EXHIBIT 10.7
$100,000,000
TERM LOAN CREDIT AGREEMENT
dated as of
February 17, 1999
among
JDN REALTY CORPORATION
The Banks Listed Herein,
WACHOVIA BANK, N.A.,
as Agent
and
PNC BANK, NATIONAL ASSOCIATION,
as Documentation Agent
TABLE OF CONTENTS
CREDIT AGREEMENT
ARTICLE I DEFINITIONS.............................................. 1
SECTION 1.01. Definitions.............................................. 1
SECTION 1.02. Accounting Terms and Determinations...................... 16
SECTION 1.03. References............................................... 16
SECTION 1.04. Use of Defined Terms..................................... 17
SECTION 1.05. Terminology.............................................. 17
ARTICLE II. CREDITS.................................................. 17
SECTION 2.01. Commitments to Lend Loans................................ 17
SECTION 2.02. Method of Borrowing Loans................................ 17
SECTION 2.03. Term Notes............................................... 19
SECTION 2.04. Maturity of Loans........................................ 20
SECTION 2.05. Interest Rates........................................... 20
SECTION 2.06. Optional Prepayments..................................... 22
SECTION 2.07 Mandatory Prepayments....................................
SECTION 2.08. General Provisions as to Payments........................ 23
SECTION 2.09. Computation of Interest and Fees......................... 24
ARTICLE III. ▇▇▇▇▇▇▇▇▇▇.▇▇ BORROWINGS................................. 25
SECTION 3.01. Conditions to First Borrowing............................ 25
ARTICLE IV. REPRESENTATIONS AND WARRANTIES........................... 27
SECTION 4.01. Corporate Existence and Power............................ 27
SECTION 4.02. Corporate and Governmental Authorization; No............. 27
SECTION 4.03. Binding Effect........................................... 27
SECTION 4.04. Financial Information.................................... 27
SECTION 4.05. No Litigation............................................ 28
(i)
SECTION 4.06. Compliance with ERISA.................................... 28
SECTION 4.07. Compliance with Laws; Payment of Taxes................... 28
SECTION 4.08. Guarantors and Subsidiaries.............................. 28
SECTION 4.09. Investment Company Act................................... 29
SECTION 4.10. Public Utility Holding Company Act....................... 29
SECTION 4.11. Ownership of Property.................................... 29
SECTION 4.12. No Default............................................... 29
SECTION 4.13. Full Disclosure.......................................... 29
SECTION 4.14. Environmental Matters.................................... 29
SECTION 4.15. Capital Stock............................................ 30
SECTION 4.16. Margin Stock............................................. 30
SECTION 4.17. Insolvency............................................... 30
SECTION 4.18. Insurance................................................ 31
SECTION 4.19. Real Estate Investment Trust............................. 31
SECTION 4.20. Y2K Plan................................................. 31
ARTICLE V. COVENANTS................................................ 32
SECTION 5.01. Information.............................................. 32
SECTION 5.02. Inspection of Property, Books and Records................ 34
SECTION 5.03. Maintenance of Existence................................. 34
SECTION 5.04. Dissolution.............................................. 34
SECTION 5.05. Consolidations, Mergers and Sales of Assets.............. 34
SECTION 5.06. Use of Proceeds.......................................... 35
SECTION 5.07. Compliance with Laws; Payment of Taxes................... 35
SECTION 5.08. Insurance................................................ 36
SECTION 5.09. Change in Fiscal Year.................................... 36
SECTION 5.10. Maintenance of Property.................................. 36
(ii)
SECTION 5.11. Environmental Notices.................................... 36
SECTION 5.12. Environmental Matters.................................... 36
SECTION 5.13. Environmental Release.................................... 37
SECTION 5.14. Transactions with Affiliates............................. 37
SECTION 5.15. Restricted Payments...................................... 37
SECTION 5.16. Loans or Advances........................................ 37
SECTION 5.17. Investments.............................................. 38
SECTION 5.18. [Intentionally Deleted].................................. 38
SECTION 5.19. Restrictions on Ability of Guarantors to Pay
Dividends............................................... 38
SECTION 5.20. Ratio of Total Consolidated Liabilities to Gross
Asset Value............................................. 39
SECTION 5.21. Ratio of Total Secured Debt to Gross Asset Value......... 39
SECTION 5.22. Ratio of EBITDA to Consolidated Interest Expense......... 39
SECTION 5.23. Ratio of Unencumbered Assets to Unsecured Funded
Debt.................................................... 39
SECTION 5.24. Ratio of Unsecured Net Operating Income to
Unsecured Interest Expense.............................. 39
SECTION 5.25. Guarantees............................................... 39
SECTION 5.26. Additional Revolving Credit.............................. 39
SECTION 5.27. Ownership................................................ 39
SECTION 5.28. Status as a REIT......................................... 39
SECTION 5.29. Guaranty by the Initial Guarantor; New Subsidiaries
Become Guarantors....................................... 39
ARTICLE. VI DEFAULTS................................................. 40
SECTION 6.01. Events of Default........................................ 40
SECTION 6.02. Notice of Default........................................ 44
ARTICLE VII. AGENT.................................................... 44
(iii)
SECTION 7.01. Appointment; Powers and Immunities....................... 44
SECTION 7.02. Reliance by Agent........................................ 45
SECTION 7.03. Defaults................................................. 45
SECTION 7.04. Rights of Agent and its Affiliates as a Bank............. 45
SECTION 7.05. Indemnification.......................................... 46
SECTION 7.06 Consequential Damages.................................... 46
SECTION 7.07. Payee of Term Note Treated as Owner...................... 46
SECTION 7.08. Nonreliance on Agent and Other Banks..................... 46
SECTION 7.09. Failure to Act........................................... 47
SECTION 7.10. Resignation or Removal of Agent.......................... 47
ARTICLE VIII. CHANGE IN CIRCUMSTANCES; COMPENSATION.................... 47
SECTION 8.01. Basis for Determining Interest Rate Inadequate or
Unfair.................................................. 47
SECTION 8.02. Illegality............................................... 48
SECTION 8.03. Increased Cost and Reduced Return........................ 49
SECTION 8.04. Base Rate Loans Substituted for Euro-Dollar
Loans................................................... 50
SECTION 8.05. Compensation............................................. 50
ARTICLE IX. MISCELLANEOUS............................................ 51
SECTION 9.01. Notices.................................................. 51
SECTION 9.02. No Waivers............................................... 51
SECTION 9.03. Expenses; Documentary Taxes.............................. 51
SECTION 9.04. Indemnification.......................................... 52
SECTION 9.05. Setoff; Sharing of Setoffs............................... 52
SECTION 9.06. Amendments and Waivers................................... 53
SECTION 9.07. No Margin Stock Collateral............................... 54
SECTION 9.08. Successors and Assigns................................... 54
(iv)
SECTION 9.09. Confidentiality.......................................... 57
SECTION 9.10. Representation by Banks.................................. 57
SECTION 9.11. Obligations Several...................................... 57
SECTION 9.12. Georgia Law.............................................. 58
SECTION 9.13. Severability............................................. 58
SECTION 9.14. Interest................................................. 58
SECTION 9.15. Interpretation........................................... 59
SECTION 9.16. Waiver of Jury Trial; Consent to Jurisdiction............ 59
SECTION 9.17. Counterparts............................................. 59
SECTION 9.18. Source of Funds -- ERISA................................. 59
(v)
EXHIBIT A Form of Term Note
EXHIBIT B Form of Opinion of Counsel for the Borrower and Initial
Guarantor
EXHIBIT C Form of Opinion of Special Counsel for the Agent
EXHIBIT D Form of Assignment and Acceptance
EXHIBIT E Form of Notice of Borrowing
EXHIBIT F Form of Compliance Certificate
EXHIBIT G Form of Closing Certificate
EXHIBIT H Form of Officer's Certificate for Borrower
EXHIBIT I Form of Guaranty
EXHIBIT J Form of Contribution Agreement
EXHIBIT K Form of Borrowing Base Certificate
EXHIBIT L List of Eligible Properties
Schedule 4.08 Subsidiaries
Schedule 4.14 Environmental Matters
Schedule 5.17 Existing Investments
Schedule 5.25 Existing Guarantees
(vi)
TERM LOAN CREDIT AGREEMENT
TERM LOAN CREDIT AGREEMENT dated as of February 17, 1999 among JDN
Realty Corporation, the BANKS listed on the signature pages hereof, WACHOVIA
BANK, N.A., as Agent and PNC BANK, NATIONAL ASSOCIATION, as Documentation Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The terms as defined in this Section 1.01
-----------
shall, for all purposes of this Agreement and any amendment hereto (except as
herein otherwise expressly provided or unless the context otherwise requires),
have the meanings set forth herein:
"Adjusted London Interbank Offered Rate" has the meaning set forth in
Section 2.05(c).
"Affiliate" of any relevant Person means (i) any Person that directly,
or indirectly through one or more intermediaries, controls the relevant Person
(a "Controlling Person"), (ii) any Person (other than the relevant Person or a
Subsidiary of the relevant Person) which is controlled by or is under common
control with a Controlling Person, or (iii) any Person (other than a Subsidiary
of the relevant Person) of which the relevant Person owns, directly or
indirectly, 20% or more of the common stock or equivalent equity interests. As
used herein, the term "control" means possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Agent" means Wachovia Bank, N.A., a national banking association
organized under the laws of the United States of America, in its capacity as
agent for the Banks hereunder, and its successors and permitted assigns in such
capacity.
"Agent's Letter Agreement" means that certain letter agreement, dated
as of December 18, 1998, between the Borrower and the Agent relating to the
structure of the Loans, and certain fees from time to time payable by the
Borrower to the Agent, together with all amendments and supplements thereto.
"Agreement" means this Term Loan Credit Agreement, together with all
amendments and supplements hereto.
"Applicable Margin" has the meaning set forth in Section 2.05(a).
"Assignee" has the meaning set forth in Section 9.08(c).
"Assignment and Acceptance" means an Assignment and Acceptance
executed in accordance with Section 9.08(c) in the form attached hereto as
Exhibit D.
---------
"Authority" has the meaning set forth in Section 8.02.
"Bank" means each bank listed on the signature pages hereof as having
a Commitment, and its successors and assigns.
"Base Rate" means for any Base Rate Loan for any day, the rate per
annum equal to the higher as of such day of (i) the Prime Rate, or (ii) one-half
of one percent above the Federal Funds Rate. For purposes of determining the
Base Rate for any day, changes in the Prime Rate or the Federal Funds Rate shall
be effective on the date of each such change.
"Base Rate Borrowing" means a Borrowing consisting of Base Rate Loans.
"Base Rate Loan" means a Loan which bears or is to bear interest at a
rate based upon the Base Rate, and is to be made as a Base Rate Loan pursuant to
the applicable Notice of Borrowing, Section 2.02(f), or Article VIII, as
applicable.
"Base Rent" means, with respect to leases of the Properties, the
minimum annual contractual rent payable thereunder, excluding common area
maintenance and percentage rent.
"Borrower" means JDN Realty Corporation, a Maryland corporation, and
its successors and its permitted assigns.
"Borrowing" means a borrowing hereunder consisting of Loans made to
the Borrower.
"Borrowing Base" means the sum (without duplication with respect to
any Property) of each of the following, as determined by reference to the most
recent Borrowing Base Certificate furnished pursuant to Section 3.01(h) or
Section 5.01(i), as applicable:
(i) an amount equal to the product of (w) 10 (which is the
capitalization rate), times (x) 4 (which is the annualization factor),
times (y) 0.60 (which is the advance rate), times (z) the Net Operating
Income for the 3 month period ending on the last day of the Fiscal Quarter
just
2
ended prior to the date of determination, from each Eligible Unencumbered
Stabilized Property owned by the Borrower or any Guarantor for at least one
Fiscal Quarter; plus
(ii) an amount equal to the product of (x) the book value of each
Eligible Unencumbered Stabilized Property owned by the Borrower or any
Guarantor for less than a Fiscal Quarter, times (y) 0.60 (which is the
advance rate); plus
(iii) an amount equal to the lesser of: (A) the product of (x) 0.50
(which is the advance rate), times (y) the book value of Construction in
Progress on all Eligible Properties not subject to a Mortgage and (B)
$20,000,000.
"Borrowing Base Certificate" means a certificate substantially in the
form of Exhibit K, duly executed by an authorized officer, setting forth in
---------
reasonable detail the calculations for each component of the Borrowing Base.
"Capital Stock" means any nonredeemable capital stock or other
ownership interest of the Borrower or any Consolidated Entity (to the extent
issued to a Person other than the Borrower), whether common or preferred, and
including any interest as a member in a limited liability company.
"CERCLA" means the Comprehensive Environmental Response Compensation
and Liability Act, 42 U.S.C. (S) 9601 et. seq. and its implementing regulations
and amendments.
"CERCLIS" means the Comprehensive Environmental Response Compensation
and Liability Inventory System established pursuant to CERCLA.
"Change of Law" shall have the meaning set forth in Section 8.02.
"Closing Certificate" has the meaning set forth in Section 3.01(e).
"Closing Date" means February 17, 1999.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor Federal tax code.
"Commitment" means, with respect to each Bank the amount set forth
opposite the name of such Bank on the signature pages hereof.
"Compliance Certificate" has the meaning set forth in Section 5.01(c).
3
"Consolidated Entity" means at any date any Person the accounts of
which, in accordance with GAAP, are consolidated with those of the Borrower in
its consolidated financial statements as of such date.
"Consolidated Interest Expense" for any period means, interest
expensed in respect of Debt of the Borrower and its Consolidated Subsidiaries
and the Guarantors.
"Consolidated Liabilities" means the sum of (i) all liabilities that,
in accordance with GAAP, should be classified as liabilities on a consolidated
balance sheet of Borrower and its Consolidated Subsidiaries and the Guarantors,
and (ii) to the extent not included in clause (i) of this definition, all
Redeemable Preferred Stock.
"Consolidated Net Income" means, for any period, the Net Income of the
Borrower and its Consolidated Subsidiaries and the Guarantors determined on a
consolidated basis, but excluding (i) extraordinary items and (ii) any equity
interests of the Borrower or any Subsidiary in the unremitted earnings of any
Person that is not a Subsidiary.
"Consolidated Operating Profits" means, for any period, the Operating
Profits of the Borrower and its Consolidated Subsidiaries.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which, in accordance with GAAP, would be consolidated
with those of the Borrower in its consolidated financial statements as of such
date.
"Construction in Progress" means, for any retail Property, calculated
on a consolidated basis for the Borrower and the Guarantors, the sum of (x)
construction-in-progress as shown from time to time on the books and records of
the Borrower and the Guarantors, maintained in accordance with GAAP, plus (y)
the book value, calculated in accordance with GAAP, of any Property that (i)
previously constituted construction-in-progress and (ii) has not yet become a
Stabilized Property.
"Contribution Agreement" means the Contribution Agreement of even date
herewith in substantially the form of Exhibit J to be executed by the Borrower
---------
and by the Initial Guarantor on the Closing Date and by each of the Guarantors
pursuant to Section 5.29.
"Control" means, with respect to any Person, the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities or otherwise.
4
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, are treated as a single
employer under Section 414 of the Code.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee under capital leases,
(v) all obligations of such Person to reimburse any bank or other Person in
respect of amounts payable under a banker's acceptance, (vi) all Redeemable
Preferred Stock of such Person (in the event such Person is a corporation),
(vii) all obligations of such Person to reimburse any bank or other Person in
respect of amounts paid or to be paid or to be paid under a letter of credit or
similar instrument, (viii) all Debt of others secured by a Lien on any asset of
such Person, whether or not such Debt is assumed by such Person, (ix) all
obligations of such Person with respect to interest rate protection agreements,
foreign currency exchange agreements or other hedging arrangements (valued as
the termination value thereof computed in accordance with a method approved by
the International Swap Dealers Association and agreed to by such Person in the
applicable hedging agreement, if any), and (x) all Debt of others Guaranteed by
such Person.
"Debt Rating" means at any time whichever is the lowest of the rating
of the Borrower's senior unsecured, unenhanced debt (or, if no such debt exists,
its issuer credit rating for debt of such type) by ▇▇▇▇▇'▇, S&P and Duff &
▇▇▇▇▇▇ (provided, that (i) if any two of such ratings are the same, such ratings
--------
shall apply, and (ii) in the event of a double or greater split rating, the
rating immediately above the lowest rating shall apply), or if only one of them
rates the Borrower's senior unsecured, unenhanced debt, Level IV of the table
contained in Section 2.05(a) shall apply.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Default Rate" means, with respect to any Loan, on any day, the sum of
2% plus the highest interest rate (including the Applicable Margin) which may be
applicable to any Loans hereunder (irrespective of whether any such type of
Loans are actually outstanding hereunder).
5
"Dollars" or "$" means dollars in lawful currency of the United States
of America.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in Georgia are authorized by law to close.
"EBITDA" means at any time the sum of the following, determined on a
consolidated basis for the Borrower and the Guarantors, at the end of each
Fiscal Quarter, for the applicable measuring period: (i) Consolidated Net
Income; plus (ii) Consolidated Interest Expense; plus (iii) taxes on income;
---- ----
plus (iv) depreciation; plus (v) amortization; plus (vi) other non-cash charges.
---- ---- ----
"Eligible Property" means any retail Property which is either: (i)
listed on Exhibit L; or (ii) which has been approved as an Eligible Property by
---------
the Required Banks, at the request of the Borrower, taking into account the
following information concerning the Property provided to the Agent and the
Banks by the Borrower:
(x) as to all proposed Eligible Property, a physical description,
applicable environmental reports, and information regarding its location,
(y) as to any proposed Eligible Property which is a Stablilized
Property, information regarding its age and occupancy, an operating
statement and rent roll for the most recent Fiscal Quarter, and an
operating budget for the current Fiscal Year and
(z) as to any proposed Eligible Property which consists of
Construction in Progress, information regarding its rental status, and a
pro forma operating statement and rent roll (as of the time it becomes a
Stabilized Property);
provided, however, that under no circumstances can any Eligible Property include
-------- -------
at any time any Property which at such time is an "Eligible Property" under the
Revolving Credit Agreement.
"Eligible Unencumbered Stabilized Property" means any Eligible
Property which (i) is not subject to a Mortgage, and (ii) is a Stabilized
Property.
"Environmental Authority" means any foreign, federal, state, local or
regional government that exercises any form of jurisdiction or authority under
any Environmental Requirement.
"Environmental Authorizations" means all licenses, permits, orders,
approvals, notices, registrations or other legal
6
prerequisites for conducting the business of the Borrower or any Subsidiary
required by any Environmental Requirement.
"Environmental Judgments and Orders" means all judgments, decrees or
orders arising from or in any way associated with any Environmental
Requirements, whether or not entered upon consent, or written agreements with an
Environmental Authority or other entity arising from or in any way associated
with any Environmental Requirement, whether or not incorporated in a judgment,
decree or order.
"Environmental Liabilities" means any liabilities, whether accrued,
contingent or otherwise, arising from and in any way associated with any
Environmental Requirements.
"Environmental Notices" means notice from any Environmental Authority
or by any other person or entity, of possible or alleged noncompliance with or
liability under any Environmental Requirement, including without limitation any
complaints, citations, demands or requests from any Environmental Authority or
from any other person or entity for correction of any violation of any
Environmental Requirement or any investigations concerning any violation of any
Environmental Requirement.
"Environmental Proceedings" means any judicial or administrative
proceedings arising from or in any way associated with any Environmental
Requirement.
"Environmental Releases" means releases as defined in CERCLA or under
any applicable state or local environmental law or regulation.
"Environmental Requirements" means any legal requirement relating to
health, safety or the environment and applicable to the Borrower, any Subsidiary
or the Properties, including but not limited to any such requirement under
CERCLA or similar state legislation and all federal, state and local laws,
ordinances, regulations, orders, writs, decrees and common law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor law. Any reference to any provision
of ERISA shall also be deemed to be a reference to any successor provision or
provisions thereof.
"Euro-Dollar Borrowing" means a Borrowing consisting of Euro-Dollar
Loans.
"Euro-Dollar Business Day" means any Domestic Business Day on which
dealings in Dollar deposits are carried out in the London interbank market.
7
"Euro-Dollar Loan" means a Loan which bears or is to bear interest at
a rate based upon the Euro-Dollar Rate, and to be made as a Euro-Dollar Loan
pursuant to the applicable Notice of Borrowing.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
2.05(c).
"Event of Default" has the meaning set forth in Section 6.01.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the next higher 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if the day for which such rate is to
--------
be determined is not a Domestic Business Day, the Federal Funds Rate for such
day shall be such rate on such transactions on the next preceding Domestic
Business Day as so published on the next succeeding Domestic Business Day, and
(ii) if such rate is not so published for any day, the Federal Funds Rate for
such day shall be the average rate charged to the Agent on such day on such
transactions, as determined by the Agent.
"Fiscal Month" means any fiscal month of the Borrower.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower and the
Guarantors.
"Funds From Operations" means net income or loss computed in
accordance with GAAP, excluding gains (or losses) from debt restructuring and
sales of property, plus depreciation and amortization of real estate assets, and
after adjustments for unconsolidated partnerships and joint ventures.
"GAAP" means generally accepted accounting principles applied on a
basis consistent with those which, in accordance with Section 1.02, are to be
used in making the calculations for purposes of determining compliance with the
terms of this Agreement.
"Gross Asset Value" means, on a consolidated basis for the Borrower
and the Guarantors, the sum of (without duplication with respect to any
Property):
8
(i) an amount equal to the product of (x) 10 (which is the
capitalization rate), times (y) 4 (which is the annualization factor),
times (z) the Net Operating Income for the 3 month period ending on the
last day of the month just ended prior to the date of determination, from
each Property owned by the Borrower or any Guarantor for at least one
Fiscal Quarter; plus
(ii) an amount equal to the book value as of the last day of the
month just ended prior to the date of determination of Property owned by
the Borrower or any Guarantor for less than a Fiscal Quarter; plus
(iii) the book value of Construction in Progress on the last day of
the Fiscal Quarter just ended.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to secure, purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other obligation (whether arising by virtue
of partnership arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to provide collateral security, to take-or-pay,
or to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the obligee of such Debt or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part), provided that the term Guarantee shall
--------
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Guarantors" means any one, or more or all, as the context shall
require, of the Initial Guarantor and any Significant Subsidiary which becomes a
Guarantor pursuant to Section 5.29(subject to the provisions of the last
sentence of Section 5.05).
