EXHIBIT 4.16
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF DECEMBER 12, 2003
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.,
AS DOCUMENTATION AGENTS
AND
COMMERZBANK AG,
AS DOCUMENTATION AGENT
AND
WACHOVIA BANK, NA
AS MANAGING AGENT
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS,
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
1
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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TABLE OF CONTENTS
(CONTINUED)
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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
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TABLE OF CONTENTS
(CONTINUED)
PAGE
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ARTICLE VII DEFAULTS................................................................................... 64
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES............................................ 66
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
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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
13.1 Giving Notice............................................................................. 78
13.2 Change of Address......................................................................... 78
ARTICLE XIV COUNTERPARTS............................................................................... 78
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FIFTH AMENDED AND RESTATED CREDIT AGREEMENT
This Fifth Amended and Restated Credit Agreement, dated as of December
12, 2003, 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,
Fleet Bank, Xxxxx Fargo Bank, N.A. not individually but as "Documentation
Agents", Wachovia Bank, NA, not individually, but as Managing Agent, Deutsche
Bank Trust Company Americas, Firstar Bank, N.A., ING Capital LLC, XX Xxxxxx
Chase, not individually but as "Co-Agents."
RECITALS
A. The Borrower is primarily engaged in the business of
purchasing, developing, owning, operating, leasing and managing retail, office
and industrial properties.
B. 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.
C. The Borrower, the Administrative Agent, and certain of the
Lenders entered into a Fourth Amended and Restated Credit Agreement dated as of
May 29, 2002 (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. The Borrower has requested that the Lenders and the
Administrative Agent make certain changes to the Prior Agreement, including
allowing one Lender to withdraw from the Facility and allowing for the Facility
to be increased in the future to an amount not to exceed $1,000,000,000. The
Administrative Agent and the Lenders have agreed to do so.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"ABR Applicable Margin" means, as of any date, the Applicable Margin in
effect on such date with respect to Floating Rate Advances and Floating Rate
Loans.
"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 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.
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"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 Fifth 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.
"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.
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"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
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.
"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.
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"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:
(i) securities issued or directly and fully guaranteed or
insured by the United States Government or any agency
or instrumentality thereof having maturities of not
more than one year from such date;
(ii) mutual funds organized under the United States
Investment Company Act rated AAm or AAm-G by S&P, P-1
by Xxxxx'x and A by Fitch;
(iii) certificates of deposit or other interest-bearing
obligations of a bank or trust company which is a
member in good standing of the Federal Reserve System
having a short term unsecured debt rating of not less
than A-1 by S&P, not less than P-1 by Xxxxx'x and F-1
by Fitch (or in each case, if no bank or trust
company is so rated, the highest comparable rating
then given to any bank or trust company, but in such
case only for funds invested overnight or over a
weekend) provided that such investments shall mature
or be redeemable upon the option of the holders
thereof on or prior to a date one month from the date
of their purchase;
(iv) certificates of deposit or other interest-bearing
obligations of a bank or trust company which is a
member in good standing of the Federal Reserve System
having a short term unsecured debt rating of not less
than A-1+ by S&P, and not less than P-1 by Xxxxx'x
and which has a long term unsecured debt rating of
not less than A1 by Xxxxx'x (or in each case, if no
bank or trust company is so rated, the highest
comparable rating then given to any bank or trust
company, but in such case only for funds invested
overnight or over a weekend) provided that such
investments shall mature or be redeemable upon the
option of the holders thereof on or prior to a date
three months from the date of their purchase;
(v) bonds or other obligations having a short term
unsecured debt rating of not less than A-1+ by S&P
and P-1+ by Xxxxx'x and having a long term debt
rating of not less than A1 by Xxxxx'x issued by or by
authority of any state of the United States, any
territory or possession of the United States,
including the Commonwealth of Puerto Rico and
agencies thereof, or any political subdivision of any
of the foregoing;
(vi) repurchase agreements issued by an entity rated not
less than A-1+ by S&P, and not less than P-1 by
Xxxxx'x which are secured by U.S.
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Government securities of the type described in clause
(i) of this definition maturing on or prior to a date
one month from the date the repurchase agreement is
entered into;
(vii) short term promissory notes rated not less than A-1+
by S&P, and not less than P-1 by Moody's 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
(viii) commercial paper (having original maturities of not
more than 365 days) rated at least A-1+ by S&P and
P-1 by Moody's 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 Moody's.
"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
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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 0.090 plus (ii) with respect to each Project so acquired (or
where development of such Project was completed) by the Borrower or its
Subsidiaries during such period, the Borrower's estimated annual Net Operating
Income for such Project based on leases in existence at the date of such
acquisition, or development completion, as the case may be, divided by 0.090.
"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.
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"Consolidated Market Value" means, as of any date, an amount equal to
the sum of (a) the Consolidated Capitalization Value as of such date, plus (b)
the value of Unrestricted Cash and Cash Equivalents, plus (c) the lesser of (i)
the Value of Assets Under Development, or (ii) ten percent (10%) of the
Consolidated Capitalization Value plus (d) the lesser of (i) 100% of the
then-current value under GAAP of all First Mortgage Receivables or (ii) five
percent (5%) of the Consolidated Capitalization Value, plus (e) the lesser of
(i) 100% of the then-current book value, as determined in accordance with GAAP,
of Developable Land, or (ii) 5% of total Consolidated Capitalization Value plus
(f) cash from like-kind exchanges on deposit with a qualified intermediary
(provided that the amount included in Consolidated Market Value pursuant to this
clause (f) shall not exceed 5% of the Value of Unencumbered Assets, except that
such cap shall be $200,000,000 during the initial period that the proceeds from
the sale of assets to the Macquarie Fund from the initial two closings of the
Macquarie Fund are on deposit with a qualified intermediary).
