EXHIBIT 10.3
EXHIBIT D
---------
Form of Assignment of Leases and Rents
AFTER RECORDING, RETURN TO:
Xxxxxxx X. Xxxxxxx, Esq.
Long, Xxxxxxxx & Xxxxxx, LLP
Suite 5300
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
ASSIGNMENT OF LEASES AND RENTS
------------------------------
(TEXAS)
(#552/MacArthur Marketplace)
THIS ASSIGNMENT OF LEASES AND RENTS (this "Assignment") is made as of
March 29, 2001, by JDN REALTY HOLDINGS, L.P., a Georgia limited partnership
("Assignor"), having its principal place of business at 000 Xxxx Xxxxx Xxxxx
Xxxx, Xxxxxxx, Xxxxxxx 00000, to FLEET NATIONAL BANK, a national banking
association ("Fleet"), having an address of 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attn: Real Estate Division, as Agent for itself and each
other lender (collectively, the "Banks") which is or may hereafter become a
party to that certain Third Amended, Restated and Consolidated Master Credit
Agreement, dated of even date herewith, by and among JDN Realty Corporation, a
Maryland corporation ("Parent"), Fleet, as Agent and the Banks (as the same may
be varied, amended, restated, renewed, consolidated, extended or otherwise
supplemented from time to time, the "Credit Agreement") (Fleet, in its capacity
as agent, is hereinafter referred to as "Agent").
Assignor, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, does hereby GRANT, SELL, CONVEY, ASSIGN,
TRANSFER, SET OVER AND DELIVER to Agent, for the ratable benefit of the Banks,
as further assurance, the entire lessor's interest in and to all leases,
subleases, tenant contracts, rental agreements, occupancy agreements or
agreements of a similar nature, now or hereafter affecting the Property (as
defined in the Deed of Trust and Security Agreement dated of even date herewith
executed by Assignor in favor of Agent (the "Instrument")), or any part thereof,
which Property includes that certain lot or piece of land, more particularly
described in Exhibit A attached hereto, together with all guarantees of the
foregoing and letters of credit or other security relating to the performance or
obligations of any tenants, lessees or licensees thereunder (all of the leases
and other agreements and guarantees described above together with all present
and future leases and present and future agreements and any amendment,
modification, extension or renewal of the same are hereinafter collectively
referred to as the "Leases");
TOGETHER WITH all rents, income, issues, revenues and profits arising from
the Leases and renewals thereof and together with all rents, income, issues and
profits from the use, enjoyment and occupancy of the Property (including, but
not limited to, minimum rents, additional rents, percentage rents, deficiency
rents, security deposits and liquidated damages
following default under any Leases, all proceeds payable under any policy of
insurance, all of Assignor's rights to recover monetary amounts from any lessee
under the Leases in bankruptcy including, without limitation, rights of recovery
for use and occupancy and damage claims arising out of defaults under the
Leases, including rejection of a Lease, together with any sums of money that may
now or at any time hereafter be or become due and payable to Assignor by virtue
of any and all royalties, overriding royalties, bonuses, delay rentals and any
other amount of any kind or character arising under any and all present and all
future oil, gas and mining Leases covering the Property or any part thereof, and
all proceeds and other amounts paid or owing to Assignor under or pursuant to
any and all contracts and bonds relating to the construction, erection or
renovation of the Property and all rents under and as defined in the Leases)
(all of the rights described above hereinafter collectively referred to as the
"Rents").
THIS ASSIGNMENT is made for the purposes of further assuring the Agent of
repayment of the following described indebtedness (collectively the
"Obligations"):
(a) The debt evidenced by (i) those certain Amended and Restated
Revolving Credit Notes made by Parent in the aggregate principal amount of
One Hundred Fifty Million and No/100 Dollars ($150,000,000), those certain
Amended and Restated Term Loan Notes made by Parent in the aggregate
principal amount of One Hundred Fifty Million and No/100 Dollars
($150,000,000) and that certain Swing Loan Note made by Parent in the
principal amount of Ten Million and No/100 Dollars ($10,000,000) each of
which has been issued pursuant to the Credit Agreement and each of which
is due and payable in full on or before December 31, 2002 and (ii) each
other note as may be issued under the Credit Agreement, each as originally
executed, or if varied, extended, supplemented, consolidated, amended,
replaced, renewed, modified or restated from time to time as so varied,
extended, supplemented, consolidated, amended, replaced, renewed, modified
or restated (collectively, the "Note").
(b) The payment, performance and discharge of each and every
obligation, covenant and agreement of Assignor under that certain
Unconditional Guaranty of Payment and Performance of even date herewith
from Obligor and certain other parties in favor of Agent and the Banks
(the "Guaranty").
(c) The payment, performance and discharge of each and every
obligation, covenant and agreement of Assignor and/or Parent contained
herein, in the Credit Agreement and in the other Loan Documents (as
defined in the Credit Agreement).
(d) Any and all additional advances made by any Bank to protect or
preserve the Property or the lien and security title hereof in and to the
Property, or for taxes, assessments or insurance premiums as hereinafter
provided (whether or not Assignor remains the owner of the Property at the
time of such advances).
(e) Any and all other indebtedness now or hereafter owing by Parent
and/or Assignor to any Bank pursuant to the terms of the Credit Agreement,
whether now existing or hereafter arising or incurred, however evidenced
or incurred, whether express or implied, direct or indirect, absolute or
contingent, due or to become due, including, without limitation, all
principal, interest, fees, expenses, yield maintenance amounts and
-2-
indemnification amounts, and all renewals, modifications, consolidations,
replacements and extensions thereof.
(f) The full payment and performance by Parent of each and all of
the Hedge Obligations (as defined in the Credit Agreement).
(g) The Enforcement Costs (as defined in the Instrument).
Assignor warrants to Agent that (a) Assignor is the sole owner of the
entire lessor's interest in the Leases; (b) the Leases have not been altered,
modified or amended in any manner whatsoever except as disclosed to Agent and,
to the best knowledge of Obligor, are valid, enforceable and in full force and
effect; (c) neither the Leases nor the Rents reserved in the Leases have been
assigned or otherwise pledged or hypothecated; (d) none of the Rents have been
collected for more than one (1) month in advance; (e) Assignor has full power
and authority to execute and deliver this Assignment and the execution and
delivery of this Assignment has been duly authorized and does not conflict with
or constitute a default under any law, judicial order or other agreement
affecting Assignor or the Property; and (f) there exist no known offsets or
defenses to the payment of any portion of the Rents.
Assignor covenants with Agent that Assignor (a) shall observe and perform
all the obligations imposed upon the lessor under the Leases and shall not do or
permit to be done anything to materially impair the value of the Leases as
security for the Obligations; (b) shall not collect any Rents more than one (1)
month in advance; (c) shall not execute any other assignment of lessor's
interest in the Leases or the Rents; (d) shall execute and deliver at the
request of Agent all such further assurances, confirmations or assignments in
connection with the Property as Agent shall from time to time reasonably
require; (e) shall deliver to Agent, executed copies of all Leases now existing
or hereafter arising.
THIS ASSIGNMENT is made on the following terms, covenants and conditions:
1. Present Assignment. Assignor does hereby absolutely and unconditionally
------------------
assign to Agent, Assignor's right, title and interest in and to any and all
Leases and Rents, it being intended by Assignor that this assignment constitute
a present, absolute assignment and not an assignment for additional security
only. Assignor agrees to execute and deliver to Agent such additional
instruments, in form and substance satisfactory to Agent, as may hereinafter be
requested by Agent to further evidence and confirm said assignment. Such
assignment to Agent shall not be construed to bind Agent to the performance of
any of the covenants, conditions, or provisions contained in any of the Leases
or otherwise to impose any obligation upon Agent. Agent is hereby granted and
assigned by Assignor the right to enter the Property for the purpose of
enforcing its interest in the Leases and the Rents, this Assignment constituting
a present, absolute and unconditional assignment of the Leases and Rents.
Assignor shall authorize and direct, and does hereby authorize and direct, each
and every present and future tenant under the Leases to pay all Rents directly
to Agent after an Event of Default upon receipt of written demand from Agent. It
is the intent of Assignor and Agent hereunder that the Rents hereby absolutely
assigned are no longer, during the term of this Assignment, property of Assignor
or property of any estate of Assignor as defined by 11 U.S.C. ss. 541, and shall
not constitute collateral, cash or otherwise, of Assignor.
-3-
2. License. Although this Assignment constitutes a present and absolute
-------
assignment of all Rents, so long as there shall exist no Event of Default under
the Instrument or the Credit Agreement, Assignor shall have a mere license,
revocable as set forth herein to collect, but not more than thirty (30) days
prior to accrual, all Rents and to retain, use and enjoy the same. Upon the
occurrence of any Event of Default, the license granted in this Paragraph 2
shall automatically, without further act by Agent, cease and terminate, and
thereafter, any Rents received by Assignor shall be held in trust for the
benefit of, and shall be immediately remitted by Assignor to, Agent.
3. Remedies of Agent. If an Event of Default under the Instrument or the
-----------------
Credit Agreement shall have occurred and be continuing, Assignor, upon demand of
Agent, shall forthwith surrender to Agent the actual possession of the Property
and if, and to the extent, permitted by law, Agent itself, or by such officers
or agents as it may appoint, may enter and take possession of all the Property
without the appointment of a receiver, or an application therefor, and may
exclude Assignor and its agents and employees wholly therefrom, and may have
joint access with Assignor to the books, papers and accounts of Assignor
pertaining to the Property. If Assignor shall for any reason fail to surrender
or deliver the Property or any part thereof after such demand by Agent, Agent
may obtain a judgment or decree conferring upon Agent the right to immediate
possession or requiring Assignor to deliver immediate possession of the Property
to Agent, to the entry of which judgment or decree Assignor hereby specifically
consents. Upon every such entering upon or taking of possession, Agent may hold,
store, use, operate, manage and control the Property and conduct the business
thereof, and, from time to time (a) make all necessary and proper maintenance,
repairs, renewals, replacements, additions, betterments and improvements thereto
and thereon and purchase or otherwise acquire additional fixtures, personalty
and other property; (b) insure or keep the Property insured; (c) manage and
operate the Property and exercise all the rights and powers of Assignor to the
same extent as Assignor could in its own name or otherwise with respect to the
same; and (d) enter into any and all agreements with respect to the exercise by
others of any of the powers herein granted Agent, all as Agent from time to time
may determine to be in its best interest, including, without limitation, the
modification, enforcement, cancellation or acceptance of surrender of any Leases
now in effect or hereafter in effect on the Property or any part thereof; the
removal and eviction of any sublessee, and; any increases or decreases in Rents.
Agent may collect and receive all the Rents, including those past due as well as
those accruing thereafter, and, after deducting (i) all expenses of taking,
holding, managing and operating the Property (including compensation for the
services of all persons employed for such purposes); (ii) the cost of all such
maintenance, repairs, renewals, replacements, additions, betterments,
improvements, purchases and acquisitions; (iii) the cost of such insurance; (iv)
such taxes, assessments and other similar charges as Agent may at its option
pay; (v) other proper charges upon the Property or any part thereof; and (vi)
the reasonable compensation, expenses and disbursements of the attorneys and
agents of Agent, Agent shall apply the remainder of the monies and proceeds so
received by Agent in the manner provided for in Section 12.5 of the Credit
Agreement. Whenever all that is due upon such interest, deposits and principal
installments and under any of the terms, covenants, conditions and agreements
under the Instrument and the Credit Agreement, shall have been paid and all
Events of Default made good, Agent shall surrender possession of the Property to
Assignor, its successors or assigns. The same right of taking possession,
however, shall exist if any subsequent Event of Default shall occur and be
continuing. In connection with any action
-4-
taken by the Agent pursuant to this Paragraph 3, the Agent shall not be liable
for any loss sustained by Assignor resulting from any act or omission of the
Agent in administering, managing, operating or controlling the Property,
including a loss arising from the ordinary negligence of the Agent, unless such
loss is caused by its own gross negligence or willful misconduct and bad faith,
nor shall the Agent be obligated to perform or discharge any obligation, duty or
liability of Assignor. Assignor hereby assents to, ratifies and confirms any and
all actions of the Agent with respect to the Property taken under this Paragraph
3.
4. No Liability of Agent. The Agent is fully authorized to receive and
---------------------
receipt for said revenues and proceeds; to endorse and cash any and all checks
and drafts payable to the order of Assignor or the Agent for the account of
Assignor received from or in connection with said revenues or proceeds and apply
the proceeds thereof to the payment of the Obligations, when received,
regardless of the maturity of any of the Loans, or any installment thereof; and
to execute transfer and division orders in the name of Assignor, or otherwise,
with warranties binding Assignor. The Agent shall not be liable for any delay,
neglect, or failure to effect collection of any proceeds or to take any other
action in connection therewith or hereunder; but shall have the right, at its
election, in the name of Assignor or otherwise, to prosecute and defend any and
all actions or legal proceedings deemed advisable by the Agent in order to
collect such funds and to protect the interests of the Agent and/or Assignor,
with all costs, expenses and attorney's fees incurred in connection therewith
being paid by Assignor.
5. Other Remedies and Non-Waiver. No right, power or remedy conferred upon
-----------------------------
or reserved to Agent by this Assignment is intended to be exclusive of any other
right, power or remedy, but each and every such right, power and remedy shall be
cumulative and concurrent and shall be in addition to any other right, power and
remedy given hereunder or now or hereafter existing at law or in equity or by
statute. No delay or omission of Agent or of any Banks to exercise any right,
power or remedy accruing upon any default shall exhaust or impair any such
right, power or remedy or shall be construed to be a waiver of any such default,
or acquiescence therein; and every right, power and remedy given by this
Assignment to Agent may be exercised from time to time and as often as may be
deemed expedient by Agent. No consent or waiver, expressed or implied, by Agent
to or of any breach or default by Assignor in the performance of the obligations
thereof hereunder shall be deemed or construed to be a consent or waiver to or
of any other breach or default in the performance of the same or any other
obligations of Assignor hereunder. Failure on the part of Agent to complain of
any act or failure to act or to declare an Event of Default under the Instrument
or the Credit Agreement, irrespective of how long such failure continues, shall
not constitute a waiver by Agent of its rights hereunder or impair any rights,
powers or remedies of Agent consequent on any breach or default by Assignor.
Nothing contained in this Assignment and no act done or omitted by Agent
pursuant to the power and rights granted to Agent hereunder shall be deemed to
be a waiver by Assignee of its rights and remedies under the other Loan
Documents and this Assignment is made and accepted without prejudice to any of
the rights and remedies possessed by Agent under the terms thereof. The right of
the Agent to collect the Rent and to enforce any other security thereof held by
it may be exercised by Agent either prior to simultaneously with or subsequent
to any action taken by it hereunder.
6. Intentionally omitted.
---------------------
-5-
7. No Mortgagee in Possession. Nothing herein contained shall be construed
--------------------------
as constituting Agent a "mortgagee in possession" in the absence of the taking
of actual possession of the Property by Agent. In the exercise of the powers
herein granted to Agent, no liability shall be asserted or enforced against
Agent, all such liability being expressly waived and released by Assignor.
8. No Oral Change. This Assignment may not be modified, amended, waived,
--------------
extended, changed, discharged or terminated orally, or by any act or failure to
act on the part of Assignor or Agent, but only by an agreement in writing signed
by the party against whom the enforcement of any modification, amendment,
waiver, extension, change, discharge or termination is sought.
9. Certain Definitions. Unless the context clearly indicates a contrary
-------------------
intent or unless otherwise specifically provided herein, words used in this
Assignment may be used interchangeable in singular or plural form and the word
"Assignor" shall mean "each Assignor and any subsequent owner or owners of the
Property or any part thereof or any interest therein," the word "Agent" shall
mean "Agent and any subsequent beneficiary of the Instrument," the word "Loans"
shall have the meaning set forth in the Credit Agreement, the word "person"
shall include an individual, corporation, partnership, trust, unincorporated
association, government, governmental authority, and any other entity, the words
"Property" shall include any portion of the Property and any interest therein;
whenever the context may require, any pronouns used herein shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns and pronouns shall include the plural and vice versa. All other
capitalized terms used, but not defined herein, shall have the meaning set forth
in the Credit Agreement.
10. Inapplicable Provisions. If any term, covenant or condition of this
-----------------------
Assignment is held to be invalid, illegal or unenforceable in any respect, this
Assignment shall be construed without such provision.
11. Counterparts. This Assignment may be executed in any number of
------------
counterparts each of which shall be deemed to be an original but all of which
when taken together shall constitute one agreement.
12. GOVERNING LAW; JURISDICTION. THIS ASSIGNMENT SHALL BE GOVERNED BY AND
---------------------------
CONSTRUED UNDER THE LAWS OF COMMONWEALTH OF MASSACHUSETTS, EXCEPT TO THE EXTENT
OF PROCEDURAL AND SUBSTANTIVE MATTERS RELATING ONLY TO THE CREATION, PERFECTION
AND FORECLOSURE OF LIENS, AND ENFORCEMENT OF RIGHTS AND REMEDIES AGAINST THE
LEASES AND RENTS, ISSUES, INCOME AND PROFITS, WHICH MATTERS SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF TEXAS. ASSIGNOR HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY COURT OF COMPETENT JURISDICTION LOCATED IN THE STATE IN
WHICH THE PROPERTY IS LOCATED IN CONNECTION WITH ANY PROCEEDING ARISING OUT OF
OR RELATING TO THIS ASSIGNMENT.
-6-
13. Successors and Assigns. Assignor may not assign its rights under this
----------------------
Assignment. Assignor hereby acknowledges and agrees that Agent may assign this
Assignment without Assignor's consent. Subject to the foregoing, this Assignment
shall be binding upon, and shall inure to the benefit of, Assignor and the Agent
and their respective successors and assigns.
14. Termination of Assignment. Upon payment in full of the Obligations and
-------------------------
the delivery and recording of a satisfaction, release or discharge of the
Instrument duly executed by Agent, this Assignment shall become and be void and
of no effect.
15. STATUTE OF FRAUDS NOTICE. THE NOTE, INSTRUMENT, THIS ASSIGNMENT AND
------------------------
THE OTHER LOAN DOCUMENTS (AS DEFINED IN THE CREDIT AGREEMENT) REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
16. INDEMNIFICATION. ASSIGNOR SHALL AND DOES HEREBY AGREE TO INDEMNIFY AND
TO HOLD AGENT AND THE BANKS HARMLESS FOR, FROM AND AGAINST ANY AND ALL COSTS,
EXPENSES, CLAIMS, DEMANDS, LIABILITY, LOSS OR DAMAGE (INCLUDING ALL COSTS,
EXPENSES, AND ATTORNEYS' FEES INCURRED IN THE DEFENSE THEREOF) ASSERTED AGAINST,
IMPOSED ON OR INCURRED BY AGENT OR THE BANKS IN CONNECTION WITH OR AS A RESULT
OF THIS ASSIGNMENT OR THE EXERCISE OF ANY RIGHTS OR REMEDIES UNDER THIS
ASSIGNMENT OR UNDER ANY OF THE LEASES OR BY REASON OF ANY ALLEGED OBLIGATIONS OR
UNDERTAKINGS OF AGENT OR THE BANKS TO PERFORM OR DISCHARGE ANY OF THE TERMS,
COVENANTS OR AGREEMENTS CONTAINED IN ANY OF THE LEASES; PROVIDED, HOWEVER, THAT
NOTHING HEREIN SHALL BE CONSTRUED TO OBLIGATE ASSIGNOR TO INDEMNIFY AND HOLD
AGENT OR THE BANKS HARMLESS FOR, FROM AND AGAINST ANY AND ALL COSTS, EXPENSES,
CLAIMS, DEMANDS, LIABILITY, LOSS OR DAMAGE ASSERTED AGAINST, IMPOSED ON OR
INCURRED BY AGENT OR THE BANKS BY REASON OF AGENT'S OR A BANK'S WILLFUL
MISCONDUCT OR GROSS NEGLIGENCE. SHOULD AGENT OR A BANK INCUR ANY SUCH COSTS,
EXPENSES, LIABILITIES, LOSS OR DAMAGE, OR IN THE DEFENSE OF ANY SUCH CLAIMS OR
DEMANDS, FOR WHICH IT IS TO BE INDEMNIFIED BY ASSIGNOR AS AFORESAID, THE AMOUNT
THEREOF SHALL BE ADDED TO THE OBLIGATIONS, SHALL BEAR INTEREST AT THE INTEREST
RATE FOR OVERDUE AMOUNTS STATED IN THE CREDIT AGREEMENT FROM THE DATE INCURRED
UNTIL PAID (BUT IN NO EVENT SHALL THE INTEREST PAYABLE EXCEED THE MAXIMUM AMOUNT
ALLOWED BY LAW), SHALL BE SECURED BY THIS ASSIGNMENT, THE INSTRUMENT AND THE
OTHER LOAN DOCUMENTS, AND SHALL BE PAYABLE IMMEDIATELY UPON DEMAND.
17. Compliance with Credit Agreement Provisions. Obligor hereby
-------------------------------------------
acknowledges, covenants and agrees that, notwithstanding anything to the
contrary contained herein, Obligor is
-7-
bound by and subject to all of the terms, covenants, provisions and obligations
set forth in the Credit Agreement pertaining to Mortgaged Properties. In the
event of any conflict between the terms hereof and the terms of the Credit
Agreement, the terms of the Credit Agreement shall control. Obligor acknowledges
that it has received and reviewed a copy of the Credit Agreement.
THIS ASSIGNMENT shall inure to the benefit of Agent and any subsequent
beneficiary of the Instrument and shall be binding upon Assignor, and Assignor's
heirs, executors, administrators, successors and assigns and any subsequent
owner of the Property.
ASSIGNOR HEREBY ACKNOWLEDGES AND AGREES THAT THIS ASSIGNMENT CONTAINS
CERTAIN INDEMNIFICATION PROVISIONS (INCLUDING WITHOUT LIMITATION THOSE CONTAINED
IN SECTION 16 HEREOF), WHICH IN CERTAIN CIRCUMSTANCES COULD INCLUDE AN
INDEMNIFICATION BY ASSIGNOR OF AGENT AND/OR THE BANKS FROM CLAIMS OR LOSSES
ARISING AS A RESULT OF AGENT'S AND/OR A BANK'S OWN NEGLIGENCE.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
-8-
Assignor has executed this instrument under seal as of the day and year
first above written.
ASSIGNOR:
JDN REALTY HOLDINGS, L.P., a Georgia
limited partnership
By: JDN Realty Corporation, a Maryland
corporation, its general partner
By:
-------------------------------
Printed Name:
---------------------
Printed Title:
--------------------
[CORPORATE SEAL]
STATE OF
-------------------------
COUNTY OF
------------------------
This instrument was acknowledged before me this ___ day of March, 2001, by
_________________________, _______________ of JDN Realty Corporation, a Maryland
corporation and the general partner of JDN REALTY HOLDINGS, L.P., a Georgia
limited partnership, on behalf of said limited partnership.