"Guaranty" means the Guaranty Agreement in substantially the form of
Exhibit I to be executed by the Initial Guarantor on the Closing Date and by
---------
each of the other Guarantors as required by and pursuant to Section 5.29,
unconditionally and jointly and severally Guaranteeing payment of the Loans, the
Term Notes and all other obligations of the Borrower to the Agent and the Banks
hereunder, including without limitation all principal, interest, fees, costs,
and compensation and indemnification amounts.
9
"Hazardous Materials" includes, without limitation, (a) solid or
hazardous waste, as defined in the Resource Conservation and Recovery Act of
1980, 42 U.S.C. (S) 6901 et seq. and its implementing regulations and
amendments, or in any applicable state or local law or regulation, (b)
"hazardous substance", "pollutant", or "contaminant" as defined in CERCLA, or in
any applicable state or local law or regulation, (c) gasoline, or any other
petroleum product or by-product, including, crude oil or any fraction thereof,
(d) toxic substances, as defined in the Toxic Substances Control Act of 1976, or
in any applicable state or local law or regulation and (e) insecticides,
fungicides, or rodenticides, as defined in the Federal Insecticide, Fungicide,
and Rodenticide Act of 1975, or in any applicable state or local law or
regulation, as each such Act, statute or regulation may be amended from time to
time.
"Initial Guarantor" means JDN DCI.
"Interest Period" means: (1) with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the first, second, third or sixth month
thereafter, as the Borrower may elect in the applicable Notice of Borrowing;
provided that:
--------
(a) any Interest Period (subject to paragraph (c) below) which would
otherwise end on a day which is not a Euro-Dollar Business Day shall be
extended to the next succeeding Euro-Dollar Business Day unless such Euro-
Dollar Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall,
subject to paragraph (c) below, end on the last Euro-Dollar Business Day of
the appropriate subsequent calendar month; and
(c) no Interest Period may be selected which begins before the
Maturity Date and would otherwise end after the Maturity Date; and
(2) with respect to each Base Rate Borrowing, the period commencing on the date
of such Borrowing and ending 30 days thereafter; provided that:
--------
(a) any Interest Period (subject to paragraph (b) below) which would
otherwise end on a day which is not a Domestic Business Day shall be
extended to the next succeeding Domestic Business Day; and
10
(b) no Interest Period which begins before the Maturity Date and would
otherwise end after the Maturity Date may be selected.
"Investment" means any investment in any Person, whether by means of
purchase or acquisition of obligations or securities of such Person, capital
contribution to such Person, loan or advance to such Person, making of a time
deposit with such Person, or assumption of any obligation of such Person or
otherwise.
"JDN DCI" means JDN Development Company, Inc., a Delaware corporation.
"JDN Venture" means any Person formed by the Borrower or any
Consolidated Entity: (i) which is not a Consolidated Entity and (ii) in which
the Borrower or such Consolidated Entity owns either (x) 50% or more of the
beneficial interests therein, but does not have Control thereof, or (y) 20% or
more of the beneficial interests therein, but does have Control thereof.
"Lending Office" means, as to each Bank, its office located at its
address set forth on the signature pages hereof (or identified on the signature
pages hereof as its Lending Office) or such other office as such Bank may
hereafter designate as its Lending Office by notice to the Borrower and the
Agent.
"Lien" means, with respect to any asset, any mortgage, deed to secure
debt, deed of trust, lien, pledge, charge, security interest, security title,
preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, or encumbrance or servitude of any kind in
respect of such asset to secure or assure payment of a Debt or a Guarantee,
whether by consensual agreement or by operation of statute or other law, or by
any agreement, contingent or otherwise, to provide any of the foregoing. For
the purposes of this Agreement, the Borrower or any Subsidiary shall be deemed
to own subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset.
"Loans" means the loans made by the Banks to the Borrower pursuant to
the terms and conditions set forth in Section 2.01, consisting of initial Loans
made by the Banks on or about the Closing Date (upon satisfaction of the
conditions set forth in Section 3.01) and thereafter, consisting solely of
Refunding Loans, with each Loan being either a Base Rate Loan or a Euro-Dollar
Loan, and references to "Loans" include Base Rate Loans or Euro-Dollar Loans, or
both, as the context shall require.
11
"Loan Documents" means this Agreement, the Term Notes, the Guaranty,
the Contribution Agreement, any other document evidencing, relating to or
securing the Loans, and any other document or instrument delivered from time to
time in connection with this Agreement, the Term Notes or the Loans, as such
documents and instruments may be amended or supplemented from time to time.
"London Interbank Offered Rate" has the meaning set forth in Section
2.05(c).
"Margin Stock" means "margin stock" as defined in Regulations T, U or
X.
"Material Adverse Effect" means, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether singly or in conjunction with any other event or events, act or acts,
condition or conditions, occurrence or occurrences, whether or not related, a
material adverse change in, or a material adverse effect upon, any of (a) the
financial condition, operations, business, properties or prospects of the
Borrower and the Guarantors taken as a whole, (b) the rights and remedies of the
Agent or the Banks under the Loan Documents, or the ability of the Borrower or
the Guarantors to perform its obligations under the Loan Documents to which it
is a party, as applicable, or (c) the legality, validity or enforceability of
any Loan Document.
"Maturity Date" means whichever is applicable of (i) February 15,
2002, or (ii) the date the Agent declares the Term Notes to be immediately due
and payable in full during the existence of an Event of Default pursuant to
Section 6.01.
"Moody's" means ▇▇▇▇▇'▇ Investor Service, Inc.
"Mortgage" means (i) with respect to any referenced Property, a
mortgage, deed to secure debt, deed of trust or similar instrument encumbering
such Property, and (ii) with respect to the owner of any referenced Property, a
pledge of any of its capital stock or partnership interests.
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"Net Income" means, as applied to any Person for any period, the
aggregate amount of net income of such Person for such period, as determined in
accordance with GAAP.
"Net Operating Income" means, for any Property, calculated on a
consolidated basis for the Borrower and the Guarantors, the sum of the following
derived from such Property:
12
(i) Property revenues, less (ii) Property expenses (excluding depreciation,
amortization and debt service), less (iii) a management fee equal to 3% of Base
Rent, and less (iv) a capital reserve equal to $0.15 for each leasable square
foot.
"Non-Recourse Mortgage Debt" means Debt secured by a Mortgage on
Property, which the Borrower has determined in good faith is by its terms non-
recourse, except for customary exclusions for environmental liability,
misapplication or fraudulent application of rent after default, insurance
proceeds and condemnation awards and other customary exclusions.
"Notice of Borrowing" has the meaning set forth in Section 2.02.
"Officer's Certificate" has the meaning set forth in Section 3.01(f).
"Operating Profits" means, as applied to any Person for any period,
the operating income of such Person for such period, as determined in accordance
with GAAP.
"Participant" has the meaning set forth in Section 9.08(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Performance Pricing Determination Date" has the meaning set forth in
Section 2.05(a).
"Person" means an individual, a corporation, a partnership, an
unincorporated association, a limited liability corporation, a limited liability
partnership, a trust or any other entity or organization, including, but not
limited to, a government or political subdivision or an agency or
instrumentality thereof.
"Plan" means at any time an employee pension benefit plan which is
covered by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code and is either (i) maintained by a member of the
Controlled Group for employees of any member of the Controlled Group or (ii)
maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
a member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding 5 plan years made contributions.
"Prime Rate" refers to that interest rate so denominated and set by
Wachovia from time to time as an interest
13
rate basis for borrowings. The Prime Rate is but one of several interest rate
bases used by Wachovia. Wachovia lends at interest rates above and below the
Prime Rate.
"Properties" means all real property owned, leased or otherwise used
or occupied by the Borrower or any Guarantor, wherever located.
"Quarterly Period" means a 3 month period (or portion thereof) ending
on each March 31, June 30, September 30 and December 31 after the Closing Date
and prior to the Maturity Date.
"Redeemable Preferred Stock" of any Person means any preferred stock
issued by such Person which is at any time prior to the Maturity Date either (i)
mandatorily redeemable (by sinking fund or similar payments or otherwise) or
(ii) redeemable at the option of the holder thereof.
"Refunding Loan" means a new Loan made on the day on which an
outstanding Loan is maturing or a Base Rate Borrowing is being converted to a
Euro-Dollar Borrowing, to the extent that the proceeds thereof are used entirely
for the purpose of paying such maturing Loan or Loan being converted.
"Regulation T" means Regulation T of the Board of Governors of the
Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation X" means Regulation X of the Board of Governors of the
Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Required Banks" means at any time Banks holding at least 66 2/3% of
the aggregate outstanding principal amount of the Loans.
"Restricted Payment" means (i) any dividend or other distribution on
any shares of the Borrower's Capital Stock (except dividends payable solely in
shares of its Capital Stock) or (ii) any payment on account of the purchase,
redemption, retirement or acquisition of (a) any shares of the Borrower's
Capital Stock (except shares acquired upon the conversion thereof into other
shares of its Capital Stock) or (b) any option,
14
warrant or other right to acquire shares of the Borrower's Capital Stock.
"Revolving Credit Agreement" means the Amended and Restated Credit
Agreement dated as of September 2, 1998, among the Borrower, the banks listed on
the signature pages thereof and Wachovia Bank, N.A., as Agent, as it may be
amended or supplemented from time to time.
"S&P" means Standard & Poor's Ratings Group, a division of ▇▇▇▇▇▇-
▇▇▇▇, Inc.
"Significant Subsidiary" means any Subsidiary which either (x) has
assets which constitute more than 5% of Gross Asset Value at the end of the most
recent Fiscal Quarter, or (y) contributed more than 5% of Consolidated Operating
Profits during the most recent Fiscal Quarter and the 3 Fiscal Quarters
immediately preceding such Fiscal Quarter (or, with respect to any Subsidiary
which existed during the entire 4 Fiscal Quarter period but was acquired by the
Borrower during such period, which would have contributed more than 5% of Gross
Asset Value during such period had it been a Subsidiary for the entire period).
"Stabilized Property" means at any time retail Properties (i) which
are at least 90% leased (pursuant to written leases which have been signed by
both landlord and tenant and under which the payment of Base Rent has commenced)
or (ii) are at least 80% occupied by tenants which have accepted the premises
and signed (together with the landlord) a lease, and with respect to which the
date for the commencement of payment of Base Rent has been established.
"Subsidiary" means any corporation or other entity of which securities
or other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by the Borrower; provided, however, that
-------- -------
"Subsidiary" shall not include any JDN Venture.
"Taxes" has the meaning set forth in Section 2.08(c).
"Term Notes" means the promissory notes of the Borrower substantially
in the form of Exhibit A evidencing the obligation of the Borrower to repay the
---------
Loans, together with all amendments, consolidations, modifications, renewals and
supplements thereto.
"Third Parties" means all lessees, sublessees, licensees and other
users of the Properties, excluding those users of the Properties in the ordinary
course of the Borrower's business and on a temporary basis.
15
"Transferee" has the meaning set forth in Section 9.08(d).
"Total Consolidated Liabilities" means at any time, for the Borrower
and the Guarantors, determined on a consolidated basis, the sum of (i)
Consolidated Liabilities, plus (ii) all Debt Guaranteed by the Borrower or any
Guarantor, plus (iii) the face amount of all letters of credit issued for the
account of the Borrower or any Guarantor.
"Total Secured Debt" means at any time, for the Borrower and the
Guarantors, determined on a consolidated basis, the sum of the following, but
only if any Property, or ownership interest of the owner thereof, is subject to
a Mortgage with respect thereto: (i) all indebtedness for borrowed money; (ii)
the deferred purchase price of Property; (iii) all capital leases in which the
Borrower is the tenant; (iv) all obligations to reimburse any bank or other
Person in respect of amounts paid or to be paid under a letter of credit or
similar instrument; and (v) all Guarantees of Debt of Persons other than the
Borrower and the Guarantors.
"Unencumbered Assets" means at any time, for the Borrower and the
Guarantors, determined on a consolidated basis, the sum (without duplication
with respect to any Property) of the following:
(i) an amount equal to the product of (x) 10 (which is the
capitalization rate), times (y) 4 (which is the annualization factor),
times (z) the Net Operating Income for the 3 month period ending on the
last day of the Fiscal Quarter just ended prior to the date of
determination, from each Property not subject to a Mortgage and owned by
the Borrower or any Guarantor for at least one Fiscal Quarter; plus
(ii) an amount equal to the book value of each Property not subject
to a Mortgage and owned by the Borrower or any Guarantor for less than a
Fiscal Quarter; plus
(iii) an amount equal to the book value of Construction in Progress
on all Properties not subject to a Mortgage.
"Unencumbered Stabilized Properties" means at any time, all Stabilized
Properties not subject to a Mortgage.
"Unfunded Vested Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (i) the present value of all vested
nonforfeitable benefits under such Plan exceeds (ii) the fair market value of
all Plan assets allocable to such benefits, all determined as of the then most
recent valuation date for such Plan, but only to the extent that
16
such excess represents a potential liability of a member of the Controlled Group
to the PBGC or the Plan under Title IV of ERISA.
"Unsecured Funded Debt" means at any time, for the Borrower and the
Guarantors, determined on a consolidated basis, the sum of the following, but
only if any Property, or ownership interest of the owner thereof, is not subject
to a Mortgage with respect thereto: (i) all indebtedness for borrowed money;
(ii) the deferred purchase price of Property; (iii) all capital leases in which
the Borrower is the tenant; (iv) all obligations to reimburse any bank or other
Person in respect of amounts paid or to be paid under a letter of credit or
similar instrument; and (v) all Guarantees of Debt of Persons other than the
Borrower and the Guarantors.
"Unsecured Interest Expense" means at any time that portion of
Consolidated Interest Expense attributable to Unsecured Funded Debt.
"Unsecured Net Operating Income" means at any time all Net Operating
Income attributable to Unencumbered Stabilized Properties.
"Wachovia" means Wachovia Bank, N.A., a national banking association,
and its successors.
"Wholly Owned Subsidiary" means any Subsidiary all of the shares of
capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by the Borrower.
"Y2K Plan" has the meaning set forth in Section 4.20.
"Year 2000 Compliant and Ready" means that (a) the Borrower's and its
Subsidiaries hardware and software systems with respect to the operation of its
business and its general business plan will: (i) handle date information
involving any and all dates before, during and/or after January 1, 2000,
including accepting input, providing output and performing date calculations in
whole or in part; (ii) operate, accurately without interruption on and in
respect of any and all dates before, during and/or after January 1, 2000 and
without any change in performance; (iii) store and provide date input
information without creating any ambiguity as to the century and; (b) the
Borrower has developed alternative plans to ensure business continuity in the
event of the failure of any or all of items (i) through (iii) in clause (a)
above in this definition.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
-----------------------------------
specified herein, all terms of an accounting character used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial
17
statements required to be delivered hereunder shall be prepared, in accordance
with GAAP, applied on a basis consistent (except for changes concurred in by the
Borrower's independent public accountants or otherwise required by a change in
GAAP) with the most recent audited consolidated financial statements of the
Borrower and its Consolidated Subsidiaries delivered to the Banks unless with
respect to any such change concurred in by the Borrower's independent public
accountants or required by GAAP, in determining compliance with any of the
provisions of this Agreement or any of the other Loan Documents: (i) the
Borrower shall have objected to determining such compliance on such basis at the
time of delivery of such financial statements, or (ii) the Required Banks shall
so object in writing within 30 days after the delivery of such financial
statements, in either of which events such calculations shall be made on a basis
consistent with those used in the preparation of the latest financial statements
as to which such objection shall not have been made (which, if objection is made
in respect of the first financial statements delivered under Section 5.01
hereof, shall mean the financial statements referred to in Section 4.04).
SECTION 1.03. References. Unless otherwise indicated, references in
----------
this Agreement to "Articles", "Exhibits", "Schedules", "Sections" and other
Subdivisions are references to articles, exhibits, schedules, sections and other
subdivisions hereof.
SECTION 1.04. Use of Defined Terms. All terms defined in this
--------------------
Agreement shall have the same defined meanings when used in any of the other
Loan Documents, unless otherwise defined therein or unless the context shall
require otherwise.
SECTION 1.05. Terminology. All personal pronouns used in this
-----------
Agreement, whether used in the masculine, feminine or neuter gender, shall
include all other genders; the singular shall include the plural, and the plural
shall include the singular. Titles of Articles and Sections in this Agreement
are for convenience only, and neither limit nor amplify the provisions of this
Agreement.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend Loans. Each Bank severally agrees,
-------------------------
on the terms and conditions set forth herein, to make Loans to the Borrower on
or about the Closing Date in the amount of its Commitment; provided that all
--------
advances of the Loans by the Banks shall be made in a single funding on or about
the Closing Date (when all conditions have been satisfied), in an aggregate
amount not to exceed the aggregate Commitments, and thereafter, all Loans shall
be made only as Refunding Loans.
18
Each Borrowing under this Section shall be in an aggregate principal amount of
(x) for Base Rate Loans, $5,000,000 or any larger integral multiple of
$1,000,000, and (y) for Euro-Dollar Loans, $10,000,000 or any larger integral
multiple of $1,000,000 and shall be made from the several Banks ratably in
proportion to their respective Commitments. Once repaid, Borrowings may not be
reborrowed pursuant hereto except as Refunding Loans.
SECTION 2.02. Method of Borrowing Loans. For all Loans:
-------------------------
(a) The Borrower shall give the Agent notice (a "Notice of
Borrowing"), which shall be substantially in the form of Exhibit E, prior to
---------
11:00 A.M. (Atlanta, Georgia time) on the same Domestic Business Day as each
Base Rate Borrowing and at least 3 Euro-Dollar Business Days before each Euro-
Dollar Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Domestic Business
Day in the case of a Base Rate Borrowing or a Euro-Dollar Business Day in
the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Loans comprising such Borrowing are to be Base Rate
Loans or Euro-Dollar Loans, and
(iv) in the case of a Euro-Dollar Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
(b) Upon receipt of a Notice of Borrowing, the Agent shall promptly
notify each Bank of the contents thereof and of such Bank's ratable share of
such Borrowing and such Notice of Borrowing, once received by the Agent, shall
not thereafter be revocable by the Borrower.
(c) Not later than 11:00 A.M. (Atlanta, Georgia time), as to Euro-
Dollar Borrowings, and 2:00 P.M. (Atlanta, Georgia time), as to Base Rate
Borrowings, on the date of the initial advance of the Loans, each Bank shall
(except as provided in paragraph (d) of this Section) make available its ratable
share of such Borrowing, in Federal or other funds immediately available in
Atlanta, Georgia, to the Agent at its address determined pursuant to Section
9.01. Unless the Agent determines that any applicable condition specified in
Article III has not been satisfied, the Agent will make the funds so received
from the Banks available to the Borrower at the Agent's aforesaid address.
Unless the Agent receives notice from a Bank, at the Agent's address referred to
in or specified pursuant to Section 9.01, no later than 4:00 P.M. (local time at
such address) on the date prior to the initial advance of the Loans stating that
such Bank will not make a Loan in connection with such Borrowing, the Agent
shall be entitled to
19
assume that such Bank will make a Loan in connection with such Borrowing and, in
reliance on such assumption, the Agent may (but shall not be obligated to) make
available such Bank's ratable share of such Borrowing to the Borrower for the
account of such Bank. If the Agent makes such Bank's ratable share available to
the Borrower and such Bank does not in fact make its ratable share of such
Borrowing available on such date, the Agent shall be entitled to recover such
Bank's ratable share from such Bank or the Borrower (and for such purpose shall
be entitled to charge such amount to any account of the Borrower maintained with
the Agent), together with interest thereon for each day during the period from
the date of such Borrowing until such sum shall be paid in full at a rate per
annum equal to the rate at which the Agent determines that it obtained (or could
have obtained) overnight Federal funds to cover such amount for each such day
during such period, provided that (i) any such payment by the Borrower of such
--------
Bank's ratable share and interest thereon shall be without prejudice to any
rights that the Borrower may have against such Bank and (ii) until such Bank has
paid its ratable share of such Borrowing, together with interest pursuant to the
foregoing, it will have no interest in or rights with respect to such Borrowing
for any purpose hereunder. If the Agent does not exercise its option to advance
funds for the account of such Bank, it shall forthwith notify the Borrower of
such decision.
(d) All Loans other than the initial advance of the Term Loans shall
be made as Refunding Loans.
(e) Notwithstanding anything to the contrary contained in this
Agreement, no Euro-Dollar Borrowing may be made if there shall have occurred a
Default or an Event of Default, which Default or Event of Default shall not have
been cured or waived, and all Refunding Loans shall be made as Base Rate Loans
(but shall bear interest at the Default Rate, if applicable).
(f) In the event that a Notice of Borrowing fails to specify whether
the Loans comprising such Borrowing are to be Base Rate Loans or Euro-Dollar
Loans, such Loans shall be made as Base Rate Loans. If the Borrower is
otherwise entitled under this Agreement to repay any Loans maturing at the end
of an Interest Period applicable thereto with the proceeds of a new Borrowing,
and the Borrower fails to repay such Loans using its own moneys and fails to
give a Notice of Borrowing in connection with such new Borrowing, a new
Borrowing shall be deemed to be made on the date such Loans mature in an amount
equal to the principal amount of the Loans so maturing, and the Loans comprising
such new Borrowing shall be Base Rate Loans.
(g) Notwithstanding anything to the contrary contained herein, there
shall not be more than 8 Euro-Dollar Borrowings outstanding at any given time.
20
SECTION 2.03. Term Notes. (a) The Loans of each Bank shall be
----------
evidenced by a single Term Note payable to the order of such Bank for the
account of its Lending Office in an amount equal to the original principal
amount of such Bank's Commitment.
(b) Upon receipt of each Bank's Term Note pursuant to Section 3.01,
the Agent shall deliver such Term Note to such Bank. Each Bank shall record,
and prior to any transfer of its Term Note shall endorse on the schedules
forming a part thereof appropriate notations to evidence, the date, amount and
maturity of, and effective interest rate for, each Loan made by it, the date and
amount of each payment of principal made by the Borrower with respect thereto,
and such schedules of each such Bank's Term Note shall constitute rebuttable
presumptive evidence of the respective principal amounts owing and unpaid on
such Bank's Term Note; provided that the failure of any Bank to make, or error
--------
in making, any such recordation or endorsement shall not affect the obligation
of the Borrower hereunder or under the Term Notes or the ability of any Bank to
assign its Term Note. Each Bank is hereby irrevocably authorized by the
Borrower so to endorse its Term Note and to attach to and make a part of any
Term Note a continuation of any such schedule as and when required.
SECTION 2.04. Maturity of Loans. (a) Each Loan included in any
-----------------
Borrowing shall mature, and the principal amount thereof shall be due and
payable, on the last day of the Interest Period applicable to such Borrowing.
(b) Notwithstanding the foregoing, the outstanding principal amount of
the Loans, if any, together with all accrued but unpaid interest thereon, if
any, shall be due and payable on the Maturity Date.
