AMENDMENT NO. 1 TO CREDIT AGREEMENT
AMENDMENT
NO. 1 TO CREDIT AGREEMENT
THIS
AMENDMENT NO. 1 TO CREDIT AGREEMENT (the “Amendment”),
dated
as of March 30, 2007, is entered into by and between EQUITY
ONE, INC., a corporation organized under the laws of the State of Maryland
(the
“Borrower”)
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION, in its capacity as contractual
representative of the “Lenders” under and as defined in the Credit Agreement
referred to below (in such capacity, the “Administrative
Agent”).
R E C I T A L S
A. Pursuant
to the terms of an Amended and Restated Credit
Agreement, dated as of January 17, 2006 between Borrower and Lenders (as
amended, restated supplemented or otherwise modified from time to time, the
“Credit
Agreement”),
Lenders extended credit to Borrower in the principal amount of Two Hundred
Seventy-Five Million Dollars ($275,000,000)
(the
“Loan”).
The
Loan is evidenced by certain promissory notes executed by Borrower in favor
of
Lenders, which promissory notes aggregate to the principal amount of the
Loan
(collectively, as amended, restated, supplemented or otherwise modified from
time to time, the “Notes”),
and
is further evidenced by the documents described in the Credit Agreement as
the
“Loan Documents”. All capitalized and herein undefined terms shall have the
meanings as set forth in the Credit Agreement.
B. By
this
Amendment, Borrower, Lenders and Administrative Agent intend to modify and
amend
certain terms and provisions of the Loan Documents.
CONDITIONS
PRECEDENT.
The
following are conditions precedent to Lenders’ obligations under this
Amendment:
Receipt
by Administrative Agent of fully executed originals of this Amendment and
any
and all other documents which are required by this Amendment or by any other
Loan Document, each in form and content acceptable to Administrative
Agent;
Reimbursement
to Administrative Agent by Borrower of Administrative Agent’s costs and expenses
incurred in connection with this Amendment and the transactions contemplated
hereby, including, without limitation, reasonable attorneys’ fees and
documentation costs and charges, whether such services are furnished by
Administrative Agent’s employees or agents or by independent
contractors;
The
representations and warranties contained in this Amendment are true and
correct;
Payment
to Administrative Agent of an amendment fee equal to $1,500 for each Lender
($24,000 total); and
All
payments due and owing to Lenders under the Loan Documents have been paid
current as of the effective date of this Amendment.
REPRESENTATIONS
AND WARRANTIES.
Borrower hereby represents and warrants to Administrative Agent and each
Lender
that no Event of Default or Default exists under any of the Loan Documents
(as
modified by this Amendment) and that all representations and warranties herein
and in the other Loan Documents are true and correct, which representations
and
warranties shall survive execution of this Amendment. Without limiting the
foregoing Borrower further represents and warrants to Administrative Agent
and
each Lender that (a) Borrower is in full compliance with the requirements
of
Section 8.14
of the
Credit Agreement, (b) each entity required pursuant to the terms of such
Section
8.14
to
execute and deliver a Guaranty or an Accession Agreement has done so, and
(c)
the Guarantor’s Consent appended hereto correctly and accurately lists as
signatories all entities which are required, pursuant to the terms of such
Section
8.14,
to
execute a Guaranty or an Accession Agreement in connection with the
Loan.
MODIFICATION
OF LOAN DOCUMENTS.
The
Loan Documents are hereby supplemented and modified to incorporate the
following, which shall supersede and prevail over any conflicting provisions
of
the Loan Documents and which, following satisfaction of all conditions precedent
set forth in Section 1
above,
shall be deemed effective as of March 30, 2007:
Change
in Capitalization Rates.
Definition
of “Asset Value”.
The
definition of “Asset Value” set forth in the Credit Agreement is hereby amended
by changing the reference to “8.0%” in subclauses (a) and (b) thereof to refer
instead to “7.75%”.