"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
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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.
"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.
"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
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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) 0.090, and then minus (C) Indebtedness of the Subsidiary
as of the date of determination. For any Subsidiary formed or purchased after
the Agreement Execution Date, until it or its Properties have been owned and
operated by the Borrower or one of its other Subsidiaries for two or more
consecutive full fiscal quarters, "Equity Value" shall mean the Borrower's
estimated annual Net Operating Income for the Projects owned by such Subsidiary
based on leases in existence at the date such Subsidiary is formed or purchased
divided by 0.090, 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 30, 2006.
"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
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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, 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.
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"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), 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
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stated amount or stated liability, the amount of such Guarantee Obligation shall
be such guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by the Borrower in good faith.
"Indebtedness" of any Person at any date means without duplication, (a)
all indebtedness of such Person for borrowed money including without limitation
any repurchase obligation or liability of such Person with respect to
securities, accounts or notes receivable sold by such Person, (b) all
obligations of such Person for the deferred purchase price of property or
services (other than current trade liabilities incurred in the ordinary course
of business and payable in accordance with customary practices), to the extent
such obligations constitute indebtedness for the purposes of GAAP, (c) any other
indebtedness of such Person which is evidenced by a note, bond, debenture or
similar instrument, (d) all Capitalized Lease Obligations, (e) all obligations
of such Person in respect of acceptances issued or created for the account of
such Person, (f) all Guarantee Obligations of such Person (excluding in any
calculation of consolidated Indebtedness of the Consolidated Group, Guarantee
Obligations of one member of the Consolidated Group in respect of primary
obligations of any other member of the Consolidated Group), (g) all
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
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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.
"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.
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"LIBOR Rate" means, with respect to a LIBOR Advance for the relevant
LIBOR Interest Period, the sum of (i) the quotient of (a) the LIBOR Base Rate
applicable to such LIBOR Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such LIBOR Interest Period,
plus (ii) 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.
"Macquarie Fund" means DDR Macquarie Fund LLC, a Delaware limited
liability company, together with its subsidiaries.
"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.
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"Net Xxxx-to-Market Exposure" of a Person means, as of any date of
determination, the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from Rate Management Transactions or any other
Financial Contract. "Unrealized losses" means the fair market value of the cost
to such Person of replacing such Rate Management Transaction or other Financial
Contract as of the date of determination (assuming the Rate Management
Transaction or other Financial Contract were to be terminated as of that date),
and "unrealized profits" means the fair market value of the gain to such Person
of replacing such Rate Management Transaction or other Financial Contract as of
the date of determination (assuming such Rate Management Transaction or other
Financial Contract were to be terminated as of that date).
"Net Operating Income" means, with respect to any Project for any
period, "property rental and other income" (as determined by GAAP) attributable
to such Project accruing for such period minus the amount of all expenses (as
determined in accordance with GAAP) incurred in connection with and directly
attributable to the ownership and operation of such Project for such period,
including, without limitation, Management Fees and amounts accrued for the
payment of real estate taxes and insurance premiums, but excluding interest
expense or other debt service charges and any non-cash charges such as
depreciation or amortization of financing costs. As used herein "Management
Fees", means, with respect to each Project for any period, an amount equal to
(i) three percent (3%) of the aggregate base rent and percentage rent due and
payable under leases with anchor tenants at such Project, plus (ii) three
percent (3%) of the aggregate base rent and percentage rent due and payable
under leases with tenants other than anchor tenants at such Project.
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" means a 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.
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"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.
"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
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cause such Subsidiary to guaranty, or pledge such Subsidiary's assets to secure,
indebtedness of the Borrower.
"Rate Management Transaction" means any transaction (including an
agreement with respect thereto) now existing or hereafter entered into by the
Borrower which is a rate swap, basis swap, forward rate transaction, commodity
swap, commodity option, equity or equity index swap, equity or equity index
option, bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, forward transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
these transactions) or any combination thereof, whether linked to one or more
interest rates, foreign currencies, commodity prices, equity prices or other
financial measures.
"Recourse Indebtedness" means any Indebtedness of Borrower or any of
its Subsidiaries with respect to which the liability of the obligor is not
limited to the obligor's interest in specified assets securing such
Indebtedness, subject to customary limited exceptions for certain acts or types
of liability.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"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.
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"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.
"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.
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"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.
"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.
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"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Unrestricted Cash and Cash Equivalents" means, in the aggregate, all
cash and Cash Equivalents which are not pledged or otherwise restricted for the
benefit of any creditor and which are owned by members of the Consolidated Group
or Investment Affiliates, to be valued for purposes of this Agreement at (i)
100% of its then-current book value, as determined under GAAP, for any such
items owned by a member of the Consolidated Group or (ii) the applicable
Consolidated Group Pro Rata Share of its then-current book value, as determined
under GAAP, for any such items owned by an Investment Affiliate.