---------------------------------------
Notary Public
State of
------------------------------
---------------------------------------
[AFFIX SEAL] Printed Name
My Commission Expires: ________________
-9-
EXHIBIT E
---------
Form of Unconditional Guaranty of Payment and Performance
UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE
-------------------------------------------------
FOR AND IN CONSIDERATION OF the sum of Ten and No/100 Dollars ($10.00) and
other good and valuable consideration paid or delivered to the undersigned JDN
DEVELOPMENT COMPANY, INC., a Delaware corporation ("JDN DCI"), JDN REALTY AL,
INC., an Alabama corporation ("JDN AL"), JDN REALTY HOLDINGS, L.P., a Georgia
limited partnership ("JDN Holdings"), JDN REALTY LP, INC., a Delaware
corporation ("JDN LP"), and the other parties executing this Guaranty as a
Guarantor (JDN DCI, JDN AL, JDN Holdings, JDN LP and such other parties are
sometimes hereinafter referred to individually as "Guarantor" and collectively
as "Guarantors"), the receipt and sufficiency whereof are hereby acknowledged by
Guarantors, and for the purpose of seeking to induce FLEET NATIONAL BANK, a
national banking association (hereinafter referred to as "Lender", which term
shall also include each other Lender which may now be or hereafter become a
party to the "Loan Agreement" (as hereinafter defined), any Lender acting as the
Issuing Lender under the Loan Agreement and shall also include any such
individual Lender acting as agent for all of the Lenders), to extend credit or
otherwise provide financial accommodations to JDN REALTY CORPORATION, a Maryland
corporation (hereinafter referred to as "Borrower"), which extension of credit
and provision of financial accommodations will be to the direct interest,
advantage and benefit of Guarantors, Guarantors do hereby, jointly and
severally, absolutely, unconditionally and irrevocably guarantee to Lender:
(a) the full and prompt payment when due, whether by acceleration or
otherwise, either before or after maturity thereof, of the Revolving Credit
Notes made by Borrower to the order of the Revolving Credit Lenders in the
aggregate principal face amount of One Hundred Fifty Million and No/100 Dollars
($150,000,000.00), together with interest as provided in the Revolving Credit
Notes and together with any replacements, supplements, renewals, modifications,
consolidations, restatements and extensions thereof; and
(b) the full and prompt payment when due, whether by acceleration or
otherwise, either before or after maturity thereof, of the Term Loan Notes made
by Borrower to the order of the Term Loan Lenders in the aggregate principal
face amount of One Hundred Fifty Million and No/100 Dollars ($150,000,000.00),
together with interest as provided in the Term Loan Notes and together with any
replacements, supplements, renewals, modifications, consolidations, restatements
and extensions thereof; and
(c) the full and prompt payment when due, whether by acceleration or
otherwise, either before or after maturity thereof, of the Swing Loan Note made
by Borrower to the order of Fleet National Bank ("Fleet") in the principal face
amount of Ten Million and No/100 Dollars ($10,000,000.00) (hereinafter referred
to as the "Swing Loan Note"), together with interest as provided in the Swing
Loan Note and together with any replacements, supplements, renewals,
modifications, consolidations, restatements and extensions thereof; and
(d) the full and prompt payment when due, whether by acceleration or
otherwise, either before or after maturity thereof, of each other note as may be
issued under that certain
1
Third Amended, Restated and Consolidated Master Credit Agreement dated of even
date herewith (hereinafter referred to as the "Loan Agreement") among Borrower,
Fleet, for itself and as agent, and the other lenders now or hereafter a party
thereto, together with interest as provided in each such note, together with any
replacements, supplements, renewals, modifications, consolidations, restatements
and extensions thereof (the Revolving Credit Notes, the Term Loan Notes, the
Swing Loan Note, and each of the notes described in this subparagraph (d) is
hereinafter referred to collectively as the "Note"); and
(e) the full and prompt payment and performance of all obligations of
Borrower to Lender under the terms of the Loan Agreement, together with any
replacements, supplements, renewals, modifications, consolidations, restatements
and extensions thereof; and
(f) the full and prompt payment and performance of any and all obligations
of Borrower to Lender under the Security Documents, together with any
replacements, supplements, renewals, modifications, consolidations, restatements
and extensions thereof; and
(g) the full and prompt payment and performance of any "Hedge Obligations"
(as defined in the Loan Agreement); and
(h) the full and prompt payment and performance of any and all other
obligations of Borrower to Lender under any other agreements, documents or
instruments now or hereafter evidencing, securing or otherwise relating to the
indebtedness evidenced by the Note or the Loan Agreement (the Note, the Loan
Agreement, the Security Documents and said other agreements, documents and
instruments are hereinafter collectively referred to as the "Loan Documents" and
individually referred to as a "Loan Document"). All terms used herein and not
otherwise defined herein shall have the meanings set forth in the Loan
Agreement.
1. Agreement to Pay and Perform; Costs of Collection. Guarantors do hereby
-------------------------------------------------
agree that if the Note is not paid by Borrower in accordance with its terms, or
if any and all sums which are now or may hereafter become due from Borrower to
Lender under the Loan Documents are not paid by Borrower in accordance with
their terms, or if any and all other obligations of Borrower to Lender under the
Note and the Loan Documents are not performed by Borrower in accordance with
their terms, Guarantors will immediately make such payments and perform such
obligations. Guarantors further agree to pay Lender on demand all reasonable
costs and expenses (including court costs and reasonable attorneys' fees and
disbursements) paid or incurred by Lender in endeavoring to collect the
indebtedness guaranteed hereby, to enforce any of the other obligations of
Borrower guaranteed hereby, or any portion thereof, or to enforce this Guaranty,
and until paid to Lender, such sums shall bear interest at the default rate set
forth in the Loan Agreement unless collection from Guarantors of interest at
such rate would be contrary to applicable law, in which event such sums shall
bear interest at the highest rate which may be collected from Guarantors under
applicable law.
2. Reinstatement of Refunded Payments. If, for any reason, any payment to
----------------------------------
Lender of any of the obligations guaranteed hereunder is required to be refunded
by Lender to Borrower, or paid or turned over to any other person, including,
without limitation, by reason of the operation of bankruptcy, reorganization,
receivership or insolvency laws or similar laws of general application relating
to creditors' rights and remedies now or hereafter enacted,
2
Guarantors agree to pay to the Lender on demand an amount equal to the amount so
required to be refunded, paid or turned over (the "Turnover Payment"), the
obligations of Guarantors shall not be treated as having been discharged by the
original payment to Lender giving rise to the Turnover Payment, and this
Guaranty shall be treated as having remained in full force and effect for any
such Turnover Payment so made by Lender, as well as for any amounts not
theretofore paid to Lender on account of such obligations.
3. Rights of Lender to Deal with Collateral, Borrower and Other Persons.
--------------------------------------------------------------------
Each Guarantor hereby consents and agrees that Lender may at any time, and from
time to time, without thereby releasing any Guarantor from any liability
hereunder and without notice to or further consent from any other Guarantor,
either with or without consideration: release or surrender any lien or other
security of any kind or nature whatsoever held by it or by any person, firm or
corporation on its behalf or for its account, securing any indebtedness or
liability hereby guaranteed; substitute for any collateral so held by it, other
collateral of like kind, or of any kind; modify the terms of the Note or the
Loan Documents; extend or renew the Note for any period; grant releases,
compromises and indulgences with respect to the Note or the Loan Documents and
to any persons or entities now or hereafter liable thereunder or hereunder;
release any other Guarantor, surety, endorser or accommodation party of the
Note, the Security Documents or any other Loan Documents; or take or fail to
take any action of any type whatsoever. No such action which Lender shall take
or fail to take in connection with the Note or the Loan Documents, or any of
them, or any security for the payment of the indebtedness of Borrower to Lender
or for the performance of any obligations or undertakings of Borrower, nor any
course of dealing with Borrower or any other person, shall release any
Guarantor's obligations hereunder, affect this Guaranty in any way or afford any
Guarantor any recourse against Lender. The provisions of this Guaranty shall
extend and be applicable to all replacements, supplements, renewals, amendments,
extensions, consolidations, restatements and modifications of the Note and the
Loan Documents, and any and all references herein to the Note and the Loan
Documents shall be deemed to include any such replacements, supplements,
renewals, extensions, amendments, consolidations, restatements or modifications
thereof. Without limiting the generality of the foregoing, Guarantors
acknowledge the terms of Section 18.3 of the Loan Agreement and agrees that this
Guaranty shall extend and be applicable to each new or replacement note
delivered by Borrower pursuant thereto without notice to or further consent from
Guarantors.
4. No Contest with Lender; Subordination. So long as any obligation hereby
-------------------------------------
guaranteed remains unpaid or undischarged, Guarantors will not, by paying any
sum recoverable hereunder (whether or not demanded by Lender) or by any means or
on any other ground, claim any set-off or counterclaim against Borrower in
respect of any liability of Guarantors to Borrower or, in proceedings under
federal bankruptcy law or insolvency proceedings of any nature, prove in
competition with Lender in respect of any payment hereunder or be entitled to
have the benefit of any counterclaim or proof of claim or dividend or payment by
or on behalf of Borrower or the benefit of any other security for any obligation
hereby guaranteed which, now or hereafter, Lender may hold or in which it may
have any share. Guarantors hereby expressly waive any right of contribution from
or indemnity against Borrower, whether at law or in equity, arising from any
payments made by Guarantors pursuant to the terms of this Guaranty, and
Guarantors acknowledge that Guarantors have no right whatsoever to proceed
against Borrower for reimbursement of any such payments. In connection with the
foregoing, Guarantors expressly waive any and all rights of subrogation to
Lender against Borrower, and Guarantors
3
hereby waive any rights to enforce any remedy which Lender may have against
Borrower and any rights to participate in any collateral for Borrower's
obligations under the Loan Documents. Guarantors hereby subordinate any and all
indebtedness of Borrower now or hereafter owed to Guarantors to all indebtedness
of Borrower to Lender, and agree with Lender that (a) Guarantors shall not
demand or accept any payment from Borrower on account of such indebtedness, (b)
Guarantors shall not claim any offset or other reduction of Guarantors'
obligations hereunder because of any such indebtedness, and (c) Guarantors shall
not take any action to obtain any interest in any of the security described in
and encumbered by the Loan Documents because of any such indebtedness; provided,
however, that, if Lender so requests, such indebtedness shall be collected,
enforced and received by Guarantors as trustee for Lender and be paid over to
Lender on account of the indebtedness of Borrower to Lender, but without
reducing or affecting in any manner the liability of Guarantors under the other
provisions of this Guaranty except to the extent the principal amount of such
outstanding indebtedness shall have been reduced by such payment.
5. Waiver of Defenses. Guarantors hereby agree that their obligations
------------------
hereunder shall not be affected or impaired by, and hereby waive and agree not
to assert or take advantage of any defense based on:
(a) any statute of limitations in any action hereunder or for the
collection of the Note or for the payment or performance of any obligation
hereby guaranteed;
(b) the incapacity, lack of authority, death or disability of Borrower or
any other person or entity, or the failure of Lender to file or enforce a claim
against the estate (either in administration, bankruptcy or in any other
proceeding) of Borrower or any Guarantor or any other person or entity;
(c) the dissolution or termination of existence of Borrower, any Guarantor
or any other Person;
(d) the voluntary or involuntary liquidation, sale or other disposition of
all or substantially all of the assets of Borrower or any other Person;
(e) the voluntary or involuntary receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, assignment,
composition, or readjustment of, or any similar proceeding affecting, Borrower
or any Guarantor, or any of Borrower's or any Guarantor's properties or assets;
(f) the damage, destruction, condemnation, foreclosure or surrender of all
or any part of the Collateral or the Real Estate or any of the improvements
located thereon;
(g) the failure of Lender to give notice of the existence, creation or
incurring of any new or additional indebtedness or obligation or of any action
or nonaction on the part of any other person whomsoever in connection with any
obligation hereby guaranteed;
(h) any failure or delay of Lender to commence an action against Borrower
or any other Person, to assert or enforce any remedies against Borrower under
the Note or the Loan Documents, or to realize upon any security;
4
(i) any failure of any duty on the part of Lender to disclose to any
Guarantor any facts it may now or hereafter know regarding Borrower, any other
Person or the Collateral, whether such facts materially increase the risk to
Guarantors or not;
(j) failure to accept or give notice of acceptance of this Guaranty by
Lender;
(k) failure to make or give notice of presentment and demand for payment
of any of the indebtedness or performance of any of the obligations hereby
guaranteed;
(l) failure to make or give protest and notice of dishonor or of default
to Guarantors or to any other party with respect to the indebtedness or
performance of obligations hereby guaranteed;
(m) except as otherwise specifically provided in this Guaranty, any and
all other notices whatsoever to which Guarantors might otherwise be entitled;
(n) any lack of diligence by Lender in collection, protection or
realization upon any collateral securing the payment of the indebtedness or
performance of obligations hereby guaranteed;
(o) the invalidity or unenforceability of the Note or any of the Loan
Documents;
(p) the compromise, settlement, release or termination of any or all of
the obligations of Borrower under the Note or the Loan Documents;
(q) any transfer by Borrower or any other Person of all or any part of the
security encumbered by the Loan Documents;
(r) the failure of Lender to perfect any security or to extend or renew
the perfection of any security; or
(s) to the fullest extent permitted by law, any other legal, equitable or
surety defenses whatsoever to which Guarantors might otherwise be entitled, it
being the intention that the obligations of Guarantors hereunder are absolute,
unconditional and irrevocable.
6. Guaranty of Payment and Performance and Not of Collection. This is a
---------------------------------------------------------
Guaranty of payment and performance and not of collection. The liability of
Guarantors under this Guaranty shall be primary, direct and immediate and not
conditional or contingent upon the pursuit of any remedies against Borrower or
any other person, nor against securities or liens available to Lender, its
successors, successors in title, endorsees or assigns. Guarantors hereby waive
any right to require that an action be brought against Borrower or any other
person or to require that resort be had to any security or to any balance of any
deposit account or credit on the books of Lender in favor of Borrower or any
other person.
7. Rights and Remedies of Lender. In the event of an Event of Default
-----------------------------
under the Note or the Loan Documents, or any of them, that is continuing (it
being understood that the Lender has no obligation to accept cure after an Event
of Default occurs), Lender shall have the right to enforce its rights, powers
and remedies thereunder or hereunder or under any other
5
agreement, document or instrument now or hereafter evidencing, securing or
otherwise relating to the indebtedness evidenced or secured by the Note or the
Loan Documents, in any order, and all rights, powers and remedies available to
Lender in such event shall be nonexclusive and cumulative of all other rights,
powers and remedies provided thereunder or hereunder or by law or in equity.
Accordingly, Guarantors hereby authorize and empower Lender upon the occurrence
of any Event of Default under the Note or the Loan Documents, at its sole
discretion, and without notice to Guarantors, to exercise any right or remedy
which Lender may have, including, but not limited to, judicial foreclosure,
exercise of rights of power of sale, acceptance of a deed or assignment in lieu
of foreclosure, appointment of a receiver to collect rents and profits, exercise
of remedies against personal property, or enforcement of any assignment of
leases, as to any security, whether real, personal or intangible. At any public
or private sale of any security or collateral for any indebtedness or any part
thereof guaranteed hereby, whether by foreclosure or otherwise, Lender may, in
its discretion, purchase all or any part of such security or collateral so sold
or offered for sale for its own account and may apply against the amount bid
therefor all or any part of the balance due it pursuant to the terms of the Note
or Security Documents or any other Loan Document without prejudice to Lender's
remedies hereunder against Guarantors for deficiencies. If the indebtedness
guaranteed hereby is partially paid by reason of the election of Lender to
pursue any of the remedies available to Lender, or if such indebtedness is
otherwise partially paid, this Guaranty shall nevertheless remain in full force
and effect, and Guarantors shall remain liable for the entire balance of the
indebtedness guaranteed hereby even though any rights which Guarantors may have
against Borrower may be destroyed or diminished by the exercise of any such
remedy.
8. Application of Payments. Guarantors hereby authorize Lender, without
-----------------------
notice to Guarantors, to apply all payments and credits received from Borrower
or from Guarantors or realized from any security in such manner and in such
priority as Lender in its sole judgment shall see fit to the indebtedness,
obligation and undertakings which are the subject of this Guaranty.
9. Business Failure, Bankruptcy or Insolvency. In the event of the
------------------------------------------
business failure of any Guarantor or if there shall be pending any bankruptcy or
insolvency case or proceeding with respect to any Guarantor under federal
bankruptcy law or any other applicable law or in connection with the insolvency
of any Guarantor, or if a liquidator, receiver, or trustee shall have been
appointed for any Guarantor or any Guarantor's properties or assets, Lender may
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of Lender allowed in any proceedings
relative to such Guarantor, or any of such Guarantor's properties or assets,
and, irrespective of whether the indebtedness or other obligations of Borrower
guaranteed hereby shall then be due and payable, by declaration or otherwise,
Lender shall be entitled and empowered to file and prove a claim for the whole
amount of any sums or sums owing with respect to the indebtedness or other
obligations of Borrower guaranteed hereby, and to collect and receive any moneys
or other property payable or deliverable on any such claim. Guarantors covenant
and agree that upon the commencement of a voluntary or involuntary bankruptcy
proceeding by or against Borrower, Guarantors shall not seek a supplemental stay
or otherwise pursuant to 11 U.S.C. ss.105 or any other provision of the
Bankruptcy Code, as amended, or any other debtor relief law (whether statutory,
common law, case law, or otherwise) of any jurisdiction whatsoever, now or
hereafter in effect, which may be
6
or become applicable, to stay, interdict, condition, reduce or inhibit the
ability of Lender to enforce any rights of Lender against Guarantors by virtue
of this Guaranty or otherwise.
10. Financial Statements and Other Information. Guarantors hereby
------------------------------------------
represent and warrant to Lender that all financial statements of Guarantors and
their respective Subsidiaries heretofore delivered by Guarantors to Lender are
true and correct in all material respects, have been prepared in accordance with
generally accepted accounting principles consistently applied, and fairly
present the financial condition of Guarantors and their respective Subsidiaries
as at the close of business on the date thereof and the results of operations
for the period then ended; that no material adverse change has occurred in the
assets, liabilities, financial condition or business of Guarantors and their
respective Subsidiaries as shown or reflected therein since the date thereof;
and that Guarantors and their respective Subsidiaries have no liabilities or
known contingent liabilities involving material amounts which are not reflected
in such financial statements or referred to in the notes thereto other than
Guarantors' obligations under this Guaranty. Guarantors will permit any
representative designated by Lender, at Guarantors' expense, to visit and
inspect any of the properties of Guarantors and their respective Subsidiaries,
to examine the records and books of account of Guarantors and their respective
Subsidiaries (and to make copies thereof and extracts therefrom) and to discuss
the affairs, finances and accounts of Guarantors with, and to be advised as to
the same by, its officers, all at such reasonable times and intervals Lender may
reasonably request.
11. Covenants of Guarantors. Guarantors hereby covenant and agree with
-----------------------
Lender that until all indebtedness guaranteed hereby has been completely repaid,
all obligations and undertakings of Borrower under, by reason of, or pursuant to
the Note, any Letter of Credit and the Loan Documents have been completely
performed and Lender has no further obligation to make Loans or issue Letters of
Credit to Borrower pursuant to the Loan Agreement, Guarantors shall, and shall
cause their respective Subsidiaries to, at all times comply with all covenants
and provisions of the Loan Agreement and the Loan Documents applicable to
Guarantors. Guarantors will cooperate with Lender and execute such further
instruments and documents as Lender shall reasonably request to carry out to
their satisfaction the transactions contemplated by this Guaranty and the other
Loan Documents.
12. Security and Rights of Set-off. Guarantors hereby grant to Lender, as
------------------------------
security for the full and prompt payment and performance of Guarantors'
obligations hereunder, a continuing lien on and security interest in any and all
securities or other property belonging to Guarantors now or hereafter held by
Lender and in any and all deposits (general or specific, time or demand,
provisional or final, regardless of currency, maturity, or the branch of Lender
where the deposits are held) now or hereafter held by Lender and other sums
credited by or due from Lender to a Guarantor or subject to withdrawal by a
Guarantor; and regardless of the adequacy of any collateral or other means of
obtaining repayment of such obligations, during the continuance of any Event of
Default under the Note or the Loan Documents, Lender may at any time and without
notice to Guarantors set-off and apply the whole or any portion or portions of
any or all such deposits and other sums against amounts payable under this
Guaranty, whether or not any other person or persons could also withdraw money
therefrom. Any security now or hereafter held by or for Guarantors and provided
by Borrower, or by anyone on Borrower's behalf, in respect of liabilities of
Guarantors hereunder shall be held in trust for Lender as security for the
liabilities of Guarantors hereunder.
7
13. Changes in Writing; No Revocation. This Guaranty may not be changed
---------------------------------
orally, and no obligation of Guarantors can be released or waived by Lender
except by a writing signed by a duly authorized officer of Lender. This Guaranty
shall be irrevocable by Guarantors until all indebtedness guaranteed hereby has
been completely repaid and all obligations and undertakings of Borrower under,
by reason of, or pursuant to the Note, the Letters of Credit and the Loan
Documents have been completely performed and the Lenders have no further
obligation to advance Loans or issue Letters of Credit under the Loan Agreement.
14. Notices. All notices, demands or requests provided for or permitted to
-------
be given pursuant to this Guaranty (hereinafter in this paragraph referred to as
"Notice") must be in writing and shall be deemed to have been properly given or
served by personal delivery or by sending same by overnight courier or by
depositing the same in the United States mail, postpaid and registered or
certified, return receipt requested, at the addresses set forth below. Each
Notice shall be effective upon being delivered personally or upon being sent by
overnight courier or upon being deposited in the United States Mail as
aforesaid. The time period in which a response to any such Notice must be given
or any action taken with respect thereto, however, shall commence to run from
the date of receipt if personally delivered or sent by overnight courier or, if
so deposited in the United States Mail, the earlier of three (3) Business Days
following such deposit and the date of receipt as disclosed on the return
receipt. Rejection or other refusal to accept or the inability to deliver
because of changed address of which no Notice was given shall be deemed to be
receipt of the Notice sent. By giving at least fifteen (15) days prior Notice
thereof, Guarantors or Lender shall have the right from time to time and at any
time during the term of this Guaranty to change their respective addresses and
each shall have the right to specify as its address any other address within the
United States of America. For the purposes of this Guaranty:
The address of Lender is:
Fleet National Bank, as Agent
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Real Estate Division
with a copy to:
Fleet National Bank, as Agent
000 Xxxxxxxxx Xxxxxx Xxxxx, X.X., Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxx Xxxxxxxxxxxx
and a copy to each other Lender which may now or hereafter become a party to the
Loan Agreement at such address as may be designated by such Lender.
8
The address of Guarantors is:
c/o JDN Realty Corporation
000 Xxxx Xxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Chief Financial Officer
15. Governing Law. GUARANTORS ACKNOWLEDGE AND AGREE THAT THIS GUARANTY AND
-------------
THE OBLIGATIONS OF GUARANTORS HEREUNDER SHALL BE GOVERNED BY AND INTERPRETED AND
DETERMINED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
(EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW).
16. CONSENT TO JURISDICTION; WAIVERS. GUARANTORS HEREBY IRREVOCABLY AND
--------------------------------
UNCONDITIONALLY (A) SUBMIT TO PERSONAL JURISDICTION IN THE COMMONWEALTH OF
MASSACHUSETTS OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS GUARANTY, AND (B) WAIVE ANY AND ALL PERSONAL RIGHTS UNDER THE LAWS OF ANY
STATE (I) TO THE RIGHT, IF ANY, TO TRIAL BY JURY(LENDER HAVING ALSO WAIVED SUCH
RIGHT TO TRIAL BY JURY), (II) TO OBJECT TO JURISDICTION WITHIN THE COMMONWEALTH
OF MASSACHUSETTS OR VENUE IN ANY PARTICULAR FORUM WITHIN THE COMMONWEALTH OF
MASSACHUSETTS, AND (III) TO THE RIGHT, IF ANY, TO CLAIM OR RECOVER ANY SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN OR IN
ADDITION TO ACTUAL DAMAGES. EACH LENDER IRREVOCABLY AND UNCONDITIONALLY WAIVES
ANY AND ALL RIGHTS UNDER THE LAWS OF ANY STATE TO THE RIGHT, IF ANY, TO TRIAL BY
JURY. GUARANTORS AGREE THAT, IN ADDITION TO ANY METHODS OF SERVICE OF PROCESS
PROVIDED FOR UNDER APPLICABLE LAW, ALL SERVICE OF PROCESS IN ANY SUCH SUIT,
ACTION OR PROCEEDING MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT
REQUESTED, DIRECTED TO GUARANTORS AT THE ADDRESS SET FORTH IN PARAGRAPH 14
ABOVE, AND SERVICE SO MADE SHALL BE COMPLETE FIVE (5) DAYS AFTER THE SAME SHALL
BE SO MAILED. NOTHING CONTAINED HEREIN, HOWEVER, SHALL PREVENT LENDER FROM
BRINGING ANY SUIT, ACTION OR PROCEEDING OR EXERCISING ANY RIGHTS AGAINST ANY
SECURITY AND AGAINST GUARANTORS PERSONALLY, AND AGAINST ANY PROPERTY OF
GUARANTORS, WITHIN ANY OTHER STATE. INITIATING SUCH SUIT, ACTION OR PROCEEDING
OR TAKING SUCH ACTION IN ANY STATE SHALL IN NO EVENT CONSTITUTE A WAIVER OF THE
AGREEMENT CONTAINED HEREIN THAT THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
SHALL GOVERN THE RIGHTS AND OBLIGATIONS OF GUARANTORS AND LENDER HEREUNDER OR OF
THE SUBMISSION HEREIN MADE BY GUARANTORS TO PERSONAL JURISDICTION WITHIN THE
COMMONWEALTH OF
9
MASSACHUSETTS. EACH GUARANTOR HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT
IS BROUGHT IN AN INCONVENIENT COURT. GUARANTORS CERTIFY THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH LENDER WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVERS AND ACKNOWLEDGE THAT LENDER HAS BEEN INDUCED TO ENTER INTO THIS GUARANTY
AND THE OTHER LOAN DOCUMENTS TO WHICH THEY ARE PARTIES BY, AMONG OTHER THINGS,
THE WAIVERS AND CERTIFICATIONS CONTAINED IN THIS PARAGRAPH 16. GUARANTORS
ACKNOWLEDGE THAT THEY HAVE HAD AN OPPORTUNITY TO REVIEW THIS PARAGRAPH 16 WITH
THEIR LEGAL COUNSEL AND THAT GUARANTORS AGREE TO THE FOREGOING AS THEIR FREE,
KNOWING AND VOLUNTARY ACT.
17. Successors and Assigns. The provisions of this Guaranty shall be
----------------------
binding upon Guarantors and their respective heirs, successors, successors in
title, legal representatives, and assigns, and shall inure to the benefit of
Lender, its successors, successors in title, legal representatives and assigns.
No Guarantor shall assign or transfer any of its rights or obligations under
this Guaranty without the prior written consent of Lender.
18. Assignment by Lender. This Guaranty is assignable by Lender in whole
--------------------
or in part in conjunction with any assignment of the Note or portions thereof,
and any assignment hereof or any transfer or assignment of the Note or portions
thereof by Lender shall operate to vest in any such assignee the rights and
powers, in whole or in part, as appropriate, herein conferred upon and granted
to Lender.
