EXHIBIT 10.13
INTERIM AGREEMENT
INTERIM AGREEMENT (this "Interim Agreement") dated March 2, 2000, but
effective as of February 14, 2000 (the "Effective Date"), by and among JDN
Realty Corporation (the "Borrower"), JDN Development Company, Inc. (the
"Guarantor"), the Banks parties hereto (the "Banks") and Wachovia Bank, N.A., as
Agent (the "Agent").
WHEREAS, the parties hereto are parties to the Term Loan Credit Agreement
dated as of February 17, 2000, as amended by First Amendment to Term Loan Credit
Agreement dated as of June 11, 1999, by and among the Borrower, the Banks, PNC
Bank, National Association, as the Documentation Agent and the Agent (as so
amended, the "Credit Agreement"); and
WHEREAS, on February 14, 2000, the Borrower furnished the Agent a copy of
its press release issued February 14, 2000 concerning the discovery of certain
real estate transactions, which included undisclosed compensation arrangements,
payments of fees and related party transactions, in favor of Xxx X. Xxxxxx,
Senior Vice President, and C. Xxxxxxx Xxxxxxxxxx, XX, Vice President, of the
Guarantor, which transactions are more particularly described in separate
written disclosures to the Agent and the Banks on and before the date hereof
(collectively, the "Undisclosed Transactions"); and
WHEREAS, the Undisclosed Transactions: (i) were not accurately recorded in
the Borrower's accounting records; (ii) were not accurately recorded or
disclosed in the Borrower's audited financial statements for its Fiscal Years
ended December 31, 1994 through 1998; and (iii) give rise to unreported
compensation for its Fiscal Years ended December 31, 1994 through 1998, which
could possibly be required to be expensed for each of such Fiscal Years,
resulting in a restatement of the Borrower's financial statements for such years
and a reduction of Consolidated Net Income and Funds From Operations for those
periods (such matters being, collectively, the "Undisclosed Transactions
Matters", and collectively, with the Undisclosed Transactions, the "Known
Events");
WHEREAS, as a result of the Undisclosed Transactions and the Undisclosed
Transactions Matters, certain Defaults and Events of Default have occurred under
the Credit Agreement, as described below, and the Borrower and the Guarantor
(individually and collectively, as the context shall require, the "Obligors")
have requested that the Agent and the Banks agree not to exercise their rights,
remedies and powers under the Loan Documents and at law or in equity during the
Interim Period, and in order to permit the Borrower to furnish the Agent and the
Banks with the Borrower's and its Subsidiaries' consolidated annual financial
statements for the Fiscal Year ended December 31, 1999 and the separate annual
financial statements of the Guarantor for the Fiscal Year ended December 31,
1999 (collectively, the "1999 Statements") and for the Agent and the Banks to
review and evaluate the 1999 Statements and to conduct due diligence inquiries
into certain matters regarding the Borrower and its Subsidiaries, including,
without limitation, corporate governance, accounting policies and procedures,
internal reporting practices, shareholder lawsuits, the effect of the
Undisclosed Transactions and Undisclosed Transactions Matters on customer
relations and the Debt Rating (collectively, the "Due Diligence Inquiries"), and
to give the parties an opportunity to discuss
and agree upon appropriate amendments to the Credit Agreement, if any as a
result thereof, and provided that the Obligors comply with the provisions of
this agreement, the Agent and the Banks are willing to agree to the Obligor's
request, subject to the terms and conditions of this Interim Agreement.
1. Defined Terms. In addition to terms expressly defined herein, capitalized
-------------
terms used but not defined herein have the meanings given them in the Credit
Agreement; provided, however, that for purposes of this Interim Agreement, the
-------- -------
term "Event of Default" includes any breach or default by either of the Obligors
under this Interim Agreement and the term "Loan Documents" includes, without
limitation, this Interim Agreement.
2. Existing Events of Default; Certain Acknowledgments by the Obligors.
-------------------------------------------------------------------
(a) Each of the Obligors hereby acknowledges, without admitting or denying that
other Events of Default may exist or arise as a result of any of the Known
Events (any such other Event of Default not arising out of a Known Event
being an "Other Possible Event of Default"), that Events of Default are in
existence under the following Sections of the Credit Agreement as a result
of the Undisclosed Transactions and Undisclosed Transaction Matters
(collectively, the "Existing Events of Default", which term for purposes of
this Interim Agreement shall not include any Other Possible Event of
Default which is determined to be an Event of Default): (i) the covenant
contained in Section 5.02(i) was breached; and (ii) the covenant contained
in Section 5.07 was breached as to the payment of taxes.