SECTION 2.05. Interest Rates. (a) "Applicable Margin" means (x) for
--------------
any Base Rate Loan, 0.00% and (y) for each Euro-Dollar Loan, (1) until the first
Performance Pricing Determination Date after the Closing Date, the percentage
set forth in Level III of the table below, and (2) thereafter, the percentage
determined on each Performance Pricing Determination Date by reference to the
table set forth below as to such type of Loan and the Debt Rating for the
quarterly or annual period ending immediately prior to such Performance Pricing
Determination Date; provided, that if there is no Debt Rating from at least two
--------
of the rating agencies, the Applicable Margin for Euro-Dollar Loans shall be
based upon Level IV of the table below.
===============================================================
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
===============================================================
21
===============================================================
Debt Rating *BBB+ BBB BBB- **BBB-
and/1/
and/1/ and/1/ and/1/ Baa/3/
Baa/1/ Baa/2/ Baa/3/
---------------------------------------------------------------
Applicable Margin 1.10% 1.25% 1.40% 1.85%
===============================================================
In determining the amounts to be paid by the Borrower pursuant to Sections
2.05(b) and 2.05(c), the Borrower and the Banks shall refer to the Borrower's
Debt Rating from time to time. For purposes hereof, "Performance Pricing
Determination Date" shall mean each date on which the Debt Rating changes. Each
change in interest and fees as a result of a change in Debt Rating shall be
effective only for Loans (including Refunding Loans) which are made on or after
the relevant Performance Pricing Determination Date. All determinations
hereunder shall be made by the Agent unless the Required Banks shall object to
any such determination. The Borrower shall promptly notify the Agent of any
change in the Debt Rating.
(b) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made until it
becomes due, at a rate per annum equal to the Base Rate for such day plus the
Applicable Margin. Such interest shall be payable for each Interest Period on
the last day thereof. Any overdue principal of and, to the extent permitted by
applicable law, overdue interest on any Base Rate Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the
Default Rate.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for the Interest Period applicable thereto, at a rate
per annum equal to the sum of the Applicable Margin plus the applicable Adjusted
London Interbank Offered Rate for such Interest Period. Such interest shall be
payable for each Interest Period on the last day thereof and, if such Interest
Period is longer than 3 months, at intervals of 3 months after the first day
thereof. Any overdue principal of and, to the extent permitted by law, overdue
interest on any Euro-Dollar Loan shall bear interest, payable on demand, for
each day until paid at a rate per annum equal to the Default Rate.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upwards, if necessary, to the next higher 1/100th of 1%) by dividing (i) the
applicable London
________________________
/1/ if applicable
* Greater than or Equal to
** Less Than
22
Interbank Offered Rate for such Interest Period by (ii) 1.00 minus the Euro-
Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Euro-Dollar Loan
means for the Interest Period of such Euro-Dollar Loan, the rate per annum
determined on the basis of the offered rate for deposits in Dollars of amounts
equal or comparable to the principal amount of such Euro-Dollar Loan offered for
a term comparable to such Interest Period, which rates appear on the Telerate
Page 3750 effective as of 11:00 A.M., London time, 2 Euro-Dollar Business Days
prior to the first day of such Interest Period, provided that if no such offered
--------
rates appear on such page, the "London Interbank Offered Rate" for such Interest
Period will be the arithmetic average (rounded upward, if necessary, to the next
higher 1/100th of 1%) of rates quoted by not less than 2 major banks in New York
City, selected by the Agent, at approximately 10:00 A.M., New York City time, 2
Euro-Dollar Business Days prior to the first day of such Interest Period, for
deposits in Dollars offered by leading European banks for a period comparable to
such Interest Period in an amount comparable to the principal amount of such
Euro-Dollar Loan.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in respect of "Eurocurrency liabilities" (or in respect of any
other category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
any Bank to United States residents). The Adjusted London Interbank Offered
Rate shall be adjusted automatically on and as of the effective date of any
change in the Euro-Dollar Reserve Percentage.
(d) The Agent shall determine each interest rate applicable to the
Loans hereunder. The Agent shall give prompt notice to the Borrower and the
Banks by telecopier of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
(e) After the occurrence and during the continuance of an Event of
Default, the principal amount of the Loans (and, to the extent permitted by
applicable law, all accrued interest thereon) may, at the election of the
Required Banks, bear interest at the Default Rate.
SECTION 2.06. Optional Prepayments. (a) The Borrower may, upon at
--------------------
least 1 Domestic Business Days' notice to the Agent, prepay any Base Rate
Borrowing in whole at any time, or from time to time in part in amounts
aggregating at least $25,000,000 or any
23
larger integral multiple of $25,000,000 (or any lesser amount equal to the
outstanding balance of such Borrowing), by paying the principal amount to be
prepaid together with accrued interest thereon to the date of prepayment. Each
such optional prepayment shall be applied to prepay ratably the Base Rate Loans
of the several Banks included in such Base Rate Borrowing.
(b) Upon 3 Domestic Business Day's prior written notice, the Borrower
may prepay any Euro-Dollar Borrowing in whole at any time, or from time to time
in part in amounts aggregating at least $25,000,000 or any larger integral
multiple of $25,000,000 (or any lesser amount equal to the outstanding balance
of such Borrowing), by paying the principal amount to be prepaid together with
accrued interest thereon to the date of prepayment, plus the amount of
compensation determined to be due pursuant to Section 8.05, if such prepayment
is not made on the last of an Interest Period. Each such optional prepayment
shall be applied to prepay ratably the Euro-Dollar Loans of the several Banks
included in such Euro-Dollar Borrowing.
(c) Upon receipt of a notice of prepayment pursuant to this Section
2.06, the Agent shall promptly notify each Bank of the contents thereof and of
such Bank's ratable share of such prepayment and such notice, once received by
the Agent, shall not thereafter be revocable by the Borrower.
SECTION 2.07. Mandatory Prepayments. On each date on which the
---------------------
aggregate principal amount of the Loans outstanding exceeds the Borrowing Base
on such date (including, without limitation, because an Eligible Property
included in the most recent Borrowing Base Certificate has become subject to a
Mortgage), the Borrower shall so notify the Agent of the amount of such excess
and repay or prepay such principal amount of the outstanding Loans (together
with interest thereon and any amount due under Section 8.05(a)) as may be
necessary so that after such payment the aggregate unpaid principal amount of
the Loans does not exceed the Borrowing Base on such date; provided, however,
-------- -------
that upon the request of the Borrower, the Borrower shall have 30 days in which
to identify and obtain approval of the Required Banks, pursuant to the
provisions of the definition of "Eligible Property"), a substitute Eligible
Property, and upon any such approval, such Eligible Property shall be included
in the computation of the Borrowing Base, and no prepayment shall be required
except to the extent the Borrowing Base, as so computed, still exceeds the
aggregate principal amount of the Loans outstanding. Each such payment or
prepayment shall be applied ratably to the Loans of the Banks outstanding on the
date of payment or prepayment in the following order of priority: (i) first, to
Base Rate Loans, and (ii) secondly, to Euro-Dollar Loans.
SECTION 2.08. General Provisions as to Payments. (a) The Borrower
---------------------------------
shall make each payment of principal of, and interest
24
on, the Loans and of fees hereunder, not later than 11:00 A.M. (Atlanta, Georgia
time) on the date when due, in Federal or other funds immediately available in
Atlanta, Georgia, to the Agent at its address referred to in Section 9.01. The
Agent will distribute to each Bank its ratable share of each such payment
received by the Agent for the account of the Banks, such payment to be
distributed by the Agent (x) by 2:00 P.M. on the date of receipt by the Agent,
provided that such payment was received by the Agent by 1:00 P.M. (Atlanta,
Georgia time), and (y) by 2:00 P.M. (Atlanta, Georgia time) on the date
following the date of receipt by the Agent, if such payment was received by the
Agent after 1:00 P.M. (Atlanta, Georgia time). If the Agent shall fail to make
such distribution within the time required by the immediately preceding
sentence, such distribution shall be made together with interest thereon, for
each day during the period from the date such distribution should have been so
made until the date such distribution actually is made, at a rate per annum
equal to the Federal Funds Rate.
(b) Whenever any payment of principal of, or interest on, the Base
Rate Loans or of fees hereunder shall be due on a day which is not a Domestic
Business Day, the date for payment thereof shall be extended to the next
succeeding Domestic Business Day. Whenever any payment of principal of or
interest on, the Euro-Dollar Loans shall be due on a day which is not a Euro-
Dollar Business Day, the date for payment thereof shall be extended to the next
succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day falls
in another calendar month, in which case the date for payment thereof shall be
the next preceding Euro-Dollar Business Day.
(c) All payments of principal, interest and fees and all other amounts
to be made by the Borrower pursuant to this Agreement with respect to any Loan
or fee relating thereto shall be paid without deduction for, and free from, any
tax, imposts, levies, duties, deductions, or withholdings of any nature now or
at anytime hereafter imposed by any governmental authority or by any taxing
authority thereof or therein excluding in the case of each Bank, taxes imposed
on or measured by its net income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Bank is organized or any political
subdivision thereof and, in the case of each Bank, taxes imposed on its income,
and franchise taxes imposed on it, by the jurisdiction of such Bank's applicable
Lending Office or any political subdivision thereof (all such non-excluded
taxes, imposts, levies, duties, deductions or withholdings of any nature being
"Taxes"). In the event that the Borrower is required by applicable law to make
any such withholding or deduction of Taxes with respect to any Loan or fee or
other amount, the Borrower shall pay such deduction or withholding to the
applicable taxing authority, shall promptly furnish to any Bank in respect of
which such deduction or withholding is made all receipts and other documents
evidencing such payment and shall pay to such Bank additional amounts as may be
necessary in order that the
25
amount received by such Bank after the required withholding or other payment
shall equal the amount such Bank would have received had no such withholding or
other payment been made.
Each Bank which is not organized under the laws of the United States
or any state thereof agrees, as soon as practicable after receipt by it of a
request by the Borrower to do so, to file all appropriate forms and take other
appropriate action to obtain a certificate or other appropriate document from
the appropriate governmental authority in the jurisdiction imposing the relevant
Taxes, establishing that it is entitled to receive payments of principal and
interest under this Agreement and the Term Notes without deduction and free from
withholding of any Taxes imposed by such jurisdiction; provided that if it is
--------
unable, for any reason, to establish such exemption, or to file such forms and,
in any event, during such period of time as such request for exemption is
pending, the Borrower shall nonetheless remain obligated under the terms of the
immediately preceding paragraph.
In the event any Bank receives a refund of any Taxes paid by the
Borrower pursuant to this Section 2.08(c), it will pay to the Borrower the
amount of such refund promptly upon receipt thereof; provided that if at any
--------
time thereafter it is required to return such refund, the Borrower shall
promptly repay to it the amount of such refund.
Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower and the Banks
contained in this Section 2.08(c) shall be applicable with respect to any
Participant, Assignee or other Transferee, and any calculations required by such
provisions (i) shall be made based upon the circumstances of such Participant,
Assignee or other Transferee, and (ii) constitute a continuing agreement and
shall survive the termination of this Agreement and the payment in full or
cancellation of the Term Notes.
SECTION 2.09. Computation of Interest and Fees. Interest on Base Rate
--------------------------------
Loans shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day). Interest on Euro-Dollar Loans shall be computed on the basis of a year of
360 days and paid for the actual number of days elapsed, calculated as to each
Interest Period from and including the first day thereof to but excluding the
last day thereof. Commitment fees and any other fees payable hereunder shall be
computed on the basis of a year of 360 days and paid for the actual number of
days elapsed (including the first day but excluding the last day).
ARTICLE III
CONDITIONS TO BORROWINGS
26
SECTION 3.01. Conditions to First Borrowing. The obligation of each
-----------------------------
Bank to make a Loan on the occasion of the first Borrowing is subject to the
satisfaction of the conditions set forth in this Section 3.01, including receipt
by the Agent of the following (as to the documents described in paragraphs (a),
(c), (d) and (e) below, in sufficient number of counterparts for delivery of a
counterpart to each Bank and retention of one counterpart by the Agent):
(a) from each of the parties hereto of either (i) a duly executed
counterpart of this Agreement signed by such party or (ii) a facsimile
transmission of such executed counterpart, with the original to be sent to
the Agent by overnight courier);
(b) a duly executed Term Note and a Guaranty duly executed by the
Initial Guarantor and a Contribution Agreement duly executed by the
Borrower and the Initial Guarantor;
(c) an opinion letter of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP, counsel for the
Borrower and the Initial Guarantor, dated as of the Closing Date,
substantially in the form of Exhibit B and covering such additional matters
---------
relating to the transactions contemplated hereby as the Agent or any Bank
may reasonably request;
(d) an opinion of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, special counsel for the
Agent, dated as of the Closing Date, substantially in the form of Exhibit C
---------
and covering such additional matters relating to the transactions
contemplated hereby as the Agent may reasonably request;
(e) a certificate (the "Closing Certificate") substantially in the
form of Exhibit G, dated as of the Closing Date, signed by a principal
---------
financial officer of the Borrower, to the effect that, to the best of his
or her knowledge, (i) no Default has occurred and is continuing on the date
of the first Borrowing and (ii) the representations and warranties of the
Borrower contained in Article IV are true on and as of the date of the
first Borrowing hereunder;
(f) all documents which the Agent or any Bank may reasonably request
relating to the existence of the Borrower and the Initial Guarantor, the
corporate authority for and the validity of this Agreement, the Term Notes,
the Guaranty and the Contribution Agreement, and any other matters relevant
hereto, all in form and substance satisfactory to the Agent, including,
without limitation, a certificate of each of the Borrower and the Initial
Guarantor substantially in the form of Exhibit H (the "Officer's
---------
Certificate"), signed by the Secretary or an Assistant Secretary of the
Borrower and the Initial Guarantor, respectively, and as to the names, true
27
signatures and incumbency of the officer or officers of the Borrower or
Initial Guarantor authorized to execute and deliver the Loan Documents, and
certified copies of the following items for each of the Borrower and
Initial Guarantor (i) a certificate of the Secretary of State of the State
of its incorporation as to its good standing as a corporation incorporated
therein, and (ii) the action taken by its Board of Directors authorizing
the execution, delivery and performance of the Loan Documents to which it
is a party;
(g) a Notice of Borrowing;
(h) receipt of the initial Borrowing Base Certificate, showing the
Borrowing Base as of last day of the Fiscal Quarter ending prior to the
Closing Date;
(i) receipt by the Agent of all fees payable to the Agent on the
Closing Date (i) for the sole account of the Agent pursuant to the Agent's
Letter Agreement and (ii) for the ratable account of the Banks pursuant to
the Summary of Terms and Conditions attached to the Agent's Letter
Agreement (and the Offering Memorandum sent to the Banks);
(j) the fact that, immediately before and after such funding, no
Default shall have occurred and be continuing; and
(k) the fact that the representations and warranties of the Borrower
contained in Article IV of this Agreement shall be true on and as of the
date of such funding.
In addition, if the Borrower desires funding of a Euro-Dollar Loan on the
Closing Date, the Agent shall have received, the requisite number of days prior
to the Closing Date, a funding indemnification letter satisfactory to it,
pursuant to which (i) the Agent and the Borrower shall have agreed upon the
interest rate, amount of Borrowing and Interest Period for such Euro-Dollar
Borrowing, and (ii) the Borrower shall indemnify the Banks from any loss or
expense arising from the failure to close on the anticipated Closing Date
identified in such letter or the failure to borrow such Euro-Dollar Borrowing on
such date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each of the Borrower and (by incorporation by reference in the
Guaranty) the Guarantors, as expressly stated, represents and warrants that:
28
SECTION 4.01. Corporate Existence and Power. Each of the Borrower and
-----------------------------
the Guarantors is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, is duly
qualified to transact business in every jurisdiction where, by the nature of its
business, such qualification is necessary, and has all corporate powers and all
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
SECTION 4.02. Corporate and Governmental Authorization; No
--------------------------------------------
Contravention. The execution, delivery and performance by the Borrower of this
-------------
Agreement, the Term Notes and the other Loan Documents and by the Guarantors of
the Guaranty (i) are within the Borrower's or such Guarantor's corporate powers,
(ii) have been duly authorized by all necessary corporate action, (iii) require
no action by or in respect of or filing with, any governmental body, agency or
official, (iv) do not contravene, or constitute a default under, any provision
of applicable law or regulation or of the certificate of incorporation or by-
laws of the Borrower or any Guarantor or of any agreement, judgment, injunction,
order, decree or other instrument binding upon the Borrower or any Guarantor and
(v) do not result in the creation or imposition of any Lien on any asset of the
Borrower or any of Guarantor.
SECTION 4.03. Binding Effect. This Agreement constitutes a valid and
--------------
binding agreement of the Borrower enforceable in accordance with its terms, and
the Term Notes, the Guaranty and the other Loan Documents, when executed and
delivered in accordance with this Agreement, will constitute valid and binding
obligations of the Borrower and the Guarantors party thereto, enforceable in
accordance with their respective terms, provided that the enforceability hereof
--------
and thereof is subject in each case to general principles of equity and to
bankruptcy, insolvency and similar laws affecting the enforcement of creditors'
rights generally.
SECTION 4.04. Financial Information. (a) The consolidated balance
---------------------
sheets of the Borrower and the consolidated financial position of JDN DCI as of
December 31, 1997 and the related consolidated statements of income,
shareholders' equity and cash flows for the Fiscal Year then ended, reported on
by Ernst & Young LLP, copies of which have been delivered to each of the Banks,
and the unaudited consolidated financial statements of the Borrower for the
interim period ended September 30, 1998, copies of which have been delivered to
each of the Banks, fairly present, in conformity with GAAP, the consolidated
financial position of the Borrower and its Consolidated Subsidiaries and JDN DCI
as of such date and their consolidated results of operations and cash flows for
such periods stated.
(b) Since December 31, 1997, there has been no event, act, condition
or occurrence having a Material Adverse Effect.
29
SECTION 4.05. No Litigation. There is no action, suit or proceeding
-------------
pending, or to the knowledge of the Borrower threatened, against or affecting
the Borrower, any Guarantor or any Subsidiary before any court or arbitrator or
any governmental body, agency or official which could have a Material Adverse
Effect or which in any manner draws into question the validity of or could
impair the ability of the Borrower or any Guarantor to perform its obligations
under, this Agreement, the Term Notes, the Guaranty or any of the other Loan
Documents.
SECTION 4.06. Compliance with ERISA. (a) The Borrower and each member
---------------------
of the Controlled Group have fulfilled their obligations under the minimum
funding standards of ERISA and the Code with respect to each Plan and are in
compliance in all material respects with the presently applicable provisions of
ERISA and the Code, and have not incurred any liability to the PBGC or a Plan
under Title IV of ERISA.
(b) Neither the Borrower nor any member of the Controlled Group is or
ever has been obligated to contribute to any Multiemployer Plan.
SECTION 4.07. Compliance with Laws; Payment of Taxes. To the best of
--------------------------------------
the Borrower's knowledge, the Borrower and each Guarantor and each Subsidiary is
in compliance with all applicable laws, regulations and similar requirements of
governmental authorities, except where such compliance is being contested in
good faith through appropriate proceedings. There have been filed on behalf of
the Borrower and each Guarantor and each Subsidiary all material Federal, state
and local income, excise, property and other tax returns which are required to
be filed by them and all taxes due pursuant to such returns or pursuant to any
assessment received by or on behalf of the Borrower and each Guarantor and each
Subsidiary have been paid, except in all cases, for any such tax, assessment,
fine or penalty that is being contested in good faith through appropriate
proceedings.. The charges, accruals and reserves on the books of the Borrower
and each Guarantor and each Subsidiary in respect of taxes or other governmental
charges are, in the opinion of the Borrower, adequate.
SECTION 4.08. Guarantors and Subsidiaries. Each of the Guarantors and
---------------------------
the Subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization, is duly qualified
to transact business in every jurisdiction where, by the nature of its business,
such qualification is necessary, and has all corporate powers and all
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted, except where failure to so qualify or be in
good standing would not have or cause a Material Adverse Effect. The Borrower
has no Subsidiaries except for those Subsidiaries listed on Schedule 4.08,
30
which accurately sets forth each such Subsidiary's complete name and
jurisdiction of organization.
SECTION 4.09. Investment Company Act. Neither the Borrower nor any
----------------------
Guarantor or Subsidiary is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
SECTION 4.10. Public Utility Holding Company Act. Neither the
----------------------------------
Borrower nor any Guarantor or Subsidiary is a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company", as such terms are
defined in the Public Utility Holding Company Act of 1935, as amended.
SECTION 4.11. Ownership of Property. Each of the Borrower, the
---------------------
Guarantors and the Subsidiaries has title to its properties sufficient for the
conduct of its business.
SECTION 4.12. No Default. To the best of Borrower's knowledge,
----------
neither the Borrower nor any Guarantor or Subsidiary is in default under or with
respect to any agreement, instrument or undertaking to which it is a party or by
which it or any of its property is bound which could have or cause a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
SECTION 4.13. Full Disclosure. All information heretofore furnished
---------------
by the Guarantors or the Borrower to the Agent or any Bank for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by the Guarantors or the Borrower to
the Agent or any Bank will be, true, accurate and complete in every material
respect or based on reasonable estimates on the date as of which such
information is stated or certified. The Borrower and the Guarantors have
disclosed to the Banks in writing any and all facts which could have or cause a
Material Adverse Effect.
SECTION 4.14. Environmental Matters. (a) Except as set forth in
---------------------
Schedule 4.14, to the best of the Borrower's knowledge, neither the Borrower nor
any Guarantor or Subsidiary is subject to any Environmental Liability which
could have or cause a Material Adverse Effect and none of the Guarantors, the
Borrower or any Subsidiary has been designated as a potentially responsible
party under CERCLA or under any state statute similar to CERCLA. None of the
Properties has been identified on any current or proposed (i) National
Priorities List under 40 C.F.R. (S) 300, (ii) CERCLIS list or (iii) any list
arising from a state statute similar to CERCLA.
(b) Except as set forth in Schedule 4.14, to the best of the
Borrower's knowledge, no Hazardous Materials have been or are being used,
produced, manufactured, processed, treated, recycled,
31
generated, stored, disposed of, managed or otherwise handled at, or shipped or
transported to or from the Properties or are otherwise present at, on, in or
under the Properties, or, to the best of the knowledge of the Borrower, at or
from any adjacent site or facility, except for Hazardous Materials, such as
cleaning solvents, pesticides and other materials used, produced, manufactured,
processed, treated, recycled, generated, stored, disposed of, managed, or
otherwise handled in the ordinary course of business in material compliance with
all applicable Environmental Requirements.