19. Severability. If any term or provision of this Guaranty shall be
------------
determined to be illegal or unenforceable, all other terms and provisions hereof
shall nevertheless remain effective and shall be enforced to the fullest extent
permitted by law.
20. Disclosure. Guarantors agree that in addition to disclosures made in
----------
accordance with standard banking practices, any Lender may disclose information
obtained by such Lender pursuant to this Guaranty to assignees or participants
and potential assignees or participants hereunder.
21. No Unwritten Agreements. THIS GUARANTY REPRESENTS THE FINAL AGREEMENT
-----------------------
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
22. Time of the Essence. Time is of the essence with respect to each and
-------------------
every covenant, agreement and obligation of Guarantors under this Guaranty.
10
23. Ratification. Guarantors do hereby restate, reaffirm and ratify each
------------
and every warranty and representation regarding Guarantors or their Subsidiaries
set forth in the Loan Agreement as if the same were more fully set forth herein.
24. Joint and Several Liability. Each of the Guarantors covenants and
---------------------------
agrees that each and every covenant and obligation of Guarantors hereunder shall
be the joint and several obligations of each of the Guarantors.
25. Amendment and Restatement. This Guaranty amends, restates and
-------------------------
supersedes in its entirety any "Guaranty", as such term is defined in the
Original Revolving Credit Agreement and the Original Term Loan Agreement.
26. Counterparts. This Guaranty and any amendment hereof may be executed
------------
in several counterparts and by each party on a separate counterpart, each of
which when so executed and delivered shall be an original, and all of which
together shall constitute one instrument. In proving this Guaranty it shall not
be necessary to produce or account for more than one such counterpart signed by
the party against whom enforcement is sought.
(Signatures on following page)
11
IN WITNESS WHEREOF, Guarantors have executed this Guaranty under seal as
of this 29th day of March, 2001.
JDN DEVELOPMENT COMPANY, INC.,
a Delaware corporation
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
[SEAL]
JDN REALTY AL, INC.,
an Alabama corporation
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
[SEAL]
JDN REALTY HOLDINGS, L.P.,
a Georgia limited partnership,
By: JDN Realty Corporation, a Maryland
corporation, its sole general partner
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
[SEAL]
JDN REALTY LP, INC.,
a Delaware corporation
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
[SEAL]
12
JDN REAL ESTATE-ASHEVILLE, L.P.
JDN REAL ESTATE-BRIDGEWOOD
FORT WORTH, L.P.
JDN REAL ESTATE-XXXXXXX, X.X.
JDN REAL ESTATE-CUMMING, L.P.
JDN REAL ESTATE-ERIE, L.P.
JDN REAL ESTATE-FAYETTEVILLE, L.P.
JDN REAL ESTATE-FRISCO, L.P.
JDN REAL ESTATE-GULF BREEZE II, L.P.
JDN REAL ESTATE-XXXXXXXX, X.X.
JDN REAL ESTATE-HICKORY CREEK, L.P.
JDN REAL ESTATE-LAKELAND, L.P.
JDN REAL ESTATE-MCDONOUGH II, L.P.
JDN REAL ESTATE-XXXXXXXX, X.X.
JDN REAL ESTATE-MESQUITE, L.P.
JDN REAL ESTATE-OVERLAND PARK, L.P.
JDN REAL ESTATE-PARKER PAVILIONS, L.P.
JDN REAL ESTATE-PENSACOLA, L.P.
JDN REAL ESTATE-PIONEER HILLS, L.P.
JDN REAL ESTATE-PIONEER HILLS II, L.P.
JDN REAL ESTATE-XXXXXX, X.X.
JDN REAL ESTATE-SACRAMENTO, L.P.
JDN REAL ESTATE-XXXXXX XXXX, X.X.
JDN REAL ESTATE-WEST LAFAYETTE, L.P.
JDN REAL ESTATE-WEST LANSING, L.P.
JDN REAL ESTATE-STONE MOUNTAIN, L.P.
JDN REAL ESTATE-XXXXXXX, X.X.,
each a Georgia limited partnership
By: JDN Development Investment, L.P.,
a Georgia limited partnership,
their sole general partner
By: JDN Development Company, Inc.,
its sole general partner
By:
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
(CORPORATE SEAL)
13
JDN REAL ESTATE-XXXXXXXXX, X.X.,
a Georgia limited partnership
By: JDN Realty Holdings, L.P.,
a Georgia limited partnership,
its sole general partner
By: JDN Realty Corporation,
a Maryland corporation,
its sole general partner
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
(CORPORATE SEAL)
CHESTERFIELD EXCHANGE, LLC
FAYETTEVILLE EXCHANGE, LLC,
each a Georgia limited liability company
By: JDN Realty Corporation,
a Maryland corporation, their manager
By:
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
(CORPORATE SEAL)
HICKORY HOLLOW EXCHANGE, LLC,
a Georgia limited liability company
By: JDN Development Company, Inc.,
a Delaware corporation,
its manager
By:
----------------------------------------
Name:
-----------------------------------
Title:
-------------------------------
(CORPORATE SEAL)
14
JDN INTERMOUNTAIN DEVELOPMENT PIONEER HILLS, LLC,
a Georgia limited liability company
By: JDN Real Estate-Pioneer Hills, L.P.,
a Georgia limited partnership,
its manager
By: JDN Development Investment, L.P.,
a Georgia limited partnership,
its sole general partner
By: JDN Development Company, Inc.,
a Delaware corporation,
its sole general partner
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
(CORPORATE SEAL)
JDN INTERMOUNTAIN DEVELOPMENT, XXXXXX
PAVILION, LLC,
a Georgia limited liability company
By: JDN Real Estate-Xxxxxx Pavilions, L.P.,
a Georgia limited partnership,
its manager
By: JDN Development Investment, L.P.,
a Georgia limited partnership,
its sole general partner
By: JDN Development Company, Inc.,
a Delaware corporation,
its sole general partner
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
(CORPORATE SEAL)
00
XXXXX XXXXXX PARTNERS, L.L.C.,
a Michigan limited liability company
By: JDN Realty Corporation,
a Maryland corporation,
its manager
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
(CORPORATE SEAL)
BLACK CHERRY LIMITED LIABILITY COMPANY,
a Colorado limited liability company
By: JDN Realty Corporation,
a Maryland corporation,
its sole member
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
(CORPORATE SEAL)
16
GEORGIA FINANCE CORPORATION,
a Delaware corporation
By:
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
(CORPORATE SEAL)
JDN REALTY CORPORATION GP, INC.,
a Delaware corporation
By:
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
(CORPORATE SEAL)
JDN INTERMOUNTAIN DEVELOPMENT CORP.,
a Delaware corporation
By:
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
(CORPORATE SEAL)
JDN DEVELOPMENT LP, INC.,
a Delaware corporation
By:
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
(CORPORATE SEAL)
17
JDN OF ALABAMA REALTY CORPORATION,
an Alabama corporation
By:
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
(CORPORATE SEAL)
WHF, INC.,
a Georgia corporation
By:
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
(CORPORATE SEAL)
XXXXXXXX BRIDGE ASSOCIATES, INC.,
a Georgia corporation
By:
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
(CORPORATE SEAL)
FAYETTEVILLE BLACK INVESTMENT, INC.,
a Georgia corporation
By:
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
(CORPORATE SEAL)
18
JDN DEVELOPMENT INVESTMENT, L.P.,
a Georgia limited partnership
By: JDN Development Company, Inc.,
its sole general partner
By:
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
(CORPORATE SEAL)
19
Lender joins in the execution of this Guaranty for the sole and limited
purpose of evidencing its agreement to waiver of the right to trial by jury
contained in Section 16(b)(i) hereof and Section 25 of the Loan Agreement.
FLEET NATIONAL BANK,
as Agent for Lender
By:
-----------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
20
EXHIBIT F
---------
Form of Indemnity Agreement Regarding Hazardous Materials
INDEMNITY AGREEMENT REGARDING HAZARDOUS MATERIALS
-------------------------------------------------
THIS INDEMNITY AGREEMENT (this "Agreement"), is made as of this 29th day
of March, 2001, by JDN REALTY CORPORATION, a Maryland corporation ("Borrower"),
JDN DEVELOPMENT COMPANY, INC., a Delaware corporation ("JDN DCI"), JDN REALTY
AL, INC., an Alabama corporation ("JDN AL"), JDN REALTY HOLDINGS, L.P., a
Georgia limited partnership ("JDN Holdings"), JDN REALTY LP, INC., a Delaware
corporation ("JDN LP"), and the other parties executing this Agreement as
Guarantors (JDN DCI, JDN AL, JDN Holdings, JDN LP and such other parties are
hereinafter referred to collectively as "Guarantors"), for the benefit of FLEET
NATIONAL BANK, a national banking association ("Fleet"), as Agent for itself and
such other lenders which may now or hereafter become parties to the "Loan
Agreement" (as hereinafter defined) (Fleet in its capacity as Agent is
hereinafter referred to as "Agent", and Fleet, for itself, and such other
lenders are hereinafter referred to collectively as the "Lenders").
W I T N E S S E T H:
WHEREAS, Borrower, JDN AL and JDN Holdings are the owners of certain real
property more particularly described in the "Mortgages", as such term is defined
in the Loan Agreement (such real property is hereinafter referred to as the
"Land"; the Land, together with all improvements now or hereafter located in, on
or under the Land, collectively, the "Property");
WHEREAS, Lenders have agreed to provide to Borrower a credit facility in
the amount of up to $300,000,000.00 (the "Loan") pursuant to that certain Third
Amended, Restated and Consolidated Master Credit Agreement, dated of even date
herewith between Lenders, Agent and Borrower (the "Loan Agreement"), which Loan
is evidenced by certain Notes from Borrower to Lenders as described in the Loan
Agreement (together with all amendments, modifications, consolidations,
increases, supplements and extensions thereof, the "Note") and secured by, among
other things, the Mortgages on the Property;
WHEREAS, as a condition to making the Loan, Lenders require Borrower and
Guarantors to provide certain indemnities concerning Hazardous Materials (as
hereinafter defined) presently upon, in or under the Property, or hereafter
placed or otherwise located thereon or therein;
WHEREAS, to induce Lenders to make the Loan to Borrower, Borrower and
Guarantors have agreed to provide this Agreement for Lenders' and Agent's
benefit.
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
($10.00) Dollars and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Lenders and Agent, by their
acceptance of delivery hereof, and Borrower and Guarantors hereby agree as
follows:
1
1. Definitions. Capitalized terms that are used herein that are not
-----------
otherwise defined herein shall have the meanings set forth in the Loan
Agreement. The following definitions shall apply for purposes of this Agreement:
(a) "Environmental Law" shall mean any federal, state or local
statute, regulation or ordinance or any judicial or administrative decree or
decision, whether now existing or hereinafter enacted, promulgated or issued,
with respect to any Hazardous Materials, drinking water, groundwater, wetlands,
landfills, open dumps, storage tanks, underground storage tanks, solid waste,
waste water, storm water run-off, waste emissions or xxxxx. Without limiting the
generality of the foregoing, the term shall encompass each of the following
statutes, and regulations promulgated thereunder, and amendments and successors
to such statutes and regulations, as may be enacted and promulgated from time to
time: (i) the Comprehensive Environmental Response, Compensation and Liability
Act of 1980 (codified in scattered sections of 26 U.S.C.; 33 U.S.C.; 42 U.S.C.
and 42 U.S.C.ss.9601 et seq.); (ii) the Resource Conservation and Recovery Act
of 1976 (42 U.S.C.ss.6901 et seq.); (iii) the Hazardous Materials Transportation
Act (49 U.S.C.ss.1801 et seq.); (iv) the Toxic Substances Control Act (15
U.S.C.ss.2061 et seq.); (v) the Clean Water Act (33 U.S.C.ss.1251 et seq.); (vi)
the Clean Air Act (42 U.S.C.ss.7401 et seq.); (vii) the Safe Drinking Water Act
(21 U.S.C.ss.349; 42 U.S.C.ss.201 and ss.300f et seq.); (viii) the National
Environmental Policy Act of 1969 (42 U.S.C.ss.4321); (ix) the Superfund
Amendment and Reauthorization Act of 1986 (codified in scattered sections of 10
U.S.C., 29 U.S.C., 33 U.S.C. and 42 U.S.C.); and (x) Title III of the Superfund
Amendment and Reauthorization Act (40 U.S.C.ss.1101 et seq.); and (xi) the Texas
Water Code and the Texas Solid Waste Disposal Act.
(b) "Hazardous Materials" shall mean each and every element,
compound, chemical mixture, contaminant, pollutant, material, waste or other
substance which is defined, determined or identified as hazardous or toxic under
any Environmental Law. Without limiting the generality of the foregoing, the
term shall mean and include:
(i) "hazardous substances" as defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, the Superfund
Amendment and Reauthorization Act of 1986, or Title III of the Superfund
Amendment and Reauthorization Act, each as amended, and regulations promulgated
thereunder;
(ii) "hazardous waste" and "regulated substances" as defined
in the Resource Conservation and Recovery Act of 1976, as amended, and
regulations promulgated thereunder;
(iii) "hazardous materials" as defined in the Hazardous
Materials Transportation Act, as amended, and regulations promulgated
thereunder; and
(iv) "chemical substance or mixture" as defined in the Toxic
Substances Control Act, as amended, and regulations promulgated thereunder.
(c) "Indemnified Parties" shall mean each of Lenders, Agent, their
respective parent, subsidiaries and affiliates, each of their respective
shareholders, directors, officers, employees and agents, each trustee under a
Mortgage, and the successors and assigns of any of them; and "Indemnified Party"
shall mean any one of the Indemnified Parties.
2
(d) "Release" shall mean any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, storing, escaping, leaching,
dumping, or discarding, burying, abandoning, or disposing into the environment.
(e) "Threat of Release" shall mean a substantial likelihood of a
Release which requires action to prevent or mitigate damage to the environment
which may result from such Release.
2. Indemnity Agreement. Borrower and Guarantors, each jointly and
-------------------
severally, covenant and agree, at their sole cost and expense, to indemnify,
defend (at trial and appellate levels and with attorneys, consultants and
experts acceptable to Lenders) and hold each Indemnified Party harmless against
and from any and all liens, damages, losses, liabilities, obligations,
settlement payments, penalties, assessments, citations, directives, claims,
litigation, demands, defenses, judgments, suits, proceedings, costs,
disbursements or expenses of any kind or of any nature whatsoever (including,
without limitation, reasonable attorneys', consultants' and experts' fees and
disbursements incurred in investigating, defending against, settling or
prosecuting any claim, litigation or proceeding) which may at any time be
imposed upon, incurred by or asserted or awarded against such Indemnified Party
or the Property and, and arising directly or indirectly from or out of: (A) the
Release or Threat of Release of any Hazardous Materials on, in, under or
affecting all or any portion of the Property or any surrounding areas,
regardless of whether or not caused by or within the control of Borrower or any
Guarantor; (B) the violation of any Environmental Laws relating to or affecting
the Property, the Borrower or any Guarantor, whether or not caused by or within
the control of Borrower or any Guarantor; (C) the failure of Borrower or any
Guarantor to comply fully with the terms and conditions of this Agreement or
Sections 6.18, 7.5(b) or 8.6 of the Loan Agreement; (D) the violation of any
Environmental Laws in connection with other real property of Borrower or any
Guarantor which gives or may give rise to any rights whatsoever in any party
with respect to the Property by virtue of any Environmental Laws; or (E) the
enforcement of this Agreement, including, without limitation, (i) the costs of
assessment, containment and/or removal of any and all Hazardous Materials from
all or any portion of the Property or any surrounding areas, (ii) the costs of
any actions taken in response to a Release or Threat of Release of any Hazardous
Materials on, in, under or affecting all or any portion of the Property or any
surrounding areas to prevent or minimize such Release or Threat of Release so
that it does not migrate or otherwise cause or threaten danger to present or
future public health, safety, welfare or the environment, and (iii) costs
incurred to comply with the Environmental Laws in connection with all or any
portion of the Property or any surrounding areas; provided, however, nothing
contained in this paragraph shall require Borrower or Guarantors to indemnify
any Indemnified Party from any matter, cost or expense arising or resulting
solely from such Indemnified Party's own gross negligence or willful misconduct.
Borrower's and Guarantors' obligations hereunder are separate and distinct from
Borrower's and Guarantors' obligations under the "Loan Documents" (as
hereinafter defined), and Lenders', Agent's and the other Indemnified Parties'
rights under this Agreement shall be in addition to all rights of Agent and
Lenders under the Mortgages, the Note, the Loan Agreement, that certain
Unconditional Guaranty of Payment and Performance (the "Guaranty") given to
Lenders and Agent by Guarantors in connection with the Loan and under any other
documents or instruments evidencing, securing or relating to the Loan (the
Mortgages, the Note, the Loan Agreement, the Guaranty and such other documents
or instruments, as amended or modified from time to time, being herein referred
to as the "Loan Documents"), and
3
payments by Borrower or any Guarantor under this Agreement shall not reduce
Borrower's obligations and liabilities under any of the Loan Documents. Nothing
herein shall require Borrower or Guarantors to indemnify any Indemnified Party
from any matter, cost or expense relating to a Release of Hazardous Substances
or violation of any Environmental Law first occurring after the Lender or its
nominee acquires title to the applicable Property by the exercise of its
foreclosure remedies or by deed in lieu of foreclosure.
3. Survival.
--------
(a) Except as expressly provided in Paragraph 2, above, the
indemnity set forth above in Paragraph 2 shall survive the repayment of the Loan
and any exercise of any remedies under the Mortgages, including without
limitation, the power of sale, or any other remedy in the nature of foreclosure,
and shall not merge with any deed given by Borrower or any Guarantor to Agent or
Lenders in lieu of foreclosure or any deed under a power of sale.
(b) It is agreed and intended by Borrower, Guarantors, Lenders and
Agent that the indemnity set forth above in Paragraph 2 may be assigned or
otherwise transferred by each Lender or Agent to its successors and assigns and
to any subsequent purchaser of all or any portion of the Property by, through or
under Agent or Lenders, without notice to Borrower or Guarantors and without any
further consent of Borrower or Guarantors. To the extent consent of any such
assignment or transfer is required by law, advance consent to any such
assignment or transfer is hereby given by Borrower and Guarantors in order to
maximize the extent and effect of the indemnity given hereby.
4. No Waiver. The liabilities of Borrower and Guarantors under this
---------
Agreement shall in no way be limited or impaired by, and Borrower and Guarantors
hereby consent to and agree to be bound by, any amendment or modification of the
provisions of the Loan Documents (but excluding amendments to this Agreement
unless made in accordance with Paragraph 10 below) to or with Lenders or Agent
by Borrower or Guarantors or any person who succeeds Borrower or any Guarantor
as owner of a Property. In addition, notwithstanding any terms of any of the
Loan Documents to the contrary, the liability of Borrower and Guarantors under
this Agreement shall in no way be limited or impaired by: (i) any extensions of
time for performance required by any of the Loan Documents; (ii) except as
expressly provided in Paragraph 2, above, any sale, assignment or foreclosure of
the Note or the Mortgages or any sale or transfer of all or part of the
Property; (iii) any exculpatory provision in any of the Loan Documents limiting
Lenders' or Agent's recourse to property encumbered by the Mortgages or to any
other security, or limiting Lenders' or Agent's rights to a deficiency judgment
against Borrower; (iv) the accuracy or inaccuracy of the representations and
warranties made by Borrower or any Guarantor under any of the Loan Documents;
(v) the release of Borrower or any other Person from performance or observance
of any of the agreements, covenants, terms or conditions contained in the Loan
Documents by operation of law, Lenders' or Agent's voluntary act, or otherwise;
(vi) the release or substitution, in whole or in part, of any security for the
Note; (vii) Lenders' or Agent's failure to record a Mortgage or file any UCC-1
financing statements (or Lenders' or Agent's improper recording or filing of any
thereof) or to otherwise perfect, protect, secure or insure any security
interest or lien given as security for the Note; or (viii) any indemnification
that might be provided by a tenant of any Property; and, in any such case,
whether with or without notice to Borrower or Guarantors and with or without
consideration.
4
5. Waiver by Borrower and Guarantors. BORROWER AND GUARANTORS WAIVE ANY
---------------------------------
RIGHT OR CLAIM OF RIGHT TO CAUSE A MARSHALLING OF BORROWER'S ASSETS OR TO CAUSE
LENDERS OR AGENT TO PROCEED AGAINST ANY OF THE SECURITY FOR THE LOAN BEFORE
PROCEEDING UNDER THIS AGREEMENT AGAINST BORROWER AND GUARANTORS OR TO PROCEED
AGAINST BORROWER AND GUARANTORS IN ANY PARTICULAR ORDER. BORROWER AND GUARANTORS
AGREE THAT ANY PAYMENTS REQUIRED TO BE MADE HEREUNDER SHALL BECOME DUE ON
DEMAND. BORROWER AND GUARANTORS EXPRESSLY WAIVE AND RELINQUISH ALL RIGHTS AND
REMEDIES (INCLUDING ANY RIGHTS OF SUBROGATION) ACCORDED BY APPLICABLE LAW TO
INDEMNITORS. BORROWER AND GUARANTORS COVENANT AND AGREE THAT UPON THE
COMMENCEMENT OF A VOLUNTARY OR INVOLUNTARY BANKRUPTCY PROCEEDING BY OR AGAINST
BORROWER, NEITHER BORROWER NOR ANY GUARANTOR SHALL SEEK A SUPPLEMENTAL STAY OR
OTHERWISE PURSUANT TO 11 U.S.C. ss.105 OR ANY OTHER PROVISION OF THE BANKRUPTCY
REFORM ACT OF 1978, AS AMENDED, OR ANY OTHER DEBTOR RELIEF LAW (WHETHER
STATUTORY, COMMON LAW, CASE LAW, OR OTHERWISE) OF ANY JURISDICTION WHATSOEVER,
NOW OR HEREAFTER IN EFFECT, WHICH MAY BE OR BECOME APPLICABLE, TO STAY,
INTERDICT, CONDITION, REDUCE OR INHIBIT THE ABILITY OF LENDER TO ENFORCE ANY
RIGHTS OF LENDER OR AGENT AGAINST GUARANTORS BY VIRTUE OF ANY THIS AGREEMENT OR
OTHERWISE.
6. Delay. No delay on Lenders' or Agent's part in exercising any right,
-----
power or privilege under any of the Loan Documents shall operate as a waiver of
any privilege, power or right hereunder.
7. Releases. Any one or more of Borrower and Guarantors or any other party
--------
liable upon or in respect of this Agreement or the Loan may be released without
affecting the liability of any party not so released.
8. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original. Said counterparts shall
constitute but one and the same instrument and shall be binding upon each of the
undersigned individually as fully and completely as if all had signed but one
instrument so that the joint and several liability of each of the undersigned
hereunder shall be unaffected by the failure of any of the undersigned to
execute any or all of the said counterparts.
9. Notices. Each notice, demand, election or request provided for or
-------
permitted to be given pursuant to this Agreement shall be given in the manner
provided in the Loan Agreement, or if to a Guarantor, in the manner provided in
the Guaranty.
10. Amendments. No provision of this Agreement may be changed, waived,
----------
discharged or terminated orally, by telephone or by any other means except by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought.
11. Effect. Except as herein provided, this Agreement shall be binding
------
upon Borrower and Guarantors and their respective successors,
successors-in-title and assigns, and
5
shall inure to the benefit of Lenders, Agent, the other Indemnified Parties, and
their respective successors and assigns. Notwithstanding the foregoing, Borrower
and Guarantors, without the prior written consent of Lenders in each instance,
may not assign, transfer or set over to another, in whole or in part, all or any
part of their benefits, rights, duties and obligations hereunder, including, but
not limited to, performance of and compliance with conditions hereof.
12. GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT AND THE RIGHTS
--------------------------------------
AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY,
AND INTERPRETED AND DETERMINED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH
OF MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW).
BORROWER AND GUARANTORS HEREBY IRREVOCABLY AND UNCONDITIONALLY (A) SUBMIT TO
PERSONAL JURISDICTION IN THE COMMONWEALTH OF MASSACHUSETTS OVER ANY SUIT, ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND (B) WAIVE ANY
AND ALL PERSONAL RIGHTS UNDER THE LAWS OF ANY STATE (I) TO THE RIGHT, IF ANY, TO
TRIAL BY JURY, OR (II) TO OBJECT TO JURISDICTION WITHIN THE COMMONWEALTH OF
MASSACHUSETTS OR VENUE IN ANY PARTICULAR FORUM (INCLUDING FEDERAL) WITHIN THE
COMMONWEALTH OF MASSACHUSETTS. BORROWER AND GUARANTORS AGREE THAT, IN ADDITION
TO ANY METHODS OF SERVICE OF PROCESS PROVIDED FOR UNDER APPLICABLE LAW, ALL
SERVICE OF PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING MAY BE MADE BY
CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO BORROWER AND
GUARANTORS AT THE ADDRESSES SET FORTH IN THE LOAN AGREEMENT AND THE GUARANTY,
RESPECTIVELY, AND SERVICE SO MADE SHALL BE COMPLETE FIVE (5) DAYS AFTER THE SAME
SHALL BE SO MAILED. NOTHING CONTAINED HEREIN, HOWEVER, SHALL PREVENT LENDERS OR
AGENT FROM BRINGING ANY SUIT, ACTION OR PROCEEDING OR EXERCISING ANY RIGHTS
AGAINST ANY SECURITY AND AGAINST BORROWER OR GUARANTORS PERSONALLY, AND AGAINST
ANY PROPERTY OF BORROWER OR GUARANTORS, WITHIN ANY OTHER STATE. INITIATING SUCH
SUIT, ACTION OR PROCEEDING OR TAKING SUCH ACTION IN ANY STATE SHALL IN NO EVENT
CONSTITUTE A WAIVER OF THE AGREEMENT CONTAINED HEREIN THAT THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS SHALL GOVERN THE RIGHTS AND OBLIGATIONS OF
BORROWER, GUARANTORS, LENDERS AND AGENT HEREUNDER OR OF THE SUBMISSION HEREIN
MADE BY BORROWER AND GUARANTORS TO PERSONAL JURISDICTION WITHIN THE COMMONWEALTH
OF MASSACHUSETTS.