(b) Each of the Obligors acknowledges and agrees that: (i) the Existing Events
of Default constitute continuing Events of Default under the Credit
Agreement and the Obligors hereby are and will be deemed to have received
adequate and sufficient notice thereof; (ii) such Existing Events of
Default and any other Default or Event of Default, whether known or unknown
(including, without limitation, any Other Possible Events of Default which
are determined to be an Event of Default), have not been, are not hereby
and shall not be deemed, waived by the Agent or the Banks, expressly or
impliedly, by this Interim Agreement, through course of conduct or
otherwise; (iii) as a result of the Existing Events of Default, the Agent
and the Banks (x) have no obligation to forebear against pursuing any
rights or remedies under the Loan Documents, and (y) have the right to
pursue their rights, powers and remedies under the Loan Documents,
including, without limitation, the right to accelerate the obligations of
the Borrower under the Credit Agreement and the Term Notes (the
"Obligations") and exercise other rights and remedies, all pursuant and
subject to the terms, requirements and limitations of the Credit Agreement,
the Guaranty, the other Loan Documents and applicable law; and (iv) as a
result of the Existing Events of Default, pursuant to Section 2.02(e) of
the Credit Agreement, no Euro-Dollar Borrowing may be made for Refunding
Loans, and all Refunding Loans shall be made as Base Rate Loans.
Notwithstanding the Existing Events of Default, each of the Obligors
hereby represents and warrants to, and assures, the Agent and the Banks
that no further Event of Default (other than the Existing Events of
Default) is reasonably anticipated by such Obligor, and each of the
Obligors hereby acknowledges that the Agent and the Banks are relying upon
such representation, warranty and assurance.
2
3. Interim Period. Notwithstanding the acknowledgments contained in Section 2
--------------
hereof, or any provision of the Loan Documents to the contrary, so long as no
New Event of Default occurs under the Credit Agreement, and subject to the terms
and conditions hereof, the Agent and the Banks have determined not to exercise
any rights, powers or remedies under the Loan Documents during the period (the
"Interim Period") from February 14, 2000 (the "Effective Date") until whichever
is the earlier of (x) April 14, 2000 and (y) the occurrence of a New Event of
Default. Such agreement not to exercise rights, powers or remedies is made
without waiving any Existing Event of Default and without prejudice to any
right, power or remedy which the Agent and the Banks have or may have under the
Loan Documents or at law or in equity, as a result of such Existing Events of
Default, except during the Interim Period, and all such rights, powers or
remedies hereby are reserved and retained in full, including, without
limitation, to accelerate the Obligations, notwithstanding any forbearance by
the Agent and the Banks with respect thereto pursuant to this Interim Agreement,
except during the Interim Period.
For purposes hereof, the term "New Event of Default" means:
(i) the occurrence of any breach or default by either of the Obligors
hereunder or any representation or warranty of either of the Obligors
contained or incorporated herein proves to be incorrect or misleading in a
material respect; the occurrence of any Event of Default, other than the
Existing Events of Default or those based on any of the Known Events; and
(ii) the occurrence of any event, act, occurrence, or condition which
the Required Banks determine either does or has a reasonable probability of
causing a Material Adverse Effect (whether or not arising as a result of
any of the Known Events).
4. Certain Covenants of the Borrower.
---------------------------------
(a) The Borrower hereby agrees that, simultaneously with the delivery of any
report to or by the Borrower's special committee of the board of directors,
or to shareholders, holders of the Borrower's senior debt securities issued
pursuant to the Indenture dated as of July 15, 1997, as amended or
supplemented to date, with First Union National Bank, as Trustee, or to the
Securities and Exchange Commission, regarding the Undisclosed Transactions,
the Undisclosed Transaction Matters or any related matter, or with the
issue of any press release pertaining to any of the foregoing, the Borrower
shall furnish to the Agent and the Banks a copy thereof; provided, however,
-------- -------
as to any such reports to or by the Borrower's special committee of the
board of directors, if the Borrower reasonably believes, based on advice of
counsel, that the delivery of such report in unredacted form would
constitute a waiver of any attorney-client or other privilege which
otherwise would be available to it, it may instead furnish a redacted
report, or a summary of such report, which is limited to the relevant
facts.