(c) Except as set forth in Schedule 4.14, to the best of the
Borrower's knowledge, each of the Borrower and its Subsidiaries and Affiliates
has procured all Environmental Authorizations necessary for the conduct of its
business, and is in compliance with all Environmental Requirements in connection
with the operation of the Properties and the Borrower's, and each of its
Subsidiary's and Affiliate's, respective businesses.
SECTION 4.15. Capital Stock. All Capital Stock, debentures, bonds,
-------------
notes and all other securities of and interests in the Borrower and its
Subsidiaries presently issued and outstanding or effective are validly and
properly issued or effective in all material respects in accordance with all
applicable laws, including, but not limited to, the "Blue Sky" laws of all
applicable states and the federal securities laws. The issued shares of or
other interests constituting Capital Stock of the Borrower's Wholly Owned
Subsidiaries are owned by the Borrower free and clear of any Lien or adverse
claim. At least a majority of the issued shares of capital stock of or other
interests in each of the Borrower's other Subsidiaries (other than Wholly Owned
Subsidiaries) is owned by the Borrower, and all such shares or other interests
which are owned by the Borrower are owned by it free and clear of any Lien or
adverse claim.
SECTION 4.16. Margin Stock. Neither the Borrower nor any Guarantor or
------------
Subsidiary is engaged principally, or as a significant part of its business, in
the business of purchasing or carrying any Margin Stock, and no part of the
proceeds of any Loan will be used to purchase or carry any Margin Stock or to
extend credit to others for the purpose of purchasing or carrying any Margin
Stock (other than loans to employees for the purchase of Capital Stock pursuant
to options granted by the Borrower), or be used for any purpose which violates,
or which is inconsistent with, the provisions of Regulation T, U or X.
SECTION 4.17. Insolvency. After giving effect to the execution and
----------
delivery of the Loan Documents and the making of the Loans under this Agreement:
(i) the Borrower will not (x) be "insolvent," within the meaning of such term as
used in O.C.G.A. (S) 18-2-22 or as defined in (S) 101 of the "Bankruptcy Code",
or Section 2 of either the "UFTA" or the "UFCA", or as defined or used
32
in any "Other Applicable Law" (as those terms are defined below), or (y) be
unable to pay its debts generally as such debts become due within the meaning of
Section 548 of the Bankruptcy Code, Section 4 of the UFTA or Section 6 of the
UFCA, or (z) have an unreasonably small capital to engage in any business or
transaction, whether current or contemplated, within the meaning of Section 548
of the Bankruptcy Code, Section 4 of the UFTA or Section 5 of the UFCA; and (ii)
the obligations of the Borrower under the Loan Documents and with respect to the
Loans will not be rendered avoidable under any Other Applicable Law. For
purposes of this Section 4.17, "Bankruptcy Code" means Title 11 of the United
States Code, "UFTA" means the Uniform Fraudulent Transfer Act, "UFCA" means the
Uniform Fraudulent Conveyance Act, and "Other Applicable Law" means any other
applicable law pertaining to fraudulent transfers or acts voidable by creditors,
in each case as such law may be amended from time to time.
SECTION 4.18. Insurance. Each of the Borrower, the Guarantors and the
---------
Subsidiaries has (either in the name of the Borrower or in such Subsidiary's own
name), or has caused its tenants to obtain (or, for tenants approved by the
Agent, to provide self-insurance with respect thereto), with financially sound
and reputable insurance companies, all-risk insurance in at least such amounts
and against at least such risks (including on all its property, and public
liability and worker's compensation) as are usually insured against in the same
general area by companies of established repute engaged in the same or similar
business.
SECTION 4.19. Real Estate Investment Trust. The Borrower has
----------------------------
elected to be treated and is qualified under Sections 856 through 860,
inclusive, of the Code as a real estate investment trust.
SECTION 4.20. Y2K Plan. The Borrower has developed and has delivered
--------
to the Agent and the Banks a comprehensive plan (the "Y2K Plan") for insuring
that the Borrower's and its Subsidiaries' software and hardware systems which
impact or affect in any way the business operations of the Borrower and its
Subsidiaries' will be Year 2000 Compliant and Ready. The Borrower and its
Subsidiaries' have met the Y2K Plan milestones such that all hardware and
software systems will be Year 2000 Compliant and Ready in accordance with the
Y2K Plan.
33
ARTICLE V
COVENANTS
The Borrower and (by incorporation by reference in the Guaranty) the
Guarantors agree that, so long as any Bank has any Commitment hereunder or any
amount payable hereunder or under any Term Note remains unpaid:
SECTION 5.01. Information. The Borrower will deliver to each of the
-----------
Banks:
(a) as soon as available and in any event within 90 days after the end
of each Fiscal Year, either (i) an executed copy of the Annual Report on
Form 10K for such Fiscal Year, or (ii) a consolidated balance sheet of the
Borrower and the Guarantors as of the end of such Fiscal Year and the
related consolidated statements of income, shareholders' equity and cash
flows for such Fiscal Year, setting forth in each case in comparative form
the figures for the previous fiscal year, in either case audited by Ernst &
Young LLP or other independent public accountants of nationally recognized
standing, with such audit opinion to be free of exceptions and
qualifications not acceptable to the Required Banks;
(b) as soon as available and in any event within 45 days after the end
of each of the first 3 Fiscal Quarters of each Fiscal Year, either (i) an
executed copy of the Quarterly Report on Form 10Q for such Fiscal Quarter,
or (ii) a consolidated balance sheet of the Borrower and the Guarantors as
of the end of such Fiscal Quarter and the related statement of income and
statement of cash flows for such Fiscal Quarter and for the portion of the
Fiscal Year ended at the end of such Fiscal Quarter, setting forth in each
case in comparative form the figures for the corresponding Fiscal Quarter
and the corresponding portion of the previous Fiscal Year, all certified
(subject to normal year-end adjustments) as to fairness of presentation,
GAAP and consistency by the chief financial officer or the chief accounting
officer of the Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in paragraphs (a) and (b) above, a certificate,
substantially in the form of Exhibit F (a "Compliance Certificate"), of the
---------
chief financial officer or the chief accounting officer of the Borrower (i)
setting forth in reasonable detail the calculations required to establish
whether the Borrower was in compliance with the requirements of Sections
5.05, 5.15, 5.16, 5.17, 5.20 through 5.25, inclusive, on the date of such
financial statements and (ii) stating whether any Default exists on the
date of such certificate and, if any Default then exists, setting forth the
34
details thereof and the action which the Borrower is taking or proposes to
take with respect thereto;
(d) simultaneously with the delivery of each set of annual financial
statements referred to in paragraph (a) above, a statement of the firm of
independent public accountants which reported on such statements to the
effect that nothing has come to their attention to cause them to believe
that any Default existed under Sections 5.20 through 5.24, inclusive, or
Section 6.01(e) or (f) on the date of such financial statements;
(e) within 5 Domestic Business Days after the Borrower becomes aware
of the occurrence of any Default, a certificate of the chief financial
officer or the chief accounting officer of the Borrower setting forth the
details thereof and the action which the Borrower is taking or proposes to
take with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(g) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements
on Form S-8 or its equivalent) and annual, quarterly or monthly reports
which the Borrower shall have filed with the Securities and Exchange
Commission;
(h) if and when any member of the Controlled Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined
in Section 4043 of ERISA) with respect to any Plan which might constitute
grounds for a termination of such Plan under Title IV of ERISA, or knows
that the plan administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of such
reportable event given or required to be given to the PBGC; (ii) receives
notice of complete or partial withdrawal liability under Title IV of ERISA,
a copy of such notice; or (iii) receives notice from the PBGC under Title
IV of ERISA of an intent to terminate or appoint a trustee to administer
any Plan, a copy of such notice;
(i) within 45 days after the end of each Fiscal Quarter, a Borrowing
Base Certificate as of the last day of the Fiscal Quarter just ended, and,
prior to the date of any removal or addition of any Property from the
Borrowing Base, a Borrowing Base Certificate as of such date, giving effect
to such removal or addition;
(j) simultaneously with the delivery of each set of financial
statements referred to in paragraphs (a) and (b)
35
above, operating statements for each Eligible Property for the period
covered by such financial statements; and
(k) from time to time such additional information regarding the
financial position or business of the Borrower and the Guarantors as the
Agent, at the request of any Bank, may reasonably request.
SECTION 5.02. Inspection of Property, Books and Records. The Borrower
-----------------------------------------
and the Guarantors will (i) keep proper books of record and account in which
full, true and correct entries in conformity with GAAP shall be made of all
dealings and transactions in relation to its business and activities; and (ii)
permit representatives of any Bank at such Bank's expense prior to the
occurrence of a Default and at the Borrower's expense after the occurrence of a
Default to visit and inspect any of their respective properties, to examine and
make abstracts from any of their respective books and records and to discuss
their respective affairs, finances and accounts with their respective officers,
employees and independent public accountants. The Borrower and the Guarantors
agree to cooperate and assist in such visits and inspections, in each case at
such reasonable times and as often as may reasonably be desired.
SECTION 5.03. Maintenance of Existence. The Borrower shall and the
------------------------
Guarantors will each maintain its corporate existence and carry on its business
in substantially the same manner and in substantially the same fields as such
business is now carried on and maintained.
SECTION 5.04. Dissolution. Neither the Borrower nor any of the
-----------
Guarantors shall suffer or permit dissolution or liquidation either in whole or
in part or redeem or retire any shares of its own stock or that of any
Guarantor, except an established stock repurchase program of which the Agent has
been notified or through corporate reorganization to the extent permitted by
Section 5.05.
SECTION 5.05. Consolidations, Mergers and Sales of Assets. Neither
-------------------------------------------
the Borrower nor any of the Guarantors will consolidate or merge with or into,
or acquire all or substantially all of the assets or stock of any other Person,
or sell, lease or otherwise transfer all or any substantial part of its assets
to, any other Person, provided that:
--------
(i) the Borrower may merge with another Person if (x) such Person was
organized under the laws of the United States of America or one of its
states, (y) the Borrower is the corporation surviving such merger and (z)
immediately after giving effect to such merger, no Default shall have
occurred and be continuing;
36
(ii) Guarantors may merge with one another, and the Guarantors may
sell, lease or otherwise transfer assets to the Borrower;
(iii) the foregoing limitation on the acquisition of all or
substantially all the assets or stock of another Person shall not prohibit,
during any Fiscal Quarter, the acquisition of all or substantially all of
the assets or stock of another Person unless the aggregate assets or stock
acquired in a single acquisition or series of related acquisitions of all
or substantially all of the assets or stock of another Person by the
Borrower and the Guarantors during such Fiscal Quarter constituted more
than 20% of Gross Asset Value at the end of the most recent Fiscal Quarter
immediately preceding such Fiscal Quarter; and
(iv) the foregoing limitation on the sale, lease or other transfer of
assets shall not prohibit, during any Fiscal Quarter, a transfer of assets
(in a single transaction or in a series of related transactions) unless the
aggregate assets to be so transferred, when combined with all other assets
transferred, by the Borrower and the Guarantors during such Fiscal Quarter
and the immediately preceding 3 Fiscal Quarters, constituted more than 20%
of Gross Asset Value at the end of the most recent Fiscal Quarter
immediately preceding such Fiscal Quarter.
In the case of any Guarantor which transfers substantially all of its
assets pursuant to clause (iv) of the preceding sentence, and in the case of any
Guarantor the stock of which is being sold and with respect to which clause (iv)
would have been satisfied if the transaction had been a sale of assets of such
Guarantor, such Guarantor may dissolve and shall be entitled to obtain from the
Agent a written release from the Guaranty, provided that it can demonstrate to
--------
the reasonable satisfaction of the Agent that (A) it has repaid in full all Debt
owed to the Borrower or any other Guarantor and (B) such sale was for cash and
in the case of an asset transfer, the net cash proceeds received in connection
therewith are being distributed to the Borrower as part of such dissolution, and
upon obtaining such written release, it shall no longer be a Guarantor for any
purpose hereunder.
SECTION 5.06. Use of Proceeds. The proceeds of the Loans may be used
---------------
for general corporate purposes; provided, however, that no portion of the
-------- -------
proceeds of the Loans will be used by the Borrower or any Subsidiary (i) in
connection with, whether directly or indirectly, any tender offer for, or other
acquisition of, stock of any corporation with a view towards obtaining control
of such other corporation, unless such tender offer or other acquisition is to
be made on a negotiated basis with the approval of the Board of Directors of the
Person to be acquired, and the provisions of Section 5.17 would not be violated,
(ii) directly or
37
indirectly, for the purpose, whether immediate, incidental or ultimate, of
purchasing or carrying any Margin Stock, or (iii) for any purpose in violation
of any applicable law or regulation.
SECTION 5.07. Compliance with Laws; Payment of Taxes. The Borrower
--------------------------------------
and the Guarantors will, and will cause each member of the Controlled Group to,
comply with applicable laws (including but not limited to ERISA), regulations
and similar requirements of governmental authorities (including but not limited
to PBGC), except where the necessity of such compliance is being contested in
good faith through appropriate proceedings diligently pursued, and except where
the failure to comply would not have or be reasonably expected to cause a
Material Adverse Effect. The Borrower and the Guarantors will pay promptly when
due all taxes, assessments, governmental charges, claims for labor, supplies,
rent and other obligations which, if unpaid, might become a lien against the
Property of the Borrower or any Guarantor, except liabilities being contested in
good faith and against which the Borrower is maintaining accruals and reserves
which the Borrower believes are reasonable in accordance with GAAP.
SECTION 5.08. Insurance. The Borrower and the Guarantors will
---------
maintain (either in the name of the Borrower or in such Guarantor's own name),
or will cause its tenants to obtain, with financially sound and reputable
insurance companies (or, for tenants which have been approved in writing by the
Agent self insurance), all-risk insurance on all its property in at least such
amounts and against at least such risks (including on all its property, and
public liability and worker's compensation) as are usually insured against in
the same general area by companies of established repute engaged in the same or
similar business.
SECTION 5.09. Change in Fiscal Year. The Borrower and each of the
---------------------
Guarantors agrees that it will not change its Fiscal Year without the consent of
the Required Banks.
SECTION 5.10. Maintenance of Property. The Borrower and each
-----------------------
Guarantor shall maintain all of its Properties and assets in good condition,
repair and working order, ordinary wear and tear excepted.
SECTION 5.11. Environmental Notices. The Borrower and each Guarantor
---------------------
shall furnish to the Banks and the Agent prompt written notice of all
Environmental Liabilities, pending, threatened or anticipated Environmental
Proceedings, Environmental Notices, Environmental Judgments and Orders, and
Environmental Releases at, on, in, under or in any way affecting the Properties
or any adjacent property, and all facts, events, or conditions that could lead
to any of the foregoing.
SECTION 5.12. Environmental Matters. The Borrower and the Guarantors
---------------------
will not, and will not permit any Third Party to,
38
use, produce, manufacture, process, treat, recycle, generate, store, dispose of,
manage at, or otherwise handle, or ship or transport to or from the Properties
any Hazardous Materials except for Hazardous Materials such as cleaning
solvents, pesticides and other similar materials used, produced, manufactured,
processed, treated, recycled, generated, stored, disposed, managed, or otherwise
handled in minimal amounts in the ordinary course of business in compliance with
all applicable Environmental Requirements.
SECTION 5.13. Environmental Release. The Borrower and each Guarantor
---------------------
agrees that upon the occurrence of an Environmental Release at or on any of the
Properties it will act immediately to investigate the extent of, and to take
appropriate remedial action to eliminate, such Environmental Release, whether or
not ordered or otherwise directed to do so by any Environmental Authority.
SECTION 5.14. Transactions with Affiliates. Neither the Borrower nor
----------------------------
any of the Guarantors shall enter into, or be a party to, any transaction with
any Affiliate of the Borrower or such Guarantor (which Affiliate is not the
Borrower or a Guarantor), except as permitted by law and in the ordinary course
of business and pursuant to reasonable terms which are no less favorable to
Borrower or such Subsidiary than would be obtained in a comparable arm's length
transaction with a Person which is not an Affiliate.
SECTION 5.15. Restricted Payments. The Borrower's Restricted Payments
-------------------
in any calendar year shall not exceed 95% of Funds from Operations for such
period, unless the Borrower must pay out an amount in excess of 95% of Funds
from Operations to permit the Borrower to preserve its status as a real estate
investment trust under the applicable provision of the Code.
SECTION 5.16. Loans or Advances. Neither the Borrower nor any of the
-----------------
Guarantors shall make loans or advances to any Person except as permitted by
Section 5.17 and except:
(i) loans or advances to employees and directors not exceeding
$10,000,000 in the aggregate principal amount outstanding at any time;
(ii) deposits required by government agencies or public utilities;
(iii) loans or advances from the Borrower to a Guarantor or from a
Guarantor to the Borrower or another Guarantor; and/or
(iv) other loans and advances by the Borrower and the Guarantors to
any JDN Venture which (x) are evidenced by notes (and, if requested by the
Agent, acting at the direction of the Required Banks, with such notes,
together with any related
39
mortgage, have been assigned to and pledged with the Agent, for the benefit
of itself and the Banks, as security for the payment of all obligations of
the Borrower to the Agent and the Banks hereunder) and (y) are in an amount
which, together with Investments permitted by clause (vi) of Section 5.17,
do not exceed 15% of Gross Asset Value as of the end of the most recent
Fiscal Quarter;
provided that after giving effect to the making of any loans, advances or
--------
deposits permitted by this Section, and no Default shall be in existence or be
created thereby.
SECTION 5.17. Investments. Investments of the Borrower as of the
-----------
Closing Date (other than in Subsidiaries, which are set forth in Schedule 4.08),
are set forth on Schedule 5.17. Neither the Borrower nor any of the Guarantors
shall make Investments after the Closing Date in any Person except as permitted
by Section 5.16 and except Investments in:
(i) direct obligations of the United States Government maturing
within one year;
(ii) certificates of deposit issued by a commercial bank whose
credit is satisfactory to the Agent;
(iii) commercial paper rated A1 or the equivalent thereof by S&P or
P1 or the equivalent thereof by ▇▇▇▇▇'▇ and in either case maturing within
6 months after the date of acquisition;
(iv) tender bonds the payment of the principal of and interest on
which is fully supported by a letter of credit issued by a United States
bank whose long-term certificates of deposit are rated at least AA or the
equivalent thereof by S&P and Aa or the equivalent thereof by ▇▇▇▇▇'▇,; and
(v) Investments consisting of the acquisition of all or
substantially all of the assets or stock of another Person permitted by
Section 5.05(iii); and/or
(vi) other Investments by the Borrower and the Guarantors in an
amount which, (x) together with loans and advances permitted by clause (iv)
of Section 5.16, do not exceed 15% of Gross Asset Value as of the end of
the most recent Fiscal Quarter, and (y) with respect to Investments in
Persons over which, after giving effect to such Investment, the Borrower or
the Guarantors do not have Control, do not exceed 5% of Gross Asset Value
as of the end of the most recent Fiscal Quarter;
provided, however, immediately after giving effect to the making of any
-----------------
Investment, no Default shall have occurred and be continuing.
40
SECTION 5.18. [Intentionally Deleted].
SECTION 5.19. Restrictions on Ability of Guarantors to Pay Dividends.
------------------------------------------------------
The Borrower shall not permit any Guarantor to, directly or indirectly, create
or otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such Guarantor to (i) pay any dividends or
make any other distributions on its Capital Stock or any other interest or (ii)
make or repay any loans or advances to the Borrower or the parent of such
Guarantor.
SECTION 5.20. Ratio of Total Consolidated Liabilities to Gross Asset
------------------------------------------------------
Value. The ratio of Total Consolidated Liabilities to Gross Asset Value shall at
-----
all times be equal to or less than 0.55 to 1.0.
SECTION 5.21. Ratio of Total Secured Debt to Gross Asset Value. The
------------------------------------------------
ratio of Total Secured Debt to Gross Asset Value shall at all times be equal to
or less than 0.40 to 1.0.
SECTION 5.22. Ratio of EBITDA to Consolidated Interest Expense. The
------------------------------------------------
ratio of EBITDA to Consolidated Interest Expense for the Fiscal Quarter just
ended and the 3 immediately preceding Fiscal Quarters will not be less than 2.0
to 1.00, calculated at the end of each Fiscal Quarter.
SECTION 5.23. Ratio of Unencumbered Assets to Unsecured Funded Debt.
-----------------------------------------------------
The ratio of Unencumbered Assets to Unsecured Funded Debt shall at all times be
equal to or greater than 1.75 to 1.00.
SECTION 5.24. Ratio of Unsecured Net Operating Income to Unsecured
----------------------------------------------------
Interest Expense. The ratio of Unsecured Net Operating Income to Unsecured
----------------
Interest Expense shall at all times be equal to or greater than 1.75 to 1.0.
SECTION 5.25. Guarantees. Neither the Borrower nor any Guarantor will
----------
create, assume or suffer to exist any Guarantees of Debt of other Persons,
except (i) Guarantees in existence on May 23, 1997 in the aggregate amount as of
February 17, 1999 of $__________ and set forth on Schedule 5.25, (ii) Guarantees
of Debt of the Borrower or other Guarantors and (iii) other Guarantees in an
aggregate amount not exceeding at any time 10% of Gross Asset Value as of the
last day of the Fiscal Quarter just ended.
SECTION 5.26. Additional Revolving Credit. Neither the Borrower nor
---------------------------
any Guarantor will create, assume or suffer to exist any Debt for money borrowed
pursuant to revolving credit arrangements, except (i) Debt under the Revolving
Credit Agreement and (ii) other Debt of such type not to exceed at any time a
maximum of $25,000,000 of principal and commitments.
41
SECTION 5.27. Ownership. The Borrower shall at all times own 99% of
---------
the capital stock of JDN DCI.
SECTION 5.28. Status as a REIT. The Borrower shall at all times
----------------
maintain its status as a real estate investment trust under the Code.
