers Eight, LP
Merriam Town Center Mellon Bank NA Merriam, KS 04/03 24,455
Ltd. 02/16 9,475
Lennox Town Center Nationwide Life Ins. Co Columbus, OH (Lennox) 07/22 19,762
Limited
Sun Center Limited Principal Capital Mgt Columbus, OH (Sun Center) 05/07 6,083
Fifth Third Real Estate 04/11 15,938
Continental Sawmill MetLife Columbus, OH (Washington Park) 05/16 19,805
LP
Xxxxxx Xxxxxxxxxx XX Xxxx Bank Dayton, OH 01/08 14,100
Liberty Fair VA LP Midland Loan Services Martinsville, VA 12/09 20,326
DOTRS LLC National City Bank Macedonia, OH 09/06 11,811
DOTRS LLC Firstar Bank Canton, OH (Phase I) 09/02 9,927
Town Center Plaza Collateral Mgt Leawood, KS 07/09 54,117
LLC
DDRC PDK Salisbury GMAC Salisbury, MD (Phase III) 04/06 1,886
Phase III LLC
Xxxx Rapids National City Bank Coon Rapids, MN (Outer Quadrant) 12/03 21,000
Riverdale Village
LLC
Littleton, CO Firstar Bank NA Littleton, CO 05/03 34,703
Hendon/DDR/BP, LLC SouthTrust Eatontown, NJ 08/04 10,480
Xxxxx Xxxxx, XX 000
Xxxxx Xxxxxxxx, XX 1,289
DDRC Salem LLC Bank One Salem, NH 03/02 16,732
SCHEDULE 3
----------
LITIGATION MATTERS
------------------
(See Section 5.6)
1. Regal Cinemas V. W&M PROPERTIES, et al., in the United States District
Court for the Northern District of Ohio, Eastern Division, Case No.
1:98CV1691, and in the United States Court of Appeals for the Sixth
Circuit, Case No. 99-4089.
In September 2001, a U.S. District Court entered a judgment in the amount
of $9 million, plus attorney fees, against the Borrower and three other
defendants, in connection with a verdict reached in a civil trial
regarding a claim filed by Regal Cinemas relating to a property owned by
the Borrower. The court awarded $4 million in punitive and $5 million in
compensatory damages to the plaintiff. The other defendants include the
former Chairman of the Board (who is also a significant shareholder and
a director of the Borrower), a former executive of the Borrower and a
real estate development partnership (the "Partner-ship") owned by these
two individuals. The punitive damages in the amount of $1 million against
the former chairman of the board was overturned by the trial court judge
in response to a post-trial motion. The Partnership sold the property to
the Borrower in 1994. The claim alleged breach of contract and fraud
during the lease negotiation process that took place prior to, and after,
the Borrower's acquisition of the property.
Although the Borrower's initial post-trial motion to overturn the verdict
was denied, the verdict is subject to appeal. The Borrower believes that
it is probable that the verdict will ultimately be reversed, in whole or
in substantial part. Although there can be no assurances as to the
ultimate outcome, the Borrower does not believe that an adverse final
determination, if any, will be material in relation to the Borrower's
cash flows, liquidity or financial condition. However, amounts awarded,
if any, to the plaintiff upon final resolution of this matter, could
adversely affect the Borrower's results of operations in the period it is
recorded. Further, a determination has not been made as to the
appropriate allocation of the contingent loss, if any, between the
defendants.
i
SCHEDULE 4
----------
ENVIRONMENTAL MATTERS
---------------------
(SEE SECTION 5.19)
None.