(b) Each of the Obligors hereby agrees that from and after the Effective Date,
it shall not, and shall not permit any Subsidiary to, enter into or become
a party to any contractual restriction on the ability of either of the
Obligors or any such Subsidiary to xxxxx x Xxxx to secure the Obligations
on any asset now owned or hereafter acquired by it (any such restriction
being a "Negative Pledge Clause"); provided, however, that if either
-------- -------
3
of the Obligors or any Subsidiary obtains any purchase money financing for
the acquisition and/or construction of a project (without creating a New
Event of Default under the Credit Agreement), nothing in the foregoing
shall restrict its right to include, as part of such purchase money
financing, a Negative Pledge Clause as to the project being financed (but
not as to any other assets).
(c) Each of the Obligors hereby agrees that from and after the Effective Date,
it shall not, and shall not permit any Subsidiary to, remove from the
Borrowing Base any Eligible Property which is in the Borrowing Base on the
Effective Date (collectively, the "Existing Borrowing Base Properties") or
convey, assign or otherwise transfer, or create, assume or (except for any
servitude or easement which is not a Mortgage and which was in existence on
the Effective Date) suffer to exist any Lien on, any of the Existing
Borrowing Base Properties (other than Liens incidental to the conduct of
its business or the ownership of its assets which (i) do not secure Debt
and (ii) do not in the aggregate materially detract from the value of any
of the Existing Borrowing Base Properties or materially impair the use
thereof in the operation of its business), without the consent of the
Agent, acting at the direction of the Required Banks.
5. Termination of Interim Period; Reservation of Rights. The Agent and the
----------------------------------------------------
Banks shall have no obligation to refrain from exercising or enforcing any of
their rights or remedies after the termination of the Interim Period.
Immediately upon the occurrence of any New Event of Default, the agreements of
the Agent and the Banks set forth in this Interim Agreement shall immediately
and automatically terminate and be of no further force or effect without further
notice to or consent of either of the Obligors, and the Agent and the Banks
shall have the right to exercise and enforce any and all rights, powers and
remedies available to them under any and all Loan Documents and under applicable
laws to the same extent as though this Interim Agreement had never been
executed, without regard to any notice or cure period contained in any of the
Loan Documents or (to the fullest extent permitted by law) otherwise available
under applicable laws. In the event of a New Event of Default, the Banks reserve
the right at any time for the Required Banks to direct the Agent to terminate
the Commitments and/or declare the Term Notes and all other amounts payable
under the Credit Agreement and the other Loan Documents to be immediately due
and payable pursuant to Section 6.01 of the Credit Agreement as a result of such
New Event of Default. From and after the termination of the Interim Period, all
rights, powers and remedies available to the Agent and the Banks under any and
all of the Loan Documents, and under applicable laws, may be asserted, enforced
and exercised concurrently, cumulatively or successively from time to time and
at any time until such time as all of the Obligations have been indefeasibly
paid in full.
6. Representations and Warranties. By entering into this Interim Agreement, the
------------------------------
Borrower shall be deemed to have made all representations and warranties as set
forth in the Credit Agreement (except with respect to matters pertaining to the
Existing Events of Default).
7. Amounts Outstanding. As of the close of business on February 29, 2000, the
-------------------
outstanding principal balance of the Loans was an aggregate of $100,000,000.
The outstanding principal balance of the Loans is due and owing, without
defense, counterclaim, recoupment or offset. To the extent that such defense,
counterclaim, recoupment or right of offset exists, the same are hereby waived
and forever released.