SECTION 5.29. Guaranty by the Initial Guarantor; New Subsidiaries to
------------------------------------------------------
Become Guarantors. The Initial Guarantor shall become a Guarantor on the
-----------------
Closing Date, as contemplated in Section 3.01. Any Subsidiary acquired or
created after the Closing Date, must become a Guarantor promptly upon becoming a
Significant Subsidiary, in each case by (x) executing and delivering to the
Agent a counterpart of the Guaranty and a counterpart of the Contribution
Agreement (which the Borrower agrees to execute when the Initial Guarantor
executes it), thereby becoming a party to each of them, (y) delivering to the
Agent an opinion of counsel to such Subsidiary, in substantially the form and
substance of Exhibit B, but limited to such Subsidiary and the Guaranty and
---------
Contribution Agreement, and excluding paragraph 2 thereof, and (z) delivering to
the Agent documents pertaining to the Subsidiary reasonably requested by the
Agent of the types described in paragraph (f) of Section 3.01, but relating to
the Guaranty and the Contribution Agreement.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following
-----------------
events ("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of any Loan
or shall fail to pay any interest on any Loan within 5 Domestic Business
Days after such interest shall become due, or shall fail to pay any fee or
other amount payable hereunder within 5 Domestic Business Days after such
fee or other amount becomes due; or
(b) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.01(e), 5.01(i), 5.02(ii), 5.03 through 5.06,
inclusive, or Sections 5.17 through 5.29, inclusive; or
(c) the Borrower or any Guarantor shall fail to observe or perform
any covenant or agreement contained or incorporated by reference in this
Agreement (other than those covered by paragraph (a) or (b) above) or the
Guaranty and such failure shall not have been cured within 30 days after
the earlier to occur of (i) written notice thereof has been given to the
Borrower or such Guarantor by the Agent at the request of any
42
Bank or (ii) the Borrower or such Guarantor otherwise becomes aware of any
such failure; or
(d) any representation, warranty, certification or statement made by
the Borrower or any Guarantor in Article IV of this Agreement or the
Guaranty or in any certificate, financial statement or other document
delivered pursuant to this Agreement or the Guaranty shall prove to have
been incorrect or misleading in any material respect when made (or deemed
made); or
(e) the Borrower or any Guarantor shall fail to make any payment in
respect of Debt in an aggregate principal amount outstanding in excess of
$5,000,000 (other than the Term Notes) when due or within any applicable
grace period; or
(f) any event or condition shall occur which results in the
acceleration of the maturity of Debt in an aggregate principal amount
outstanding in excess of $5,000,000 of the Borrower or any Guarantor
(including, without limitation, any required mandatory prepayment or "put"
of such Debt to the Borrower or any Guarantor) or enables (or, with the
giving of notice or lapse of time or both, would enable) the holders of
such Debt or commitment or any Person acting on such holders' behalf to
accelerate the maturity thereof or terminate any such commitment
(including, without limitation, any required mandatory prepayment or "put"
of such Debt to the Borrower or any Guarantor); provided, however, that
-------- -------
there shall be excluded from the foregoing any Non-Recourse Mortgage Debt
which, on a cumulative basis since May 23, 1997, together with Non-Recourse
Mortgage Debt of JDN Ventures permitted by the proviso in paragraph (g)
below, does not exceed $20,000,000 in aggregate principal amount; or
(g) failure of any JDN Venture to make any payment when due,
including payment of principal or interest (whether by acceleration or
otherwise), on any obligation of such JDN Venture, the aggregate
outstanding principal amount of which (whether or not then due) exceeds
$5,000,000, or there shall occur any event or condition which results in
the acceleration of the maturity of such obligation (including, without
limitation, any required mandatory prepayment of "put" to such JDN Venture
or to the Borrower or any Guarantor) or the termination of any commitment
pertaining thereto; provided, however, that there shall be excluded from
-------- -------
the foregoing any Non-Recourse Mortgage Debt which, on a cumulative basis
since May 23, 1997, together with Non-Recourse Mortgage Debt of the
Borrower and the Guarantors permitted by the proviso in paragraph (f)
above, does not exceed $20,000,000 in aggregate principal amount; or
43
(h) the Borrower or any Guarantor shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, or shall consent to any such relief
or to the appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against it, or shall make a
general assignment for the benefit of creditors, or shall fail generally,
or shall admit in writing its inability, to pay its debts as they become
due, or shall take any corporate action to authorize any of the foregoing;
or
(i) an involuntary case or other proceeding shall be commenced
against the Borrower or any Guarantor seeking liquidation, reorganization
or other relief with respect to it or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed
for a period of 60 days; or an order for relief shall be entered against
the Borrower or any Guarantor under the federal bankruptcy laws as now or
hereafter in effect; or
(j) the Borrower or any member of the Controlled Group shall fail to
pay when due any material amount which it shall have become liable to pay
to the PBGC or to a Plan under Title IV of ERISA; or notice of intent to
terminate a Plan or Plans shall be filed under Title IV of ERISA by the
Borrower, any member of the Controlled Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute proceedings under
Title IV of ERISA to terminate or to cause a trustee to be appointed to
administer any such Plan or Plans or a proceeding shall be instituted by a
fiduciary of any such Plan or Plans to enforce Section 515 or 4219(c)(5) of
ERISA and such proceeding shall not have been dismissed within 30 days
thereafter; or a condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any such Plan or Plans must
be terminated;
(k) one or more judgments or orders for the payment of money in an
aggregate amount in excess of $5,000,000 shall be rendered against the
Borrower or any Guarantor and such judgment or order shall continue
unsatisfied and unstayed for a period of 30 days; or
(l) a federal tax lien shall be filed against the Borrower or any
Guarantor under Section 6323 of the Code or a
44
lien of the PBGC shall be filed against the Borrower or any Subsidiary
under Section 4068 of ERISA and in either case such lien shall remain
undischarged for a period of 25 days after the date of filing; or
(m) (i) any Person or two or more Persons acting in concert, other
than J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or their immediate family
members, or trusts or other entities established for the benefit of any of
them, shall have acquired beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934) of 20% or more of the outstanding shares of the
voting stock of the Borrower; or (ii) as of any date a majority of the
Board of Directors of the Borrower consists of individuals who were not
either (A) directors of the Borrower as of the corresponding date of the
previous year, (B) selected or nominated to become directors by the Board
of Directors of the Borrower of which a majority consisted of individuals
described in clause (A), or (C) selected or nominated to become directors
by the Board of Directors of the Borrower of which a majority consisted of
individuals described in clause (A) and individuals described in clause
(B); or
(n) the occurrence of any event, act, occurrence, or condition which
the Required Banks determine has caused a Material Adverse Effect.
then, and in every such event, the Agent shall, if requested by the Required
Banks, by notice to the Borrower declare the Term Notes (together with accrued
interest thereon), and all other amounts payable hereunder and under the other
Loan Documents, to be, and the Term Notes (together with accrued interest
thereon), and all other amounts payable hereunder and under the other Loan
Documents shall thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower together with interest at the Default Rate
accruing on the principal amount thereof from and after the date of such Event
of Default; provided that if any Event of Default specified in paragraph (h) or
--------
(i) above occurs with respect to the Borrower, without any notice to the
Borrower or any other act by the Agent or the Banks, the Term Notes (together
with accrued interest thereon) and all other amounts payable hereunder and under
the other Loan Documents shall automatically and without notice become
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower together with
interest thereon at the Default Rate accruing on the principal amount thereof
from and after the date of such Event of Default. Notwithstanding the
foregoing, the Agent shall have available to it all other remedies at law or
equity, and shall exercise any one or all of them at the request of the Required
Banks. Following acceleration of the Term
45
Notes by the Agent, nothing contained in this Agreement shall limit the right of
a Bank from initiating or conducting any litigation or collection proceedings,
or from exercising any other rights or remedies, with respect to the Term Note
on which it is named as payee.
SECTION 6.02. Notice of Default. The Agent shall give notice to the
-----------------
Borrower of any Default under Section 6.01(c) promptly upon being requested to
do so by any Bank and shall thereupon notify all the Banks thereof.
46
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment; Powers and Immunities. Each Bank hereby
----------------------------------
irrevocably appoints and authorizes the Agent to act as its agent hereunder and
under the other Loan Documents with such powers as are specifically delegated to
the Agent by the terms hereof and thereof, together with such other powers as
are reasonably incidental thereto. The Agent: (a) shall have no duties or
responsibilities except as expressly set forth in this Agreement and the other
Loan Documents, and shall not by reason of this Agreement or any other Loan
Document be a trustee for any Bank; (b) shall not be responsible to the Banks
for any recitals, statements, representations or warranties contained in this
Agreement or any other Loan Document, or in any certificate or other document
referred to or provided for in, or received by any Bank under, this Agreement or
any other Loan Document, or for the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
any other document referred to or provided for herein or therein or for any
failure by the Borrower to perform any of its obligations hereunder or
thereunder; (c) shall not be required to initiate or conduct any litigation or
collection proceedings hereunder or under any other Loan Document except to the
extent requested by the Required Banks, and (d) shall not be responsible for any
action taken or omitted to be taken by it hereunder or under any other Loan
Document or any other document or instrument referred to or provided for herein
or therein or in connection herewith or therewith, except for its own gross
negligence or wilful misconduct. The Agent may employ agents and attorneys-in-
fact and shall not be responsible for the negligence or misconduct of any such
agents or attorneys-in-fact selected by it with reasonable care. The
provisions of this Article VII are solely for the benefit of the Agent and the
Banks, and the Borrower shall not have any rights as a third party beneficiary
of any of the provisions hereof. In performing its functions and duties under
this Agreement and under the other Loan Documents, the Agent shall act solely as
agent of the Banks and does not assume and shall not be deemed to have assumed
any obligation towards or relationship of agency or trust with or for the
Borrower. The duties of the Agent shall be ministerial and administrative in
nature, and the Agent shall not have by reason of this Agreement or any other
Loan Document a fiduciary relationship in respect of any Bank.
SECTION 7.02. Reliance by Agent. The Agent shall be entitled to rely
-----------------
upon any certification, notice or other communication (including any thereof by
telephone, telecopier, telegram or cable) believed by it to be genuine and
correct and to have been signed or sent by or on behalf of the proper Person or
Persons, and upon advice and statements of legal counsel, independent
accountants or other experts selected by the Agent. As
47
to any matters not expressly provided for by this Agreement or any other Loan
Document, the Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder and thereunder in accordance with instructions
signed by the Required Banks, and such instructions of the Required Banks in any
action taken or failure to act pursuant thereto shall be binding on all of the
Banks.
SECTION 7.03. Defaults. The Agent shall not be deemed to have
--------
knowledge of the occurrence of a Default or an Event of Default (other than the
nonpayment of principal of or interest on the Loans) unless the Agent has
received notice from a Bank or the Borrower specifying such Default or Event of
Default and stating that such notice is a "Notice of Default". In the event
that the Agent receives such a notice of the occurrence of a Default or an Event
of Default, the Agent shall give prompt notice thereof to the Banks. The Agent
shall give each Bank prompt notice of each nonpayment of principal of or
interest on the Loans whether or not it has received any notice of the
occurrence of such nonpayment. The Agent shall (subject to Section 9.06) take
such action hereunder with respect to such Default or Event of Default as shall
be directed by the Required Banks, provided that, unless and until the Agent
--------
shall have received such directions, the Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests of
the Banks.
SECTION 7.04. Rights of Agent and its Affiliates as a Bank. With
--------------------------------------------
respect to the Loans made by the Agent and any Affiliate of the Agent, Wachovia
in its capacity as a Bank hereunder and any Affiliate of the Agent or such
Affiliate in its capacity as a Bank hereunder shall have the same rights and
powers hereunder as any other Bank and may exercise the same as though Wachovia
were not acting as the Agent, and the term "Bank" or "Banks" shall, unless the
context otherwise indicates, include Wachovia in its individual capacity and any
Affiliate of the Agent in its individual capacity. The Agent and any Affiliate
of the Agent may (without having to account therefor to any Bank) accept
deposits from, lend money to and generally engage in any kind of banking, trust
or other business with the Borrower (and any of the Borrower's Affiliates) as if
Wachovia were not acting as the Agent, and the Agent and any Affiliate of the
Agent may accept fees and other consideration from the Borrower (in addition to
any agency fees and arrangement fees heretofore agreed to between the Borrower
and the Agent) for services in connection with this Agreement or any other Loan
Document or otherwise without having to account for the same to the Banks.
SECTION 7.05. Indemnification. Each Bank severally agrees to
---------------
indemnify the Agent, to the extent the Agent shall not have been reimbursed by
the Borrower, ratably in accordance with its Commitment, for any and all
liabilities, obligations, losses,
48
damages, penalties, actions, judgments, suits, costs, expenses (including,
without limitation, counsel fees and disbursements) or disbursements of any kind
and nature whatsoever which may be imposed on, incurred by or asserted against
the Agent in any way relating to or arising out of this Agreement or any other
Loan Document or any other documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby (excluding, unless an
Event of Default has occurred and is continuing, the normal administrative out
of pocket costs and expenses incident to the performance of its agency duties
hereunder) or the enforcement of any of the terms hereof or thereof or any such
other documents; provided that no Bank shall be liable for any of the foregoing
--------
to the extent they arise from the negligence or wilful misconduct of the Agent.
SECTION 7.06 Consequential Damages. THE AGENT SHALL NOT BE
---------------------
RESPONSIBLE OR LIABLE TO ANY BANK, THE BORROWER OR ANY OTHER PERSON OR ENTITY
FOR ANY PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A
RESULT OF THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
SECTION 7.07. Payee of Term Note Treated as Owner. The Agent may deem
-----------------------------------
and treat the payee of any Term Note as the owner thereof for all purposes
hereof unless and until a written notice of the assignment or transfer thereof
shall have been filed with the Agent and the provisions of Section 9.08(c) have
been satisfied. Any requests, authority or consent of any Person who at the
time of making such request or giving such authority or consent is the holder of
any Term Note shall be conclusive and binding on any subsequent holder,
transferee or assignee of that Term Note or of any Term Note or Term Notes
issued in exchange therefor or replacement thereof.
SECTION 7.08. Nonreliance on Agent and Other Banks. Each Bank agrees
------------------------------------
that it has, independently and without reliance on the Agent or any other Bank,
and based on such documents and information as it has deemed appropriate, made
its own credit analysis of the Borrower and decision to enter into this
Agreement and that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement or any of the other Loan
Documents. The Agent shall not be required to keep itself (or any Bank)
informed as to the performance or observance by the Borrower of this Agreement
or any of the other Loan Documents or any other document referred to or provided
for herein or therein or to inspect the properties or books of the Borrower or
any other Person. Except for notices, reports and other documents and
information expressly required to be furnished to the Banks by the Agent
hereunder or under the other Loan Documents, the Agent shall not have any duty
or responsibility
49
to provide any Bank with any credit or other information concerning the affairs,
financial condition or business of the Borrower or any other Person (or any of
their Affiliates) which may come into the possession of the Agent.
SECTION 7.09. Failure to Act. Except for action expressly required of
--------------
the Agent hereunder or under the other Loan Documents, the Agent shall in all
cases be fully justified in failing or refusing to act hereunder and thereunder
unless it shall receive further assurances to its satisfaction by the Banks of
their indemnification obligations under Section 7.05 against any and all
liability and expense which may be incurred by the Agent by reason of taking,
continuing to take, or failing to take any such action.
SECTION 7.10. Resignation or Removal of Agent. Subject to the
-------------------------------
appointment and acceptance of a successor Agent as provided below, the Agent may
resign at any time by giving notice thereof to the Banks and the Borrower and
the Agent may be removed at any time with or without cause by the Required
Banks. Upon any such resignation or removal, the Required Banks shall have the
right to appoint a successor Agent. If no successor Agent shall have been so
appointed by the Required Banks and shall have accepted such appointment within
30 days after the retiring Agent's notice of resignation or the Required Banks'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Banks, appoint a successor Agent. Any successor Agent shall be a bank which
has a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Article VII shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the Agent
hereunder.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01. Basis for Determining Interest Rate Inadequate or
-------------------------------------------------
Unfair. If on or prior to the first day of any Interest Period:
------
(a) the Agent determines that deposits in Dollars (in the applicable
amounts) are not being offered in the relevant market for such Interest
Period, or
50
(b) the Required Banks advise the Agent that the London Interbank
Offered Rate as determined by the Agent will not adequately and fairly
reflect the cost to such Banks of funding the Euro-Dollar Loans for such
Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and the Banks,
whereupon until the Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, the obligations of the Banks to make
Euro-Dollar Loans specified in such notice shall be suspended. Unless the
Borrower notifies the Agent at least 2 Domestic Business Days before the date of
any Borrowing of such Euro-Dollar Loans for which a Notice of Borrowing has
previously been given that it elects not to borrow on such date, such Borrowing
shall instead be made as a Base Rate Borrowing.
SECTION 8.02. Illegality. If, after the date hereof, the adoption of
----------
any applicable law, rule or regulation, or any change therein or any existing or
future law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof (any such
agency being referred to as an "Authority" and any such event being referred to
as a "Change of Law"), or compliance by any Bank (or its Lending Office) with
any request or directive (whether or not having the force of law) of any
Authority shall make it unlawful or impossible for any Bank (or its Lending
Office) to make, maintain or fund its Euro-Dollar Loans and such Bank shall so
notify the Agent, the Agent shall forthwith give notice thereof to the other
Banks and the Borrower, whereupon until such Bank notifies the Borrower and the
Agent that the circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Dollar Loans shall be suspended. Before
giving any notice to the Agent pursuant to this Section, such Bank shall
designate a different Lending Office if such designation will avoid the need for
giving such notice and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. If such Bank shall determine that it may not
lawfully continue to maintain and fund any of its outstanding Euro-Dollar Loans
to maturity and shall so specify in such notice, the Borrower shall immediately
prepay in full the then outstanding principal amount of each Euro-Dollar Loan of
such Bank, together with accrued interest thereon and any amount due such Bank
pursuant to Section 8.05(a). Concurrently with prepaying each such Euro-Dollar
Loan, the Borrower shall borrow a Base Rate Loan in an equal principal amount
from such Bank (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Banks), and
such Bank shall make such a Base Rate Loan.
SECTION 8.03. Increased Cost and Reduced Return. (a) If after the
---------------------------------
date hereof, a Change of Law or compliance by any Bank
51
(or its Lending Office) with any request or directive (whether or not having the
force of law) of any Authority:
(i) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve
System, but excluding with respect to any Euro-Dollar Loan any such
requirement included in an applicable Euro-Dollar Reserve Percentage)
against assets of, deposits with or for the account of, or credit extended
by, any Bank (or its Lending Office); or
(ii) shall impose on any Bank (or its Lending Office) or on the United
States market for certificates of deposit or the London interbank market
any other condition affecting its Euro-Dollar Borrowings, its Term Notes or
its obligation to make Euro-Dollar Borrowings;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Loan, or to reduce the amount
of any sum received or receivable by such Bank (or its Lending Office) under
this Agreement or under its Term Notes with respect thereto, by an amount deemed
by such Bank to be material, then, within 15 days after demand by such Bank
(with a copy to the Agent), the Borrower shall pay to such Bank such additional
amount or amounts as will compensate such Bank for such increased cost or
reduction.
(b) If any Bank shall have determined that after the date hereof the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change therein, or any change in the interpretation or administration
thereof, or compliance by any Bank (or its Lending Office) with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any Authority, has or would have the effect of reducing the rate of return on
such Bank's capital as a consequence of its obligations hereunder to a level
below that which such Bank could have achieved but for such adoption, change or
compliance (taking into consideration such Bank's policies with respect to
capital adequacy) by an amount deemed by such Bank to be material, then from
time to time, within 15 days after demand by such Bank, the Borrower shall pay
to such Bank such additional amount or amounts as will compensate such Bank for
such reduction.
(c) Each Bank will promptly notify the Borrower and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section and will designate a
different Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. A certificate of any Bank claiming
compensation under this Section and setting forth the
52
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error. In determining such amount, such Bank may use any
reasonable averaging and attribution methods.
(d) The provisions of this Section 8.03 shall be applicable with
respect to any Participant, Assignee or other Transferee, and any calculations
required by such provisions shall be made based upon the circumstances of such
Participant, Assignee or other Transferee.
SECTION 8.04. Base Rate Loans Substituted for Euro-Dollar Loans. If
-------------------------------------------------
(i) the obligation of any Bank to make or maintain any Euro-Dollar Loans has
been suspended pursuant to Section 8.02 or (ii) any Bank has demanded
compensation under Section 8.03, and the Borrower shall, by at least 5 Euro-
Dollar Business Days' prior notice to such Bank through the Agent, have elected
that the provisions of this Section shall apply to such Bank, then, unless and
until such Bank notifies the Borrower that the circumstances giving rise to such
suspension or demand for compensation no longer apply:
(a) all Loans which would otherwise be made by such Bank as Euro-
Dollar Loans shall be made instead as Base Rate Loans (in all cases
interest and principal on such Loans shall be payable contemporaneously
with the related Euro-Dollar Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans has been repaid, all payments
of principal which would otherwise be applied to repay such Euro-Dollar
Loans shall be applied to repay its Base Rate Loans instead.
SECTION 8.05. Compensation. Upon the request of any Bank, delivered
------------
to the Borrower and the Agent, the Borrower shall pay to such Bank such amount
or amounts as shall compensate such Bank for any loss, cost or expense incurred
by such Bank as a result of:
(a) any payment or prepayment (pursuant to Section 2.06, 6.01, 8.02
or otherwise) of a Euro-Dollar Borrowing on a date other than the last day of an
Interest Period for such Loan; or
(b) any failure by the Borrower to prepay a Euro-Dollar Borrowing on
the date for such prepayment specified in the relevant notice of prepayment
hereunder; or
(c) any failure by the Borrower to borrow a Euro-Dollar Borrowing on
the date for the Euro-Dollar Borrowing of which such Euro-Dollar Borrowing is a
part specified in the applicable Notice of Borrowing delivered pursuant to
Section 2.02;
53
such compensation to include, without limitation, if such Euro-Dollar Borrowing
is a Euro-Dollar Loan, an amount equal to the excess, if any, of (x) the amount
of interest which would have accrued on the amount so paid or prepaid or not
prepaid or borrowed for the period from the date of such payment, prepayment or
failure to prepay or borrow to the last day of the then current Interest Period
for such Euro-Dollar Borrowing (or, in the case of a failure to prepay or
borrow, the Interest Period for such Euro-Dollar Borrowing which would have
commenced on the date of such failure to prepay or borrow) at the applicable
rate of interest for such Euro-Dollar Borrowing provided for herein over (y) the
amount of interest (as reasonably determined by such Bank) such Bank would have
paid on deposits in Dollars of comparable amounts having terms comparable to
such period placed with it by leading banks in the London interbank market.
ARTICLE IX
MISCELLANEOUS
-------------
SECTION 9.01. Notices. All notices, requests and other communications
-------
to any party hereunder shall be in writing (including telecopier or similar
writing) and shall be given to such party at its address or telecopier number
set forth on the signature pages hereof or such other address or telecopier
number as such party may hereafter specify for the purpose by notice to each
other party. Each such notice, request or other communication shall be
effective (i) if given by telecopier, when such telecopy is transmitted to the
telecopier number specified in this Section and the confirmation is received,
(ii) if given by mail, 72 hours after such communication is deposited in the
mails with first class postage prepaid, addressed as aforesaid or (iii) if given
by any other means, when delivered at the address specified in this Section;
provided that notices to the Agent under Article II or Article VIII shall not be
--------
effective until received.