13. Amendment and Restatement. This Agreement amends, restates and
-------------------------
supersedes in its entirety each "Hazardous Materials Indemnity Agreement", as
such term is defined in the Original Revolving Credit Agreement and the Original
Term Loan Agreement.
6
IN WITNESS WHEREOF, Borrower and Guarantors have caused this Agreement to
be executed under seal as of the day and year first written above.
BORROWER:
JDN REALTY CORPORATION,
a Maryland corporation
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
[SEAL]
GUARANTORS:
JDN DEVELOPMENT COMPANY, INC.,
a Delaware corporation
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
[SEAL]
JDN REALTY AL, INC.,
an Alabama corporation
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
[SEAL]
7
JDN REALTY HOLDINGS, L.P.,
a Georgia limited partnership
By: JDN Realty Corporation,
a Maryland corporation,
its sole general partner
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
[SEAL]
JDN REALTY LP, INC.,
a Delaware corporation
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
[SEAL]
8
JDN REAL ESTATE-ASHEVILLE, L.P.
JDN REAL ESTATE-BRIDGEWOOD
FORT WORTH, L.P.
JDN REAL ESTATE-XXXXXXX, X.X.
JDN REAL ESTATE-CUMMING, L.P.
JDN REAL ESTATE-ERIE, L.P.
JDN REAL ESTATE-FAYETTEVILLE, L.P.
JDN REAL ESTATE-FRISCO, L.P.
JDN REAL ESTATE-GULF BREEZE II, L.P.
JDN REAL ESTATE-XXXXXXXX, X.X.
JDN REAL ESTATE-HICKORY CREEK, L.P.
JDN REAL ESTATE-LAKELAND, L.P.
JDN REAL ESTATE-MCDONOUGH II, L.P.
JDN REAL ESTATE-XXXXXXXX, X.X.
JDN REAL ESTATE-MESQUITE, L.P.
JDN REAL ESTATE-OVERLAND PARK, L.P.
JDN REAL ESTATE-XXXXXX PAVILIONS, L.P.
JDN REAL ESTATE-PENSACOLA, L.P.
JDN REAL ESTATE-PIONEER HILLS, L.P.
JDN REAL ESTATE-PIONEER HILLS II, L.P.
JDN REAL ESTATE-XXXXXX, X.X.
JDN REAL ESTATE-SACRAMENTO, L.P.
JDN REAL ESTATE-XXXXXX XXXX, X.X.
JDN REAL ESTATE-WEST LAFAYETTE, L.P.
JDN REAL ESTATE-WEST LANSING, L.P.
JDN REAL ESTATE-STONE MOUNTAIN, L.P.
JDN REAL ESTATE-XXXXXXX, X.X.,
each a Georgia limited partnership
By: JDN Development Investment, L.P.,
a Georgia limited partnership,
their sole general partner
By: JDN Development Company, Inc.,
its sole general partner
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
(CORPORATE SEAL)
9
JDN REAL ESTATE-XXXXXXXXX, X.X.,
a Georgia limited partnership
By: JDN Realty Holdings, L.P.,
a Georgia limited partnership,
its sole general partner
By: JDN Realty Corporation,
a Maryland corporation,
its sole general partner
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
(CORPORATE SEAL)
CHESTERFIELD EXCHANGE, LLC
FAYETTEVILLE EXCHANGE, LLC,
each a Georgia limited liability company
By: JDN Realty Corporation,
a Maryland corporation, their manager
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
(CORPORATE SEAL)
HICKORY HOLLOW EXCHANGE, LLC,
a Georgia limited liability company
By: JDN Development Company, Inc.,
a Delaware corporation,
its manager
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
(CORPORATE SEAL)
10
JDN INTERMOUNTAIN DEVELOPMENT PIONEER
HILLS, LLC, a Georgia limited liability company
By: JDN Real Estate-Pioneer Hills, L.P.,
a Georgia limited partnership,
its manager
By: JDN Development Investment, L.P.,
a Georgia limited partnership,
its sole general partner
By: JDN Development Company, Inc.,
a Delaware corporation,
its sole general partner
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
(CORPORATE SEAL)
JDN INTERMOUNTAIN DEVELOPMENT, XXXXXX
PAVILION, LLC,
a Georgia limited liability company
By: JDN Real Estate-Xxxxxx Pavilions, L.P.,
a Georgia limited partnership,
its manager
By: JDN Development Investment, L.P.,
a Georgia limited partnership,
its sole general partner
By: JDN Development Company, Inc.,
a Delaware corporation,
its sole general partner
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
(CORPORATE SEAL)
00
XXXXX XXXXXX PARTNERS, L.L.C.,
a Michigan limited liability company
By: JDN Realty Corporation,
a Maryland corporation,
its manager
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
(CORPORATE SEAL)
BLACK CHERRY LIMITED LIABILITY COMPANY, a
Colorado limited liability company
By: JDN Realty Corporation,
a Maryland corporation,
its sole member
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
(CORPORATE SEAL)
12
GEORGIA FINANCE CORPORATION,
a Delaware corporation
By:
--------------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
(CORPORATE SEAL)
JDN REALTY CORPORATION GP, INC.,
a Delaware corporation
By:
--------------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
(CORPORATE SEAL)
JDN INTERMOUNTAIN DEVELOPMENT CORP.,
a Delaware corporation
By:
--------------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
(CORPORATE SEAL)
JDN DEVELOPMENT LP, INC.,
a Delaware corporation
By:
--------------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
(CORPORATE SEAL)
13
JDN OF ALABAMA REALTY CORPORATION,
an Alabama corporation
By:
--------------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
(CORPORATE SEAL)
WHF, INC.,
a Georgia corporation
By:
--------------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
(CORPORATE SEAL)
XXXXXXXX BRIDGE ASSOCIATES, INC.,
a Georgia corporation
By:
--------------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
(CORPORATE SEAL)
FAYETTEVILLE BLACK INVESTMENT, INC.,
a Georgia corporation
By:
--------------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
(CORPORATE SEAL)
14
JDN DEVELOPMENT INVESTMENT, L.P.,
a Georgia limited partnership
By: JDN Development Company, Inc.,
its sole general partner
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
(CORPORATE SEAL)
15
EXHIBIT G
---------
Form of Mortgage
AFTER RECORDING RETURN TO:
Xxxxxxx X. Xxxxxxx, Esq.
Long Xxxxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
DEED OF TRUST AND SECURITY AGREEMENT
------------------------------------
TEXAS
(#552/MacArthur Marketplace)
THIS INSTRUMENT (this "Instrument") is made and entered into as of this
----------
29th day of March, 2001, by and between JDN REALTY HOLDINGS, L.P., a Georgia
limited partnership, having a mailing address of 000 Xxxx Xxxxx Xxxxx Xxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 ("Obligor"), in favor of XXXX X. XXXXX
-------
("Trustee"), having an address of 5400 Renaissance Tower, 0000 Xxx Xxxxxx,
-------
Xxxxxx, Xxxxx 00000-0000, for the benefit of FLEET NATIONAL BANK, a national
banking association ("Fleet"), having a mailing address of 100 Federal Street,
-----
Xxxxxx, Xxxxxxxxxxxxx 00000, Attn: Real Estate Division, as Agent for itself and
each other lender (collectively, the "Banks") which is or may hereafter become a
-----
party to that certain Third Amended, Restated and Consolidated Master Credit
Agreement, dated of even date herewith, by and among JDN Realty Corporation, a
Maryland corporation ("Parent"), Fleet, as Agent and Banks (as the same may be
------
varied, amended, restated, renewed, consolidated, extended or otherwise
supplemented from time to time, the "Credit Agreement") (Fleet, in its capacity
----------------
as Agent, is hereinafter referred to as "Agent")
-----
W I T N E S S E T H:
-------------------
THAT, for and in consideration of the sum of Ten and No/100 Dollars
($10.00) and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and in order to secure the indebtedness and other
obligations of Parent and Obligor hereinafter set forth, Obligor does hereby
irrevocably GRANT, BARGAIN, SELL, CONVEY AND GRANT A SECURITY INTEREST IN the
following described property (collectively, the "Property") unto (a) Trustee,
--------
its successors and assigns, in trust, with power of sale and right of entry and
possession, except to those portions and components of the Property that
constitute personal property, and (b) Agent, its successors and assigns, as
secured party, for the ratable benefit of Banks and their successors and
assigns, as to those portions and components of the Property that constitute
personal property:
(a) All those tracts or parcels of land and easements more
particularly described in Exhibit "A" attached hereto and by this reference made
-----------
a part hereof (the "Land").
(b) All buildings, structures and improvements of every nature
whatsoever now or hereafter situated on the Land, and all gas and electric
fixtures, radiators, heaters, engines and machinery, boilers, ranges, elevators
and motors, plumbing and heating fixtures, carpeting and other floor coverings,
fire extinguishers and any other safety equipment required by governmental
regulation or law, washers, dryers, water heaters, mirrors, mantels, air
conditioning apparatus, refrigerating plants, refrigerators, cooking apparatus
and appurtenances, window screens, awnings and storm sashes, which are or shall
be owned by Obligor and attached to said buildings, structures or improvements
and all other furnishings, furniture, fixtures, machinery, equipment,
appliances, vehicles, building supplies and materials, books and records,
chattels, inventory, accounts, farm products, consumer goods, general
intangibles and personal property of every kind and nature whatsoever now or
hereafter owned by Obligor and located in, on or about, or used or intended to
be used with or in connection with the use, operation or enjoyment of the
Property, including all extensions, additions, improvements, betterments,
after-acquired property, renewals, replacements and substitutions, or proceeds
from a permitted sale of any of the foregoing, and all the right, title and
interest of Obligor in any such furnishings, furniture, fixtures, machinery,
equipment, appliances, vehicles and personal property subject to or covered by
any prior security agreement, conditional sales contract, chattel mortgage or
similar lien or claim, together with the benefit of any deposits or payments now
or hereafter made by Obligor or on behalf of Obligor, all of which are hereby
declared and shall be deemed to be fixtures and accessions to the Land and a
part of the Property as between the parties hereto and all persons claiming by,
through or under them, and which shall be deemed to be a portion of the security
for the indebtedness herein described and to be secured by this Instrument.
(c) All easements, rights-of-way, strips and gores of land, vaults,
streets, ways, alleys, passages, sewer rights, waters, water courses, water
rights and powers, minerals, flowers, shrubs, crops, trees, timber and other
emblements now or hereafter located on the Land or under or above the same or
any part or parcel thereof, and all estates, rights, titles, interests,
privileges, liberties, tenements, hereditaments and appurtenances, reversion and
reversions, remainder and remainders, whatsoever, in any way belonging, relating
or appertaining to the Land or any part thereof, or which hereafter shall in any
way belong, relate or be appurtenant thereto, whether now owned or hereafter
acquired by Obligor.
(d) All income, rents, issues, profits and revenues of the Property
from time to time accruing (including, without limitation, all payments under
leases or tenancies (collectively, the "Leases"), proceeds of insurance,
condemnation payments, tenant security deposits whether held by Obligor or in a
trust account, and escrow funds), and all the estate, right, title, interest,
property, possession, claim and demand whatsoever at law, as well as in equity,
of Obligor of, in and to the same; reserving only the right to Obligor to
collect the same (other than insurance proceeds and condemnation payments) so
long as Obligor is not in default hereunder.
(e) All transferable building service, building maintenance,
construction, development, management, indemnity, and other similar agreements
and contracts, written or oral, express or implied, now or hereafter entered
into, arising or in any manner related to the construction, design, improvement,
use, operation, ownership, occupation, enjoyment, sale,
-2-
conversion or other disposition (voluntary or involuntary) of the Property, or
the buildings and improvements now or hereafter located thereon, or any other
interest in the Property, or any combination thereof, including without
limitation all property management agreements, sales contracts, purchase
options, option agreements, rights of first refusal, contract deposits, xxxxxxx
money deposits, prepaid items and payments due and to become due thereunder, and
further including all payment and performance bonds, construction guaranties,
warranties and other undertakings, construction contracts, architects
agreements, general contract agreements, design agreements, engineering
agreements, technical service agreements, architectural plans and
specifications, drawings, surveys, renderings and models, sewer and water and
other utility agreements, permits, approvals, licenses, agreements, contracts,
building permits, service contracts, advertising contracts, purchase orders and
equipment leases, personal property leases, tradenames, trademarks, servicemarks
and logos, and all goodwill symbolized thereby or pertaining thereto and all
causes of action relating thereto.
(f) All present and future cash funds, deposit accounts, accounts,
instruments, accounts receivable, documents, causes of action, claims, names by
which the Property or the improvements thereon may be operated or known, all
rights to carry on business under such names, all telephone numbers or listings,
all rights, interest and privileges of which Obligor may have as developer or
declarant under any covenants, restrictions or declarations now or hereafter
relating to the Property or the improvements thereon, and all notes or chattel
paper now or hereafter arising from or by virtue of any transactions relating to
the Property or the improvements located thereon.
(g) All proceeds, products, substitutions and accessions of the
foregoing of every type.
TO HAVE AND TO HOLD the Property and all parts, rights, members and
appurtenances thereof, to the use, benefit and behoof of Trustee or Agent for
the ratable benefit of Banks and their respective successors and assigns, IN FEE
SIMPLE forever upon the trust, terms and conditions contained in this
Instrument; and Obligor covenants that Obligor is lawfully seized and possessed
of the Property as aforesaid, and has good right to convey the same, that the
same is unencumbered except for those matters expressly set forth in Exhibit "B"
-----------
attached hereto and by this reference made a part hereof (the "Permitted
---------
Encumbrances"), and that Obligor does warrant and will forever defend the title
------------
thereto against the claims of all persons whomsoever, except as to those matters
set forth in said Exhibit "B" attached hereto.
-----------
This Instrument is given to secure the following described indebtedness
(collectively, the "Secured Obligations"):
---------------------
(a) The payment, performance and discharge of each and every
obligation, covenant and agreement of Obligor that certain Unconditional
Guaranty of Payment and Performance of even date herewith from Obligor and
certain other parties in favor of Agent and the Banks (the "Guaranty").
(b) The debt evidenced by (i) those certain Amended and Restated
Revolving Credit Notes made by Parent in the aggregate principal amount of One
Hundred Fifty Million and No/100 Dollars ($150,000,000), those certain Amended
and Restated Term Loan Notes
-3-
made by Parent in the aggregate principal amount of One Hundred Fifty Million
and No/100 Dollars ($150,000,000) and that certain Swing Loan Note made by
Parent in the principal amount of Ten Million and No/100 Dollars ($10,000,000)
each of which has been issued pursuant to the Credit Agreement and each of which
is due and payable in full on or before December 31, 2002 and (ii) each other
note as may be issued under the Credit Agreement, each as originally executed,
or if varied, extended, supplemented, consolidated, amended, replaced, renewed,
modified or restated from time to time as so varied, extended, supplemented,
consolidated, amended, replaced, renewed, modified or restated (collectively,
the "Note").
(c) The payment, performance and discharge of each and every
obligation, covenant and agreement of Obligor and/or Parent contained herein, in
the Credit Agreement and in the other Loan Documents (as defined in the Credit
Agreement).
(d) Any and all additional advances made by any Bank to protect or
preserve the Property or the lien and security title hereof in and to the
Property, or for taxes, assessments or insurance premiums as hereinafter
provided (whether or not Obligor remains the owner of the Property at the time
of such advances).
(e) Any and all other indebtedness now or hereafter owing by Obligor
and/or Parent to any Bank pursuant to the terms of the Credit Agreement, whether
now existing or hereafter arising or incurred, however evidenced or incurred,
whether express or implied, direct or indirect, absolute or contingent, due or
to become due, including, without limitation, all principal, interest, fees,
expenses, yield maintenance amounts and indemnification amounts, and all
renewals, modifications, consolidations, replacements and extensions thereof.
(f) The full and prompt payment and performance by Parent of each
and all of the Hedge Obligations (as defined in the Credit Agreement).
(g) All reasonable out-of-pocket costs and expenses incurred by the
Agent in connection with the enforcement and collection of the Secured
Obligations, including, without limitation, all attorneys' fees and
disbursements, and all such costs and expenses described in and incurred
pursuant to the Note, the Credit Agreement, this Instrument and the other Loan
Documents (as defined in the Credit Agreement) (collectively, the "Enforcement
-----------
Costs").
-----
Should the Secured Obligations secured by this Instrument be paid
according to the tenor and effect thereof when the same shall become due and
payable, and should Obligor perform all covenants herein contained in a timely
manner, and should any obligation of Agent and Banks to make additional advances
under the Credit Agreement have been terminated in writing by Agent and Banks,
then this Instrument shall be cancelled and surrendered upon the request and at
the expense of Obligor.
Obligor hereby further covenants and agrees with Trustee and Agent as
follows:
-4-
ARTICLE 1
1.01 Payment of Secured Obligations. Obligor will pay the Secured
------------------------------
Obligations according to the tenor thereof and all other sums now or hereafter
secured hereby promptly as the same shall become due.
1.02 Representations and Warranties. Obligor represents and warrants to
------------------------------
Agent, for the ratable benefit of Banks, that, as of the date hereof:
(a) Intentionally omitted.
(b) Obligor has no notice, information or knowledge of any change
contemplated in any applicable law, ordinance, regulation, or restriction; or
any judicial, administrative, governmental or quasi-governmental action; of any
action by adjacent land owners; or of any natural or artificial conditions
existing upon the Property which would materially limit, restrict, or prevent
the contemplated or intended use and purpose of the Property.
(c) There is no pending condemnation or similar proceeding affecting
the Property, or any portion thereof, nor to the best knowledge of Obligor, is
any such action being presently contemplated.
(d) No part of the Property is being used for agricultural purposes
or being used for a personal residence by Obligor or any shareholder of Obligor.
(e) The Property is undamaged by fire, windstorm, or other casualty.
(f) The Property complies in all material respects with all zoning
and subdivision ordinances, energy and environmental codes, building and use
restrictions and codes, and any requirements with respect to licenses, permits
and agreements necessary for the lawful use and operation of the Property.
(g) The heating, electrical, sanitary sewer plumbing, storm sewer
plumbing, potable water plumbing and other building equipment, fixtures and
fittings in the existing improvements on the Property are in good condition and
working order, are adequate in quantity and quality for normal and usual use,
and are fit for the purposes intended and the use contemplated.
(h) The Property is covered by a tax parcel(s) which pertain to the
Property only and not to any property which is not subject to this Instrument.
(i) The Property is improved with a shopping center and related
parking and has frontage on, and direct access for ingress and egress to a
public street.
(j) Obligor has good and clear record and marketable title in fee to
such of the Property as is real property, subject to no liens, encumbrances or
restrictions other than Permitted Encumbrances. There has been no labor or
materials furnished to the Property on behalf of Obligor that have not been paid
for in full.
-5-
1.03 Taxes, Liens and Other Charges.
------------------------------
(a) In the event of the passage of any state, federal, municipal or
other governmental law, order, rule or regulation, subsequent to the date
hereof, in any manner changing or modifying the laws now in force governing the
taxation of debts secured by deeds to secure debt or the manner of collecting
taxes so as to adversely affect Banks, Obligor will promptly pay any such tax.
If Obligor fails to make such prompt payment or if, in the opinion of Agent, any
such state, federal, municipal, or other governmental law, order, rule or
regulation prohibits Obligor from making such payment or would penalize Banks if
Obligor makes such payment or if, in the opinion of Agent, the making of such
payment might result in the imposition of interest beyond the maximum amount
permitted by applicable law, then the entire balance of the principal sum
secured by this Instrument and all interest accrued thereon shall, at the option
of Agent, become immediately due and payable unless Obligor shall substitute
property unaffected by such tax considerations for the Property or otherwise
satisfy the conditions for release of the Property set forth in Section 5.4 of
the Credit Agreement.
(b) Obligor will pay all taxes, liens, assessments and charges of
every character including all utility charges, whether public or private,
already levied or assessed or that may hereafter be levied or assessed upon or
against the Property as required under the Credit Agreement.
(c) Obligor will not suffer any mechanic's, materialmen's,
laborer's, statutory or other lien to be created and to remain outstanding upon
all or any part of the Property other than Permitted Encumbrances.
1.04 Insurance.
---------
(a) To the extent insurance is not provided or self-insured by the
tenant, Obligor shall procure for, deliver to and maintain for the benefit of
Agent and Banks during the term of this Instrument, original insurance policies
issued (or a master policy) by insurance companies, in amounts, in form and
substance, and with expiration dates acceptable to Agent and containing
non-contributory standard mortgagee clauses, their equivalent or a satisfactory
mortgagee loss payable endorsement in favor of Agent, providing the following
types of insurance on the Property:
(i) insurance against loss or damage by fire, lightning,
vandalism, malicious mischief and flood (if the Land is in an area which is
considered a flood risk area by the U.S. Department of Housing and Urban
Development), and against such other hazards as are presently included in
so-called "all risk replacement cost insurance" and against such other insurable
hazards as, under good insurance practices, from time to time are insured
against for properties of similar character and location; the amount of which
insurance shall be not less than the balance of the Secured Obligations
evidenced by the Note and the Credit Agreement nor less than one hundred percent
(100%) of the full replacement cost of the Property without deduction for
depreciation (less the portion of the Property which is self-insured by
creditworthy tenants as determined by Agent in its reasonable discretion); and
which policies of insurance shall contain satisfactory replacement cost
endorsements;
-6-
(ii) reserved;
(iii) rent or business interruption insurance against loss of
income arising out of damage or destruction by fire, lightning, vandalism,
malicious mischief and flood and such other hazards as are presently included in
so-called "all risk replacement cost insurance" in the amount equal to the gross
annual income derived by Obligor from the Property; and
(iv) Commercial general liability insurance against claims for
personal injury (to include, without limitation, bodily injury and personal and
advertising injury) and property damage liability, all on an occurrence basis,
if commercially available, with such coverages as the Agent may reasonably
request (including, without limitation, contractual liability coverage,
completed operations coverage for a period of two years following completion of
construction of any improvements on the Land, and coverages equivalent to an ISO
broad form endorsement), with a general aggregate limit of not less than
$2,000,000, a completed operations aggregate limit of not less than $2,000,000,
and a combined single "per occurrence" limit of not less than $1,000,000 for
bodily injury and property damage and $5,000 for medical payments;
(v) During the course of construction or repair of any
improvements on the Land, to the extent not provided by the general contractor,
owner's contingent or protective liability insurance covering claims not covered
by or under the terms or provisions of the insurance required by clause (iv)
above;
(vi) Employers liability insurance;
(vii) Umbrella liability insurance with limits of not less
than $20,000,000 to be in excess of the limits of the insurance required by
clauses (iv), (v) and (vi) above, with coverage at least as broad as the primary
coverages of the insurance required by clauses (iv), (v) and (vi) above, with
any excess liability insurance to be at least as broad as the coverages of the
lead umbrella policy. All such policies shall be endorsed to provide defense
coverage obligations;
(viii) Workers' compensation insurance for all employees of
the Parent or Obligor and
(ix) Such other insurance in such form and in such amounts as
may from time to time be reasonably required by the Agent against other
insurable hazards and casualties which at the time are commonly insured against
in the case of properties of similar character and location to the Property.
Obligor shall pay all premiums on insurance policies. The insurance
policies provided for in clauses (iv), (v) and (vii) above with respect to the
Property shall name the Agent and each Bank as an additional insured and shall
contain a cross liability/severability endorsement. The insurance policies
provided for in clauses (i), (ii), and (iii) above shall name the Agent as
mortgagee and loss payee, shall be first payable in case of loss to the Agent,
and shall contain mortgagee clauses and lender's loss payable endorsements in
form and substance acceptable to
-7-
the Agent. Obligor shall deliver duplicate originals or certified copies of all
such policies to the Agent.