"Value of Unencumbered Assets" means, as of any date, the sum of (A)
the amount determined by dividing the Net Operating Income for each Project
which is an Unencumbered Asset as of such date for a calculation period which
shall be either the immediately preceding two (2) full fiscal quarters or, if so
requested by Borrower or the Administrative Agent, the one (1) immediately
preceding full fiscal quarter and the then current partial quarter (in all cases
as annualized) by 0.090 (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
10% of the total Value of Unencumbered Assets plus (C) cash from like-kind
exchanges on deposit with a qualified intermediary (provided that not more than
5% of the Value of Unencumbered Assets shall be attributable to the proceeds of
this clause (C), except that such cap shall be $200,000,000 during the initial
period that the proceeds from the sale of assets to the Macquarie Fund from the
initial two closings of the Macquarie Fund are on deposit with a qualified
intermediary). If a Project has been acquired during such calculation period
then Borrower shall be entitled to include pro forma Net Operating Income (based
on leases in existence at the date of such acquisition) from such Project for
the entire calculation period in the foregoing calculation, except for purposes
of the financial covenant comparing the Net Operating Income from Unencumbered
Assets to Consolidated Interest Expense under Section 6.21(v). If a Project is
no longer owned as of the date of determination, then no value shall be included
based on capitalizing Net Operating Income from such Project, except for
purposes of such financial covenant comparing the Net Operating Income from
Unencumbered Assets to Consolidated Interest Expense under Section 6.21(v).
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, association, joint venture
or similar business organization 100% of the ownership interests having ordinary
voting power of which shall at the time be so owned or controlled.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
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ARTICLE II
THE CREDIT
2.1 Commitments; 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
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.
The Aggregate Commitment may be increased from time to time by the
addition of a new Lender or the increase of the Commitment of an existing Lender
with the consent of only the Borrower, the Administrative Agent, and the new or
existing Lender providing such additional Commitment so long as the Aggregate
Commitment does not exceed $1,000,000,000 less any voluntary reductions pursuant
to this Section 2.1. Such increases shall be evidenced by the execution and
delivery of an Amendment Regarding Increase in the form of Exhibit K attached
hereto by the Borrower, the Administrative Agent and the new Lender or existing
Lender providing such additional Commitment, a copy of which shall be forwarded
to each Lender by the Administrative Agent promptly after execution thereof. On
the effective date of each such increase in the Aggregate Commitment, the
Borrower and the Administrative Agent shall cause the new or existing Lenders
providing such increase to hold its or their Percentage of all ratable Advances
outstanding at the close of business on such day, by either funding more than
its or their Percentage of new ratable Advances made on such date or purchasing
shares of outstanding ratable Loans held by the other Lenders or a combination
thereof. The Lenders agree to cooperate in any required sale and purchase of
outstanding ratable Advances to achieve such
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result. Borrower agrees to pay all fees associated with the increase in the
Aggregate Commitment including any amounts due under Section 3.4 in connection
with any reallocation of LIBOR Advances. In no event will such new or existing
Lenders providing the increase be required to fund or purchase a portion of any
Competitive Bid Loan or Swingline Loan to comply with this Section on such date.
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 Moody's 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 Moody's 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
---------- -------------- ---------- --------- --------
A- or higher A3 or higher 0.60% 0.00% 0.15%
BBB+ Baa1 0.75% 0.00% 0.15%
BBB Baa2 0.80% 0.00% 0.20%
BBB- Baa3 0.95% 0.00% 0.20%
Less than BBB- Less than Baa3 1.25% 0.25% 0.25%
In the event that either S&P or Moody's shall discontinue t heir 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 Moody's, 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 Moody's shall discontinue their ratings of the REIT industry or the
Borrower, the Applicable Margin to be used for the
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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 December 31, 2003 (for the period
from the Agreement Execution Date through December 31, 2003) 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.
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 November 4, 2003.
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.
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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.
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
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"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
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.
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(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.
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,
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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 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
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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 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
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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 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
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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 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.
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(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,
(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.
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(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 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
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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 __________, 2003 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
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
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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 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
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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:
(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,
(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 2.23(e), regardless of whether that is
specified in the Competitive Bid Quote.
(iii) 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).
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.
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(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
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
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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.
(a) 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
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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). 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
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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 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.
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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.
(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);
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(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 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
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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 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,
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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 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
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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) 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
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Borrower and the Administrative Agent (x) renewals or additional copies
of such form (or any successor form) on or before the date that such
form expires or becomes obsolete, and (y) after the occurrence of any
event requiring a change in the most recent forms so delivered by it,
such additional forms or amendments thereto as may be reasonably
requested by the Borrower or the Administrative Agent. All forms or
amendments described in the preceding sentence shall certify that such
Lender is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes,
unless an event (including without limitation any change in treaty, law
or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing
and delivering any such form or amendment with respect to it and such
Lender advises the Borrower and the Administrative Agent that it is not
capable of receiving payments without any deduction or withholding of
United States federal income tax.
(v) For any period during which a Non-U.S. Lender has
failed to provide the Borrower with an appropriate form pursuant to
clause (iv), above (unless such failure is due to a change in treaty,
law or regulation, or any change in the interpretation or
administration thereof by any governmental authority, occurring
subsequent to the date on which a form originally was required to be
provided), such Non-U.S. Lender shall not be entitled to
indemnification under this Section 3.5 with respect to Taxes imposed by
the United States.
(vi) Any Lender that is entitled to an exemption from or
reduction of withholding tax with respect to payments under this
Agreement or any Note pursuant to the law of any relevant jurisdiction
or any treaty shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by
applicable law as will 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
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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.
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;
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(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 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 September 30, 2003, 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;
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(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 updated
good standing certificates, searches, organizational documents, officer
certifications, 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 such 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.
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
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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 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.
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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.
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.
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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.
(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
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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.
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.
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(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 in
amounts or in a manner that could give rise to liability under
Environmental Laws.