SECTION 9.02. No Waivers. No failure or delay by the Agent or any
----------
Bank in exercising any right, power or privilege hereunder or under any Term
Note or other Loan Document shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 9.03. Expenses; Documentary Taxes. The Borrower shall pay (i)
---------------------------
all out-of-pocket expenses of the Agent, including fees and disbursements of
special counsel for the Agent, in connection with the preparation of this
Agreement and the other Loan Documents, any waiver or consent hereunder or
thereunder or any amendment hereof or thereof or any Default or alleged Default
hereunder or thereunder and (ii) if a Default occurs, all
54
out-of-pocket expenses incurred by the Agent and the Banks, including fees and
disbursements of counsel, in connection with such Default and collection and
other enforcement proceedings resulting therefrom, including out-of-pocket
expenses incurred in enforcing this Agreement and the other Loan Documents. The
Borrower shall indemnify the Agent and each Bank against any transfer taxes,
documentary taxes, assessments or charges made by any Authority by reason of the
execution and delivery of this Agreement or the other Loan Documents.
SECTION 9.04. Indemnification. The Borrower shall indemnify the
---------------
Agent, the Banks and each Affiliate thereof and their respective directors,
officers, employees and agents from, and hold each of them harmless against, any
and all losses, liabilities, claims or damages to which any of them may become
subject, insofar as such losses, liabilities, claims or damages arise out of or
result from any actual or proposed use by the Borrower of the proceeds of any
extension of credit by any Bank hereunder or breach by the Borrower of this
Agreement or any other Loan Document or from any investigation, litigation
(including, without limitation, any actions taken by the Agent or any of the
Banks to enforce this Agreement or any of the other Loan Documents) or other
proceeding (including, without limitation, any threatened investigation or
proceeding) relating to the foregoing, and the Borrower shall reimburse the
Agent and each Bank, and each Affiliate thereof and their respective directors,
officers, employees and agents, upon demand for any expenses (including, without
limitation, legal fees) incurred in connection with any such investigation or
proceeding; but excluding any such losses, liabilities, claims, damages or
expenses incurred by reason of the gross negligence or wilful misconduct of the
Person to be indemnified.
SECTION 9.05. Setoff; Sharing of Setoffs. (a) The Borrower hereby
--------------------------
grants to the Agent and each Bank a lien for all indebtedness and obligations
owing to them from the Borrower upon all deposits or deposit accounts, of any
kind, or any interest in any deposits or deposit accounts thereof, now or
hereafter pledged, mortgaged, transferred or assigned to the Agent or any such
Bank or otherwise in the possession or control of the Agent or any such Bank for
any purpose for the account or benefit of the Borrower and including any balance
of any deposit account or of any credit of the Borrower with the Agent or any
such Bank, whether now existing or hereafter established hereby authorizing the
Agent and each Bank at any time or times with or without prior notice to apply
such balances or any part thereof to such of the indebtedness and obligations
owing by the Borrower to the Banks and/or the Agent then past due and in such
amounts as they may elect, and whether or not the collateral, if any, or the
responsibility of other Persons primarily, secondarily or otherwise liable may
be deemed adequate. For the purposes of this paragraph, all remittances and
property shall be deemed to be in the possession of the Agent or any such
55
Bank as soon as the same may be put in transit to it by mail or carrier or by
other bailee.
(b) Each Bank agrees that if it shall, by exercising any right of
setoff or counterclaim or resort to collateral security or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest owing
with respect to the Term Note held by it which is greater than the proportion
received by any other Bank in respect of the aggregate amount of all principal
and interest owing with respect to the Term Note held by such other Bank, the
Bank receiving such proportionately greater payment shall purchase such
participations in the Term Notes held by the other Banks owing to such other
Banks, and such other adjustments shall be made, as may be required so that all
such payments of principal and interest with respect to the Term Notes held by
the Banks owing to such other Banks shall be shared by the Banks pro rata;
provided that (i) nothing in this Section shall impair the right of any Bank to
--------
exercise any right of setoff or counterclaim it may have and to apply the amount
subject to such exercise to the payment of indebtedness of the Borrower other
than its indebtedness under the Term Notes, and (ii) if all or any portion of
such payment received by the purchasing Bank is thereafter recovered from such
purchasing Bank, such purchase from each other Bank shall be rescinded and such
other Bank shall repay to the purchasing Bank the purchase price of such
participation to the extent of such recovery together with an amount equal to
such other Bank's ratable share (according to the proportion of (x) the amount
of such other Bank's required repayment to (y) the total amount so recovered
from the purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Borrower
agrees, to the fullest extent it may effectively do so under applicable law,
that any holder of a participation in a Term Note, whether or not acquired
pursuant to the foregoing arrangements, may exercise rights of setoff or
counterclaim and other rights with respect to such participation as fully as if
such holder of a participation were a direct creditor of the Borrower in the
amount of such participation.
SECTION 9.06. Amendments and Waivers. (a) Any provision of this
----------------------
Agreement, the Term Notes or any other Loan Documents may be amended or waived
if, but only if, such amendment or waiver is in writing and is signed by the
Borrower and the Required Banks (and, if the rights or duties of the Agent are
affected thereby, by the Agent); provided that, unless signed by all Banks, no
--------
such amendment or waiver shall, unless signed by all Banks, (i) change the
Commitment of any Bank or subject any Bank to any additional obligation, (ii)
change the principal of or rate of interest on any Loan or any fees (other than
fees payable to the Agent) hereunder, (iii) change the date fixed for any
payment of principal of or interest on any Loan or any fees hereunder, (iv)
change the amount of principal, interest or fees due on any date fixed for the
payment thereof, (v) change the percentage of the Commitments or of
56
the aggregate unpaid principal amount of the Term Notes, or the percentage of
Banks, which shall be required for the Banks or any of them to take any action
under this Section or any other provision of this Agreement, (vi) change the
manner of application of any payments made under this Agreement or the Term
Notes, (vii) release or substitute all or any substantial part of the collateral
(if any) held as security for the Loans, or (viii) release any Guarantee given
to support payment of the Loans, or (ix) change the definition of "Borrowing
Base".
(b) The Borrower will not solicit, request or negotiate for or with
respect to any proposed waiver or amendment of any of the provisions of this
Agreement except through the Agent, unless each Bank shall be informed thereof
by the Borrower and shall be afforded an opportunity of considering the same and
shall be supplied by the Borrower with sufficient information to enable it to
make an informed decision with respect thereto. Executed or true and correct
copies of any waiver or consent effected pursuant to the provisions of this
Agreement shall be delivered by the Borrower to each Bank forthwith following
the date on which the same shall have been executed and delivered by the
requisite percentage of Banks. The Borrower will not, directly or indirectly,
pay or cause to be paid any remuneration, whether by way of supplemental or
additional interest, fee or otherwise, to any Bank (in its capacity as such) as
consideration for or as an inducement to the entering into by such Bank of any
waiver or amendment of any of the terms and provisions of this Agreement unless
such remuneration is concurrently paid, on the same terms, ratably to all such
Banks.
SECTION 9.07. No Margin Stock Collateral. Each of the Banks
--------------------------
represents to the Agent and each of the other Banks that it in good faith is
not, directly or indirectly (by negative pledge or otherwise), relying upon any
Margin Stock as collateral in the extension or maintenance of the credit
provided for in this Agreement.
SECTION 9.08. Successors and Assigns. (a) The provisions of this
----------------------
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; provided that the Borrower may not
--------
assign or otherwise transfer any of its rights under this Agreement.
(b) Any Bank may at any time sell to one or more Persons (each a
"Participant") participating interests in any Loan owing to such Bank, any Term
Note held by such Bank, any Commitment hereunder or any other interest of such
Bank hereunder. In the event of any such sale by a Bank of a participating
interest to a Participant, such Bank's obligations under this Agreement shall
remain unchanged, such Bank shall remain solely responsible for the performance
thereof, such Bank shall remain the holder of any such Term Note for all
purposes under this Agreement, and the Borrower
57
and the Agent shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this Agreement. In no
event shall a Bank that sells a participation be obligated to the Participant to
take or refrain from taking any action hereunder except that such Bank may agree
that it will not (except as provided below), without the consent of the
Participant, agree to (i) the change of any date fixed for the payment of
principal of or interest on the related loan or loans, (ii) the change of the
amount of any principal, interest or fees due on any date fixed for the payment
thereof with respect to the related loan or loans, (iii) the change of the
principal of the related loan or loans, (iv) any change in the rate at which
either interest is payable thereon or (if the Participant is entitled to any
part thereof) fee is payable hereunder from the rate at which the Participant is
entitled to receive interest or fee (as the case may be) in respect of such
participation, (v) the release or substitution of all or any substantial part of
the collateral (if any) held as security for the Loans, or (vi) the release of
any Guarantee given to support payment of the Loans. Each Bank selling a
participating interest in any Loan, Term Note, Commitment or other interest
under this Agreement shall, within 10 Domestic Business Days of such sale,
provide the Borrower and the Agent with written notification stating that such
sale has occurred and identifying the Participant and the interest purchased by
such Participant. The Borrower agrees that each Participant shall be entitled to
the benefits of Article VIII with respect to its participation in Loans
outstanding from time to time.
(c) Any Bank may at any time assign to one or more banks or financial
institutions (each an "Assignee") all or a proportionate part of its rights and
obligations under this Agreement, the Term Notes and the other Loan Documents,
and such Assignee shall assume all such rights and obligations, pursuant to an
Assignment and Acceptance, executed by such Assignee, such transferor Bank and
the Agent (and, in the case of an Assignee that is not then a Bank, subject to
clause (iii) below, by the Borrower); provided that (i) no interest may be sold
--------
by a Bank pursuant to this paragraph (c) unless the Assignee shall agree to
assume ratably equivalent portions of the transferor Bank's Commitment, (ii) if
a Bank is assigning only a portion of its Commitment, then, the amount of the
Commitment being assigned (determined as of the effective date of the
assignment) shall be in an amount not less than $5,000,000, (iii) except during
the continuance of a Default, no interest may be sold by a Bank pursuant to this
paragraph (c) to any Assignee that is not then a Bank (or an Affiliate of a
Bank) without the consent of the Borrower and the Agent, which consent shall not
be unreasonably withheld, and (iv) a Bank may not have more than 3 Assignees
that are not then Banks at any one time. Upon (A) execution of the Assignment
and Acceptance by such transferor Bank, such Assignee, the Agent and (if
applicable) the Borrower, (B) delivery of an executed copy of the Assignment and
Acceptance to the Borrower and
58
the Agent, (C) payment by such Assignee to such transferor Bank of an amount
equal to the purchase price agreed between such transferor Bank and such
Assignee, and (D) payment to the Agent of a processing and recordation fee in
the amount of (x) $1,500, in the case of an assignment to Bank or an Affiliate
thereof, and (y) $3,500, in the case of any other assignment, such Assignee
shall for all purposes be a Bank party to this Agreement and shall have all the
rights and obligations of a Bank under this Agreement to the same extent as if
it were an original party hereto with a Commitment as set forth in such
instrument of assumption, and the transferor Bank shall be released from its
obligations hereunder to a corresponding extent, and no further consent or
action by the Borrower, the Banks or the Agent shall be required. Upon the
consummation of any transfer to an Assignee pursuant to this paragraph (c), the
transferor Bank, the Agent and the Borrower shall make appropriate arrangements
so that, if required, a new Term Note is issued to each of such Assignee and
such transferor Bank.
(d) Subject to the provisions of Section 9.09, the Borrower
authorizes each Bank to disclose to any Participant, Assignee or other
transferee (each a "Transferee") and any prospective Transferee any and all
financial information in such Bank's possession concerning the Borrower which
has been delivered to such Bank by the Borrower pursuant to this Agreement or
which has been delivered to such Bank by the Borrower in connection with such
Bank's credit evaluation prior to entering into this Agreement.
(e) No Transferee shall be entitled to receive any greater payment
under Section 8.03 than the transferor Bank would have been entitled to receive
with respect to the rights transferred, unless such transfer is made with the
Borrower's prior written consent or by reason of the provisions of Section 8.02
or 8.03 requiring such Bank to designate a different Lending Office under
certain circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.
(f) Anything in this Section 9.08 to the contrary notwithstanding,
any Bank may assign and pledge all or any portion of the Loans and/or
obligations owing to it to any Federal Reserve Bank or the United States
Treasury as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any Operating Circular issued by
such Federal Reserve Bank, provided that any payment in respect of such assigned
--------
Loans and/or obligations made by the Borrower to the assigning and/or pledging
Bank in accordance with the terms of this Agreement shall satisfy the Borrower's
obligations hereunder in respect of such assigned Loans and/or obligations to
the extent of such payment. No such assignment shall release the assigning
and/or pledging Bank from its obligations hereunder.
59
SECTION 9.09. Confidentiality. Each Bank agrees to exercise
---------------
commercially reasonable efforts to keep any information delivered or made
available by the Borrower to it which is clearly indicated to be confidential
information, confidential from anyone other than persons employed or retained by
such Bank who are or are expected to become engaged in evaluating, approving,
structuring or administering the Loans; provided that nothing herein shall
--------
prevent any Bank from disclosing such information (i) to any other Bank, (ii)
upon the order of any court or administrative agency, (iii) upon the request or
demand of any regulatory agency or authority having jurisdiction over such Bank,
(iv) which has been publicly disclosed, (v) to the extent reasonably required in
connection with any litigation to which the Agent, any Bank or their respective
Affiliates may be a party, (vi) to the extent reasonably required in connection
with the exercise of any remedy hereunder, (vii) to such Bank's legal counsel
and independent auditors, and (viii) to any actual or proposed Participant,
Assignee or other Transferee of all or part of its rights hereunder which has
agreed in writing to be bound by the provisions of this Section 9.09; provided
--------
that should disclosure of any such confidential information be required by
virtue of clause (ii) of the immediately preceding sentence, to the extent
permitted by law, any relevant Bank shall promptly notify the Borrower of same
so as to allow the Borrower to seek a protective order or to take any other
appropriate action; provided, further, that, no Bank shall be required to delay
-------- ------- ----
compliance with any directive to disclose any such information so as to allow
the Borrower to effect any such action.
SECTION 9.10. Representation by Banks. Each Bank hereby represents
-----------------------
that it is a commercial lender or financial institution which makes loans in the
ordinary course of its business and that it will make its Loans hereunder for
its own account in the ordinary course of such business; provided that, subject
--------
to Section 9.08, the disposition of the Term Note or Term Notes held by that
Bank shall at all times be within its exclusive control.
SECTION 9.11. Obligations Several. The obligations of each Bank
-------------------
hereunder are several, and no Bank shall be responsible for the obligations or
commitment of any other Bank hereunder. Nothing contained in this Agreement and
no action taken by the Banks pursuant hereto shall be deemed to constitute the
Banks to be a partnership, an association, a joint venture or any other kind of
entity. The amounts payable at any time hereunder to each Bank shall be a
separate and independent debt, and each Bank shall be entitled to protect and
enforce its rights arising out of this Agreement or any other Loan Document and
it shall not be necessary for any other Bank to be joined as an additional party
in any proceeding for such purpose.
SECTION 9.12. Georgia Law. This Agreement and each Term Note shall be
-----------
construed in accordance with and governed by the law of the State of Georgia.
60
SECTION 9.13. Severability. In case any one or more of the provisions
------------
contained in this Agreement, the Term Notes or any of the other Loan Documents
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein and
therein shall not in any way be affected or impaired thereby and shall be
enforced to the greatest extent permitted by law.
SECTION 9.14. Interest. In no event shall the amount of interest, and
--------
all charges, amounts or fees contracted for, charged or collected pursuant to
this Agreement, the Term Notes or the other Loan Documents and deemed to be
interest under applicable law (collectively, "Interest") exceed the highest rate
of interest allowed by applicable law (the "Maximum Rate"), and in the event any
such payment is inadvertently received by any Bank, then the excess sum (the
"Excess") shall be credited as a payment of principal, unless the Borrower shall
notify such Bank in writing that it elects to have the Excess returned
forthwith. It is the express intent hereof that the Borrower not pay and the
Banks not receive, directly or indirectly in any manner whatsoever, interest in
excess of that which may legally be paid by the Borrower under applicable law.
The right to accelerate maturity of any of the Loans does not include the right
to accelerate any interest that has not otherwise accrued on the date of such
acceleration, and the Agent and the Banks do not intend to collect any unearned
interest in the event of any such acceleration. All monies paid to the Agent or
the Banks hereunder or under any of the Term Notes or the other Loan Documents,
whether at maturity or by prepayment, shall be subject to rebate of unearned
interest as and to the extent required by applicable law. By the execution of
this Agreement, the Borrower covenants, to the fullest extent permitted by law,
that (i) the credit or return of any Excess shall constitute the acceptance by
the Borrower of such Excess, and (ii) the Borrower shall not seek or pursue any
other remedy, legal or equitable , against the Agent or any Bank, based in whole
or in part upon contracting for charging or receiving any Interest in excess of
the Maximum Rate. For the purpose of determining whether or not any Excess has
been contracted for, charged or received by the Agent or any Bank, all interest
at any time contracted for, charged or received from the Borrower in connection
with this Agreement, the Term Notes or any of the other Loan Documents shall, to
the extent permitted by applicable law, be amortized, prorated, allocated and
spread in equal parts throughout the full term of the Commitments. The
Borrower, the Agent and each Bank shall, to the maximum extent permitted under
applicable law, (i) characterize any non-principal payment as an expense, fee or
premium rather than as Interest and (ii) exclude voluntary prepayments and the
effects thereof. The provisions of this Section shall be deemed to be
incorporated into each Term Note and each of the other Loan Documents (whether
or not any provision of this Section is referred to therein). All such Loan
Documents and communications relating to any Interest owed by the Borrower and
all figures set forth therein shall, for the sole
61
purpose of computing the extent of obligations hereunder and under the Term
Notes and the other Loan Documents be automatically recomputed by the Borrower,
and by any court considering the same, to give effect to the adjustments or
credits required by this Section.
SECTION 9.15. Interpretation. No provision of this Agreement or any
--------------
of the other Loan Documents shall be construed against or interpreted to the
disadvantage of any party hereto by any court or other governmental or judicial
authority by reason of such party having or being deemed to have structured or
dictated such provision.
SECTION 9.16. Waiver of Jury Trial; Consent to Jurisdiction. The
---------------------------------------------
Borrower (a) and each of the Banks and the Agent irrevocably waives, to the
fullest extent permitted by law, any and all right to trial by jury in any legal
proceeding arising out of this Agreement, any of the other Loan Documents, or
any of the transactions contemplated hereby or thereby, (b) submits to the
nonexclusive personal jurisdiction in the State of Georgia, the courts thereof
and the United States District Courts sitting therein, for the enforcement of
this Agreement, the Term Notes and the other Loan Documents, (c) waives any and
all personal rights under the law of any jurisdiction to object on any basis
(including, without limitation, inconvenience of forum) to jurisdiction or venue
within the State of Georgia for the purpose of litigation to enforce this
Agreement, the Term Notes or the other Loan Documents, and (d) agrees that
service of process may be made upon it in the manner prescribed in Section 9.01
for the giving of notice to the Borrower. Nothing herein contained, however,
shall prevent the Agent from bringing any action or exercising any rights
against any security and against the Borrower personally, and against any assets
of the Borrower, within any other state or jurisdiction.
SECTION 9.17. Counterparts. This Agreement may be signed in any
------------
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
SECTION 9.18. Source of Funds -- ERISA. Each of the Banks hereby
------------------------
severally (and not jointly) represents to the Borrower that no part of the funds
to be used by such Bank to fund the Loans hereunder from time to time
constitutes (i) assets allocated to any separate account maintained by such Bank
in which any employee benefit plan (or its related trust) has any interest nor
(ii) any other assets of any employee benefit plan. As used in this Section,
the terms "employee benefit plan" and "separate account" shall have the
respective meanings assigned to such terms in Section 3 of ERISA.
62
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, under seal, by their respective authorized officers as of the
day and year first above written.
JDN REALTY CORPORATION (SEAL)
By:________________________________________
Title:
JDN Realty Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial Officer
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
63
COMMITMENTS WACHOVIA BANK, N.A., as Agent and
-----------
as a Bank (SEAL)
$25,000,000 By:__________________________________________
Title:
Lending Office
--------------
Wachovia Bank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Syndications Group
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
64
COMMERZBANK, A.G., ATLANTA AGENCY
(SEAL)
$20,000,000 By:______________________________________
Title:
By:______________________________________
Title:
Lending Office
--------------
Commerzbank, A.G., New York Branch
2 World Financial Center
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
65
BANKERS TRUST COMPANY (SEAL)
$15,000,000 By:______________________________________
Title:
Lending Office
--------------
Bankers Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
66
PNC BANK, NATIONAL ASSOCIATION
(SEAL)
$15,000,000 By:______________________________________
Title:
Lending Office
--------------
PNC Bank, National Association
One PNC Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Mail Stop P1-▇▇▇▇-19-2
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Real Estate Banking
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ (SEAL)
$15,000,000 By:______________________________________
Title:
Lending Office
--------------
Bank of Nova Scotia
The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
68
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
$10,000,000 By:______________________________________
Title:
Lending Office
--------------
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
Confirmation number: ▇▇▇-▇▇▇-▇▇▇▇
TOTAL COMMITMENTS:
$100,000,000
69
EXHIBIT A
---------
Term Note
Atlanta, Georgia
February 17, 1999
For value received, JDN REALTY CORPORATION, a Maryland corporation
(the "Borrower"), promises to pay to the order of
__________________________________________________, a ____________________ (the
"Bank"), for the account of its Lending Office, the principal sum of
___________________________________ AND NO/100 DOLLARS ($____________), or such
lesser amount as shall equal the unpaid principal amount of each Loan made by
the Bank to the Borrower pursuant to the Credit Agreement referred to below, on
the dates and in the amounts provided in the Credit Agreement. The Borrower
promises to pay interest on the unpaid principal amount of this Term Note on the
dates and at the rate or rates provided for in the Credit Agreement. Interest
on any overdue principal of and, to the extent permitted by law, overdue
interest on the principal amount hereof shall bear interest at the Default Rate,
as provided for in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in Federal or other
immediately available funds at the office of Wachovia Bank, N.A., ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or such other address as may be
specified from time to time pursuant to the Credit Agreement.