All policies of insurance required by this Instrument shall contain
clauses or endorsements to the effect that (i) no act or omission of the Obligor
or any of its Subsidiaries (as defined in the Credit Agreement) or anyone acting
for the Obligor or any such Subsidiary (including, without limitation, any
representations made in the procurement of such insurance), which might
otherwise result in a forfeiture of such insurance or any part thereof, no
occupancy or use of the Property for purposes more hazardous then permitted by
the terms of the policy, and no foreclosure or any other change in title to the
Property or any part thereof, shall affect the validity or enforceability of
such insurance insofar as the Agent is concerned, (ii) the insurer waives any
right of setoff, counterclaim, subrogation, or any deduction in respect of any
liability of the Obligor or any such Subsidiary and the Agent, (iii) such
insurance is primary and without right of contribution from any other insurance
which may be available, (iv) such policies shall not be modified, canceled or
terminated prior to the scheduled expiration date thereof without the insurer
thereunder giving at least 30 days prior written notice to the Agent by
certified or registered mail, and (v) that the Agent or the Banks shall not be
liable for any premiums thereon or subject to any assessments thereunder, and
shall in all events be in amounts sufficient to avoid any coinsurance liability.
Neither the Obligor nor any of its Subsidiaries shall carry separate
insurance, concurrent in kind or form or contributing in the event of loss, with
any insurance required under this Instrument unless such insurance complies with
the terms and provisions of this Section 1.04.
(b) Agent is hereby authorized and empowered, at its option, to
adjust or compromise any loss under any insurance policies maintained pursuant
to this Paragraph 1.04 in accordance with the terms and provisions of the Credit
Agreement, and to collect and receive the proceeds from any such policy or
policies. Each insurance company is hereby authorized and directed to make
payment for all such losses directly to Agent, instead of to Obligor and Agent
jointly. In the event any insurance company fails to disburse directly and
solely to Agent but disburses instead either solely to Obligor or to Obligor and
Agent jointly, Obligor agrees immediately to endorse and transfer such proceeds
to Agent. Upon the failure of Obligor to endorse and transfer such proceeds as
aforesaid, Agent may execute such endorsements or transfers for and in the name
of Obligor and Obligor hereby irrevocably appoints Agent as Obligor's agent and
attorney-in-fact so to do. Agent shall not be held responsible for any failure
to collect any insurance proceeds due under the terms of any policy regardless
of the cause of such failure.
(c) At least fifteen (15) days prior to the expiration date of each
policy maintained pursuant to this Paragraph 1.04, a renewal or replacement
thereof satisfactory to Agent shall be delivered to Agent. Obligor shall deliver
to Agent receipts evidencing the payment for all such insurance policies and
renewals or replacements. The delivery of any insurance policies hereunder shall
constitute an assignment of all unearned premiums as further security hereunder.
In the event of the foreclosure of this Instrument or any other transfer of
title to the Property in extinguishment of the Secured Obligations secured
hereby, all right, title and interest of Obligor in and to all insurance
policies then in force shall pass to the purchaser or Agent.
-8-
1.05 Condemnation. If all or any "material" portion of the Property shall
------------
be damaged or taken through condemnation (which term when used in this
Instrument shall include any damage or taking by any governmental authority or
any transfer by private sale in lieu thereof), either temporarily or
permanently, then Agent shall be entitled to receive all compensation, awards
and other payments or relief thereof, and Agent is hereby authorized, at its
option, to commence, appear in and prosecute, in its own or in Obligor's name,
any action or proceeding relating to any condemnation, and to settle or
compromise any claim in connection therewith. All such compensation, awards,
damages, claims, rights of action and proceeds and the right thereto are hereby
assigned by Obligor to Agent. After deducting from said condemnation proceeds
all of its expenses incurred in the collection and administration of such sums,
including attorney's fees, Agent may apply the net proceeds or any part thereof,
at its option, (a) to the payment of the Secured Obligations hereby secured,
whether or not due and in whatever order Agent elects, (b) to the repair and/or
restoration of the Property or (c) for any other purposes or objects for which
Agent is entitled to advance funds under this Instrument, all without affecting
the lien of this Instrument; and any balance of such monies then remaining shall
be paid to Obligor. Obligor agrees to execute such further assignment of any
compensation, awards, damages, claims, rights of action and proceeds as Agent
may require. For the purposes of this Section 1.05 any condemnation or taking
shall be deemed to be "material" in the event that (a) such taking has a
material adverse effect upon the means of access from the public streets to the
improvements or the number of parking spaces available at the Property (unless
Obligor shall provide reasonable substitutes therefor), (b) the improvements are
severed by such taking, (c) the taking makes it impractical or inefficient
(after the restoration or repair of the Property) for the continued conduct of
business at the Property in the same manner as such business was conducted prior
to such taking as determined by Agent, or (d) Agent shall determine that
following such repair or restoration there shall be a fifteen percent (15%) or
more reduction in the occupancy or in rental income (excluding any proceeds from
rental loss insurance or proceeds from such award allocable to rent).
1.06 Restoration and Repair. Notwithstanding anything to the contrary
----------------------
contained herein, in the case of a casualty loss or a condemnation affecting the
Property, Agent shall allow any insurance or condemnation proceeds paid to Agent
to be applied in accordance with the terms and provisions of the Credit
Agreement.
1.07 Care, Use and Management of Property.
------------------------------------
(a) Obligor will keep, or cause to be kept, the buildings, roads and
walkways, landscaping and all other improvements of any kind now or hereafter
erected on the Land or any part thereof in good condition and repair, will not
commit or suffer any material waste and will not do or suffer to be done
anything which will increase the risk of fire or other hazard to the Property or
any part thereof.
(b) Obligor will not remove or demolish nor alter the structural
character of any building located on the Land in a manner that would materially
and adversely affect its value without the written consent of Agent.
(c) If the Property or any part thereof is materially damaged by
fire or any other cause, Obligor will give immediate written notice thereof to
Agent.
-9-
(d) To the extent permitted under the terms of the applicable
Leases, each Bank or its representative is hereby authorized to enter upon and
inspect the Property at any time during normal business hours.
(e) Obligor will promptly comply with all present and future laws,
ordinances, rules and regulations of any governmental authority affecting the
Property or any part thereof.
(f) If all or any part of the Property shall be damaged by fire or
other casualty, Obligor will promptly restore the Property to the equivalent of
its original condition; and if a part of the Property shall be damaged through
condemnation, Obligor will promptly restore, repair or alter the remaining
portions of the Property in a manner satisfactory to Agent. Notwithstanding the
foregoing, Obligor shall not be obligated to so restore unless in each instance,
Agent agrees to make available to Obligor (pursuant to a procedure satisfactory
to Agent) any net insurance or condemnation proceeds actually received by Agent
hereunder in connection with such casualty loss or condemnation, to the extent
such proceeds are required to defray the expense of such restoration; provided,
however, that the insufficiency of any such insurance or condemnation proceeds
to defray the entire expense of restoration shall in no way relieve Obligor of
its obligation to restore. In the event all or any portion of the Property shall
be damaged or destroyed by fire or other casualty or by condemnation, Obligor
shall promptly deposit with Agent a sum equal to the amount by which the
estimated cost of the restoration of the Property (as determined by Agent in its
good faith judgment) exceeds the actual net insurance or condemnation proceeds
received by Agent in connection with such damage or destruction.
1.08 Leases and Other Agreements Affecting Property. Obligor will duly and
----------------------------------------------
punctually perform in all material respects all terms, covenants, conditions and
agreements binding upon it under any Lease or any other agreement of any nature
whatsoever which involves or affects the Property or any part thereof. Obligor
will not enter into, modify, surrender or terminate, either orally or in
writing, any Lease now existing or hereafter created upon the Property or any
part thereof, nor will Obligor permit an assignment or a subletting by any
tenant other than in accordance with the terms of the Credit Agreement. Obligor
will not accept payment of rent more than one (1) month in advance without the
prior written consent of Agent. In order to further secure payment of the
Secured Obligations and the observance, performance and discharge of Obligor's
obligations, Obligor hereby collaterally assigns, transfers and sets over unto
Agent all of Obligor's right, title and interest in, to and under all Leases
affecting the Property or any part thereof and in and to all of the rents,
issues, profits, revenues, awards and other benefits now or hereafter arising
from the use and enjoyment of the Property or any part thereof; reserving only
the right to Obligor to collect and use the same so long as Obligor is not in
default hereunder.
Agent shall be entitled to require, and Obligor shall use its best efforts
to obtain, the execution of tenant estoppels and subordination, non-disturbance
and attornment agreements from any Major Tenant (as defined in the Credit
Agreement) in a form specified by the related tenant Lease, if any, and
acceptable to Agent. Obligor hereby authorizes and directs each present and
future tenant of the Property to pay to Agent all rents and any other sums due
Obligor as landlord and to perform for the direct benefit of Agent any other
obligations of such tenant to Obligor as landlord, as if Agent were the landlord
under such tenant's Lease, immediately upon
-10-
receipt of a written demand by Agent to make such payment or perform such
obligation during the existence of an Event of Default. No such demand by Agent
shall constitute or be deemed to constitute any assumption by Agent of any
obligations of the landlord under such tenant's Lease. No such demand by Agent
shall constitute or be deemed to constitute any wrongful interference by Agent
in the affairs or business relationships for ascertaining whether any such
demand by Agent is authorized or whether a default by Obligor has occurred under
this Instrument. Obligor hereby waives any right, claim or action Obligor may
now or hereafter have against any such tenant by reason of such tenant's payment
to or performance for Agent as described above, and any such payment to or
performance for Agent shall discharge the obligation of such tenant to make such
payment to, or perform such obligation for, Obligor.
Obligor will furnish Agent with signed copies of all new, modified or
renewal Leases affecting the Property, as required pursuant to the terms and
provisions of the Credit Agreement.
1.09 Security Agreement. Insofar as the machinery, apparatus, equipment,
------------------
fittings, fixtures, building supplies and materials, and articles of personal
property either referred to or described in this Instrument, or in any way
connected with the use and enjoyment of the Property is concerned, this
Instrument is hereby made and declared to be a security agreement, encumbering
each and every item of personal property (the "Personal Property") included
herein, in compliance with the provisions of the Uniform Commercial Code as
enacted in the state wherein the Land is situated. A financing statement or
statements reciting this Instrument to be a security agreement, affecting all of
said personal property aforementioned, shall be executed by Obligor and Agent
and appropriately filed. The remedies for any violation of the covenants, terms
and conditions of the security agreement herein contained shall be (i) as
prescribed herein, or (ii) as prescribed by general law, or (iii) as prescribed
by the specific statutory consequences now or hereafter enacted and specified in
said Uniform Commercial Code, all at Agent's sole election. Obligor and Agent
agree that the filing of such financing statement(s) in the records normally
having to do with personal property shall never be construed as in any way
derogating from or impairing this declaration and hereby stated intention of
Obligor and Agent that everything used in connection with the production of
income from the Property and/or adapted for use therein and/or which is
described or reflected in this Instrument, is, and at all times and for all
purposes and in all proceedings both legal or equitable shall be, regarded as
part of the real estate irrespective of whether (i) any such item is physically
attached to the improvements, (ii) serial numbers are used for the better
identification of certain items capable of being thus identified in a recital
contained herein, or (iii) any such item is referred to or reflected in any such
financing statement(s) so filed at any time. Similarly, the mention in any such
financing statement(s) of the rights in and to (1) the proceeds of any fire
and/or hazard insurance policy, or (2) any award in eminent domain proceedings
for a taking or for loss of value, or (3) Obligor's interest as lessor in any
present or future Lease or rights to income growing out of the use and/or
occupancy of the Property, whether pursuant to Lease or otherwise, shall never
be construed as in anyway altering any of the rights of Agent as determined by
this Instrument or impugning the priority of Agent's lien granted hereby or by
any other recorded document, but such mention in such financing statement(s) is
declared to be for the protection of Agent in the event any court shall at any
time hold with respect to the foregoing (1), (2) or (3), that notice of Agent's
priority of interest to be effective against a particular class of persons, must
be filed in the Uniform Commercial Code records.
-11-
1.10 Further Assurances; After-Acquired Property. At any time, and from
-------------------------------------------
time to time, upon request by Agent, Obligor will make, execute and deliver or
cause to be made, executed and delivered, to Agent and, where appropriate, cause
to be recorded and/or filed and from time to time thereafter to be rerecorded
and/or refiled at such time and in such offices and places as shall be deemed
desirable by Agent, any and all such other and further deeds of trust, security
agreements, financing statements, notice filings, continuation statements,
instruments of further assurance, certificates and other documents as may, in
the opinion of Agent, be necessary or desirable in order to effectuate,
complete, or perfect, or to continue and preserve (a) the obligation of Obligor
under the Note, the Credit Agreement and this Instrument and (b) the lien of
this Instrument as a first and prior lien upon and security title in and to all
of the Property, whether now owned or hereafter acquired by Obligor. Upon any
failure by Obligor so to do, Agent may make, execute, record, file, re-record
and/or refile any and all such deeds of trust, security agreements, financing
statements, continuation statements, instruments, certificates, and documents
for and in the name of Obligor and Obligor hereby irrevocably appoints Agent the
agent and attorney-in-fact of Obligor so to do. The lien hereof will
automatically attach, without further act, to all after acquired property
attached to and/or used in the operation of the Property or any part thereof.
1.11 Expenses. Obligor will pay or reimburse Trustee or Agent, upon demand
--------
therefor, for all reasonable attorney's fees, costs and expenses incurred by
Trustee or Agent in any suit, action, legal proceeding or dispute of any kind in
which Trustee, Banks or Agent is made a party or appears as party plaintiff or
defendant, affecting or arising in connection with the Secured Obligations
secured hereby, this Instrument or the interest created herein, or the Property,
including, but not limited to, the exercise of the power of sale contained in
this Instrument, any condemnation action involving the Property or any action to
protect the security hereof; and any such amounts paid by Trustee, Banks or
Agent shall be added to the Secured Obligations secured by the lien of this
Instrument.
1.12 Subrogation. Agent shall be subrogated to the claims and liens of all
-----------
parties whose claims or liens are discharged or paid with the proceeds of the
Secured Obligations secured hereby.
1.13 Limit of Validity. If from any circumstances whatsoever fulfillment
-----------------
of any provision of this Instrument or of the Note, at the time performance of
such provision shall be due, shall involve transcending the limit of validity
presently prescribed by any applicable usury statute or any other applicable
law, with regard to obligations of like character and amount, then ipso facto
the obligation to be fulfilled shall be reduced to the limit of such validity,
so that in no event shall any exaction be possible under this Instrument or
under the Note that is in excess of the current limit of such validity, but such
obligation shall be fulfilled to the limit of such validity. The provisions of
this Paragraph 1.13 shall control every other provision of this Instrument and
of the Note.
1.14 Use of Property. Obligor shall not be permitted to alter or change
---------------
the use of the Property or to abandon the Property without the prior written
consent of Agent.
1.15 Conveyance of Property. Obligor hereby acknowledges to Agent that (a)
----------------------
the identity and expertise of Obligor was and continues to be a material
circumstance upon which
-12-
Agent has relied in connection with, and which constitute valuable consideration
to Agent for, the extending to Obligor of the loan evidenced by the Note, and
(b) any change in such identity or expertise could materially impair or
jeopardize the security for the payment of the Secured Obligations granted to
Agent by this Instrument. Obligor therefore covenants and agrees with Agent, as
part of the consideration for the extending to Obligor of the loans evidenced by
the Note, that Obligor shall not convey, transfer, assign, further encumber or
pledge any or all of its interest in the Property except as permitted under the
Credit Agreement. Obligor further covenants and agrees not to seek or acquiesce
in any rezoning of the Property, any platting or replatting of the Property, or
the placing of any restrictions upon the Property without the express written
consent of Agent. Obligor acknowledges and agrees that the transfer, assignment,
encumbrance or pledge of any equity interest in Obligor shall be deemed a
transfer of Obligor's interest in the Property for the purposes of this Section
1.15 and constitutes an Event of Default hereunder.
1.16 Compliance with Credit Agreement Provisions. Obligor hereby
-------------------------------------------
acknowledges, covenants and agrees that, notwithstanding anything to the
contrary contained herein, Obligor is bound by and subject to all of the terms,
covenants, provisions and obligations set forth in the Credit Agreement
pertaining to Mortgaged Properties. In the event of any conflict between the
terms hereof and the terms of the Credit Agreement, the terms of the Credit
Agreement shall control. Obligor acknowledges that it has received and reviewed
a copy of the Credit Agreement.
ARTICLE 2
---------
2.01 Events of Default. The terms "Default" and "Event of Default" as used
-----------------
herein shall have the following meanings:
"Default" shall mean any event which, with the giving of notice or
-------
the lapse of time, or both, would become an Event of Default.
"Event of Default" shall mean (a) any default in the payment of the
----------------
obligations of Obligor hereunder or under any of the other Loan Documents
(as defined in the Credit Agreement) when the same shall become due and
payable which is not cured within any grace or notice and cure period
provided in the Credit Agreement or such other Loan Documents, if any,
subject to any limitations in the Credit Agreement on the right of Obligor
to receive notices of default or (b) any default in the performance of any
other obligations of Obligor hereunder which is not cured within any cure
period provided in the Credit Agreement (it being acknowledged by Obligor
that no such cure period is provided with respect to a failure to maintain
insurance as required in Section 1.04, any default under Section 1.15, or
any default excluded from any provision for cure of defaults contained in
the Credit Agreement, the Security Documents (as defined in the Credit
Agreement) or any other agreement evidencing or securing the Secured
Obligations), or (c) any representation or warranty of Obligor hereunder
proving to be false or incorrect in any material respect upon the date
when made or deemed to have been repeated, or (d) any default in the
performance of the obligations of Obligor or any other Person under any of
the Security Documents beyond the expiration of any
-13-
applicable notice and cure period, or (e) the occurrence of any "Event of
Default" under the Credit Agreement."
2.02 Acceleration of Maturity. If an Event of Default shall have occurred
------------------------
and be continuing, Agent may, without notice, demand, presentment, notice of
nonpayment or nonperformance, protest, notice of protest, notice of intent to
accelerate, notice of acceleration, or any other notice or any other action, all
of which are hereby waived by Obligor and all other parties obligated in any
manner whatsoever on the Secured Obligations, declare the entire unpaid balance
of the Secured Obligations immediately due and payable, and upon such
declaration, the entire unpaid balance of the Secured Obligations shall be
immediately due and payable. The failure to exercise any remedy available to
Agent shall not be deemed to be a waiver of any rights or remedies of Agent
under the Loan Documents, at law or in equity.
2.03 Foreclosure-Power of Sale. Agent may request Trustee to proceed with
-------------------------
foreclosure under the power of sale which is hereby conferred, such foreclosure
to be accomplished in accordance with the following provisions:
(a) Public Sale. Trustee is hereby authorized and empowered, and it
-----------
shall be Trustee's special duty, upon such request of Agent, to sell the
Property, or any part thereof, at public auction to the highest bidder for cash,
with or without having taken possession of same. Any such sale (including notice
thereof) shall comply with the applicable requirements, at the time of the sale,
of Section 51.002 of the Texas Property Code or, if and to the extent such
statute is not then in force, with the applicable requirements, at the time of
the sale, of the successor statute or statutes, if any, governing sales of Texas
real property under powers of sale conferred by deeds of trust. If there is no
statute in force at the time of the sale governing sales of Texas real property
under powers of sale conferred by deeds of trust, such sale shall comply with
applicable law, at the time of the sale, governing sales of Texas real property
under powers of sale conferred by deeds of trust.
(b) Right to Require Proof of Financial Ability and/or Cash Bid. At
-----------------------------------------------------------
any time during the bidding, the Trustee may require a bidding party (A) to
disclose its full name, state and city of residence, occupation, and specific
business office location, and the name and address of the principal the bidding
party is representing (if applicable), and (B) to demonstrate reasonable
evidence of the bidding party's financial ability (or, if applicable, the
financial ability of the principal of such bidding party), as a condition to the
bidding party submitting bids at the foreclosure sale. If any such bidding party
(the "Questioned Bidder") declines to comply with the Trustee's requirement in
this regard, or if such Questioned Bidder does respond but the Trustee, in
Trustee's sole and absolute discretion, deems the information or the evidence of
the financial ability of the Questioned Bidder (or, if applicable, the principal
of such bidding party) to be inadequate, then the Trustee may continue the
bidding with reservation; and in such event (1) the Trustee shall be authorized
to caution the Questioned Bidder concerning the legal obligations to be incurred
in submitting bids, and (2) if the Questioned Bidder is not the highest bidder
at the sale, or if having been the highest bidder the Questioned Bidder fails to
deliver the cash purchase price payment promptly to the Trustee, all bids by the
Questioned Bidder shall be null and void. The Trustee may, in Trustee's sole and
absolute discretion, determine that a credit bid may be in the best interest of
Obligor and Agent, and elect to sell the Property for credit or for a
combination of cash and credit; provided, however, that the Trustee shall have
no
-14-
obligation to accept any bid except an all cash bid. In the event the Trustee
requires a cash bid and cash is not delivered within a reasonable time after
conclusion of the bidding process, as specified by the Trustee, but in no event
later than 3:45 p.m. local time on the day of sale, then said contingent sale
shall be null and void, the bidding process may be recommenced, and any
subsequent bids or sale shall be made as if no prior bids were made or accepted.
(c) Sale Subject to Unmatured Secured Obligations. In addition to
---------------------------------------------
the rights and powers of sale granted under the preceding provisions of this
subsection, if default is made in the payment of any installment of the Secured
Obligations, Agent may, at Agent's option, at once or at any time thereafter
while any matured installment remains unpaid, without declaring the entire
Secured Obligations to be due and payable, orally or in writing direct Trustee
to enforce this trust and to sell the Property subject to such unmatured Secured
Obligations and to the rights, powers, liens, security interests, and
assignments securing or providing recourse for payment of such unmatured Secured
Obligations, in the same manner, all as provided in the preceding provisions of
this subsection. Sales made without maturing the Secured Obligations may be made
hereunder whenever there is a default in the payment of any installment of the
Secured Obligations, without exhausting the power of sale granted hereby, and
without affecting in any way the power of sale granted under this subsection,
the unmatured balance of the Secured Obligations or the rights, powers, liens,
security interests, and assignments securing or providing recourse for payment
of the Secured Obligations.
(d) Partial Foreclosure. Sale of a part of the Property shall not
-------------------
exhaust the power of sale, but sales may be made from time to time until the
Secured Obligations are paid, performed and discharged in full. It is intended
by each of the foregoing provisions of this subsection that Trustee may, after
any request or direction by Agent, sell not only the Land and the improvements
located thereon, but also the fixtures and Personal Property and other interests
constituting a part of the Property or any part thereof, along with the Land and
the improvements located thereon or any part thereof, as a unit and as a part of
a single sale, or may sell at any time or from time to time any part or parts of
the Property separately from the remainder of the Property. It shall not be
necessary to have present or to exhibit at any sale any of the Property.
(e) Trustee's Deeds. After any sale under this subsection, Trustee
---------------
shall make good and sufficient deeds, assignments, and other conveyances to the
purchaser or purchasers thereunder in the name of Obligor, conveying the
Property or any part thereof so sold to the purchaser or purchasers with general
warranty of title by Obligor. It is agreed that in any deeds, assignments or
other conveyances given by Trustee, any and all statements of fact or other
recitals therein made as to the identity of Agent, the occurrence or existence
of any Event of Default, the notice of intention to accelerate, or acceleration
of, the maturity of the Secured Obligations, the request to sell, notice of
sale, time, place, terms and manner of sale, and receipt, distribution, and
application of the money realized therefrom, the due and proper appointment of a
substitute Trustee, and without being limited by the foregoing, any other act or
thing having been duly done by or on behalf of Agent or by or on behalf of
Trustee, shall be taken by all courts of law and equity as prima facie evidence
that such statements or recitals state true, correct, and complete facts and are
without further question to be so accepted, and Obligor does hereby ratify and
confirm any and all acts that Trustee may lawfully do in the premises by virtue
hereof.
-15-
2.04 Agent's Judicial Remedies. Agent, or Trustee, upon written request of
-------------------------
Agent, may proceed by suit or suits, at law or in equity, to enforce the payment
of the Secured Obligations and the performance and discharge of the Secured
Obligations in accordance with the terms hereof, of the Note, and the other Loan
Documents, to foreclose the liens and security interests of this Instrument as
against all or any part of the Property, and to have all or any part of the
Property sold under the judgment or decree of a court of competent jurisdiction.
This remedy shall be cumulative of any other nonjudicial remedies available to
Agent with respect to the Loan Documents. Proceeding with a request or receiving
a judgment for legal relief shall not be or be deemed to be an election of
remedies or bar any available nonjudicial remedy of Agent.
2.05 Agent's Right to Appointment of Receiver. Agent, as a matter of right
----------------------------------------
and without regard to the sufficiency of the security for repayment of the
Secured Obligations and performance and discharge of the Secured Obligations,
without notice to Obligor and without any showing of insolvency, fraud, or
mismanagement on the part of Obligor, and without the necessity of filing any
judicial or other proceeding other than the proceeding for appointment of a
receiver, shall be entitled to the appointment of a receiver or receivers of the
Property or any part thereof, and of the rents, issues, profits and revenues of
the Property, and Obligor hereby irrevocably consents to the appointment of a
receiver or receivers. Any receiver appointed pursuant to the provisions of this
subsection shall have the usual powers and duties of receivers in such matters.