4
8. Conduct of the Agent and the Banks; Absence and Waiver of Defenses. Through
------------------------------------------------------------------
the date of execution of this Agreement by the Obligors as set forth under its
signatures below (the "Obligors' Execution Date"), the Agent and each of the
Banks has acted in good faith and has conducted themselves in a commercially
reasonable manner in their relationships with each of the Obligors in connection
with this Interim Agreement and in connection with the Obligations and the Loan
Documents, each of the Obligors hereby waives and releases any claims to the
contrary. To the best of its knowledge, as of the Obligors' Execution Date,
neither of the Obligors has any defenses, affirmative or otherwise, rights of
setoff, rights of recoupment, claims, counterclaims, actions or causes of action
of any kind or nature whatsoever against the Agent or any of the Banks or any
past or present agent, attorney, legal representative, predecessor in interest,
affiliate, successor, assign, employee, director or officer of the Agent or any
of the Banks (collectively, the "Bank Group"), directly or indirectly, arising
out of, based upon, or in any manner connected with, any transaction, event,
circumstance, action, failure to act, or occurrence of any sort or type, which
occurred, existed, was taken or permitted prior to the execution of this Interim
Agreement and occurred, existed, was taken or permitted in accordance with,
pursuant to, or by virtue of the Obligations or any of the terms or conditions
of the Loan Documents, or which directly or indirectly relate to or arise out of
or in any manner are connected with the Obligations or any of the Loan
Documents; to the extent any such defenses, affirmative or otherwise, rights of
setoff, rights of recoupment, claims, counterclaims, actions or causes of action
are claimed to exist or to have existed, such defenses, rights, claims,
counterclaims, actions and causes of action are hereby forever waived,
discharged and released. Each of the Obligors hereby acknowledges and agrees
that the execution of this Interim Agreement by the Agent and the Banks shall
not constitute an acknowledgment of or admission by the Agent or any Bank or any
member of the Bank Group of the existence of any claims or of liability for any
matter or precedent upon which any claim or liability may be asserted. Each of
the Obligors further acknowledges and agrees that, to the extent any such claims
may presently exist, they are of a speculative nature so as to be incapable of
objective valuation and that, in any event, the value to the Borrower of the
covenants and obligations of the Agent and the Banks contained in this Interim
Agreement and the other documents executed and delivered in connection with this
Interim Agreement substantially and materially exceeds any and all value of any
kind or nature whatsoever of any such claims. Each of the Obligors further
acknowledges and agrees that Agent and the Banks are not in any way responsible
or liable for the previous or current condition or any deterioration of the
business operations and/or financial condition of the Borrower and that, to the
best knowledge of each of the Obligors, neither the Agent nor any of the Banks
has breached any agreement or commitment to loan money or otherwise make
financial accommodations available to the Borrower or refused to fund any
operations of the Borrower at any time. Each of the Obligors hereby acknowledges
that it has freely and voluntarily entered into this Interim Agreement after an
adequate opportunity and sufficient period of time to review, analyze and
discuss (i) all terms and conditions of this Interim Agreement, (ii) any and all
other documents executed and delivered in connection with the transactions
contemplated by this Interim Agreement, and (iii) all factual and legal matters
relevant to this Interim Agreement and/or any and all such other Loan Documents,
with counsel freely and independently selected by the Obligors. Each of the
Obligors further acknowledges and agrees that it has actively and with full
understanding participated in the negotiation of this Interim Agreement and all
other documents executed and delivered in connection with this Interim Agreement
after consultation and review with their counsel, that all of the terms and
5
conditions of this Interim Agreement and the other documents executed and
delivered in connection with this Interim Agreement have been negotiated at
arm's-length, and that this Interim Agreement and all such other documents have
been negotiated, prepared and executed without fraud, duress, undue influence,
or coercion of any kind or nature whatsoever having been exerted by or imposed
upon any party to this Interim Agreement upon any other party. No provision of
this Interim Agreement or such other documents shall be construed against or
interpreted to the disadvantage of any party to this Interim Agreement by any
court or other governmental or judicial authority by reason of such party having
or being deemed to have structured, dictated or drafted such provision.
9. No Novation or Amendment; Governing Law. Except as expressly provided
---------------------------------------
herein, this Interim Agreement is not intended to be, nor shall be deemed or
construed to be, a novation, release, modification, amendment or waiver of the
Obligations or any of the Loan Documents, or any other documents or instruments
executed in connection therewith. This Interim Agreement shall be governed by
and construed in accordance with the laws of the State of Georgia.