All Loans made by the Bank, the respective maturities thereof, the
interest rates from time to time applicable thereto, and all repayments of the
principal thereof shall be recorded by the Bank and, prior to any transfer
hereof, endorsed by the Bank on the schedule attached hereto, or on a
continuation of such schedule attached to and made a part hereof; provided that
--------
the failure of the Bank to make any such recordation or endorsement shall not
affect the obligations of the Borrower hereunder or under the Credit Agreement.
This Term Note is one of the Term Notes referred to in the Term Loan
Credit Agreement dated as of February 17, 1999 among the Borrower, the Banks
listed on the signature pages thereof, Wachovia Bank, N.A., as Agent and PNC
Bank, National Association, as Documentation Agent (as the same may be amended
and modified from time to time, the "Credit Agreement"). Reference is made to
the Credit Agreement for provisions for the optional and mandatory prepayment
and the repayment hereof and the acceleration of the maturity hereof, as well as
the obligation of the Borrower to pay all costs of collection, including
reasonable attorneys fees, in
70
the event this Term Note is collected by law or through an attorney at law.
The Borrower hereby waives presentment, demand, protest, notice of
demand, protest and nonpayment and any other notice required by law relative
hereto, except to the extent as otherwise may be expressly provided for in the
Credit Agreement.
IN WITNESS WHEREOF, the Borrower has caused this Term Note to be duly
executed, under seal, by its duly authorized officer as of the day and year
first above written.
JDN REALTY CORPORATION (SEAL)
By:______________________________________
Title:
71
Term Note (cont'd)
Loans AND PAYMENTS OF PRINCIPAL
----------------------------------------------------------------
Base Rate Amount Amount of
or Euro- of Principal Maturity Notation
Date Dollar Loan Loan Repaid Date Made By
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
72
EXHIBIT B
---------
OPINION OF
COUNSEL FOR THE BORROWER AND THE INITIAL GUARANTOR
--------------------------------------------------
[Dated as provided in
Section 3.01 of the
Credit Agreement]
To the Banks and the Agent
Referred to Below
c/o Wachovia Bank, N.A.,
as Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Syndications Group
Dear Sirs:
We have acted as counsel for JDN Realty Corporation, a Maryland
corporation (the "Borrower"), and JDN Development Company, Inc., a Delaware
corporation (the "Initial Guarantor"), in connection with the Term Loan Credit
Agreement (the "Credit Agreement") dated as of February 17, 1999, among the
Borrower, the banks listed on the signature pages thereof, Wachovia Bank, N.A.,
as Agent and PNC Bank, National Association, as Documentation Agent. Terms
defined in the Credit Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments and have conducted such other
investigations of fact and law as we have deemed necessary or advisable for
purposes of this opinion. We have assumed for purposes of our opinions set
forth below that the execution and delivery of the Credit Agreement by each Bank
and by the Agent have been duly authorized by each Bank and by the Agent.
Upon the basis of the foregoing, we are of the opinion that:
73
1. The Borrower is a corporation duly incorporated, validly existing
and in good standing under the laws of Maryland and has all corporate powers
required to carry on its business as now conducted. The Initial Guarantor is a
corporation duly incorporated, validly existing and in good standing under the
laws of Delaware and has all corporate powers required to carry on its business
as now conducted.
2. The execution, delivery and performance by the Borrower of the
Credit Agreement and the Term Notes, and of the Guaranty by the Initial
Guarantor, respectively (i) are within its corporate powers, (ii) have been duly
authorized by all necessary corporate action, (iii) require no action by or in
respect of, or filing with, any governmental body, agency or official, (iv) do
not contravene, or constitute a default under, any provision of applicable law
or regulation or of the certificate of incorporation or by-laws of the Borrower
or the Initial Guarantor or of any agreement, judgment, injunction, order,
decree or other instrument which to our knowledge is binding upon the Borrower
or the Initial Guarantor and (v) to our knowledge, except as provided in the
Credit Agreement, do not result in the creation or imposition of any Lien on any
asset of the Borrower or the Initial Guarantor or any of the Subsidiaries.
3. The Credit Agreement constitutes a valid and binding agreement of
the Borrower, and the Guaranty constitutes a valid and binding agreement of the
Initial Guarantor, in each case enforceable against it in accordance with its
terms, and the Term Notes constitute valid and binding obligations of the
Borrower, enforceable in accordance with its terms, except as such
enforceability may be limited by: (i) bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and (ii) general
principles of equity.
4. To our knowledge, there is no action, suit or proceeding pending,
or threatened, against or affecting the Borrower before any court or arbitrator
or any governmental body, agency or official in which there is a reasonable
possibility of an adverse decision which could materially adversely affect the
business, consolidated financial position or consolidated results of operations
of the Borrower or the Initial Guarantor or which in any manner questions the
validity or enforceability of the Credit Agreement, any Term Note or the
Guaranty.
5. The Borrower is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
6. The Borrower is not a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding
74
company", as such terms are defined in the Public Utility Holding Company Act of
1935, as amended.
We are qualified to practice in the State of Georgia and do not purport to
be experts on any laws other than the laws of the United States and the State of
Georgia and this opinion is rendered only with respect to such laws, and, as
expressly provided and subject to the limitations contained in the last sentence
of this paragraph, the corporate law of the States of Maryland and Delaware. We
have made no independent investigation of the laws of any other jurisdiction.
As to (x) the opinions expressed in paragraph 1 with respect to due
incorporation, valid existence and good standing in Maryland of the Borrower,
our opinion is based solely on our review of the good standing certificate
issued by the Secretary of State of Maryland previously delivered to you, and
(y) the opinions expressed in paragraph 1 and clause (ii) of paragraph 2 with
respect to the Borrower's corporate powers under Maryland law, we have relied
solely on our review of Sections 2-101 through 2-104, inclusive, of the Maryland
General Corporation Law, and our review of the Borrower's Articles of
Incorporation and Bylaws and relevant resolutions of its Board of Directors. As
to (x) the opinions expressed in paragraph 1 with respect to as to due
incorporation, valid existence and good standing in Delaware of the Initial
Guarantor, our opinion is based solely on our review of the good standing
certificate issued by the Secretary of State of Delaware previously delivered to
you, and (y) the opinions expressed in paragraph 1 and clause (ii) of paragraph
2 with respect to the Initial Guarantor's corporate powers under Delaware law,
we have relied on our general understanding of the State of Delaware General
Corporation Law, and our review of the Initial Guarantor's Articles of
Incorporation and Bylaws and relevant resolutions of its Board of Directors.
This opinion is delivered to you in connection with the transaction
referenced above and may only be relied upon by you, any Assignee, Participant
or other Transferee under the Credit Agreement, and ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇
without our prior written consent.
Very truly yours,
75
EXHIBIT C
---------
OPINION OF
▇▇▇▇▇, DAY, ▇▇▇▇▇▇ & ▇▇▇▇▇,
SPECIAL COUNSEL FOR THE AGENT
-----------------------------
[Dated as provided in
Section 3.01 of the
Credit Agreement]
To the Banks and the Agent
Referred to Below
c/o Wachovia Bank, N.A.,
as Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇
Attention: Syndications Group
Dear Sirs:
We have participated in the preparation of the Term Loan Credit
Agreement (the "Credit Agreement") dated as of February 17, 1999, among JDN
Realty Corporation, a Maryland corporation (the "Borrower"), the banks listed on
the signature pages thereof (the "Banks"), Wachovia Bank, N.A., as Agent (the
"Agent") and PNC Bank, National Association, as Documentation Agent, and have
acted as special counsel for the Agent for the purpose of rendering this opinion
pursuant to Section 3.01(d) of the Credit Agreement. Terms defined in the
Credit Agreement are used herein as therein defined.
This opinion letter is limited by, and is in accordance with, the
January 1, 1992 edition of the Interpretive Standards applicable to Legal
Opinions to Third Parties in Corporate Transactions adopted by the Legal Opinion
Committee of the Corporate and Banking Law Section of the State Bar of Georgia
which Interpretive Standards are incorporated herein by this reference.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, and assuming the due authorization,
execution and delivery of the Credit Agreement and each of the Term Notes by or
on behalf of the Borrower, and of the Guaranty by the Initial Guarantor, we are
of the opinion that the
76
Credit Agreement constitutes a valid and binding agreement of the Borrower, each
Term Note constitutes valid and binding obligations of the Borrower, and the
Guaranty constitutes a valid and binding agreement of the Initial Guarantor,
enforceable in accordance with its terms except as: (i) the enforceability
thereof may be affected by bankruptcy, insolvency, reorganization, fraudulent
conveyance, voidable preference, moratorium or similar laws applicable to
creditors' rights or the collection of debtors' obligations generally; (ii)
rights of acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability; and (iii) the enforceability
of certain of the remedial, waiver and other provisions of the Credit Agreement,
the Term Notes and the Guaranty may be further limited by the laws of the State
of Georgia; provided that such additional laws do not, in our opinion,
--------
substantially interfere with the practical realization of the benefits expressed
in the Credit Agreement, the Term Notes and the Guaranty, except for the
economic consequences of any procedural delay which may result from such laws.
In giving the foregoing opinion, we express no opinion as to the effect (if
any) of any law of any jurisdiction except the State of Georgia. We express no
opinion as to the effect of the compliance or noncompliance of the Agent or any
of the Banks with any state or federal laws or regulations applicable to the
Agent or any of the Banks by reason of the legal or regulatory status or the
nature of the business of the Agent or any of the Banks.
This opinion is delivered to you in connection with the transaction
referenced above and may only be relied upon by you and any Assignee,
Participant or other Transferee under the Credit Agreement without our prior
written consent.
Very truly yours,
77
EXHIBIT D
---------
ASSIGNMENT AND ACCEPTANCE
-------------------------
Dated ____________, ____
Reference is made to the Term Loan Credit Agreement dated as of
February 17, 1999 (together with all amendments and modifications thereto, the
"Credit Agreement") among JDN Realty Corporation, a Maryland corporation (the
"Borrower"), the Banks (as defined in the Credit Agreement), Wachovia Bank,
N.A., as Agent (the "Agent") and PNC Bank, National Association, as
Documentation Agent. Terms defined in the Credit Agreement are used herein with
the same meaning.
_________________________________________ (the "Assignor") and
________________________________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, without
recourse to the Assignor, and the Assignee hereby purchases and assumes from the
Assignor, a ______% interest in and to all of the Assignor's rights and
obligations under the Credit Agreement as of the Effective Date (as defined
below) (including, without limitation, in the Loans owing to the Assignor and
the Term Note held by the Assignor.
2. The Assignor (i) makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant thereto, other
than that it is the legal and beneficial owner of the interest being assigned by
it hereunder, that such interest is free and clear of any adverse claim and that
as of the date hereof the aggregate outstanding principal amount of Loans owing
to it (without giving effect to assignments thereof which have not yet become
effective) is $_________________; (ii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under the Credit Agreement or any other instrument or document
furnished pursuant thereto; and (iii) attaches the Term Note referred to in
paragraph 1 above and requests that the Agent exchange such Term Note for [a new
Term Note dated _____________,____ in the principal amount of $__________
payable to the order of the Assignee] [new Term Notes as follows: a (i) Term
Note dated _____
78
___________, ____ in the principal amount of $_____________ payable to the order
of the Assignor and (ii) Term Note dated _____________, ____ in the principal
amount of $______________ payable to the order of the Assignee].
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.04(a) thereof (or any more recent financial statements of the
Borrower delivered pursuant to Section 5.01(a) or (b) thereof) and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (ii) agrees
that it will, independently and without reliance upon the Agent, the Assignor or
any other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (iii) confirms that it is a bank
or financial institution; (iv) appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under the Credit
Agreement as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (v) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Bank; (vi) specifies as
its Lending Office (and address for notices) the office set forth beneath its
name on the signature pages hereof, (vii) represents and warrants that the
execution, delivery and performance of this Assignment and Acceptance are within
its corporate powers and have been duly authorized by all necessary corporate
action, (viii) makes the representation and warranty contained in Section 9.18
of the Credit Agreement[, and (ix) attaches the forms prescribed by the Internal
Revenue Service of the United States certifying as to the Assignee's status for
purposes of determining exemption from United States withholding taxes with
respect to all payments to be made to the Assignee under the Credit Agreement
and the Term Notes or such other documents as are necessary to indicate that all
such payments are subject to such taxes at a rate reduced by an applicable tax
treaty].
4. The Effective Date for this Assignment and Acceptance shall be
__________, ____ (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Agent for execution and
acceptance by the Agent and to the Borrower for execution by the Borrower.
5. Upon such execution and acceptance by the Agent [and execution by
the Borrower] [IF REQUIRED BY THE CREDIT AGREEMENT], from and after the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent rights and obligations have been transferred to it by this
Assignment and Acceptance, have the rights and obligations of a Bank thereunder
and (ii) the Assignor shall, to the extent its rights and obligations have been
transferred to the Assignee by this
79
Assignment and Acceptance, relinquish its rights (other than under Sections
8.03, 9.03 and 9.04 of the Credit Agreement) and be released from its
obligations under the Credit Agreement.
6. Upon such execution and acceptance by the Agent [and execution by
the Borrower] [IF REQUIRED BY THE CREDIT AGREEMENT], from and after the
Effective Date, the Agent shall make all payments in respect of the interest
assigned hereby to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments for periods prior to such acceptance by the
Agent directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of Georgia.
[NAME OF ASSIGNOR]
By:___________________________
Title:
[NAME OF ASSIGNEE]
By:___________________________
Title:
Lending Office:
[Address]
WACHOVIA BANK, N.A.,
As Agent
By:__________________________
Title:
JDN REALTY CORPORATION
IF REQUIRED BY THE CREDIT AGREEMENT
By:__________________________
Title:
80
EXHIBIT E
---------
NOTICE OF BORROWING
-------------------
_____________________, ____
Wachovia Bank, N.A., as Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Syndications Group
Re: Term Loan Credit Agreement (as amended and modified from time to time,
the "Credit Agreement") dated as of February 17, 1999 by and among JDN
Realty Corporation, the Banks from time to time parties thereto,
Wachovia Bank, N.A., as Agent and PNC Bank, National Association, as
Documentation Agent.
Gentlemen:
Unless otherwise defined herein, capitalized terms used herein shall have
the meanings attributable thereto in the Credit Agreement.
This Notice of Borrowing is delivered to you pursuant to Section 2.02 of
the Credit Agreement.
The Borrower hereby requests a [Euro-Dollar Borrowing] [Base Rate
Borrowing] in the aggregate principal amount of $___________ to be made on
______________, ____, and for interest to accrue thereon at the rate established
by the Credit Agreement for [Euro-Dollar Loans] [Base Rate Loans]. The duration
of the Interest Period with respect thereto shall be [1 month] [2 months] [3
months] [6 months] [30 days].
The calculation of the amounts described in Section 2.07 of the Credit
Agreement is as follows/2/:
(a) Borrowing Base per most recent
Borrowing Base Certificate $______________
(b) Principal amount outstanding under
____________________
/2/ Limitation: If (b) exceeds (a), the excess must be prepaid, subject to the
Borrower's right to identify and seek approval of a substitute Eligible
Property within 30 days.
81
Loans $______________
The Borrower hereby certifies that, as of the date hereof, none of the
Eligible Properties included in the most recent Borrowing Base Certificate is
subject to a Mortgage.
The Borrower has caused this Notice of Borrowing to be executed and
delivered by its duly authorized officer this _____ day of ___________, ___.
JDN REALTY CORPORATION
By:_______________________________
Title:
82
EXHIBIT F
---------
COMPLIANCE CERTIFICATE
----------------------
Reference is made to the Term Loan Credit Agreement dated as of
February 17, 1999 (as modified and supplemented and in effect from time to time,
the "Credit Agreement") by and among JDN Realty Corporation, the Banks from time
to time parties thereto, Wachovia Bank, N.A., as Agent and PNC Bank, National
Association, as Documentation Agent. Capitalized terms used herein shall have
the meanings ascribed thereto in the Credit Agreement.
Pursuant to Section 5.01(c) of the Credit Agreement, _______________,
the duly authorized ______________________ of the Borrower, hereby (i) certifies
to the Agent and the Banks that the information contained in the Compliance
Check List attached hereto is true, accurate and complete as of __________,
____, and that no Default is in existence on and as of the date hereof and (ii)
restates and reaffirms that the representations and warranties contained in
Article IV of the Credit Agreement are true on and as of the date hereof as
though restated on and as of this date.
JDN REALTY CORPORATION
By:____________________________
Its:
83
COMPLIANCE CHECK LIST
JDN REALTY CORPORATION
--------------------------
_____________, ____
1. Ratio of Consolidated Total Liabilities to Gross Asset Value (Section
5.20)
The ratio of Total Consolidated Liabilities to Gross Asset Value shall at
all times be equal to or less than 0.55 to 1.0.
(a) Total Consolidated Liabilities
Schedule 1 $_________
(b) Gross Asset Value Schedule 2 $_________
(c) Actual ratio of (a) to (b) ____ to 1.0
Maximum ratio 0.55 to 1.0
2. Ratio of Total Secured Debt to Gross Asset Value (Section 5.21)
The ratio of Total Secured Debt to Gross Asset Value shall at all times be
equal to or less than 0.40 to 1.0.
(a) Total Secured Debt Schedule 3 $__________
(b) Gross Asset Value Schedule 2 $__________
(c) Actual ratio of (a) to (b) ____ to 1.0
Maximum ratio 0.40 to 1.0
3. Ratio of EBITDA to Consolidated Interest Expense (Section 5.22)
The ratio of EBITDA to Consolidated Interest Expense for the Fiscal Quarter
just ended and the 3 immediately preceding Fiscal Quarters will not be less
than 2.0 to 1.00, calculated at the end of each Fiscal Quarter.
(a) EBITDA Schedule 4 $__________
(b) Consolidated Interest Expense $__________
(c) actual ratio of (a) to (b) ____ to 1.0
84
Minimum ratio 2.0 to 1.0
4. Ratio of Unencumbered Assets to Unsecured Funded Debt (Section 5.23)
The ratio of Unencumbered Assets to Unsecured Funded Debt shall at all times
be equal to or greater than 1.75 to 1.00.
(a) Net Operating Income from each
and owned for at least one Fiscal
Quarter Schedule 5 $_________
(b) 10 times (a) $_________
(c) 4 times (b) $_________
(d) book value of each Property not subject
to a Mortgage and owned for less than
one Fiscal Quarter $_________
(e) book value of all Construction in Progress $_________
(f) sum of (c),(d) and (f) $_________
(g) Unsecured Funded Debt Schedule 6 $_________
(h) Actual ratio of (f) to (g) ____ to 1.0
Minimum ratio 1.75 to 1.0
5. Ratio of Unsecured Net Operating Income to Unsecured Interest Expense
(Section 5.24)
The ratio of Unsecured Net Operating Income to Unsecured Interest Expense
shall at all times be equal to or greater than 1.75 to 1.0.
(a) Unsecured Net Operating Income Schedule 5 $_________
(b) Unsecured Interest Expense/2/ $_________
(c) Actual ratio of (a) to (b) ____ to 1.0
Minimum ratio 1.75 to 1.0
_____________________
/2/ Include only Consolidated Interest Expense for Fiscal Quarter attributable
to Unsecured Funded Debt.
85
6 Restricted Payments (Section 5.15)/3/
The Borrower's Restricted Payments in any calendar year shall not exceed 95%
of Funds from Operations for such period, unless (i) the Borrower must pay
out an amount in excess of 95% of Funds from Operations to permit the
Borrower to preserve its status as a real estate investment trust under the
applicable provision of the Code.
(a) Restricted Payments for current
calendar year $__________
(b) Funds from Operations for current
calendar year Schedule 7 $__________
(c) 95% of (b) $__________
Limitation: (a) may not exceed (c)
7. Guarantees (Section 5.25)
Neither the Borrower nor any Guarantor will create, assume or suffer to
exist any Guarantees of Debt of other Persons, except (i) Guarantees in
existence on May 23, 1997 in the aggregate as of August 31, 1998 of
21,770,661, (ii) Guarantees of Debt of the Borrower or other Guarantors and
(iii) other Guarantees in an aggregate amount not exceeding at any time 10%
of Gross Asset Value as of the last day of the Fiscal Quarter just ended.
(a) Amount Guaranteed by other Guarantees
not permitted by clauses (i) and (ii) $_________
(b) Gross Asset Value Schedule 2 $_________
(c) 10% of (b) $_________
Limitation: (a) may not exceed (c)
8. Consolidations, Mergers and Sales of Assets (Section 5.05)
_________________
/3/ Include this paragraph 6 and Schedule 7 only with the first Compliance
Certificate furnished after the end of each Fiscal Year. Amounts included
herein are for the year ended December 31, ____
86
Neither the Borrower nor any of the Guarantors will consolidate or merge
with or into, or acquire all or substantially all of the assets or stock of
any other Person, or sell, lease or otherwise transfer all or any
substantial part of its assets to, any other Person, provided that:
--------
[(i) . . . (ii)]
(iii) the foregoing limitation on the acquisition of all or
substantially all the assets or stock of another Person shall not
prohibit, during any Fiscal Quarter, the acquisition of all or
substantially all of the assets or stock of another Person unless the
aggregate assets or stock acquired in a single acquisition or series of
related acquisitions of all or substantially all of the assets or stock
of another Person by the Borrower and the Guarantors during such Fiscal
Quarter constituted more than 20% of Gross Asset Value at the end of
the most recent Fiscal Quarter immediately preceding such Fiscal
Quarter; and
(iv) the foregoing limitation on the sale, lease or other
transfer of assets shall not prohibit, during any Fiscal Quarter, a
transfer of assets (in a single transaction or in a series of related
transactions) unless the aggregate assets to be so transferred, when
combined with all other assets transferred by the Borrower and the
Guarantors during such Fiscal Quarter and the immediately preceding 3
Fiscal Quarters, constituted more than 20% of Gross Asset Value at the
end of the most recent Fiscal Quarter immediately preceding such Fiscal
Quarter.