2.06 Right to Enter and Take Possession.
----------------------------------
(a) If an Event of Default shall have occurred and be continuing,
Obligor upon demand of Agent, shall forthwith surrender to Agent the actual
possession of the Property and if, and to the extent, permitted by law, Agent
itself, or by such officers or agents as it may appoint, may enter and take
possession of all the Property without the appointment of a receiver, or an
application therefor, and may exclude Obligor and its agents and employees
wholly therefrom, and may have joint access with Obligor to the books, papers
and accounts of Obligor.
(b) If Obligor shall for any reason fail to surrender or deliver the
Property or any part thereof after such demand by Agent, Agent may obtain a
judgment or decree conferring upon Agent the right to immediate possession or
requiring Obligor to deliver immediate possession of the Property to Agent.
Obligor will pay to Agent, upon demand, all expenses of obtaining such judgment
or decree, including reasonable compensation to Agent, its attorneys and agents;
and all such expenses and compensation shall, until paid, be secured by the lien
of this Instrument.
(c) Upon every such entering upon or taking of possession, Agent may
hold, store, use, operate, manage and control the Property and conduct the
business thereof, and, from time to time (i) make all necessary and proper
maintenance, repairs, renewals, replacements, additions, betterments and
improvements thereto and thereon and purchase or otherwise acquire additional
fixtures, personalty and other property; (ii) insure or keep the Property
insured; (iii) manage and operate the Property and exercise all the rights and
powers of Obligor to the same extent as Obligor could in its own name or
otherwise with respect to the same; and (iv) enter into any and all agreements
with respect to the exercise by others of any of the powers herein granted
Agent, all as Agent from time to time may determine to be in its best interest.
Agent may collect
-16-
and receive all the rents, issues, profits and revenues from the Property,
including those past due as well as those accruing thereafter, and, after
deducting (1) all expenses of taking, holding, managing and operating the
Property (including compensation for the services of all persons employed for
such purposes); (2) the cost of all such maintenance, repairs, renewals,
replacements, additions, betterments, improvements, purchases and acquisitions;
(3) the cost of such insurance; (4) such taxes, assessments and other similar
charges as Agent may at its option pay; (5) other proper charges upon the
Property or any part thereof; and (6) the reasonable compensation, expenses and
disbursements of the attorneys and agents of Agent, Agent shall apply the
remainder of the monies and proceeds so received by Agent in accordance with
Section 12.5 of the Credit Agreement. Agent shall have no obligation to
discharge any duties of a landlord to any tenant or to incur any liability as a
result of any exercise by Agent of any rights under this Instrument or
otherwise. Agent shall not be liable for any failure to collect rents, issues,
profits and revenues from the Property, nor shall Agent be liable to account for
any such rents, issues, profits or revenues unless actually received by Agent.
(d) Whenever all that is due upon the Secured Obligations and under any of
the terms, covenants, conditions and agreements of this Instrument, shall have
been paid and all Events of Default made good, Agent shall surrender possession
of the Property to Obligor, its successors or assigns. The same right of taking
possession, however, shall exist if any subsequent Event of Default shall occur
and be continuing.
2.07 Performance by Agent. If Obligor shall Default in the payment,
--------------------
performance or observance of any term, covenant or condition of this Instrument,
Agent may, so long as such Default continues, at its option, pay, perform or
observe the same, and all payments made or costs or expenses incurred by Agent
in connection therewith, shall be secured hereby and shall be, upon demand,
immediately repaid by Obligor to Agent with interest thereon at the Default Rate
(as defined in the Credit Agreement). Agent shall be the sole judge of the
necessity for any such actions and of the amounts to be paid. Agent is hereby
empowered to enter and to authorize others to enter upon the Land or any part
thereof for the purpose of performing or observing any such defaulted term,
covenant or condition without thereby becoming liable to Obligor or any person
in possession holding under Obligor.
2.08 Agent's Uniform Commercial Code Remedies. Agent may exercise its
----------------------------------------
rights of enforcement with respect to fixtures and Personal Property under the
Uniform Commercial Code as enacted in Texas, and in conjunction with, in
addition to or in substitution for the rights and remedies under the said
Uniform Commercial Code, Agent may and Obligor agrees as follows:
(a) without demand or notice to Obligor, enter upon the Property to
take possession of, assemble, receive, and collect the Personal Property, or any
part thereof, or to render it unusable; and
(b) Agent may require Obligor to assemble the Personal Property and
make it available at a place Agent designates which is mutually convenient to
allow Agent to take possession or dispose of the Personalty; and
-17-
(c) written notice mailed to Obligor as provided herein at least ten
(10) days prior to the date of public sale of the Personal Property or prior to
the date after which private sale of the Personal Property will be made shall
constitute reasonable notice; and
(d) any sale made pursuant to the provisions of this subsection
shall be deemed to have been a public sale conducted in a commercially
reasonable manner if held contemporaneously with the sale of the other Property
under power of sale as provided herein upon giving the same notice with respect
to the sale of the Personal Property hereunder as is required for such sale of
the other Property under power of sale, and such sale shall be deemed to be
pursuant to a security agreement covering both real and personal property under
Section 9.501(d) of the Uniform Commercial Code as enacted in Texas; and
(e) in the event of a foreclosure sale, whether made by the Trustee
under the terms hereof, or under judgment of a court, the Personal Property and
the other Property may, at the option of Agent, be sold as a whole; and
(f) it shall not be necessary that Agent take possession of the
Personal Property, or any part thereof, prior to the time that any sale pursuant
to the provisions of this subsection is conducted, and it shall not be necessary
that the Personal Property or any part thereof be present at the location of
such sale; and
(g) prior to application of proceeds of disposition of the Personal
Property to the Secured Obligations, such proceeds shall be applied to the
reasonable expenses of retaking, holding, preparing for sale or lease, selling,
leasing and the like, and the reasonable attorneys' fees and legal expenses
incurred by Agent; and
(h) after notification, if any, hereafter provided in this
subsection, Agent may sell, lease, or otherwise dispose of the Personal
Property, or any part thereof, in one or more parcels at public or private sale
or sales, at Agent's offices or elsewhere, for cash, on credit, or for future
delivery. Upon the request of Agent, Obligor shall assemble the Personal
Property and make it available to Agent at any place designated by Agent that is
reasonably convenient to Obligor and Agent. Obligor agrees that Agent shall not
be obligated to give more than ten (10) days' written notice of the time and
place of any public sale or of the time after which any private sale may take
place and that such notice shall constitute reasonable notice of such matters.
Obligor shall be liable for all expenses of retaking, holding, preparing for
sale, or the like, and all attorneys' fees, legal expenses, and all other costs
and expenses incurred by Agent in connection with the collection of the Secured
Obligations and the enforcement of Agent's rights under the Loan Documents.
Agent shall apply the proceeds of the sale of the Personal Property against the
Secured Obligations in accordance with the provisions of this Instrument.
Obligor shall remain liable for any deficiency if the proceeds of any sale or
disposition of the Personal Property are insufficient to pay the Secured
Obligations in full. Obligor waives all rights of marshaling in respect of the
Personal Property; and
(i) any and all statements of fact or other recitals made in any
xxxx of sale or assignment or other instrument evidencing any foreclosure sale
hereunder, the nonpayment of the Secured Obligations, the occurrence of any
Event of Default, Agent having declared all or a portion of such Secured
Obligations to be due and payable, the notice of time, place, and terms
-18-
of sale and of the properties to be sold having been duly given, or any other
act or thing having been duly done by Agent, shall be taken as prima facie
evidence of the truth of the facts so stated and recited; and
(j) Agent may appoint or delegate any one or more persons as agent
to perform any act or acts necessary or incident to any sale held by Agent,
including the sending of notices and the conduct of the sale, but in the name
and on behalf of Agent.
2.09 Possession After Foreclosure. If the liens or security interests
----------------------------
hereof shall be foreclosed by power of sale granted herein, by judicial action,
or otherwise, the purchaser at any such sale shall receive, as an incident to
purchaser's ownership, immediate possession of the property purchased, and if
Obligor or Obligor's successors shall hold possession of said property or any
part thereof subsequent to foreclosure, Obligor and Obligor's successors shall
be considered as tenants at sufferance of the purchaser at foreclosure sale
(without limitation of other rights or remedies, at a reasonable rental per day,
due and payable daily, based upon the value of the portion of the Property so
occupied and sold to such purchaser), and anyone occupying such portion of the
Property, after demand is made for possession thereof, shall be guilty of
forcible detainer and shall be subject to eviction and removal, forcible or
otherwise, with or without process of law, and all damages by reason thereof are
hereby expressly waived.
2.10 Abandonment of Sale. In the event a foreclosure hereunder is
-------------------
commenced by Trustee in accordance herewith, at any time before the sale,
Trustee may abandon the sale, and Agent may then institute suit for the
collection of the Secured Obligations and for the foreclosure of the liens and
security interests hereof and of the Loan Documents. If Agent should institute a
suit for the collection of the Secured Obligations and for a foreclosure of the
liens and security interests, Agent may, at any time before the entry of a final
judgment in said suit, dismiss the same and require Trustee to sell the Property
or any part thereof in accordance with the provisions of this Instrument.
2.11 Payment of Fees. If the Note or any other part of the Secured
---------------
Obligations shall be collected or if any of the Obligations shall be enforced by
legal proceedings, whether through a probate or bankruptcy court or otherwise,
or shall be placed in the hands of an attorney for collection after maturity,
whether matured by the expiration of time or by an option given to Agent to
mature same, or if Agent becomes a party to any suit where this Instrument or
the Property or any part thereof is involved, Obligor agrees to pay Agent's
attorneys' fees and expenses incurred, and such fees shall be and become a part
of the Secured Obligations and shall bear interest from the date such costs are
incurred at the Default Rate.
2.12 Miscellaneous.
-------------
(a) Discontinuance of Remedies. In case Agent shall have proceeded
--------------------------
to invoke any right, remedy, or recourse permitted under the Loan Documents and
shall thereafter elect to discontinue or abandon same for any reason, Agent
shall have the unqualified right so to do and, in such event, Obligor and Agent
shall be restored to their former positions with respect to the Secured
Obligations, the Loan Documents, the Property or otherwise, and the rights,
remedies, recourses and powers of Agent shall continue as if same had never been
invoked.
-19-
(b) Other Remedies. In addition to the remedies set forth in this
--------------
Article, upon the occurrence of an Event of Default, Agent and Trustee shall, in
addition, have all other remedies available to them at law or in equity.
(c) Remedies Cumulative; Non-Exclusive; Etc. All rights, remedies,
----------------------------------------
and recourses of Agent granted in the Note, this Instrument, the other Loan
Documents, any other pledge of collateral, or otherwise available at law or
equity: (i) shall be cumulative and concurrent; (ii) may be pursued separately,
successively, or concurrently against Obligor, the Property, or any one or more
of them, at the sole discretion of Agent; (iii) may be exercised as often as
occasion therefor shall arise, it being agreed by Obligor that the exercise or
failure to exercise any of same shall in no event be construed as a waiver or
release thereof or of any other right, remedy, or recourse; (iv) shall be
nonexclusive; (v) shall not be conditioned upon Agent exercising or pursuing any
remedy in relation to the Property prior to Agent bringing suit to recover the
Secured Obligations; and (vi) in the event Agent elects to bring suit on the
Secured Obligations and obtains a judgment against Obligor prior to exercising
any remedies in relation to the Property, all liens and security interests,
including the lien of this Instrument, shall remain in full force and effect and
may be exercised at Agent's option.
(d) Partial Release; Etc. Agent may release, regardless of
---------------------
consideration, any part of the Property without, as to the remainder, in any way
impairing, affecting, subordinating, or releasing the lien or security interests
evidenced by this Instrument or the other Loan Documents or affecting the
obligations of Obligor or any other party to pay the Secured Obligations or
perform and discharge the Secured Obligations. For payment of the Secured
Obligations, Agent may resort to any of the collateral therefor in such order
and manner as Agent may elect. No collateral heretofore, herewith, or hereafter
taken by Agent shall in any manner impair or affect the collateral given
pursuant to the Loan Documents, and all collateral shall be taken, considered,
and held as cumulative.
(e) Waiver and Release by Obligor. Obligor hereby irrevocably and
-----------------------------
unconditionally waives and releases: (i) all benefits that might accrue to
Obligor by virtue of any present or future law exempting the Property from
attachment, levy or sale on execution or providing for any appraisement,
valuation, stay of execution, exemption from civil process, redemption, or
extension of time for payment; (ii) all notices of any Event of Default or of
Trustee's exercise of any right, remedy, or recourse provided for under the Loan
Documents; and (iii) any right to a marshaling of assets or a sale in inverse
order of alienation.
(f) No Implied Covenants. Obligor and Agent mutually agree that
--------------------
there are no, nor shall there be any, implied covenants of good faith and fair
dealing or other similar covenants or agreements in this Instrument and the
other Loan Documents. All agreed contractual duties are set forth in this
Instrument, the Note, and the other Loan Documents.
(g) Real Property Laws Govern. The remedies in this Article 2 shall
-------------------------
be available under and governed by the real property laws of Texas and shall not
be governed by the personal property laws of Texas, including but not limited
to, the power to dispose of personal property in a commercially reasonable
manner under Section 9.504 of the Uniform Commercial Code of Texas, provided,
Agent elects to proceed as to the fixtures and Personal Property
-20-
together with the other Property under and pursuant to the real property
remedies of this Article 2.
2.13 Waiver of Deficiency Statute.
----------------------------
(a) Waiver. In the event an interest in any of the Property is
------
foreclosed upon pursuant to a judicial or nonjudicial foreclosure sale, Obligor
agrees as follows: notwithstanding the provisions of Sections 51.003, 51.004,
and 51.005 of the Texas Property Code (as the same may be amended from time to
time), and to the extent permitted by law, Obligor agrees that Agent shall be
entitled to seek a deficiency judgment from Obligor and any other party
obligated on the Note equal to the difference between the amount owing on the
Note and the amount for which the Property was sold pursuant to judicial or
nonjudicial foreclosure sale. Obligor expressly recognizes that this section
constitutes a waiver of the above-cited provisions of the Texas Property Code
which would otherwise permit Obligor and other persons against whom recovery of
deficiencies is sought independently (even absent the initiation of deficiency
proceedings against them) to present competent evidence of the fair market value
of the Property as of the date of the foreclosure sale and offset against any
deficiency the amount by which the foreclosure sale price is determined to be
less than such fair market value. Obligor further recognizes and agrees that
this waiver creates an irrebuttable presumption that the foreclosure sale price
is equal to the fair market value of the Property for purposes of calculating
deficiencies owed by Obligor and others against whom recovery of a deficiency is
sought.
(b) Alternative to Waiver. Alternatively, in the event the waiver
---------------------
provided for in subsection (a) above is determined by a court of competent
jurisdiction to be unenforceable, the following shall be the basis for the
finder of fact's determination of the fair market value of the Property as of
the date of the foreclosure sale in proceedings governed by Sections 51.003,
51.004 and 51.005 of the Texas Property Code (as amended from time to time): (i)
the Property shall be valued in an "as is" condition as of the date of the
foreclosure sale, without any assumption or expectation that the Property will
be repaired or improved in any manner before a resale of the Property after
foreclosure; (ii) the valuation shall be based upon an assumption that the
foreclosure purchaser desires a resale of the Property for cash promptly (but no
later than twelve [12] months) following the foreclosure sale; (iii) all
reasonable closing costs customarily borne by the seller in commercial real
estate transactions should be deducted from the gross fair market value of the
Property, including, without limitation, brokerage commissions, title insurance,
a survey of the Property, tax prorations, attorneys' fees, and marketing costs;
(iv) the gross fair market value of the Property shall be further discounted to
account for any estimated holding costs associated with maintaining the Property
pending sale, including, without limitation, utilities expenses, property
management fees, taxes and assessments (to the extent not accounted for in (iii)
above), and other maintenance, operational and ownership expenses; and (v) any
expert opinion testimony given or considered in connection with a determination
of the fair market value of the Property must be given by persons having at
least five (5) years experience in appraising property similar to the Property
and who have conducted and prepared a complete written appraisal of the Property
taking into consideration the factors set forth above.
2.14 Purchase by Agent. Upon any foreclosure sale, Agent, on behalf of the
-----------------
Banks, may bid for and purchase the Property and shall be entitled to apply all
or any part of the Secured Obligations secured hereby as a credit to the
purchase price.
-21-
2.15 Application of Proceeds of Sale. The proceeds received by Agent as a
-------------------------------
result of a foreclosure sale of the Property or the exercise of any other rights
or remedies hereunder shall be applied in the manner provided for in Section
12.5 of the Credit Agreement.
2.16 WAIVER OF APPRAISEMENT, VALUATION, STAY, EXTENSION AND REDEMPTION
-----------------------------------------------------------------
LAWS. OBLIGOR AGREES TO THE FULL EXTENT PERMITTED BY LAW, THAT IN CASE OF A
----
DEFAULT OR EVENT OF DEFAULT ON THE PART OF OBLIGOR HEREUNDER, NEITHER OBLIGOR
NOR ANYONE CLAIMING THROUGH OR UNDER IT SHALL OR WILL SET UP, CLAIM OR SEEK TO
TAKE ADVANTAGE OF ANY MORATORIUM, REINSTATEMENT, FORBEARANCE, APPRAISEMENT,
VALUATION, STAY, EXTENSION, HOMESTEAD, EXEMPTION OR REDEMPTION LAWS NOW OR
HEREAFTER IN FORCE, IN ORDER TO PREVENT OR HINDER THE ENFORCEMENT OR FORECLOSURE
OF THIS INSTRUMENT, OR THE ABSOLUTE SALE OF THE PROPERTY, OR THE FINAL AND
ABSOLUTE PUTTING INTO POSSESSION THEREOF, IMMEDIATELY AFTER SUCH SALE, OF THE
PURCHASERS THEREAT, AND OBLIGOR, FOR ITSELF AND ALL WHO MAY AT ANY TIME CLAIM
THROUGH OR UNDER IT, HEREBY WAIVES TO THE FULL EXTENT THAT IT MAY LAWFULLY SO
DO, THE BENEFIT OF ALL SUCH LAWS, INCLUDING WITHOUT LIMITATION, SECTION 51.003
AND SECTION 51.004 OF THE TEX. PROP. CODE, AND ANY AND ALL RIGHT TO HAVE THE
ASSETS COMPRISED IN THE SECURITY INTENDED TO BE CREATED HEREBY MARSHALED UPON
ANY FORECLOSURE OF THE LIEN HEREOF.
2.17 WAIVER OF HOMESTEAD. OBLIGOR HEREBY WAIVES AND RENOUNCES ALL
-------------------
HOMESTEAD AND EXEMPTION RIGHTS PROVIDED FOR BY THE CONSTITUTION AND THE LAWS OF
THE UNITED STATES AND OF ANY STATE, IN AND TO THE PROPERTY AS AGAINST THE
COLLECTION OF THE SECURED OBLIGATIONS, OR ANY PART HEREOF.
2.18 Leases. Trustee, at the option of Agent, is authorized to foreclose
------
this Instrument subject to the rights of any tenants of the Property, and the
failure to make any such tenants parties to any such foreclosure proceedings and
to foreclose their rights will not be, nor be asserted to be by Obligor, a
defense to any proceedings instituted by Agent to collect the sums secured
hereby.
2.19 Waiver.
------
(a) No delay or omission of Agent or of any Bank to exercise any
right, power or remedy accruing upon any Default shall exhaust or impair any
such right, power or remedy or shall be construed to be a waiver of any such
Default, or acquiescence therein; and every right, power and remedy given by
this Instrument to Agent may be exercised from time to time and as often as may
be deemed expedient by Agent. No consent or waiver, expressed or implied, by
Agent to or of any breach or Default by Obligor in the performance of the
obligations thereof hereunder shall be deemed or construed to be a consent or
waiver to or of any other breach or Default in the performance of the same or
any other obligations of Obligor hereunder. Failure on the part of Banks to
complain of any act or failure to act or to declare an Event of Default,
-22-
irrespective of how long such failure continues, shall not constitute a waiver
by any Bank of its rights hereunder or impair any rights, powers or remedies
consequent on any breach or Default by Obligor.
(b) If Banks or Agent on behalf of the Banks, (i) grant forbearance
or an extension of time for the payment of any sums secured hereby; (ii) take
other or additional security for the payment of any sums secured hereby; (iii)
waive or do not exercise any right granted herein or in the Note, the Credit
Agreement or any other Loan Document (as defined in the Credit Agreement); (iv)
release any part of the Property from the lien of this Instrument or otherwise
changes any of the terms, covenants, conditions or agreements of the Note or
this Instrument; (v) consent to the filing of any map, plat or replat affecting
the Property; (vi) consent to the granting of any easement or other right
affecting the Property; or (vii) make or consent to any agreement subordinating
the lien hereof, any such act or omission shall not release, discharge, modify,
change or affect the original liability under the Note, the Credit Agreement,
this Instrument or any other obligation of Obligor or any subsequent purchaser
of the Property or any part thereof, or any maker, co-signer, endorser, surety
or guarantor; nor shall any such act or omission preclude Agent from exercising
any right, power or privilege herein granted or intended to be granted in the
event of any Default then made or of any subsequent Default; nor, except as
otherwise expressly provided in an instrument or instruments executed by Agent,
shall the lien of this Instrument be altered thereby. In the event of the sale
or transfer by operation of law or otherwise of all or any part of the Property,
Agent, without notice, is hereby authorized and empowered to deal with any such
vendee or transferee with reference to the Property or the Secured Obligations
secured hereby, or with reference to any of the terms, covenants, conditions or
agreements hereof, as fully and to the same extent as it might deal with the
original parties hereto and without in any way releasing or discharging any
liabilities, obligations or undertakings.
2.20 Suits to Protect the Property. Agent shall have power (a) to
-----------------------------
institute and maintain such suits and proceedings as it may deem expedient to
prevent any impairment of the Property by any acts which may be unlawful or in
violation of this Instrument, (b) to preserve or protect its interest in the
Property and in the rents, issues, profits and revenues arising therefrom, and
(c) to restrain the enforcement of or compliance with any legislation or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid, if the enforcement of or compliance with such enactment, rule or order
would impair the security hereunder or be prejudicial to the interest of Banks.
2.21 Agent May File Proofs of Claim. In the case of any receivership,
------------------------------
insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or
other proceedings affecting Obligor, its creditors or its property, Agent, to
the extent permitted by law, shall be entitled to file such proofs of claim and
other documents as may be necessary or advisable in order to have the claims of
Agent allowed in such proceedings for the entire amount due and payable by
Obligor under this Instrument at the date of the institution of such proceedings
and for any additional amount which may become due and payable by Obligor
hereunder after such date.
2.22 WAIVER OF OBLIGOR'S RIGHTS. BY EXECUTION OF THIS INSTRUMENT AND BY
--------------------------
INITIALING THIS PARAGRAPH 2.22, OBLIGOR EXPRESSLY: (A) ACKNOWLEDGES THE RIGHT OF
AGENT AND/OR BANKS TO ACCELERATE THE
-23-
SECURED OBLIGATIONS; (B) WAIVES ANY AND ALL RIGHTS WHICH OBLIGOR MAY HAVE UNDER
THE CONSTITUTION OF THE UNITED STATES (INCLUDING, WITHOUT LIMITATION, THE FIFTH
AND FOURTEENTH AMENDMENTS THEREOF), THE VARIOUS PROVISIONS OF THE CONSTITUTIONS
FOR THE SEVERAL STATES, OR BY REASON OF ANY OTHER APPLICABLE LAW, TO NOTICE AND
TO JUDICIAL HEARING PRIOR TO THE EXERCISE BY AGENT OF ANY RIGHT OR REMEDY HEREIN
PROVIDED TO AGENT, EXCEPT SUCH NOTICE (IF ANY) AS IS SPECIFICALLY REQUIRED TO BE
PROVIDED IN THIS INSTRUMENT; (C) ACKNOWLEDGES THAT OBLIGOR HAS READ THIS
INSTRUMENT AND ANY AND ALL QUESTIONS REGARDING THE LEGAL EFFECT OF THIS
INSTRUMENT AND ITS PROVISIONS HAVE BEEN EXPLAINED FULLY TO OBLIGOR AND OBLIGOR
HAS CONSULTED WITH COUNSEL OF OBLIGOR'S CHOICE PRIOR TO EXECUTING THIS
INSTRUMENT; AND (D) ACKNOWLEDGES THAT ALL WAIVERS OF THE AFORESAID RIGHTS OF
OBLIGOR HAVE BEEN MADE KNOWINGLY, INTENTIONALLY AND WILLINGLY BY OBLIGOR AS PART
OF A BARGAINED FOR LOAN TRANSACTION.
INITIALED BY OBLIGOR:
---------------
2.23 Claims Against Agent and Banks. No action at law or in equity shall
------------------------------
be commenced, or allegation made, or defense raised, by Obligor against Agent or
Banks for any claim under or related to this Instrument, the Note, the Credit
Agreement or any other instrument, document, transfer, conveyance, assignment or
loan agreement given by Obligor with respect to the Secured Obligations secured
hereby, or related to the conduct of the parties thereunder, unless written
notice of such claim, expressly setting forth the particulars of the claim
alleged by Obligor, shall have been given to Agent within sixty (60) days from
and after the initial awareness of Obligor of the event, omission or
circumstances forming the basis of Obligor for such claim. Any failure by
Obligor to timely provide such written notice to Agent shall constitute a waiver
by Obligor of such claim.