10. Additional Acknowledgments. The parties hereto acknowledge and agree that
--------------------------
(i) neither the Agent and the Banks nor the Obligors have any obligation
whatsoever to agree to any restructuring of the Credit Agreement or any of the
other Obligations, or any modification, amendment, restructuring, or
reinstatement of any of the Obligations or to the exercise of any rights, powers
or remedies under any of the Loan Documents, and (ii) that if there are any
future discussions among the Agent, the Banks and either of the Obligors
concerning such restructuring, then no restructuring or understanding with
respect to any of the Obligations, or any aspect thereof, shall constitute a
legally binding agreement or contract or have any force or effect whatsoever
unless and until reduced to writing and signed by authorized representatives of
the parties hereto and that none of the parties hereto shall assert or claim in
any legal proceedings or otherwise that any such agreement exists except in
accordance with the terms of this Section.
11. Counterparts. This Agreement may be signed in any number of counterparts,
------------
each of which may be delivered by facsimile and which (including counterparts
delivered by facsimile) shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. Conditions Precedent. This Interim Agreement shall be effective only upon
--------------------
(i) execution and delivery of this Interim Agreement by each of the Obligors,
the Agent and the Required Banks, each such delivery being made by facsimile of
a counterpart signature page hereof to counsel for the Agent, Xxxxxxxxxxx X.
Carson, Jones, Day, Xxxxxx & Xxxxx, at facsimile no. 000-000-0000 and (ii)
payment to the Agent, for the ratable account of the Banks, of a fee in
connection herewith in an aggregate amount equal to 0.125% of the outstanding
principal amount of the Loans set forth in Section 7 hereof.
13. Credit Agreement Amendment. During the Interim Period, but subject to the
--------------------------
completion of and satisfaction with the information obtained as a result of the
Due Diligence Inquiries by the Agent and the Banks, and the receipt (by such
date as will enable the Agent and the Banks to have adequate time for review and
analysis) of the foregoing information and the 1999 Statements in draft form,
the parties hereby agree to enter into good faith negotiations with
6
a view toward executing and delivering an amendment to the Credit Agreement or
other appropriate agreement by March 28, 2000 that, in part, will confirm that
the Credit Agreement continues to be in effect through the Termination Date,
subject to its terms, provisions and conditions as so amended, including such
amendments as the parties shall agree upon.
7
IN WITNESS WHEREOF, the parties hereto have caused this Interim Agreement
to be duly executed, under seal, by their respective authorized officers as of
the Effective Date.
JDN REALTY CORPORATION
JDN DEVELOPMENT COMPANY,
as Borrower and Guarantor, respectively
By: /s/ Xxxxxxx X. Xxxxxx ATTEST: /s/ Xxxx X. Xxxxxx, Xx.(SEAL)
-------------------------- -----------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxxx X. Xxxxxx, Xx.
Title: SVP and CFO Title: Assistant Secretary
Executed on March 2, 2000, which is the Obligors' Execution Date, but effective
as of the Effective Date.
WACHOVIA BANK, N.A., PNC BANK, NATIONAL ASSOCIATION,
as Agent and as a Bank as a Bank
By: /s/ Xxxxxxxxx X. XxXxxxx(SEAL) By: /s/ Xxxxx Xxxxxxxxx (SEAL)
------------------------- -------------------------
Name: Xxxxxxxxx X. XxXxxxx Name: Xxxxx Xxxxxxxxx
Title: Commercial Officer Title: Vice President
BANKERS TRUST COMPANY, N.A. FIRST TENNESSEE BANK NATIONAL ASSOCIATION
as a Bank as a Bank
By: /s/ Xxxxxx X. Xxxxxx (SEAL) By: /s/ Xxx Xxxxxxx (SEAL)
---------------------- -------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxx Xxxxxxx
Title: Director Title: Vice President
COMMERZBANK, AG, NEW YORK
BRANCH as a Bank
By: /s/ E. Xxxxxx Xxxxx (SEAL)
-------------------------
Name: E. Xxxxxx Xxxxx
Title: Assistant Vice President
By: /s/ Xxxxx Xxxxxxxx (SEAL)
-------------------------
Name: Xxxxx Xxxxxxxx
Title: Assistant Treasurer
8
BANK OF NOVA SCOTIA SOUTHTRUST BANK, NATIONAL
as a Bank ASSOCIATION, as a Bank
By: /s/ Xxxxxx Xxxxxxxxxx (SEAL) By: /s/ Xxxxxx X. Xxxxx (SEAL)
------------------------ ------------------------
Name: Xxxxxx Xxxxxxxxxx Name: Xxxxxx X. Xxxxx
Title: Managing Director Title: Senior Vice President
9