Definition
of “Operating Property Value”.
The
definition of “Operating Property Value” set forth in the Credit Agreement is
hereby amended by changing the reference to “8.0%” therein to refer instead to
“7.75%”.
Definition
of “Pool Value”.
The
definition of “Pool Value” set forth in the Credit Agreement is hereby amended
by changing the reference to “8.0%” in subclause (a) thereof to refer instead to
“7.75%”.
Extend
the Period During Which Newly Acquired Properties are Valued at Purchase
Price.
Definition
of “Gross Asset Value”.
The
definition of “Gross Asset Value” set forth in the Credit Agreement is hereby
amended by changing the language “during the immediately preceding fiscal
quarter of the Borrower” in subclauses (f) and (g) thereof to refer instead to
“during the immediately preceding two fiscal quarters of the
Borrower”.
Definition
of “Pool Value”.
The
definition of “Pool Value” set forth in the Credit Agreement is hereby amended
by changing the language “not owned for the entire prior fiscal quarter period”
in subclause (b) thereof to refer instead to “not owned for the entire prior two
fiscal quarters”.
Modify
Distribution Limitations.
Section 10.1(i)
of the
Credit Agreement is hereby amended and restated in its entirety as
follows:
(i)
Dividends
and Other Restricted Payments.
If a
monetary or other material Default or Event of Default (including, without
limitation, the occurrence of any of the events specified in subsection (a),
(e), (f) or (l)(i) of Section
11.1
or any
violation of the covenants set forth in Article X)
shall
exist, or if as a result of the occurrence of any other Event of Default
the
Obligations have been accelerated, the Borrower shall not, and shall not
permit
any Subsidiary to, make any Restricted Payments to any Person whatsoever
other
than to the Borrower or any Subsidiary; provided, however, but subject to
the
following sentence, the Borrower may declare or make cash distributions to
its
shareholders in an aggregate amount not to exceed the minimum amount necessary
for the Borrower to remain in compliance with Section
8.12.
In
express limitation of the foregoing proviso, if an Event of Default specified
in
subsection (a), (e) or (f) of Section
11.1
shall
have occurred and be continuing (as opposed to another material Default or
Event
of Default under the Agreement), or if as a result of the occurrence of any
Event of Default the Obligations have been accelerated, the Borrower shall
not,
and shall not permit any Subsidiary to, make any Restricted Payments to any
Person whatsoever other than to the Borrower or any Subsidiary.
NON-IMPAIRMENT.
Except
as expressly provided herein, nothing in this Amendment shall alter or affect
any provision, condition, or covenant contained in the Notes or other Loan
Documents or affect or impair any rights, powers, or remedies of Lenders,
it
being the intent of the parties hereto that the provisions of the Notes and
other Loan Documents shall continue in full force and effect except as expressly
modified hereby.
MISCELLANEOUS.
This
Amendment and the other Loan Documents shall be governed by and interpreted
in
accordance with the laws of the State of California, except if preempted
by
federal law. Time is of the essence of each term of the Loan Documents,
including this Amendment. If any provision of this Amendment or any of the
other
Loan Documents shall be determined by a court of competent jurisdiction to
be
invalid, illegal or unenforceable, that portion shall be deemed severed from
this Amendment and the remaining parts shall remain in full force as though
the
invalid, illegal, or unenforceable portion had never been a part
thereof.
INTEGRATION;
INTERPRETATION.
The
Loan Documents, including this Amendment, contain or expressly incorporate
by
reference the entire agreement of the parties with respect to the matters
contemplated therein and supersede all prior negotiations, written or oral.
The
Loan Documents shall not be modified except by written instrument executed
by
all parties. Any reference to the Loan Documents includes any amendments,
renewals or extensions now or hereafter approved by Administrative Agent
and
Lenders in writing.
EXECUTION
IN COUNTERPARTS.