2.24 Intentionally omitted.
---------------------
2.25 Application of Monies by Agent.
------------------------------
(a) Upon the occurrence of an Event of Default, Agent shall be
entitled to xxx for and to recover judgment against Obligor for the whole amount
of the Secured Obligations due and unpaid together with costs and expenses,
including without limitation, the reasonable compensation, expenses and
disbursements of Agent's agents, attorneys and other representatives, either
before, after or during the pendency of any proceedings for the enforcement of
this Instrument, and the right of Agent to recover such judgment shall not be
affected by any taking possession or foreclosure sale hereunder, or by the
exercise of any other right, power or remedy for the enforcement of the terms of
this Instrument, or the foreclosure of the lien hereof.
(b) In case of a foreclosure sale of all or any part of the Property
and the application of the proceeds of sale to the payment of the Secured
Obligations secured hereby,
-24-
Agent shall be entitled to enforce payment from Obligor of all Secured
Obligations then remaining due and unpaid and to recover judgment against
Obligor for any portion thereof remaining unpaid, with interest.
(c) Obligor hereby agrees, to the extent permitted by law, that no
recovery of any such judgment by Agent and no attachment or levy of any
execution upon any of the Property or any other property shall in any way affect
the lien of this Instrument upon the Property or any part thereof or any lien,
rights, powers or remedies of Agent hereunder, but such lien, rights, powers and
remedies shall continue unimpaired as before.
(d) Any monies collected or received by Agent under this Paragraph
2.25 shall be applied as provided in Paragraph 2.15 hereof.
(e) The provisions of this paragraph shall not be deemed to limit or
otherwise modify the provisions of the Guaranty.
2.26 Indemnification; Subrogation; Waiver of Offset.
----------------------------------------------
(a) OBLIGOR SHALL INDEMNIFY, DEFEND AND HOLD AGENT AND THE BANKS
HARMLESS FOR, FROM AND AGAINST ANY AND ALL LIABILITY, SECURED OBLIGATIONS,
LOSSES, DAMAGES, PENALTIES, CLAIMS, ACTIONS, SUITS, COSTS AND EXPENSES
(INCLUDING AGENT'S REASONABLE ATTORNEYS' FEES, TOGETHER WITH REASONABLE
APPELLATE COUNSEL FEES, IF ANY) OF WHATEVER KIND OR NATURE WHICH MAY BE ASSERTED
AGAINST, IMPOSED ON OR INCURRED BY AGENT AND THE BANKS IN CONNECTION WITH THE
SECURED OBLIGATIONS, THIS INSTRUMENT, THE PROPERTY, OR ANY PART THEREOF, OR THE
EXERCISE BY AGENT OF ANY RIGHTS OR REMEDIES GRANTED TO IT UNDER THIS INSTRUMENT;
PROVIDED, HOWEVER, THAT NOTHING HEREIN SHALL BE CONSTRUED TO OBLIGATE OBLIGOR TO
INDEMNIFY, DEFEND AND HOLD HARMLESS AGENT AND THE BANKS FOR, FROM AND AGAINST
ANY AND ALL LIABILITIES, SECURED OBLIGATIONS, LOSSES, DAMAGES, PENALTIES,
CLAIMS, ACTIONS, SUITS, COSTS AND EXPENSES ASSERTED AGAINST, IMPOSED ON OR
INCURRED BY AGENT OR A BANK BY REASON OF AGENT'S OR SUCH BANK'S WILLFUL
MISCONDUCT OR GROSS NEGLIGENCE IF A JUDGMENT IS ENTERED AGAINST AGENT OR A BANK
BY A COURT OF COMPETENT JURISDICTION AFTER THE EXHAUSTION OF ALL APPLICABLE
APPEAL PERIODS.
(b) IF AGENT OR A BANK IS MADE A PARTY DEFENDANT TO ANY LITIGATION
OR ANY CLAIM IS THREATENED OR BROUGHT AGAINST AGENT OR A BANK CONCERNING THE
SECURED OBLIGATIONS, THIS INSTRUMENT, THE PROPERTY, OR ANY PART THEREOF, OR ANY
INTEREST THEREIN, OR THE CONSTRUCTION, MAINTENANCE, OPERATION OR OCCUPANCY OR
USE THEREOF, THEN OBLIGOR SHALL INDEMNIFY, DEFEND AND HOLD AGENT AND THE BANKS
HARMLESS FOR, FROM AND AGAINST ALL LIABILITY BY REASON OF SAID LITIGATION OR
CLAIMS, INCLUDING REASONABLE ATTORNEYS' FEES (TOGETHER WITH REASONABLE
-25-
APPELLATE COUNSEL FEES, IF ANY) AND EXPENSES INCURRED BY AGENT AND THE BANKS IN
ANY SUCH LITIGATION OR CLAIM, WHETHER OR NOT ANY SUCH LITIGATION OR CLAIM IS
PROSECUTED TO JUDGMENT; PROVIDED, HOWEVER, THAT NOTHING IN THIS SECTION 2.26(b)
SHALL BE CONSTRUED TO OBLIGATE OBLIGOR TO INDEMNIFY, DEFEND AND HOLD HARMLESS
AGENT OR A BANK FOR, FROM AND AGAINST ANY AND ALL LIABILITIES OR CLAIMS IMPOSED
ON OR INCURRED BY AGENT OR A BANK BY REASON OF AGENT'S OR SUCH BANK'S WILLFUL
MISCONDUCT OR GROSS NEGLIGENCE IF A JUDGMENT IS ENTERED AGAINST AGENT OR A BANK
BY A COURT OF COMPETENT JURISDICTION AFTER EXHAUSTION OF ALL APPLICABLE APPEAL
PERIODS. IF AGENT COMMENCES AN ACTION AGAINST OBLIGOR TO ENFORCE ANY OF THE
TERMS HEREOF OR TO PROSECUTE ANY BREACH BY OBLIGOR OF ANY OF THE TERMS HEREOF OR
TO RECOVER ANY SUM SECURED HEREBY, OBLIGOR SHALL PAY TO AGENT ITS REASONABLE
ATTORNEYS' FEES (TOGETHER WITH REASONABLE APPELLATE COUNSEL, FEES, IF ANY) AND
EXPENSES. THE RIGHT TO SUCH ATTORNEYS' FEES (TOGETHER WITH REASONABLE APPELLATE
COUNSEL FEES, IF ANY) AND EXPENSES SHALL BE DEEMED TO HAVE ACCRUED ON THE
COMMENCEMENT OF SUCH ACTION, AND SHALL BE ENFORCEABLE WHETHER OR NOT SUCH ACTION
IS PROSECUTED TO JUDGMENT. IF OBLIGOR BREACHES ANY TERM OF THIS INSTRUMENT,
AGENT MAY ENGAGE THE SERVICES OF AN ATTORNEY OR ATTORNEYS TO PROTECT ITS RIGHTS
HEREUNDER, AND IN THE EVENT OF SUCH ENGAGEMENT FOLLOWING ANY BREACH BY OBLIGOR,
OBLIGOR SHALL PAY AGENT REASONABLE ATTORNEYS' FEES (TOGETHER WITH REASONABLE
APPELLATE COUNSEL FEES, IF ANY) AND EXPENSES INCURRED BY AGENT, WHETHER OR NOT
AN ACTION IS ACTUALLY COMMENCED AGAINST OBLIGOR BY REASON OF SUCH BREACH. ALL
REFERENCES TO "ATTORNEYS" IN THIS SUBSECTION AND ELSEWHERE IN THIS INSTRUMENT
SHALL INCLUDE WITHOUT LIMITATION ANY ATTORNEY OR LAW FIRM ENGAGED BY AGENT AND
AGENT'S IN-HOUSE COUNSEL, AND ALL REFERENCES TO "FEES AND EXPENSES" IN THIS
SUBSECTION AND ELSEWHERE IN THIS INSTRUMENT SHALL INCLUDE WITHOUT LIMITATION ANY
FEES OF SUCH ATTORNEY OR LAW FIRM AND ANY ALLOCATION CHARGES AND ALLOCATION
COSTS OF AGENT'S IN-HOUSE COUNSEL.
(c) A waiver of subrogation shall be obtained by Obligor from its
insurance carrier and, consequently, Obligor waives any and all right to claim
or recover against Agent, its officers, employees, agents and representatives,
for loss of or damage to Obligor, the Property, Obligor's property or the
property of others under Obligor's control from any cause insured against or
required to be insured against by the provisions of this Instrument.
(d) ALL SUMS PAYABLE BY OBLIGOR HEREUNDER SHALL BE PAID WITHOUT
NOTICE (EXCEPT AS MAY OTHERWISE BE PROVIDED HEREIN), DEMAND, COUNTERCLAIM,
SETOFF, DEDUCTION OR DEFENSE AND WITHOUT ABATEMENT, SUSPENSION, DEFERMENT,
DIMINUTION OR REDUCTION, AND THE SECURED OBLIGATIONS AND LIABILITIES OF OBLIGOR
HEREUNDER SHALL IN NO WAY BE RELEASED, DISCHARGED OR OTHERWISE AFFECTED BY
REASON OF: (I)
-26-
ANY DAMAGE TO OR DESTRUCTION OF OR ANY CONDEMNATION OR SIMILAR TAKING OF THE
PROPERTY OR ANY PART THEREOF; (II) ANY RESTRICTION OR PREVENTION OF OR
INTERFERENCE WITH ANY USE OF THE PROPERTY OR ANY PART THEREOF; (III) ANY TITLE
DEFECT OR ENCUMBRANCE OR ANY EVICTION FROM THE LAND OR THE IMPROVEMENTS ON THE
LAND OR ANY PART THEREOF BY TITLE PARAMOUNT OR OTHERWISE; (IV) ANY BANKRUPTCY,
INSOLVENCY, REORGANIZATION, COMPOSITION, ADJUSTMENT, DISSOLUTION, LIQUIDATION,
OR OTHER LIKE PROCEEDING RELATING TO AGENT, OR ANY ACTION TAKEN WITH RESPECT TO
THIS INSTRUMENT BY ANY TRUSTEE OR RECEIVER OF AGENT, OR BY ANY COURT, IN SUCH
PROCEEDING; (V) ANY CLAIM WHICH OBLIGOR HAS, OR MIGHT HAVE, AGAINST AGENT; (VI)
ANY DEFAULT OR FAILURE ON THE PART OF AGENT TO PERFORM OR COMPLY WITH ANY OF THE
TERMS HEREOF OR OF ANY OTHER AGREEMENT WITH OBLIGOR; OR (VII) ANY OTHER
OCCURRENCE WHATSOEVER, WHETHER SIMILAR OR DISSIMILAR TO THE FOREGOING, WHETHER
OR NOT OBLIGOR SHALL HAVE NOTICE OR KNOWLEDGE OF ANY OF THE FOREGOING. OBLIGOR
WAIVES ALL RIGHTS NOW OR HEREAFTER CONFERRED BY STATUTE OR OTHERWISE TO ANY
ABATEMENT, SUSPENSION, DEFERMENT, DIMINUTION, OR REDUCTION OF ANY SUM SECURED
HEREBY AND PAYABLE BY OBLIGOR.
ARTICLE 3
---------
3.01 Indemnification of Trustee. Except for gross negligence or willful
--------------------------
misconduct, Trustee shall not be liable for any act or omission or error of
judgment. Trustee may rely on any document believed by it in good faith to be
genuine. All money received by Trustee shall, until used or applied as herein
provided, be held in trust, but need not be segregated (except to the extent
required by law), and Trustee shall not be liable for interest thereon. Obligor
shall protect, indemnify and hold harmless Trustee against all liability and
expenses which Trustee may incur in the performance of its duties hereunder.
3.02 Substitution of Trustee. Trustee may resign by an instrument in
-----------------------
writing addressed to Agent, or Trustee may be removed at any time with or
without cause by an instrument in writing in recordable form executed by Agent.
In case of the death, resignation, removal or disqualification of Trustee or if
for any reason Agent shall deem it desirable to appoint a substitute or
successor trustee to act instead of the herein named Trustee or any substitute
or successor trustee, then Agent shall have the right and is hereby authorized
and empowered to appoint a successor trustee, or a substitute trustee, without
other formality than appointment and designation in writing executed by Agent
and the proper recording of that instrument in the Public Registry of the county
in which the Property is located, and the authority hereby conferred shall
extend to the appointment of other successor and substitute trustees
successively until the Secured Obligations has been paid in full, or until the
Property is sold hereunder. In the event the Secured Obligations is owed by more
than one person or entity, the holder or holders of not less than a majority of
the amount of such Secured Obligations shall have the right and authority to
make the appointment of a successor or substitute trustee provided for in the
preceding sentence. Such appointment and designation by Agent shall be full
evidence of the right and authority to make the same and of all facts therein
recited. Upon the making of any such appointment and designation, all of the
estate and title of Trustee in the Property shall vest in the
-27-
named successor or substitute trustee and he shall thereupon succeed to and
shall hold, possess and execute all the rights, powers, privileges, immunities
and duties herein conferred upon Trustee; but nevertheless, upon the written
request of Agent or of the successor or substitute trustee the trustee ceasing
to act shall execute and deliver an instrument transferring to such successor or
substitute trustee all of the estate and title in the Property of the trustee so
ceasing to act, together with all the rights, powers, privileges, immunities and
duties herein conferred upon Trustee, and shall duly assign, transfer and
deliver any of the properties and money held by said Trustee hereunder to said
successor or substitute trustee. All references herein to Trustee shall be
deemed to refer to the trustee (including any successor or substitute appointed
and designated as herein provided) from time to time acting hereunder. Obligor
hereby ratifies and confirms any and all acts which the herein named Trustee or
his successor or successors, substitute or substitutes, in this trust, shall do
lawfully by virtue hereof.
3.03 Actions By Trustee. At any time, or from time to time, without
------------------
liability therefor and without notice, upon written request of Agent and
presentation of this Instrument and the Notes for endorsement, and without
affecting the personal liability of any person for payment of the Secured
Obligations or the effect of this Instrument upon the remainder of the Property,
Trustee may take such actions as Agent may request and which are permitted by
this Instrument or by applicable law.
ARTICLE 4
---------
4.01 Successors and Assigns. This Instrument shall inure to the benefit of
----------------------
and be binding upon Obligor, Trustee, Agent and their respective heirs,
executors, legal representatives, successors and assigns. Whenever a reference
is made in this Instrument to Obligor, Trustee or Agent such reference shall be
deemed to include a reference to the heirs, executors, legal representatives,
successors and assigns of Obligor, Trustee or Agent.
4.02 Terminology. All personal pronouns used in this Instrument whether
-----------
used in the masculine, feminine or neuter gender, shall include all other
genders; the singular shall include the plural, and vice versa. Titles and
Articles are for convenience only and neither limit nor amplify the provisions
of this Instrument itself, and all references herein to Articles, Paragraphs or
subparagraphs thereof, shall refer to the corresponding Articles, Paragraphs or
subparagraphs thereof, of this Instrument unless specific reference is made to
such Articles, Paragraphs or subparagraphs thereof of another document or
instrument.
4.03 Severability. If any provision of this Instrument or the application
------------
thereof to any person or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Instrument and the application of such provisions
to other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
4.04 Applicable Law. THIS INSTRUMENT SHALL BE GOVERNED BY AND CONSTRUED
--------------
UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS EXCEPT TO THE EXTENT OF
PROCEDURAL AND SUBSTANTIVE MATTERS RELATING ONLY TO THE CREATION, PERFECTION AND
FORECLOSURE OF LIENS, AND ENFORCEMENT OF RIGHTS AND
-28-
REMEDIES AGAINST THE PROPERTY, WHICH MATTERS SHALL BE GOVERNED BY THE LAWS OF
THE STATE OF TEXAS.
4.05 Notices. Except as otherwise provided herein, any notice or other
-------
communication required hereunder shall be in writing, and shall be deemed to
have been validly served, given or delivered the next succeeding Domestic
Business Day (as defined in the Credit Agreement) after timely delivery to the
courier, if sent by overnight courier; at the time delivered by hand, if
personally delivered; or when receipt is acknowledged, if (i) telecopied
(followed by delivery of written copy thereof sent by overnight courier on the
same day as such notice is given), or (ii) sent by registered or certified mail,
return receipt requested, addressed to Obligor or Agent as follows:
If to Obligor:
JDN Realty Holdings, L.P.
c/o JDN Realty Corporation
000 Xxxx Xxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Chief Financial Officer
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, PLLC
Nashville Suite Center
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Xxxxx Xxxxx, Esq.
Telecopy Number: (000) 000-0000
Telecopy Number: (000) 000-0000
If to Agent:
Fleet National Bank, as Agent
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Real Estate Division
-29-
With a copy to:
Fleet National Bank, as Agent
Xxxxx 000
000 Xxxxxxxxx Xxxxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
And a copy to:
Long Xxxxxxxx & Xxxxxx LLP
Suite 5300
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
or, to such other address as any party may designate for itself by like notice.
4.06 Conflict with Credit Agreement Provisions. Obligor hereby
-----------------------------------------
acknowledges and agrees that, in the event of any conflict between the terms
hereof and the terms of the Credit Agreement, the terms of the Credit Agreement
shall control.
4.07 Assignment. This Instrument is assignable by Agent, and any
----------
assignment hereof by Agent shall operate to vest in the assignee all rights and
powers herein conferred upon and granted to Agent.
4.08 Time of the Essence. Time is of the essence with respect to each and
-------------------
every covenant, agreement and obligation of Obligor under this Instrument, the
Note, the Credit Agreement and any and all other instruments now or hereafter
evidencing, securing or otherwise relating to the Secured Obligations.
4.09 ENTIRE AGREEMENT. THIS WRITTEN INSTRUMENT AND THE OTHER LOAN
----------------
DOCUMENTS (AS DEFINED IN THE CREDIT AGREEMENT) REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
OBLIGOR HEREBY ACKNOWLEDGES AND AGREES THAT THIS INSTRUMENT CONTAINS
CERTAIN INDEMNIFICATION PROVISIONS (INCLUDING WITHOUT LIMITATION THOSE CONTAINED
IN SECTION 2.26 HEREOF), WHICH IN CERTAIN CIRCUMSTANCES COULD INCLUDE AN
INDEMNIFICATION BY OBLIGOR OF
-30-
AGENT AND/OR THE BANKS FROM CLAIMS OR LOSSES ARISING AS A RESULT OF AGENT'S
AND/OR A BANK'S OWN NEGLIGENCE.
NOTICE PURSUANT TO TEXAS BUS. & COMM. CODE ss. 26.02
THIS INSTRUMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED BY ANY OF THE
PARTIES PRIOR TO OR SUBSTANTIALLY CONTEMPORANEOUSLY WITH THE EXECUTION HEREOF
TOGETHER CONSTITUTE A WRITTEN LOAN AGREEMENT WHICH REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
-31-
IN WITNESS WHEREOF, Obligor has executed this Instrument under seal, as of
the day and year first above written.
JDN REALTY HOLDINGS, L.P., a Georgia
limited partnership
By: JDN Realty Corporation, a Maryland
corporation, its general partner
By:
----------------------------------------
Printed Name:
------------------------------
Printed Title:
-----------------------------
[CORPORATE SEAL]
STATE OF (s)
----------------------- (s)
COUNTY OF (s)
----------------------
This instrument was acknowledged before me this ____ day of ____________,
2001, by _________________________, _______________ of JDN Realty Corporation, a
Maryland corporation and the general partner of JDN REALTY HOLDINGS, L.P., a
Georgia limited partnership, on behalf of said limited partnership.
---------------------------------
Notary Public
State of
------------------------
---------------------------------
[AFFIX SEAL] Printed Name
My Commission Expires:
----------
-32-
EXHIBIT J
---------
Form of Borrowing Base Certificate
BORROWING BASE WORKSHEET
A. Mortgaged Property Asset Value Test
Net Operating Income for Real Estate owned by Borrower or
Guarantor for at least 2 quarters $
----------
(NOTE: Management expenses, calculated as the greater
of actual property management expenses for such period
or 3% of Base Rent, to be deducted in calculating Net
Operating Income)
Amount on A.1 multiplied by 2 $
----------
Amount on A.2 divided by 0.10 $
----------
60% of A.3 (Mortgaged Property Asset Value) $
----------
Debt Service Coverage Test
Adjusted NOI
Annualized Net Operating Income (from A.2 above)
$
----------
Capital Improvement Reserve ($0.10 multiplied by Net Rentable
Area in Mortgaged Properties)
$0.10 x =
Adjusted NOI equals the sum of B.1(a) minus B.1(b) -- --
$
----------
Debt Constant
Enter the greater of (a) the greater of (i) the
then-current annual yield on ten (10) year
obligations issued by the United States Treasury
most recently prior to the date of determination
plus 2.0% payable on a 25-year mortgage style
amortization schedule (expressed as a decimal),
or (ii) .095, and (b) the actual blended rate of
interest then payable with respect to the Loans
(expressed as a decimal)
----------
Calculate Debt Service Coverage Amount pursuant to the
following formula:
P = Adjusted NOI
------------
1.5 x D
P = maximum principal balance of Loans that may
be outstanding
Adjusted NOI = Amount from B.1(c)
D = figure from B.2
[SHOW CALCULATION]
Borrowing Base is the Greater of A.4 or the result determined
for "P" pursuant to the formula in B.3 $
----------
(enter figure in Line IV.D of Compliance Certificate)
2
EXHIBIT L
---------
Form of Assignment and Acceptance Agreement
ASSIGNMENT AND ACCEPTANCE AGREEMENT
-----------------------------------
THIS ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "Agreement") dated
____________________, by and between ____________________________ ("Assignor"),
and ____________________________ ("Assignee").
W I T N E S S E T H:
-------------------
WHEREAS, Assignor is a party to that certain Third Amended, Restated and
Consolidated Master Credit Agreement, dated March __, 2001, by and among JDN
REALTY CORPORATION, a Maryland corporation ("Borrower"), the other lenders that
are or may become a party thereto, and FLEET NATIONAL BANK, as Agent (the "Loan
Agreement"); and
WHEREAS, Assignor desires to transfer to Assignee [Describe assigned
Commitments] under the Loan Agreement and its rights with respect to the
Commitment assigned and its Outstanding Loans with respect thereto;
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other good and valuable considerations, the receipt and
sufficiency of which are hereby acknowledged, Assignor and Assignee hereby agree
as follows:
1. Definitions. Terms defined in the Loan Agreement and used herein
-----------
without definition shall have the respective meanings assigned to such terms in
the Loan Agreement.
2. Assignment.
----------
(a) Subject to the terms and conditions of this Agreement and in
consideration of the payment to be made by Assignee to Assignor pursuant to
Paragraph 5 of this Agreement, effective as of the "Assignment Date" (as defined
in Paragraph 7 below), Assignor hereby irrevocably sells, transfers and assigns
to Assignee, without recourse, a portion of its [Revolving Credit] [Term Loan]
Note in the amount of $_______________ representing a $_______________
[Revolving Credit] [Term Loan] Commitment, and a ____________________ percent
(_____%) [Revolving Credit] [Term Loan] Commitment Percentage, and a
corresponding interest in and to all of the other rights and obligations under
the Loan Agreement and the other Loan Documents relating thereto (the assigned
interests being hereinafter referred to as the "Assigned Interests"), including
Assignor's share of all outstanding [Revolving Credit] [Term Loan] Loans with
respect to the Assigned Interests and the right to receive interest and
principal on and all other fees and amounts with respect to the Assigned
Interests, all from and after the Assignment Date, all as if Assignee were an
original Lender under and signatory to the Loan Agreement having a [Revolving
Credit] [Term Loan] Commitment Percentage equal to the amount of the respective
Assigned Interests.
1
(b) Assignee, subject to the terms and conditions hereof, hereby
assumes all obligations of Assignor with respect to the Assigned Interests from
and after the Assignment Date as if Assignee were an original Lender under and
signatory to the Loan Agreement and the "Intercreditor Agreement" (as
hereinafter defined), which obligations shall include, but shall not be limited
to, the obligation to make Loans to the Borrower with respect to the Assigned
Interests and to indemnify the Agent as provided therein (such obligations,
together with all other obligations set forth in the Loan Agreement and the
other Loan Documents are hereinafter collectively referred to as the "Assigned
Obligations"). Assignor shall have no further duties or obligations with respect
to, and shall have no further interest in, the Assigned Obligations or the
Assigned Interests.
3. Representations and Requests of Assignor.
----------------------------------------
(a) Assignor represents and warrants to Assignee (i) that it is
legally authorized to, and has full power and authority to, enter into this
Agreement and perform its obligations under this Agreement; (ii) that as of the
date hereof, before giving effect to the assignment contemplated hereby the
principal face amount of Assignor's [Revolving Credit] [Term Loan] Note is
$____________ and the aggregate outstanding principal balance of the [Revolving
Credit] [Term Loan] Loans made by it equals $____________, and (iii) that it has
forwarded to the Agent the [Revolving Credit] [Term Loan] Note held by Assignor.