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ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders
shall otherwise consent in writing:
6.1 Financial Reporting. The Borrower will maintain, for
itself and each Subsidiary, a system of accounting established and
administered in accordance with GAAP, and furnish to the Lenders:
(i) As soon as available, but in any event not
later than 45 days after the close of each fiscal quarter, for
the Borrower and its Subsidiaries, an unaudited consolidated
balance sheet as of the close of each such period and the
related unaudited consolidated statements of income and
retained earnings and of cash flows of the Borrower and its
Subsidiaries for such period and the portion of the fiscal
year through the end of such period, setting forth in each
case in comparative form the figures for the previous year,
all certified by the Borrower's chief financial officer or
chief accounting officer;
(ii) As soon as available, but in any event not
later than 45 days after the close of each fiscal quarter, for
the Borrower and its Subsidiaries, the following reports in
form and substance reasonably satisfactory to the Lenders, all
certified by the entity's chief financial officer or chief
accounting officer: a statement of Funds From Operations, a
statement of cash flows for each individual Project, a
statement detailing Consolidated Outstanding Indebtedness,
Consolidated Secured Indebtedness, and Consolidated Senior
Unsecured Indebtedness, Consolidated Cash Flow (with a
breakdown between Unencumbered Assets and other assets), a
listing of capital expenditures, a report listing and
describing all newly acquired Projects, including their net
operating income, cash flow, cost and secured or unsecured
Indebtedness assumed in connection with such acquisition, if
any, summary information and such other information on all
Projects as may be reasonably requested;
(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 year in form and substance
reasonably satisfactory to the Lenders, certified by the
entity's chief financial officer or chief accounting officer;
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(v) Together with the quarterly and annual
financial statements required hereunder, a compliance
certificate in substantially the form of Exhibit C 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.
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
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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 real estate
investment trust in compliance with all applicable provisions of the
Code relating to such status.
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6.11 Dividends. Provided there is no then-existing Default
or (after notice thereof to Borrower) Unmatured Default hereunder, the
Borrower and its Subsidiaries shall be permitted to declare and pay
dividends on their Capital Stock from time to time in amounts
determined by Borrower, provided, however, that in no event shall
Borrower declare or pay dividends on its Capital Stock if (a) dividends
paid on account of any fiscal quarter, in the aggregate, would exceed
95% of Funds From Operations for such fiscal quarter, or (b) dividends
paid on account of any fiscal year, in the aggregate, would exceed 90%
of Funds From Operations for such fiscal year. Notwithstanding the
foregoing, the Borrower shall be permitted at all times to distribute
whatever amount of dividends is necessary to maintain its tax status as
a real estate investment trust. 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 partnerships engaged solely in the business of
purchasing, developing, owning, operating,
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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
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service) with, or make any payment or transfer to, any Affiliate except
in the ordinary course of business and pursuant to the reasonable
requirements of the Borrower's or such Subsidiary's 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 35% of
Consolidated Market Value is subject to a Rate Management Transaction
approved by the Administrative Agent that effectively converts the
interest rate on such excess to a fixed rate.
6.20 Consolidated Net Worth. The Borrower shall maintain a
Consolidated Net Worth of not less than the sum of (i) $1,300,000,000
plus (ii) ninety percent (90%) of the aggregate proceeds received by
the Borrower (net of customary related fees and expenses) in connection
with any offering of stock, including, without limitation, perpetual
preferred stock and all other preferred stock, in the Borrower after
May 29, 2002 and on or prior to the date such determination of
Consolidated Net Worth is made provided that no proceeds shall be
deemed received to the extent that such offering involves only the
replacement or reissuance of common or preferred stock.
6.21 Indebtedness and Cash Flow Covenants. The Borrower on
a consolidated basis with its Subsidiaries shall not permit:
(i) Consolidated Outstanding Indebtedness to
exceed fifty-seven and one-half percent (57.5%) 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;
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(vi) Consolidated Cash Flow to be less than 2.0
times the Consolidated Debt Service, based on the most recent
two (2) fiscal quarters, for which the Consolidated Group has
reported results under Section 6.1, annualized, as of the last
day of any fiscal quarter; or
(vii) Consolidated Cash Flow to be less than 1.5
times Fixed Charges, based on the most recent two (2) fiscal
quarters, as of the last day of any fiscal quarter.
6.22 Environmental Matters. Borrower and its Subsidiaries
shall:
(a) Comply with, and use all reasonable
efforts to ensure compliance by all tenants and
subtenants, if any, with, all applicable
Environmental Laws and obtain and comply with and
maintain, and use all reasonable efforts to ensure
that all tenants and subtenants obtain and comply
with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by
applicable Environmental Laws, except to the extent
that failure to do so could not be reasonably
expected to have a Material Adverse Effect; provided
that in no event shall the Borrower or its
Subsidiaries be required to modify the terms of
leases, or renewals thereof, with existing tenants
(i) at Projects owned by the Borrower or its
Subsidiaries as of the date hereof, or (ii) at
Projects hereafter acquired by the Borrower or its
Subsidiaries as of the date of such acquisition, to
add provisions to such effect.
(b) Conduct and complete all
investigations, studies, sampling and testing, and
all remedial, removal and other actions required
under Environmental Laws and promptly comply in all
material respects with all lawful orders and
directives of all Governmental Authorities regarding
Environmental Laws, except to the extent that (i) the
same are being contested in good faith by appropriate
proceedings and the pendency of such proceedings
could not be reasonably expected to have a Material
Adverse Effect, or (ii) the Borrower has determined
in good faith that contesting the same is not in the
best interests of the Borrower and its Subsidiaries
and the failure to contest the same could not be
reasonably expected to have a Material Adverse
Effect.
(c) Defend, indemnify and hold harmless
Administrative Agent and each Lender, and their
respective officers and directors, from and against
any claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever
kind or nature known or unknown, contingent or
otherwise, arising out of, or in any way relating to
the violation of, noncompliance with or liability
under any Environmental Laws applicable to the
operations of the Borrower, its Subsidiaries or the
Projects, or any orders, requirements or demands of
Governmental Authorities related thereto, including,
without limitation, attorney's and consultant's fees,
investigation and laboratory fees, response costs,
court costs and litigation expenses, except to the
extent that any of the foregoing arise out of the
gross negligence or willful misconduct of the party
seeking indemnification therefor. This indemnity
shall continue in full force and effect regardless of
the termination of this Agreement.