To
facilitate execution, this document may be executed in as many counterparts
as
may be convenient or required. It shall not be necessary that the signature
of,
or on behalf of, each party, or that the signature of all persons required
to
bind any party, appear on each counterpart. All counterparts shall collectively
constitute a single document. It shall not be necessary in making proof of
this
document to produce or account for more than a single counterpart containing
the
respective signatures of, or on behalf of, each of the parties hereto. Any
signature page to any counterpart may be detached from such counterpart without
impairing the legal effect of the signatures thereon and thereafter attached
to
another counterpart identical thereto except having attached to it additional
signature pages.
(REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK)
IN
WITNESS WHEREOF, Borrower and Administrative Agent, on behalf of and for
the
benefit of all Lenders, have caused this Amendment to be duly executed as
of the
date first above written.
BORROWER: EQUITY
ONE, INC.
By: /s/
Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X.
Xxxxxxx
Title:
Executive Vice Presient and Chief Financial Officer
ADMINISTRATIVE
AGENT: XXXXX
FARGO BANK, NATIONAL ASSOCIATION
By:
/s/
Xxxxx
X. Xxxxx, III _____
Name:
Xxxxx
X. Xxxxx, III
Title: Vice President
GUARANTORS’
CONSENT
The
undersigned (each a “Guarantor”)
consent to the foregoing AMENDMENT NO. 1 TO CREDIT AGREEMENT and the
transactions contemplated thereby and each Guarantor reaffirms its obligations
under, as applicable, (a) the Guaranty dated as of January 17, 2006 and any
Accession Agreements executed in connection therewith (collectively, as amended,
restated, supplemented or otherwise modified from time to time, the
“Guaranty”),
and
its waivers, as set forth in the Guaranty, of each and every one of the possible
defenses to such obligations. Each Guarantor further reaffirms that its
obligations under the Guaranty are separate and distinct from Borrower’s
obligations.
XXXXXXXXXX:
Cashmere
Developments, Inc.
Centerfund
(US), LLC
Centrefund
Realty (U.S.) Corporation
Equity
One (Commonwealth) Inc.
Equity
One (Delta) Inc.
Equity
One (Florida Portfolio) Inc.
Equity
One (Louisiana Portfolio) LLC
Equity
One (North Port) Inc.
Equity
One (Northeast Portfolio) Inc.
Equity
One (Point Royale) Inc.
Equity
One (Sky Lake) Inc.
Equity
One (Southeast Portfolio) Inc.
Equity
One (Xxxxxxxxx) Inc.
Equity
One (Sunlake) Inc.
Equity
One (Xxxxxx Xxxxx) Inc.
Equity
One Acquisition Corp.
Equity
One Realty & Management FL, Inc.
Equity
One Realty & Management NE, Inc.
Equity
One Realty & Management SE, Inc.
Equity
One Realty & Management Texas, Inc.
EQY
(Southwest Portfolio) Inc.
Gazit
(Meridian) Inc.
IRT
Alabama, Inc.
IRT
Capital Corporation II
IRT
Management Company
Louisiana
Holding Corp.
Parcel
F,
LLC
Prosperity
Shopping Center Corp.
Shoppes
at Jonathan’s Landing, Inc.
Southeast
U.S. Holdings Inc.
The
Xxxxxxx Shopping Center, LLC
The
Shoppes of Eastwood, LLC
By:
/s/ Xxxxxxx X. Xxxxxxx
Name:
Xxxxxxx X. Xxxxxxx
Its:
Vice President and Treasurer
IRT
Partners, L.P.
By:
Equity
One, Inc.
By:
/s/ Xxxxxxx X. Xxxxxxx
Name:
Xxxxxxx X. Xxxxxxx
Its:
Executive Vice President and Chief Financial Officer
Address
for Notices for all Guarantors:
c/o
Equity One, Inc.
0000
X.X.
Xxxxx Xxxxxxx Xxxxx
Xxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
Attention:
Xxxx Xxxxxxx
Chief Financial Officer