i
SCHEDULE 5
----------
INTENTIONALLY DELETED
---------------------
i
SCHEDULE 6
----------
SUBSIDIARY GUARANTORS
1. AIP Office Flex II, LLC - an Ohio limited liability company
2. AIP Properties #1, L.P. - a Delaware limited partnership
3. AIP Properties #3 GP, Inc. - a Texas corporation
4. AIP Properties #3, L.P. - a Delaware limited partnership
5. AIP Tamarac, Inc. - a Texas corporation
6. AIP/Greenbrier GP, Inc. - a Texas corporation
7. AIP/Post Office GP, Inc. - a Delaware corporation
8. AIP-SWAG GP, Inc. - a Texas corporation
9. AIP-SWAG Operating Partnership, L.P. - a Delaware limited partnership
10. American Industrial Properties REIT - a Texas real estate investment trust
11. American Industrial Properties REIT, Inc. - a Maryland corporation
12. American Industrial Properties REIT, Inc., Trustee for USAA Income Properties IV Trust
13. Bandera Coventry LLC (fka Coventry Bandera LLC - an Ohio limited liability company
14. Chelmsford Associates LLC - a Delaware limited liability company
15. Coventry Real Estate Partners, Ltd.- an Ohio limited liability company
16. Coventry Round Rock LLC - an Ohio limited liability company
17. DD Community Centers Seven, Inc. - a Delaware corporation
18. DDR Continental LP- an Ohio limited partnership
19. DDR DB Opportunity Sub Inc. - an Ohio corporation
20. DDR DownREIT LLC - an Ohio limited liability company
21. DDR Family Centers I Inc. - an Ohio corporation
22. DDR Family Centers LP- a Delaware limited partnership
23. DDR Hermes Associates L.C. (fka DDR XXX XX X.X.) - a Utah limited liability company
24. DDR Independence LLC - a Delaware limited liability company
25. DDR Kildeer Inc. - an Illinois corporation
26. DDR Michigan II LLC - an Ohio limited liability company
27. DDR Nassau Pavilion Associates LP - a Georgia limited partnership
28. DDR Nassau Pavilion Inc.- an Ohio corporation
29. DDR Oceanside LLC - a Delaware limited liability company
30. DDR Office Flex Corporation- a Delaware corporation
31. DDR Office Flex LP - an Ohio limited partnership
i
32. DDR Ohio Opportunity II LLC - an Ohio limited liability company
33. DDR Ohio Opportunity III LLC - an Ohio limited liability company
34. DDR Ohio Opportunity LLC - an Ohio limited liability company
35. DDR Queensway LLC - an Ohio limited liability company
36. DDR Realty Company (fka DDR Realty Trust, Inc.) - a Maryland Real Estate Investment Trust
37. DDR Reno LLC - a Delaware limited liability company
38. DDR Tinton Falls LLC - an Ohio limited liability company
39. DDR University Square Associates L.C. (fka DDR Big V Associates L.C.) - a Utah limited liability company
40. DDR VIC I L.C. - a Utah limited liability company
41. DDR Watertown LLC - an Ohio limited liability company
42. DDR Wilshire, Inc. - an Ohio corporation
43. DDR/Post Office Limited Partnership - a Virginia limited partnership
44. DDR/Tech 29 Limited Partnership - a Maryland limited partnership
45. DDR/Xxx Xxxx Operating Company, L.P. - a Delaware limited partnership
46. DDRC Gateway LLC - a Delaware limited liability company
47. DDRC Great Northern Limited Partnership - an Ohio limited partnership
48. DDRC Michigan LLC - an Ohio limited liability company
49. DDRC PDK Salisbury LLC (Phase I only) - an Ohio limited liability company
50. Developers Diversified Centennial Promenade LP - an Ohio limited partnership
51. Developers Diversified Xxxx'x Corner LP - an Ohio limited partnership
52. Developers Diversified of Alabama, Inc. - an Alabama corporation
53. Developers Diversified of Indiana, Inc. - an Ohio corporation
54. Developers Diversified of Mississippi, Inc. - an Ohio corporation
55. Developers Diversified of Pennsylvania, Inc. - an Ohio corporation
56. Developers Diversified of Tennessee, Inc. - an Ohio corporation
57. Easton Market Limited Liability Company - a Delaware limited liability company
58. Fort Union Associates, L.C. - a Utah limited liability company
59. GS DDR LLC - a Delaware limited liability company
60. Hendon/DDR/BP, LLC - a Delaware limited liability company
61. Hermes Associates- a Utah general partnership
62. Hermes Associates, Ltd. - a Utah limited partnership
63. Highland Grove Limited Liability Company - an Ohio limited liability company
64. Parcel J-1B Limited Partnership - a Virginia limited partnership
ii
65. Plainville Connecticut L.L.C. - an Ohio limited liability company
66. Retail Value Investment Program Limited Partnership I - a Delaware limited partnership
67. Riverdale Retail Associates, L.C. - a Utah limited liability company
68. Rocky Mountain Real Estate, L.L.C- a Utah limited liability company
69. Tech Center 29 Limited Partnership - a Maryland limited partnership
70. Tech Center 29 Phase II Limited Partnership - a Maryland limited partnership
71. Tech Center Development Associates Limited Partnership - a Maryland limited partnership
72. TFCM Associates, LLC - a Utah limited liability company
73. University Square Associates, Ltd. - a Utah limited partnership
iii