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(d) Prior to the acquisition of a new
Project after the Agreement Execution Date, perform
or cause to be performed an environmental
investigation which investigation shall at a minimum
comply with the specifications and procedures
attached hereto as Exhibit G. In connection with any
such investigation, Borrower shall cause to be
prepared a report of such investigation, to be made
available to any Lenders upon reasonable request, for
informational purposes and to assure compliance with
the specifications and procedures.
6.23 Permitted Investments.
(a) The Consolidated Group's Investment
in Investment Affiliates, as determined in accordance
with GAAP, shall not at any time exceed thirty
percent (30%) of Consolidated Market Value.
(b) The Consolidated Group's Investment
in Developable Land (with each asset valued at the
lower of its acquisition cost and its fair market
value) shall not at any time exceed seven and one
half percent (7.5%) of Consolidated Capitalization
Value.
(c) The Consolidated Group's Investment
in Passive Non-Real Estate Investments (with each
asset valued at the lower of its acquisition cost and
its fair market value) shall not at any time exceed
seven and one half percent (7.5%) of Consolidated
Capitalization Value.
(d) The Consolidated Group's Investment
in First Mortgage Receivables (with each asset valued
at the lower of its acquisition cost and its fair
market value) shall not at any time exceed five
percent (5%) of Consolidated Capitalization Value.
(e) The Consolidated Group's Investment
in Assets Under Development shall not at any time
exceed fifteen percent (15%) of Consolidated
Capitalization Value.
(f) The Consolidated Group's aggregate
Investment in Developable Land, Passive Non-Real
Estate Investments, First Mortgage Receivables and
Assets Under Development shall not at any time exceed
twenty-five (25%) of Consolidated Capitalization
Value.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events
shall constitute a Default:
7.1 Nonpayment of any principal payment on any Note when
due.
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7.2 Nonpayment of interest upon any Note or of any
Facility Fee or other payment Obligations under any of the Loan
Documents within five (5) Business Days after the same becomes due.
7.3 The breach of any of the terms or provisions of
Sections 6.2 through 6.21 and 6.23.
7.4 Any representation or warranty made or deemed made by
or on behalf of the Borrower or any of its Subsidiaries to the Lenders
or the Administrative Agent under or in connection with this Agreement,
any Loan, or any material certificate or information delivered in
connection with this Agreement or any other Loan Document shall be
materially false on the date as of which made.
7.5 The breach by the Borrower (other than a breach which
constitutes a Default under Section 7.1, 7.2, 7.3 or 7.4) of any of the
terms or provisions of this Agreement which is not remedied within
fifteen (15) days after written notice from the Administrative Agent or
any Lender.
7.6 Failure of the Borrower or any of its Subsidiaries to
pay when due (A) any Recourse Indebtedness in excess of $10,000,000 in
the aggregate or (B) any Indebtedness, whether or not Recourse
Indebtedness, in excess of $40,000,000 in the aggregate; or the default
by the Borrower or any of its Subsidiaries in the performance of any
term, provision or condition contained in any agreement, or any other
event shall occur or condition exist, which causes or permits (A) any
Recourse Indebtedness of the Borrower or any of its Subsidiaries in
excess of $10,000,000 in the aggregate or (B) any Indebtedness, whether
or not Recourse Indebtedness, in excess of $40,000,000 in the aggregate
to be due and payable or required to be prepaid (other than by a
regularly scheduled payment) prior to the stated maturity thereof
(provided that the failure to pay any such Indebtedness shall not
constitute a Default so long as the Borrower or its Subsidiaries is
diligently contesting the payment of the same by appropriate legal
proceedings and the Borrower or its Subsidiaries have set aside, in a
manner reasonably satisfactory to Administrative Agent, a sufficient
reserve to repay such Indebtedness plus all accrued interest thereon
calculated at the default rate thereunder and costs of enforcement in
the event of an adverse outcome).
7.7 The Borrower, or any Subsidiary having more than
$10,000,000 of Equity Value, shall (i) have an order for relief entered
with respect to it under the Federal bankruptcy laws as now or
hereafter in effect, (ii) make an assignment for the benefit of
creditors, (iii) apply for, seek, consent to, or acquiesce in, the
appointment of a receiver, custodian, trustee, examiner, liquidator or
similar official for it or any Substantial Portion of its Property,
(iv) institute any proceeding seeking an order for relief under the
Federal bankruptcy laws as now or hereafter in effect or seeking to
adjudicate it as a bankrupt or insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors or fail to file an
answer or other pleading denying the material allegations of any such
proceeding filed against it, (v) take any corporate action to authorize
or effect any of the foregoing actions set forth in this Section 7.7,
(vi) fail to contest in good faith any appointment or proceeding
described in Section 7.8 or (vii) admit in writing its inability to pay
its debts generally as they become due.
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7.8 A receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Borrower or any Subsidiary having
more than $10,000,000 of Equity Value, or for any Substantial Portion
of the Property of the Borrower or such Subsidiary, or a proceeding
described in Section 7.7(iv) shall be instituted against the Borrower
or any such Subsidiary and such appointment continues undischarged or
such proceeding continues undismissed or unstayed for a period of
ninety (90) consecutive days.