Assignor makes no representation or warranty, express or implied, and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Loan Documents or the execution, legality,
validity, enforceability, genuineness or sufficiency of any Loan Document or any
other instrument or document furnished pursuant thereto or in connection with
the Loan, the collectability of the Loans, the continued solvency of the
Borrower or the Guarantors or the continued existence, sufficiency or value of
the Collateral or any assets of the Borrower or the Guarantors which may be
realized upon for the repayment of the Loans, or the performance or observance
by the Borrower or the Guarantors of any of their respective obligations under
the Loan Documents to which it is a party or any other instrument or document
delivered or executed pursuant thereto or in connection with the Loan; other
than that it is the legal and beneficial owner of, or has the right to assign,
the interests being assigned by it hereunder and that such interests are free
and clear of any adverse claim.
(b) Assignor requests that the Agent obtain replacement notes for
each of Assignor and Assignee as provided in the Loan Agreement.
4. Representations of Assignee. Assignee makes and confirms to the Agent,
---------------------------
Assignor and the other Lenders all of the representations, warranties and
covenants of a Lender under Articles 14 and 18 of the Loan Agreement and
Paragraph 4 of the Intercreditor Agreement. Without limiting the foregoing,
Assignee (a) represents and warrants that it is legally authorized to, and has
full power and authority to, enter into this Agreement and perform its
obligations under this Agreement; (b) confirms that it has received copies of
such documents and information as it has deemed appropriate to make
2
its own credit analysis and decision to enter into this Agreement; (c) agrees
that it has and will, independently and without reliance upon Assignor, any
other Lender or the Agent and based upon such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
evaluating the Loans, the Loan Documents, the creditworthiness of the Borrower
and the Guarantors and the value of the assets of the Borrower and the
Guarantors, and taking or not taking action under the Loan Documents and any
intercreditor agreement among the Lenders and the Agent (the "Intercreditor
Agreement"); (d) appoints and authorizes the Agent to take such action as agent
on its behalf and to exercise such powers as are reasonably incidental thereto
pursuant to the terms of the Loan Documents and the Intercreditor Agreement; (e)
agrees that, by this Assignment, Assignee has become a party to and will perform
in accordance with their terms all the obligations which by the terms of the
Loan Documents and the Intercreditor Agreement are required to be performed by
it as a Lender; (f) represents and warrants that Assignee does not control, is
not controlled by, is not under common control with and is otherwise free from
influence or control by, the Borrower or any Guarantor, (g) represents and
warrants that Assignee is subject to control, regulation or examination by a
state or federal regulatory agency, (h) agrees that if Assignee is not
incorporated under the laws of the United States of America or any State, it has
on or prior to the date hereof delivered to Borrower and Agent certification as
to its exemption (or lack thereof) from deduction or withholding of any United
States federal income taxes and (i) if Assignee is an assignee of a portion of
the Revolving Credit Loans, it has a net worth or unfunded capital commitment as
of the date hereof of not less than $200,000,000.00 unless waived in writing by
Borrower and Agent.
5. Payments to Assignor. In consideration of the assignment made pursuant
--------------------
to Paragraph 1 of this Agreement, Assignee agrees to pay to Assignor on the
Assignment Date, an amount equal to $____________ representing the aggregate
principal amount outstanding of the [Revolving Credit] [Term] Loans owing to
Assignor under the Loan Agreement and the other Loan Documents with respect to
the Assigned Interests.
6. Payments by Assignor. Assignor agrees to pay the Agent on the
--------------------
Assignment Date the registration fee required byss.18.2 of the Loan Agreement.
7. Effectiveness.
-------------
(a) The effective date for this Agreement shall be _______________
(the "Assignment Date"). Following the execution of this Agreement, each party
hereto shall deliver its duly executed counterpart hereof to the Agent for
acceptance and recording in the Register by the Agent.
(b) Upon such acceptance and recording and from and after the
Assignment Date, (i) Assignee shall be a party to the Loan Agreement and the
Intercreditor Agreement and, to the extent of the Assigned Interests, have the
rights and obligations of a Lender thereunder, and (ii) Assignor shall, with
respect to the Assigned Interests, relinquish its rights and be released from
its obligations under the Loan Agreement and the Intercreditor Agreement.
3
(c) Upon such acceptance and recording and from and after the
Assignment Date, the Agent shall make all payments in respect of the rights and
interests assigned hereby accruing after the Assignment Date (including payments
of principal, interest, fees and other amounts) to Assignee.
(d) All outstanding LIBOR Rate Loans shall continue in effect for
the remainder of their applicable Interest Periods and Assignee shall accept the
currently effective interest rates on its Assigned Interest of each LIBOR Rate
Loan.
8. Notices. Assignee specifies as its address for notices and its Lending
-------
Office for all assigned Loans, the offices set forth below:
Notice Address:
---------------------
---------------------
---------------------
---------------------
Attn:
----------------
Facsimile:
-----------
Domestic Lending Office: Same as above
Eurodollar Lending Office: Same as above
9. Payment Instructions. All payments to Assignee under the Loan Agreement
--------------------
shall be made as provided in the Loan Agreement in accordance with the following
instructions:
---------------------
---------------------
---------------------
---------------------
---------------------
---------------------
10. Governing Law. THIS AGREEMENT IS INTENDED TO TAKE EFFECT AS A SEALED
-------------
INSTRUMENT FOR ALL PURPOSES AND TO BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS (WITHOUT REFERENCE TO
CONFLICT OF LAWS).
11. Counterparts. This Agreement may be executed in any number of
------------
counterparts which shall together constitute but one and the same agreement.
4
12. Amendments. This Agreement may not be amended, modified or terminated
----------
except by an agreement in writing signed by Assignor and Assignee, and consented
to by Agent.
13. Successors. This Agreement shall inure to the benefit of the parties
----------
hereto and their respective successors and assigns as permitted by the terms of
Loan Agreement and the Intercreditor Agreement.
[signatures on following page]
5
IN WITNESS WHEREOF, intending to be legally bound, each of the undersigned
has caused this Agreement to be executed on its behalf by its officers thereunto
duly authorized, as of the date first above written.
ASSIGNEE:
---------------------------------
By:
------------------------------
Title:
------------------------
ASSIGNOR:
---------------------------------
By:
------------------------------
Title:
------------------------
RECEIPT ACKNOWLEDGED AND
ASSIGNMENT CONSENTED TO BY:
FLEET NATIONAL BANK, as Agent
By:
-------------------------------------
Title:
-------------------------------
ASSIGNMENT CONSENTED TO BY:
JDN REALTY CORPORATION
By:
-------------------------------------
Title:
-------------------------------
6
SCHEDULE 6.3
------------
LIST OF ALL ENCUMBRANCES ON BORROWER ASSETS
The following is a listing of all encumbrances on the borrowers assets
(excluding the mortgage properties) as of December 31, 2000.
Principal Balance
-----------------
Mortgage note payable - Denver, Colorado $ 21,627,000
Mortgage note payable - Richmond, Kentucky $ 5,990,000
Mortgage note payable - Milwaukee, Wisconsin $ 4,471,000
Mortgage note payable - Jackson, Mississippi $ 6,696,000
Mortgage note payable - Marietta, Georgia $ 10,746,000
Mortgage note payable - Lilburn, Georgia $ 12,420,000
Mortgage note payable - Woodstock, Georgia $ 11,679,000
Mortgage note payable - Hendersonville, Tennessee $ 10,550,000
Mortgage note payable - Alpharetta, Georgia $ 13,265,000
Mortgage note payable - Warner Robins, Georgia $ 3,348,140
------------
Total Principal Balance on Encumbered Assets $100,792,140
Page 1 of 1
SCHEDULE 6.5
MATERIAL CHANGES TO MORTGAGED PROPERTIES
1. In February 2000 in Property 000 - XxxXxxxxx Xxxxxxxxxxx, Xxxxxx, Xxxxx,
the United Artists lease was amended. In the amendment, base rent
decreased from $21.10 per square foot to $7.00 per square foot plus
percentage rent.
2. In March 2000 at Property 000 - Xxxxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxx, Drug
Emporium announced that it would be vacating its space. Drug Emporium is
not in bankruptcy and is obligated to continue paying rent until its lease
expiration.
SCHEDULE 6.7
PENDING LITIGATION OF BORROWER
1. A number of class action lawsuits have been filed by the Borrower's common
and preferred shareholders in federal and state court against the
Borrower, its subsidiary, JDN DCI, and certain current and former officers
and directors of those companies. The lawsuits were filed after a February
14, 2000 announcement by the Borrower that it had discovered certain
undisclosed compensation arrangements, payments and related party
transactions involving two former employees of JDN DCI, which were not
accurately reported on the books and records of JDN DCI and the Borrower
for the years ended December 31, 1994 through 1998. The multiple class
actions filed in federal court allege violations of the federal securities
laws, and allege that by failing to report the compensation arrangements,
payments and related party transactions and other matters to the public in
the Borrower's financial statements, public filings, and otherwise, the
defendants made or participated in making material misstatements or
omissions which caused the plaintiffs to purchase the Borrower's stock at
an artificially inflated price. The plaintiffs seek compensatory damages
of an indeterminate amount, interest, attorney's fees, expert's fees and
other costs and disbursements. The federal class actions have been
consolidated and are pending in the United States District Court for the
Northern District of Georgia. SEE ATTACHED CHART
2. On April 28, 2000, Lake Lucerne Estates Civic Club, Inc., a nonprofit
homeowners association located in Gwinnett County, Georgia, and a number
of individual plaintiffs, filed suit against JDN DCI, Xxxx'x Companies,
Inc., and Xxxxxxx Contracting, Inc. The suit was filed in the Superior
Court of Xxxxxx County, Georgia. The complaint asserts trespass, nuisance
and negligence against JDN DCI in connection with the development of a
shopping center anchored by Lowe's.
3. The Company is also subject to a formal order of investigation initiated
by the SEC as of August 2, 2000. Pursuant to this order, the Company has
voluntarily provided certain documents and other information to the SEC
regarding the compensation arrangements, unauthorized benefits and related
party transactions. By letter dated March 5, 2001, the SEC staff advised
the Company that it intended to recommend that the SEC institute an
administrative proceeding against the Company. The Company continues to
cooperate fully with the SEC staff in order to resolve this matter as
expeditiously as practicable. Management of the Company does not expect
that the resolution of this matter will have a material adverse effect on
the
Company's business, financial condition or results of operation. However,
the Company is unable to predict with certainty the timing or ultimate
outcome of this matter.
4. In a lawsuit filed in Superior Court of Gwinnett County, Georgia on
February 2, 0000, Xxxxxxx Xxxxx, L.L.C. ("Dogwood") brought claims against
the Borrower and WHF, Inc. ("WHF"), a wholly-owned subsidiary of JDN DCI.
Until April 1999, WHF owned a seventy-two percent (72%) interest in
Dogwood and served as the operating member of the entity. The complaint
asserts, among other things, breach of fiduciary duty against WHF and
improper receipt of funds by the Borrower. The case is currently in the
discovery phase.
5. A class action lawsuit was also filed by the Borrower's shareholders
against the Borrower, JDN DCI, and four former officers and/or directors
of those companies in the Superior Court of Xxxxxx County, Georgia. The
complaint contains substantially the same factual allegations asserted in
the federal class actions, but purports to seek relief under state law for
"lost dividends". The amended complaint contains claims of conversion and
purported violations of the Xxxxxxx XXXX statute, and the plaintiffs seek
compensatory and punitive damages, attorney fees and expenses, interest
and equitable relief,
6. In July 2000, a purported derivative actions was filed in federal district
court against the Borrower as a nominal defendant, and certain former and
current officers and directors of the Borrower. The lawsuit was filed in
the United States District Court for the Northern District of Georgia. The
plaintiffs allege that the individual defendants breached certain duties
between 1994 and 1998 in connection with undisclosed compensation
arrangements, payments and related party transactions discussed above. The
complaints allege claims for breach of fiduciary duty, abuse of control,
waste of corporate assets, unjust enrichment and gross mismanagement.
Similar actions have been filed in the Superior Court and the State Court
of Xxxxxx County.
SCHEDULE OF PENDING ACTIONS
TABLE 1:
----------------------------------------------------------------------------------------------------------------------
Court Plaintiff Defendant File No.
----------------------------------------------------------------------------------------------------------------------
United States District Court Xxxxxxx Xxxxxxx et al JDN Realty Corporation 1:00-CV-0396-RWS
for the Northern District of ("JDN") et al
Georgia ("USDC-NG")
----------------------------------------------------------------------------------------------------------------------
USDC-NG Xxxxxx X. Xxxxxxx, Xx. Et JDN et al 1:00CV-0397-RWS
al
----------------------------------------------------------------------------------------------------------------------
USDC-NG Xxxxxx Xxxxx et al JDN et al 1:00-CV-0401-RWS
----------------------------------------------------------------------------------------------------------------------
USDC-NG Xxx Xxxxxxx et al JDN et al 1:00-CV-0402-RWS
----------------------------------------------------------------------------------------------------------------------
USDC-NG Xxxxx Xxxxx et al JDN et al 1:00-CV-0403-RWS
----------------------------------------------------------------------------------------------------------------------
USDC-NG Xxxxxxx X. Xxxxx et al JDN et al 1:00-CV-0414-RWS
----------------------------------------------------------------------------------------------------------------------
USDC-NG Xxxxxxxx Xxxxx et al JDN et al 1:00-CV-0417-RWS
----------------------------------------------------------------------------------------------------------------------
USDC-NG Xxxxxxx X. Xxxxx et al JDN et al 1:00-CV-0436-RWS
----------------------------------------------------------------------------------------------------------------------
USDC-NG Xxxxx Xxxxxxxx et al JDN et al 1:00-CV-0437-RWS
----------------------------------------------------------------------------------------------------------------------
USDC-NG Xxxx Xxxxx et al JDN et al 1:00-CV-0449-RWS
----------------------------------------------------------------------------------------------------------------------
USDC-NG Xxxxx X. Xxxxxxx, et al JDN et al 1:00-CV-0454-RWS
----------------------------------------------------------------------------------------------------------------------
USDC-NG Xxxxx X. Xxxxxxxx et al JDN et al 1:00-CV-0508-RWS
----------------------------------------------------------------------------------------------------------------------
USDC-NG Xxxxxxx Xxxxxxx et al JDN et al 1:00-CV-0518-RWS
----------------------------------------------------------------------------------------------------------------------
USDC-NG Xxxxxx X. Xxxxxxx al JDN et al 1:00-CV-0565-RWS
----------------------------------------------------------------------------------------------------------------------
USDC-NG Xxxxx Xxxxxxxxx et al JDN et al 1:00-CV-0692-RWS
----------------------------------------------------------------------------------------------------------------------
USDC-NG Xxxxxx Xxxxx et al JDN et al 1:00-CV-2457-RWS
----------------------------------------------------------------------------------------------------------------------
USDC-NG Xxxxx X. Xxxxx et al JDN et al 1:00-CV-2539-RWS
----------------------------------------------------------------------------------------------------------------------
USDC-NG Washington Savings Bank et JDN et al 1:00-CV-0897-RWS
al
----------------------------------------------------------------------------------------------------------------------
USDC-XX Xxxxxx and Xxxx Xxxxxxxx JDN et al 1:000-CV-1652
et al
----------------------------------------------------------------------------------------------------------------------
All of said cases set forth in Table 1 having been consolidated into USDC-GA
File No. 1:00-CV-396-RWS styled "IN RE JDN REALTY CORP. SECURITIES LITIGATION".
Table 2:
----------------------------------------------------------------------------------------------------------------------
Court Plaintiff Defendant File No.
----------------------------------------------------------------------------------------------------------------------
USDC-NG Xxxxx Xxxxx et al JDN et al 1:00-CV-1853
----------------------------------------------------------------------------------------------------------------------
Superior Court of Xxxxxx Xxxxx Xxxxxx et al JDN et al 2000CV23522
County, Georgia
----------------------------------------------------------------------------------------------------------------------
Superior Court of Xxxxxx Xxxxxx Melnyczenko et al JDN et al 2000CV28135
County, Georgia
----------------------------------------------------------------------------------------------------------------------
State Court of Xxxxxx County, Xxxxx Xxxxxx et al JDN et al 00VS012347E
Georgia
----------------------------------------------------------------------------------------------------------------------
SCHEDULE 6.15
LIST TRANSACTIONS WITH AFFILIATES AND SUBSIDIARIES
None
SCHEDULE 6.20
-------------
ENVIRONMENTAL RELEASES
None
SCHEDULE 6.21(a)
Form/
Jurisdiction
Subsidiary Name Of Organization Ownership
------------------------------------------------------------------------------------------------------------------------------------
1. JDN Development Company, Inc. Delaware JDN Realty Corporation - 100% Voting; 100% Non-Voting
2. JDN Realty AL, Inc. Alabama JDN Realty Corporation - 100%
3. JDN Realty Holdings, L.P. Georgia JDN Realty Corporation (GP); JDN Realty LP, Inc. (LP)
4. JDN Real Estate-Erie, LP Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
5. JDN Real Estate-Fayetteville, LP Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
6. JDN Real Estate-XxXxxxxx, XX Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
7. JDN Real Estate - Pensacola, LP Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
8. JDN Real Estate - West Lafayette, LP Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
9. JDN Real Estate - West Lansing, LP Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
10. JDN Real Estate - Cumming, LP Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
11. JDN Real Estate - Bridgewood Fort
Worth LP Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
12. Black Cherry Limited Liability Company Colorado JDN Realty Corporation - 100%
13. JDN Intermtn. Dev., Xxxxxx Pavilion
L.L.C. Georgia JDN Real Estate Parker Pavillions, L.P. - 100%
14. JDN of Alabama Realty Corporation Alabama JDN Development Company, Inc. - 100%
15. JDN Intermountain Development Corp. Delaware JDN Development Company, Inc. - 100%
16. JDN Development LP, Inc. Delaware JDN Development Company, Inc. - 100%
17. JDN Development Investment, LP Georgia JDN Development Company, Inc. (GP); JDN Development LP, Inc. (LP)
18. JDN Realty LP, Inc. Delaware JDN Realty Corporation - 100%
19. Georgia Finance Corporation Delaware JDN Realty Corporation - 100%
20. WHF, Inc. Georgia JDN Development Company, Inc. - 100%
21. JDN Realty Corporation, GP, Inc. Delaware JDN Realty Corporation - 100%
22. Xxxxxxxx Bridge Associates, Inc. Georgia JDN Development Company, Inc. - 100%
23. Fayetteville Black Investment, Inc. Georgia JDN Development Company, Inc. - 100%
24. JDN Real Estate - Xxxxxxx, XX Georgia JDN Development Investment, L.P (GP); JDN Realty Holdings, L.P. (LP)
25. JDN Real Estate - Frisco, LP Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
26. JDN Real Estate - Gulf Breeze, II, LP Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
27. JDN Real Estate - Xxxxxxxx, XX Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
28. JDN Real Estate - Hickory Creek, LP Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
29. JDN Real Estate - Lakeland, LP Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
30. JDN Real Estate - Xxxxxx Pavillions, LP Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
31. JDN Real Estate - Asheville, LP Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
Form/
Jurisdiction
Subsidiary Name Of Organization Ownership
------------------------------------------------------------------------------------------------------------------------------------
32. JDN Real Estate - McDonough II, LP Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
33. JDN Real Estate - XxXxxxxxx, XX Georgia JDN Realty Holdings, L.P. (GP); JDN Development Investment, L.P. (LP)
34. JDN Real Estate - Mesquite, LP Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
35. JDN Real Estate - Overland Park, LP Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
36. JDN Real Estate - Xxxxxx, XX Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
37. JDN Real Estate - Pioneer Hills, II, LP Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
38. JDN Real Estate - Sacramento, LP Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
39. JDN Real Estate - Xxxxxx Xxxx, XX Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
40. JDN Real Estate - Pioneer Hills, LP Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
41. Canal Street Partners, L.L.C. Michigan JDN Realty Corporation - 100%
42. Chesterfield Exchange, L.L.C. Georgia JDN Realty Corporation - 100%
43. Fayetteville Exchange, L.L.C. Georgia JDN Realty Corporation - 100%
44. JDN Intermountain Development Pioneer
Hills, L.L.C. Georgia JDN Real Estate-Pioneer Hills, L.P. - 100%
45. Hickory Hollow Exchange, L.L.C. Georgia JDN Development Company, Inc. - 100%
46. JDN Real Estate -- Stone Mountain, LP Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
47. JDN Real Estate -- Xxxxxxx, XX Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
SCHEDULE 6.21 (B)
Schedule of Borrower's and Guarantors' ownership of Affiliates which are not
Subsidiaries
Form/
Jurisdiction
Subsidiary Name Of Organization Ownership
------------------------------------------------------------------------------------------------------------------------------------
1. Duck Creek, LLC Georgia Equity/Dalan, L.L.C (50%); JDN Development Company, Inc. (50%)
2. Pecan Park, LLC Mississippi Xxxxxx Xxxxxxx (50%); JDN Development Company, Inc. (50%)
3. Pepperell Corners, L.P. Alabama JDN of Alabama Realty Corporation - 10.84% LP Interest, 1% GP Interest;
third parties own 89.16% LP Interest, 99% GP interest
4. Xxxxx Xxxxxxx Development Company LLC Mississippi Xxxxxxx Properties, Inc. (50%) - JDN Development Company, Inc. (50%)
5. JDN-Xxxxxxx Venture I, LLC Delaware JDN Real Estate - Xxxxxx, XX (50% and Managing Member); Xxxxxxx Foxfield
Xxxxxx, XX (50%) Third Party
6. JDN West Allis Associates, Limited
Partnership Georgia JDN Realty Corporation - 100% of GP Interest, third parties own 100% LP
Interest
7. Xxxxxxxx Property Associates, Inc. Colorado JDN Intermountain Development Corp. (100%); Xxxx Xxxxxxxx owns 20% of
Second Class of Non-Voting Stock
8. Ft. Xxxxxxx Partners, LLC Colorado Xxxxxxxx Property Associates, Inc.(100%)
Schedule 6.22
Leases with Payment Default
Property Monthly
Number Location Tenant Sq.Ft. Rent
------ -------- ------ ------ ----
175 Opelika, AL Ruby's Chinese Restaurant 2,400 $ 2,960
000 Xxxxxx, XX Cato 6,000 $ 4,500
000 Xxxxxx, XX Capital Cleaners 1,400 $ 1,706
000 Xxxxxxx, XX Dollar Junction 2,400 $ 1,900
000 Xx. Xxxxxxxxxx, XX Xxxxxx Xxxxxxx 961 $ 981
315 Ft. Oglethorpe, GA Payless 2,720 $ 2,267
000 Xxxxxx, XX Edy's 1,400 $ 2,228
000 Xxxxxxxxxxxx, XX Allegra Print 2,400 $ 2,200
000 Xxxxxxxxxx, XX Indigo Creek 2,000 $ 1,958
000 Xxxxxx, XX Denny's 3,500 $ 4,469
000 Xxxxxxxx, XX Modern Cleaners 1,800 $ 1,953
000 Xxxxxxx, XX Walgreen's 11,165 (1)
000 Xxxxxxxxxxxx, XX Xxxxxxx Fabrics 12,000 (1)
000 Xxxxxxxxxxxx, XX Sub Depot 2,400 $ 3,100
000 Xxxxxxxxxxxx, XX Electronic Express 8,000 $10,667
000 Xxxxxxxxxxxx, XX TJ Maxx 30,000 (1)
000 Xxxxxxxxx, XX Radio Shack 2,800 $ 3,267
000 Xxxxxxxxx, XX Old Country Buffet 9,600 $ 9,600
000 Xxxxxxxxx, XX Toys R Us 45,000 (1)
755 Lynchburg, VA TJ Maxx 25,467 (1)
(1) Unpaid prorations
Schedule 6.25
Other Debt
Debt Principal (1) Rate (2) Maturity
---- ------------- -------- --------
Mortgage Note Payable - Denver, CO 21,627,000 6.81% 7/17/2001
Mandatory Par Put Remarketed Securities 75,000,000 6.67% 3/31/2003
Mortgage Note Payable - Richmond, KY 5,990,000 8.00% 12/1/2003
Seven Year Notes 74,873,000 7.10% 8/1/2004
Ten Year Notes 84,824,000 7.23% 8/1/2007
Mortgage Notes Payable - Milwaukee, WI 4,471,000 7.75% 8/1/2009
Mortgage Notes Payable - Jackson, MS 6,696,000 9.25% 3/1/2017
Mortgage Notes Payable - Marietta, GA 10,746,000 7.66% 11/15/2017
Mortgage Notes Payable - Lilburn, GA 12,420,000 6.70% 2/10/2018
Mortgage Notes Payable - Woodstock, GA 11,679,000 6.55% 4/15/2018
Mortgage Notes Payable - Hendersonville, TN 10,550,000 7.66% 1/15/2019
Mortgage Notes Payable - Warner Robins, GA 3,348,140 8.32% 9/1/2001
Mortgage Notes Payable - Alpharetta, GA 13,265,000 6.62% 4/15/2019
(1) Rounded to nearest 1,000 as of 12/31/2000
(2) Effective interest rates as of 12/31/2000
(3) Excludes amounts outstanding under the commitments.