7.9 The Borrower or any of its Subsidiaries shall fail
within sixty (60) days to pay, bond or otherwise discharge any
judgments or orders for the payment of money in an amount which, when
added to all other judgments or orders outstanding against Borrower or
any Subsidiary would exceed $10,000,000 in the aggregate, which have
not been stayed on appeal or otherwise appropriately contested in good
faith.
7.10 The Borrower or any other member of the Controlled
Group shall have been notified by the sponsor of a Multiemployer Plan
that it has incurred withdrawal liability to such Multiemployer Plan in
an amount which, when aggregated with all other amounts required to be
paid to Multiemployer Plans by the Borrower or any other member of the
Controlled Group as withdrawal liability (determined as of the date of
such notification), exceeds $1,000,000 or requires payments exceeding
$500,000 per annum.
7.11 The Borrower or any other member of the Controlled
Group shall have been notified by the sponsor of a Multiemployer Plan
that such Multiemployer Plan is in reorganization or is being
terminated, within the meaning of Title IV of ERISA, if as a result of
such reorganization or termination the aggregate annual contributions
of the Borrower and the other members of the Controlled Group (taken as
a whole) to all Multiemployer Plans which are then in reorganization or
being terminated have been or will be increased over the amounts
contributed to such Multiemployer Plans for the respective plan years
of each such Multiemployer Plan immediately preceding the plan year in
which the reorganization or termination occurs by an amount exceeding
$500,000.
7.12 Failure to remediate within the time period permitted
by law or governmental order, after all administrative hearings and
appeals have been concluded (or within a reasonable time in light of
the nature of the problem if no specific time period is so
established), environmental problems at Properties owned by the
Borrower or any of its Subsidiaries or Investment Affiliates if the
estimated costs of remediation at all such Properties in the aggregate
exceed $20,000,000.
7.13 The occurrence of any "Default" as defined in any
Loan Document or the breach of any of the terms or provisions of any
Loan Document, which default or breach continues beyond any period of
grace therein provided.
7.14 The occurrence of any Material Adverse Effect.
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ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1 Acceleration. If any Default described in Section 7.7
or 7.8 occurs with respect to the Borrower, the obligations 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 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
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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.
(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
$1,000,000,000.
(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.
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ARTICLE IX
GENERAL PROVISIONS
9.1 Survival of Representations. All representations and
warranties of the Borrower contained in this Agreement shall survive
delivery of the Notes and the making of the Loans herein contemplated.
9.2 Governmental Regulation. Anything contained in this
Agreement to the contrary notwithstanding, no Lender shall be obligated
to extend credit to the Borrower in violation of any limitation or
prohibition provided by any applicable statute or regulation.
9.3 Taxes. Any taxes (excluding taxes on the overall net
income of any Lender) or other similar assessments or charges made by
any governmental or revenue authority in respect of the Loan Documents
shall be paid by the Borrower, together with interest and penalties, if
any.
9.4 Headings. Section headings in the Loan Documents are
for convenience of reference only, and shall not govern the
interpretation of any of the provisions of the Loan Documents.
9.5 Entire Agreement. The Loan Documents embody the
entire agreement and understanding among the Borrower, the
Administrative Agent and the Lenders and supersede all prior
commitments, agreements and understandings among the Borrower, the
Administrative Agent and the Lenders relating to the subject matter
thereof.
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
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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.
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
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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.
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
-70-
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 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.
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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 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.
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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 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.
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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 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.
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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
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
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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 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
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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.
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.
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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,
$60,000,000 Individually and as Administrative Agent
By:/s/ Xxxxxxx Xxxxx
--------------------------------
Print Name: Xxxxxxx Xxxxx
Title: Director, Capital Markets
1 Bank One Plaza, IL 1-0315
Xxxxxxx, Xxxxxxxx 00000
Phone: 312/000-0000
Facsimile: 312/325-3122
Attention: Large Corporate Real Estate
S-2
BANK OF AMERICA, N.A.,
$50,000,000 Individually and as Syndication Agent
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Print Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Phone: 312/000-0000
Facsimile: 312/828-4970
Attention: Xx. Xxxxxxx X. Xxxxxxx
X-0
$50,000,000 COMMERZBANK AG,
Individually and as Documentation Agent
By:/s/ Xxxxxxxxx Xxxxx
--------------------------------
Print Name: Xxxxxxxxx Xxxxx
Title: Vice President
and by:
By:/s/ Xxxxxxx Xxxxxxx
--------------------------------
Print Name: Xxxxxxx Xxxxxxx
Title: Senior 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 FLEET BANK,
Individually and as Documentation Agent
By:/s/ Xxxxx X. Xxxxxx
--------------------------------
Print Name: Xxxxx X. Xxxxxx
Title: Sr. VP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Phone: 617/000-0000
Facsimile: 617/434-6384
Attention: Mr. Xxxxx Xxxxxx
S-5
$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-6
$40,000,000 WACHOVIA BANK, NA.,
Individually and as Managing Agent
By:/s/ Xxxxx X. Xxxxx
--------------------------------
Print Name: Xxxxx X. Xxxxx
Title: Director
Mail Code GA-8057, 28th Floor
000 Xxxxxxxxx Xx., X.X.
Xxxxxxx, XX 00000
Phone: 404/000-0000
Facsimile: 404/332-4066
Attention: Xx. Xxxxx Xxxxx
S-7
$35,000,000 DEUTSCHE BANK TRUST COMPANY AMERICAS
Individually and as Co-Agent
By:/s/ Xxxxxx X. Xxxxxx
--------------------------------
Print Name: Xxxxxx X. Xxxxxx
Title: Director
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Phone: 646/000-0000
Facsimile: 646/324-7450
Attention: Xx. Xxxxx Xxxxxxxxx
S-8
$35,000,000 FIRSTAR BANK, N.A.,
Individually and as Co-Agent
By:/s/ Xxxx X. Xxxxxxxxxx
--------------------------------
Xxxx X. Xxxxxxxxxx
Assistant Vice President
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Phone: 216/000-0000
Facsimile: 216/241-0164
Attention: Xx. Xxxx Xxxxxxxxxx
S-9
$30,000,000 ING CAPITAL LLC,
Individually and as Co-Agent
By:/s/ A. Xxxx Xxxxx
--------------------------------
Print Name: A. Xxxx Xxxxx
Title: Vice President
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Phone: 212/000-0000
Facsimile: 212/883-2920
Attention: Xx. Xxxxx Xxxxxxxx
S-10
$30,000,000 XX XXXXXX CHASE,
Individually and as Co-Agent
By:/s/ Xxxx X. Xxxxxxxxxx
--------------------------------
Print Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Phone: 212/000-0000
Facsimile: 212/270-0213
Attention: Xx. Xxxx Xxxxxxxxxxx
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 Xxxx
--------------------------------
Print Name: Xxxxxxx 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/ Xxxxxx X. Xxxxxxx
--------------------------------
Print Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Phone: 312/000-0000
Facsimile: 312/904-6691
Attention: Xx. Xxxxxx Xxxxxxx
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, X0-XXXX-00-0
Xxxxxxxxxx, XX 00000
Phone: 412/000-0000
Facsimile: 412/762-6500
Attention: Mr. Xxxxxxx Xxxxx
S-16
$15,000,000 CITICORP REAL ESTATE, INC.
By:/s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Print Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
000 Xxxxxxxxx Xxxxxx, Xxxxx 0
Xxx Xxxx, XX 00000
Phone: 212/000-0000
Facsimile: 212/723-8547
Attention: Xx. Xxxxxxx Xxxxxxx
S-17
$15,000,000 ERSTE BANK
By:/s/ Xxxxxx X. Xxxxx
--------------------------------
Print Name: Xxxxxx X. Xxxxx
Title: Vice President
By:/s/ Xxxxx Xxxxx
--------------------------------
Print Name: Xxxxx Xxxxx
Title: First Vice President
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/ Xxxxxx X. Xxxxxxx
--------------------------------
Print Name: Xxxxxx X. Xxxxxxx
Title: Senior 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: Vice President
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/ Xxxx X. Xxxxx
--------------------------------
Print Name: Xxxx X. Xxxxx
Title: Vice President
000 X. Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Phone: 404/000-0000
Facsimile: 404/532-5280
Attention: Xx. Xxxx Xxxxxxx
S-21
$15,000,000 SUNTRUST BANK
By:/s/ Xxxxx X. Xxxxxxxx
--------------------------------
Print Name: Xxxxx X. Xxxxxxxx
Title: Vice President
0000 Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Phone: 703/000-0000
Facsimile: 703/902-9190
Attention: Ms. Xxxxx Xxxxxxxx
S-22
$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/ Xxxxxxx Xxxxxxxxx
--------------------------------
Print Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Phone: 212/000-0000
Facsimile: 212/339-8325
Attention: Xx. Xxxxxxx Xxxxxxxxx
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: Xx. Xxxxxxx Xxxxx
S-24
EXHIBIT A-1
[AMENDED AND RESTATED] NOTE
_________, 2003
Developers Diversified Realty Corporation, a corporation
organized under the laws of the State of Ohio (the "Borrower"),
promises to pay to the order of _________________________ (the
"Lender") the aggregate unpaid principal amount of all Loans (other
than Competitive Bid Loans) made by the Lender to the Borrower pursuant
to Article II of the Fifth 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 May 29, 2002 made by the Borrower in
favor of the Lender.]
This Note is one of the Notes issued pursuant to, and is
entitled to the benefits of, the Fifth Amended and Restated Credit
Agreement, dated as of ________, 2003 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 AMENDED AND RESTATED
NOTE OF DEVELOPERS DIVERSIFIED REALTY CORPORATION,
DATED ____________, 2003
Maturity
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
---- --------- ----------- --------- -------
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X0-0
XXXXXXX X-0
FORM OF [AMENDED AND RESTATED]
COMPETITIVE BID NOTE
________, 2003
On or before the last day of each "Interest Period" applicable
to a "Competitive Bid Loan", as defined in that certain Fifth Amended
and Restated Credit Agreement dated as of __________, 2003, 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 May 29, 2002 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
A2-1
provided for in the Agreement), 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 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
X-0
XXXXXXX X
X-0
XXXXXXX X
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
Fifth 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
D-1
and (ii) with respect to each Fixed Rate Loan made by the Assignor and
assigned to the Assignee 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
D-2
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 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].**
D-3
**TO BE INSERTED IF THE ASSIGNEE IS NOT INCORPORATED UNDER THE LAWS OF
THE UNITED STATES, OR A STATE THEREOF.
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
1 Description and Date of Credit Agreement: _______________
2 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 Fifth 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
I-1
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.
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: Fifth Amended and Restated Credit Agreement, dated ________, 2003 (as
the same may be amended or modified, the "Credit Agreement"), among
Developers Diversified Realty Corporation, a corporation organized
under the laws of the State of Ohio (the "Borrower"), the Agent, and
the Lenders named therein. Terms used herein and not otherwise defined
shall have the meanings assigned thereto in the Credit Agreement.
The Agent is specifically authorized and directed to act upon the
following standing money transfer instructions with respect to the proceeds of
Advances or other extensions of credit from time to time until receipt by the
Agent of a specific written revocation of such instructions by the Borrower,
provided, however, that the Agent may otherwise transfer funds as hereafter
directed in writing by the Borrower in accordance with Section 13.1 of the
Credit Agreement or based on any telephonic notice made in accordance with
Section 2.14 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 _________, 2003 by the parties identified
in the signature pages thereto, and any Joinder to Guaranty hereafter delivered
(collectively, the "Subsidiary Guarantors"), to and for the benefit of Bank 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 subject
to increase to up to $1,000,000,000 in accordance with the terms thereof (the
"Facility").
B. The Lenders have agreed to make available the Facility to
Borrower pursuant to the terms and conditions set forth in a Fifth 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.
F-1
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:
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.
F-2
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.
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
F-3
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 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
F-4
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 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.
F-5
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 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.
F-6
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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
F-7
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.
17. From time to time, additional parties may execute a joinder
substantially in the form of Exhibit A hereto, and thereby become a party to
this Guaranty. From and after delivery of such joinder, the Subsidiary
delivering such joinder shall be a Subsidiary Guarantor, and be bound by all of
the terms and provisions of this Guaranty.
F-8
IN WITNESS WHEREOF, Subsidiary Guarantors have delivered this Guaranty
in the State of Illinois as of the date first written above.
_______________________________________
By:____________________________________
By:___________________________
Its:__________________________
_______________________________________
By:____________________________________
By:___________________________
Its:__________________________
_______________________________________
By:____________________________________
By:___________________________
Its:__________________________
F-9
EXHIBIT A TO SUBSIDIARY GUARANTY
FORM OF JOINDER TO GUARANTY
THIS JOINDER is executed by __________, a __________ ("Subsidiary"),
which hereby agrees as follows:
1. All capitalized terms used herein and not defined in this
Joinder shall have the meanings provided in that certain Subsidiary Guaranty
(the "Guaranty") dated as of __________, 2003 executed for the benefit of Bank
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
G-1
designed to identify recognized environmental conditions in connection
with a property, and environmental site assessments.
G-2
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: Fifth Amended and Restated Credit Agreement dated as of _________,
2003, 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 Fifth Amended and Restated Credit
Agreement dated as of __________, 2003, 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:____________________________________
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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:
1. Quoting Lender:____________________________________________
2. Person to contact at Quoting Lender:_______________________
3. Borrowing Date: ___________________________________________(3)
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(4) Period(5) LIBOR Margin(6)] Rate(7)] Amount(8)
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Fifth Amended and
Restated Credit Agreement dated as of ________, 2003, 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)).
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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:_______________________________
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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 Fifth Amended and Restated Credit
Agreement dated as of ________, 2003, 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.
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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:_______________________________________________
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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:
2. 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(12) Period(13) LIBOR Margin(14)] Rate(15) Amount(16)]
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Fifth Amendment
and Restated Credit Agreement dated as of ________, 2003, 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)).
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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:_________________________________
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EXHIBIT K
AMENDMENT REGARDING INCREASE
AMENDMENT TO FIFTH AMENDED AND
RESTATED REVOLVING CREDIT AGREEMENT
This __________________ Amendment to the Fifth Amended and Restated
Revolving Credit Agreement (the "Amendment") is made as of _______________,
_____, by and among Developers Diversified Realty Corporation, a corporation
organized under the laws of the State of Ohio (the "Borrower"), Bank One, NA,
having its principal office in Chicago, Illinois and the several banks,
financial institutions and other entities from time to time parties to this
Agreement (the "Lenders"), and Bank One, NA, not individually, but 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 an Fifth Amended and Restated Credit Agreement dated as of December __,
2003 (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 $____,000,000; and (ii)
admit [NAME OF NEW BANKS] as "Lenders" under the Credit Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
AGREEMENTS
1. The foregoing Recitals to this Amendment hereby are
incorporated into and made part of this Amendment.
From and after _______________, _____ (the "Effective Date") (i) [NAME
OF NEW BANKS] shall be considered as "Lenders" under the Credit Agreement and
the Loan Documents, and (ii) [NAME OF EXISTING LENDERS] shall each be deemed to
have increased its Commitment to the amount shown next to their respective
signatures on the signature pages of this Amendment, each having a Commitment in
the amount shown next to their respective signatures on the signature pages of
this Amendment. The Borrower shall, on or before the Effective Date, execute and
deliver to each of such new or existing Lenders a new or amended and restated
Note in the amount of such Commitment (and in the case of a new Lender, a
Competitive Bid Note as well).
From and after the Effective Date, the Aggregate Commitment shall equal
____________Million Dollars ($_____,000,000).
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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.
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 Agreement are true and correct as of
such date and the Borrower has no offsets or claims against any of the Lenders.
As expressly modified as provided herein, the Credit Agreement shall
continue in full force and effect.
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.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Amendment as of the date first written above.
DEVELOPERS DIVERSIFIED REALTY BANK ONE, NA, Individually and as
CORPORATION Administrative Agent
By_____________________________
By__________________________________
Print Name: ___________________
Print Name: ________________________
Title:_________________________
Title:______________________________
1 Bank One Plaza
3300 Enterprise Parkway Mail Code XX0-0000
Xxxxxxxxx, Xxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Phone: 216/000-0000 Attention: Large Corporate Real Estate
Facsimile: 216/755-1506 Telephone: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx Facsimile: (000) 000-0000
Amount of Commitment: $ ____________ [NAME OF NEW LENDER]
By:_________________________________
Print Name:_________________________
Title:______________________________
[ADDRESS OF NEW LENDER]
Attention:__________________________
Telephone:__________________________
Facsimile:__________________________
K-3
EXHIBIT L
FORM OF DESIGNATION AGREEMENT
Dated______________, ______
Reference is made to the Fifth Amended and Restated Revolving Credit
Agreement dated as of _________, 2003 (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
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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.
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.
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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.
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.
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