(a) Aggregate amount of assets or stock
acquired in a single acquisition or
series of related acquisitions
during Fiscal Quarter just ended $_________
(b) Gross Asset Value Schedule 2 $__________
(c) 20% of (b) $__________
Limitation: (a) may not exceed (c)
(d) Aggregate amount of assets sold
during Fiscal Quarter just
ended $_________
(e) Aggregate amount of assets sold
during 3 prior Fiscal Quarters $_________
87
(f) Sum of (d) and (e) $_________
Limitation: (f) may not exceed (c)
9. Loans or Advances (Section 5.16)
Neither the Borrower nor any of the Guarantors shall make loans or advances
to any Person except as permitted by Section 5.17 and except:
(i) loans or advances to employees and directors not exceeding
$10,000,000 in the aggregate principal amount outstanding at any time;
[(ii) . . . (iii)]
(iv) other loans and advances by the Borrower and the
Guarantors to any JDN Venture which (x) are evidenced by notes (and, if
requested by the Agent, acting at the direction of the Required Banks,
with such notes, together with any related mortgage, have been assigned
to and pledged with the Agent, for the benefit of itself and the Banks,
as security for the payment of all obligations of the Borrower to the
Agent and the Banks hereunder) and (y) are in an amount which, together
with Investments permitted by clause (vi) of Section 5.17, do not
exceed 15% of Gross Asset Value as of the end of the most recent Fiscal
Quarter;
(a) Loans and advances to officers
and directors $________
Limitation $10,000,000
(b) Other loans and advances evidenced by
notes (and, if required, pledged with
Agent) and not
permitted by clauses (i) through (iii) $________
(c) See line (e) and "Limitation" of paragraph 10 below
10. Investments (Section 5.17)
Investments of the Borrower as of the Closing Date (other than in
Subsidiaries, which are set forth in Schedule 4.08), are set forth on
Schedule 5.17. Neither the Borrower nor any of the Guarantors shall make
Investments after the Closing Date in any Person except as permitted by
Section 5.16 and except Investments in:
88
[(i) . . . (v)]
(vi) other Investments by the Borrower and the Guarantors in an amount
which, (x) together with loans and advances permitted by clause (iv) of
Section 5.16, do not exceed 15% of Gross Asset Value as of the end of the
most recent Fiscal Year, and (y) with respect to Investments in Persons over
which, after giving effect to such Investment, the Borrower or the
Guarantors do not have Control, do not exceed 5% of Gross Asset Value as of
the end of the most recent Fiscal Year;
(a) Line (b) of paragraph 9 above $_________
(b) Other Investments not permitted by
clauses (i) through (v) $_________
(c) Sum of (a) and (b) $_________
(d) Gross Asset Value Schedule 2 $_________
(e) 15% of (d) $_________
Limitation: (c) may not exceed (e)
(f) Investments included in line (b) in
Persons over which the Borrower or the
Guarantors do not have control $_________
(g) 5% of (d) $_________
Limitation: (f) may not exceed (g)
89
Schedule 1
----------
Total Consolidated Liabilities
------------------------------
(a) Consolidated Liabilities $__________
(b) Debt Guaranteed by Borrower or any
Guarantor $__________
(c) face amount of all letters of credit
issued for the account of the Borrower
or any Guarantor $__________
TOTAL CONSOLIDATED LIABILITIES (sum of (a)
through (c) $__________
90
Schedule 2
----------
Gross Asset Value
-----------------
(a) Net Operating Income for the 3 month
period ending on the last day of the
month just ended prior to the date of
determination, from each Property owned
by the Borrower or any Guarantor for
at least one Fiscal Quarter $__________
(b) 40 times (a) $__________
(c) book value of each Property owned by
the Borrower or any Guarantor
for less than one Fiscal Quarter $__________
(d) book value of Construction in
Progress of each Property owned
by the Borrower or any Guarantor $__________
GROSS ASSET VALUE (sum of (b) through (d)) $__________
91
Schedule 3
----------
Total Secured Debt/4/
------------------- -
INTEREST FINAL
RATE/5/ MATURITY TOTAL
---- - -------- -----
Money Borrowed
--------------
________________________ __________ ________ $____
__
________________________ __________ ________ $____
__
________________________ __________ ________ $____
__
________________________ __________ ________ $____
__
________________________ __________ ________ $____
__
Total Money Borrowed $____
Deferred Purchase Price/6/
----------------------- -
________________________ __________ ________ $____
__
________________________ __________ ________ $____
__
________________________ __________ ________ $____
__
________________________ __________ ________ $____
__
Total Deffered Purchase Price $____
__
___________________
/4/ Include only the Debt secured by a Mortgage
/5/ If rate is fixed, insert contract rate. If rate is floating, state that.
/6/ Exclude trade accounts payable in the ordinary course of business.
92
Capital Leases in which Borrower is the Tenant
----------------------------------------------
________________________________________________________________ $_____
__
________________________________________________________________ $_____
__
Total Capital Leases $_____
__
Letter of Credit Reimbursement
Obligations
-----------
________________________________________________________________ $_____
__
________________________________________________________________ $_____
__
Total Letter of Credit
Reimbursement Obligations $_____
__
Guarantees of Debt of Persons other than Borrower and Guarantors
----------------------------------------------------------------
________________________ __________ ________ $_____
__
________________________ __________ ________ $_____
__
________________________ __________ ________ $_____
__
________________________ __________ ________ $_____
__
________________________ __________ ________ $_____
__
TOTAL SECURED DEBT $=====
93
Schedule 4
----------
EBITDA
------
____ quarter ___
consolidated net income $________
less extraordinary gains ($________)
plus extraordinary losses $________
plus Consolidated Interest Expense $________
plus taxes on income $________
plus depreciation and amortization $________
plus other non-cash charges $________
Total $________
____ quarter ___
consolidated net income $________
less extraordinary gains ($________)
plus extraordinary losses $________
plus Consolidated Interest Expense $________
plus taxes on income $________
plus depreciation and amortization $________
plus other non-cash charges $________
Total $________
____ quarter ___
consolidated net income $________
less extraordinary gains ($________)
plus extraordinary losses $________
plus Consolidated Interest Expense $________
plus taxes on income $________
plus depreciation and amortization $________
plus other non-cash charges $________
Total $________
____ quarter ___
consolidated net income $________
less extraordinary gains ($________)
plus extraordinary losses $________
plus Consolidated Interest Expense $________
plus taxes on income $________
plus depreciation and amortization $________
plus other non-cash charges $________
Total $________
EBITDA $________
94
Schedule 5
----------
Net Operating Income/7/
-------------------- -
(for Fiscal Quarter just ended)
____ quarter ___
Property revenues $________
less Property expenses
(excluding depreciation, amortization
and debt service) ($________)
less management fee (3% of gross
rental income, excluding
percentage rents) ($________)
less capital reserve ($0.15 per leasable
square foot) ($________)
NET OPERATING INCOME $________
_________________________
/7/ Include only Properties not subject to a mortgage and owned for at least
one Fiscal Quarter
95
Schedule 6
----------
Unsecured Funded Debt/8/
---------------------- -
INTEREST FINAL
RATE/9/ MATURITY TOTAL
---- - -------- -----
Money Borrowed
--------------
_____________________________________ ___________ ________ $______
_____________________________________ ___________ ________ $______
_____________________________________ ___________ ________ $______
_____________________________________ ___________ ________ $______
_____________________________________ ___________ ________ $______
Total Money Borrowed $______
Deferred Purchase Price/10/
----------------------- --
_____________________________________ ___________ ________ $______
_____________________________________ ___________ ________ $______
_____________________________________ ___________ ________ $______
_____________________________________ ___________ ________ $______
Total Deferred Purchase Price $______
Capital Leases in which the Borrower is the tenant
--------------------------------------------------
__________________________________________________________ ________ $______
__________________________________________________________ ________ $______
Total Capital Leases $______
____________________
/8/ Include only the Debt not secured by a Mortgage
/9/ If rate is fixed, insert contract rate. If rate is floating. state that.
/10/ Exclude trade accounts payable in the ordinary course of businss.
96
Letter of Credit Reimbursement
Obligations
-----------
_____________________________________ ___________ ________ $______
_____________________________________ ___________ ________ $______
Total Letter of Credit
Reimbursement Obligations $_____
Guarantees of Debt of Persons other than Borrower and Guarantors
----------------------------------------------------------------
_____________________________________ ___________ ________ $______
_____________________________________ ___________ ________ $______
_____________________________________ ___________ ________ $______
_____________________________________ ___________ ________ $______
_____________________________________ ___________ ________ $______
TOTAL UNSECURED FUNDED DEBT $======
97
Schedule 7/11/
--------------
Funds from Operations/1/
-----------------------
(for Fiscal Year just ended)
Net income $___________
plus depreciation and amortization
of real estate assets $___________
plus net loss/(gain) on real estate
sales $___________
plus loss/(gains) on extraordinary
items $___________
plus depreciation of real estate
assets held in unconsolidated
entities $___________
FUNDS FROM OPERATIONS $___________
___________________
/11/ Include only with the first Compliance Certificate furnished after the
end of each Fiscal year.
98
EXHIBIT G
---------
JDN REALTY CORPORATION
CLOSING CERTIFICATE
-------------------
Reference is made to the Term Loan Credit Agreement (the "Credit
Agreement") dated as of February 17, 1999, among JDN Realty Corporation, the
Banks listed therein, Wachovia Bank, N.A., as Agent and PNC Bank, National
Association, as Documentation Agent. Capitalized terms used herein have the
meanings ascribed thereto in the Credit Agreement.
Pursuant to Section 3.01(e) of the Credit Agreement, ____________________,
the duly authorized _____________________ of JDN Realty Corporation, hereby
certifies to the Agent and the Banks that, to the best of my knowledge, (i) no
Default has occurred and is continuing as of the date hereof, and (ii) the
representations and warranties contained in Article IV of the Credit Agreement
are true on and as of the date hereof.
Certified as February 17, 1999.
By:____________________________
Printed Name:_______________
Title:______________________
99
EXHIBIT H
---------
JDN REALTY CORPORATION
SECRETARY'S CERTIFICATE
The undersigned, __________________________________________, ________________,
Secretary of JDN Realty Corporation, a Maryland corporation (the "Borrower"),
hereby certifies that [s]he has been duly elected, qualified and is acting in
such capacity and that, as such, [s]he is familiar with the facts herein
certified and is duly authorized to certify the same, and hereby further
certifies, in connection with the Term Loan Credit Agreement dated as of
February 17, 1999 among the Borrower, Wachovia Bank, N.A. as Agent and as a
Bank, and certain other Banks listed on the signature pages thereof, that:
1. Attached hereto as Exhibit A is a complete and correct copy of the
Certificate of Incorporation of the Borrower as in full force and effect on the
date hereof as certified by the Secretary of State of the State of Maryland, the
Borrower's state of incorporation.
2. Attached hereto as Exhibit B is a complete and correct copy of the
Bylaws of the Borrower as in full force and effect on the date hereof.
3. Attached hereto as Exhibit C is a complete and correct copy of the
resolutions duly adopted by the Board of Directors of the Borrower on , 1998
approving, and authorizing the execution and delivery of, the Credit Agreement,
the Term Notes and the other Loan Documents (as such terms are defined in the
Credit Agreement) to which the Borrower is a party. Such resolutions have not
been repealed or amended and are in full force and effect, and no other
resolutions or consents have been adopted by the Board of Directors of the
Borrower in connection therewith.
4. ________________________________ , who is _______________________ of
the Borrower signed the Credit Agreement, the Term Notes and the other Loan
Documents to which the Borrower is a party, was duly elected, qualified and
acting as such at the time [s]he signed the Credit Agreement, the Term Notes and
other Loan Documents to which the Borrower is a party, and [his/her] signature
appearing on the Credit Agreement, the Term Notes and the other Loan Documents
to which the Borrower is a party is [his/her] genuine signature.
IN WITNESS WHEREOF, the undersigned has hereunto set [his/her] hand as of
February 17, 1999.
___________________________________________
100
EXHIBIT I
---------
GUARANTY
--------
THIS GUARANTY (this "Guaranty") is made as of February 17, 1999 by JDN
DEVELOPMENT COMPANY, INC., a Delaware corporation (the "Initial Guarantor" and a
"Guarantor"; the terms "Guarantor" and "Guarantors" shall include any Subsidiary
of JDN Realty Corporation which becomes a Guarantor pursuant to Section 15
hereof and Section 5.29 of the Credit Agreement referred to below) in favor of
the Agent, for the ratable benefit of the Banks, under the Credit Agreement
referred to below;
W I T N E S S E T H
WHEREAS, JDN REALTY CORPORATION, a Maryland corporation (the
"Borrower"), WACHOVIA BANK, N.A., as Agent (the "Agent") and PNC Bank, National
Association, as Documentation Agent and certain other Banks from time to time
party thereto have entered into a certain Term Loan Credit Agreement dated as of
February 17, 1999 (as amended as of the date hereof and as it may be amended or
modified further from time to time, the "Credit Agreement"), providing, subject
to the terms and conditions thereof, for term loans to be made by the Banks to
the Borrower which will the benefit the Guarantors;
WHEREAS, it is required by Section 5.29 of the Credit Agreement, that
the Initial Guarantor execute and deliver this Guaranty whereby it and, together
with other Guarantors which become such as contemplated in Section 15 hereof,
shall guarantee the payment when due of all principal, interest and other
amounts that shall be at any time payable by the Borrower under the Credit
Agreement, the Term Notes and the other Loan Documents; and
WHEREAS, in consideration of the financial and other support that the
Borrower has provided, and such financial and other support as the Borrower may
in the future provide, to the Guarantors, whether directly or indirectly, and in
order to induce the Banks and the Agent to enter into the Credit Agreement, the
Guarantors are willing to guarantee the obligations of the Borrower under the
Credit Agreement, the Term Notes, and the other Loan Documents;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
101
SECTION 1. Definitions. Terms defined in the Credit Agreement and
-----------
not otherwise defined herein have, as used herein, the respective meanings
provided for therein.
SECTION 2. Representations and Warranties. The Guarantors
------------------------------
incorporate herein by reference as fully as if set forth herein all of the
representations and warranties pertaining to the Guarantors contained in Article
IV of the Credit Agreement (which representations and warranties shall be deemed
to have been renewed by the Guarantors upon each Borrowing under the Credit
Agreement).
SECTION 3. Covenants. The Guarantors covenant that, so long as any
---------
Bank has any Commitment outstanding under the Credit Agreement or any amount
payable under the Credit Agreement or any Term Note shall remain unpaid, the
Guarantors will fully comply with those covenants set forth in Article V of the
Credit Agreement pertaining to the Guarantors, and the Guarantors incorporate
herein by reference as fully as if set forth herein all of such covenants.
SECTION 4. The Guaranty. The Guarantors hereby irrevocably,
------------
unconditionally and jointly and severally guarantee (i) the full and punctual
payment (whether at stated maturity, upon acceleration or otherwise) of the
principal of and interest on each Term Note issued by the Borrower pursuant to
the Credit Agreement, and the full and punctual payment of all other amounts
payable by the Borrower under the Credit Agreement, including, without
limitation, all Loans and interest thereon, all compensation and indemnification
amounts and fees payable pursuant to the Credit Agreement and the Agent's Letter
Agreement, and (ii) the timely performance of all other obligations of the
Borrower under the Credit Agreement and the other Loan Documents (all of the
foregoing obligations being referred to collectively as the "Guaranteed
Obligations"). Upon failure by the Borrower to pay punctually any such amount or
perform such obligations, each of the Guarantors agrees that it shall forthwith
on demand pay the amount not so paid at the place and in the manner specified in
the Credit Agreement, the relevant Term Note or the relevant Loan Document, as
the case may be, or perform such obligation in accordance with the terms and
conditions therefor specified in the Credit Agreement or the other Loan
Documents, and pay all costs of collection, including reasonable attorneys fees;
provided that, notwithstanding the provisions of O.C.G.A. ss. 13-1-11(a)(2) to
the contrary, the Guarantor shall not be obligated to pay more than the
attorneys fees actually incurred in connection with such collection.
SECTION 5. Guaranty Unconditional. The obligations of the Guarantor
----------------------
hereunder shall be unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
102
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of the Borrower under the Credit
Agreement, any Term Note, or any other Loan Document, by operation of law
or otherwise or any obligation of any other guarantor of any of the
Guaranteed Obligations;
(ii) any modification or amendment of or supplement to the
Credit Agreement, any Term Note, or any other Loan Document;
(iii) any release, nonperfection or invalidity of any direct or
indirect security, if any, for any obligation of the Borrower under the
Credit Agreement, any Term Note, any Loan Document, or any obligations of
any other guarantor of any of the Guaranteed Obligations;
(iv) any change in the corporate structure or ownership of the
Borrower or any Guarantor or any other guarantor of any of the Guaranteed
Obligations, or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting the Borrower, or any other Guarantor or any other
guarantor of the Guaranteed Obligations, or its assets or any resulting
release or discharge of any obligation of the Borrower, or any other
Guarantor or any other guarantor of any of the Guaranteed Obligations;
(v) the existence of any claim, setoff or other rights which
the Guarantors may have at any time against the Borrower, any other
Guarantor or any other guarantor of any of the Guaranteed Obligations, the
Agent, any Bank or any other Person, whether in connection herewith or any
unrelated transactions, provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or against
the Borrower, or any other Guarantor or any other guarantor of any of the
Guaranteed Obligations, for any reason related to the Credit Agreement, any
other Loan Document, or any other Guaranty, or any provision of applicable
law or regulation purporting to prohibit the payment by the Borrower, or
any other Guarantor or any other guarantor of the Guaranteed Obligations,
of the principal of or interest on any Term Note or any other amount
payable by the Borrower under the Credit Agreement, the Term Notes, or any
other Loan Document; or
(vii) any other act or omission to act or delay of any kind by
the Borrower, any other Guarantor or
103
any other guarantor of the Guaranteed Obligations, the Agent, any Bank or
any other Person or any other circumstance whatsoever which might, but for
the provisions of this paragraph, constitute a legal or equitable discharge
of the Guarantor's obligations hereunder.
SECTION 6. Discharge Only Upon Payment In Full; Reinstatement In
-----------------------------------------------------
Certain Circumstances. The Guarantors' obligations hereunder shall remain in
---------------------
full force and effect until all Guaranteed Obligations shall have been paid in
full and the Commitments under the Credit Agreement shall have terminated or
expired. If at any time any payment of the principal of or interest on any Term
Note or any other amount payable by the Borrower under the Credit Agreement or
any other Loan Document is rescinded or must be otherwise restored or returned
upon the insolvency, bankruptcy or reorganization of the Borrower or otherwise,
the Guarantors' obligations hereunder with respect to such payment shall be
reinstated as though such payment had been due but not made at such time.
SECTION 7. Waiver of Notice by the Guarantors. The Guarantors
----------------------------------
irrevocably waive acceptance hereof, presentment, demand, protest and, to the
fullest extent permitted by law, any notice not provided for herein, as well as
any requirement that at any time any action be taken by any Person against the
Borrower, any other Guarantor or any other guarantor of the Guaranteed
Obligations, or any other Person.
SECTION 8. Stay of Acceleration. If acceleration of the time for
--------------------
payment of any amount payable by the Borrower under the Credit Agreement, any
Term Note or any other Loan Document is stayed upon the insolvency, bankruptcy
or reorganization of the Borrower, all such amounts otherwise subject to
acceleration under the terms of the Credit Agreement, any Term Note or any other
Loan Document shall nonetheless be payable by the Guarantors hereunder forthwith
on demand by the Agent made at the request of the Required Banks.
SECTION 9. Notices. All notices, requests and other communications to
-------
any party hereunder shall be given or made by telecopier or other writing and
telecopied or mailed or delivered to the intended recipient at its address or
telecopier number set forth on the signature pages hereof or such other address
or telecopy number as such party may hereafter specify for such purpose by
notice to the Agent in accordance with the provisions of Section 9.01 of the
Credit Agreement. Except as otherwise provided in this Guaranty, all such
communications shall be deemed to have been duly given when transmitted by
telecopier, or personally delivered or, in the case of a mailed notice, 3
Domestic Business Days after such communication is deposited in the mails with
first
104
class postage prepaid, in each case given or addressed as aforesaid.
SECTION 10. No Waivers. No failure or delay by the Agent or any Banks
----------
in exercising any right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies provided in this Guaranty, the Credit Agreement, the
Term Notes, and the other Loan Documents shall be cumulative and not exclusive
of any rights or remedies provided by law.
SECTION 11. Successors and Assigns. This Guaranty is for the benefit
----------------------
of the Agent and the Banks and their respective successors and assigns and in
the event of an assignment of any amounts payable under the Credit Agreement,
the Term Notes, or the other Loan Documents, the rights hereunder, to the extent
applicable to the indebtedness so assigned, may be transferred with such
indebtedness. This Guaranty may not be assigned by the Guarantors without the
prior written consent of the Agent and the Required Banks, and shall be binding
upon the Guarantors and their respective successors and permitted assigns.
SECTION 12. Changes in Writing. Neither this Guaranty nor any
------------------
provision hereof may be changed, waived, discharged or terminated orally, but
only in writing signed by the Guarantors and the Agent, with the consent of the
Required Banks.
SECTION 13. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
---------------------------------------------------------
TRIAL. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
-----
THE LAW OF THE STATE OF GEORGIA. EACH OF THE GUARANTOR AND THE AGENT HEREBY
SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF GEORGIA AND OF ANY GEORGIA STATE COURT SITTING IN
ATLANTA, GEORGIA AND FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY. THE
GUARANTORS IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH ANY OF THEM MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE
OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
EACH OF THE GUARANTORS AND THE AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 14. Taxes, etc. All payments required to be made by the
----------
Guarantor hereunder shall be made without setoff or counterclaim and free and
clear of and without deduction or withholding for or on account of, any present
or future taxes,
105
levies, imposts, duties or other charges of whatsoever nature imposed by any
government or any political or taxing authority pursuant and subject to the
provisions of Section 2.08(c) of the Credit Agreement, the terms of which are
incorporated herein by reference as to the Guarantors as fully as if set forth
herein, and for such purposes, the rights and obligations of the Borrower under
such Section shall devolve to the Guarantors as to payments required to be made
by the Guarantors hereunder.
SECTION 15. Additional Guarantors; Release of Guarantors. Section 5.29
--------------------------------------------
of the Credit Agreement provides that all new Significant Subsidiaries must
become Guarantors, by, among other things, executing and delivering to the Agent
a counterpart of this Guaranty. Any Subsidiary which executes and delivers to
the Agent a counterpart of this Guaranty shall be a Guarantor for all purposes
hereunder. Under certain circumstances described in the last sentence of Section
5.05 of the Credit Agreement, Guarantors may obtain from the Agent a written
release from this Guaranty pursuant to the provisions of such sentence, and upon
obtaining such written release, any such Subsidiary shall no longer be a
Guarantor hereunder. Each other Guarantor consents and agrees to any such
release and agrees that no such release shall affect its obligations hereunder.
SECTION 16. Other Waivers by the Guarantors. The Guarantors hereby
-------------------------------
expressly waive, renounce, and agree not to assert, any right, claim or cause of
action, including, without limitation, a claim for reimbursement, subrogation,
indemnification or otherwise, against the Borrower arising out of or by reason
of this Guaranty or the obligations of the Guarantors hereunder, including,
without limitation, the payment or securing or purchasing of any of the
Guaranteed Obligations by the Guarantors, until payment in full of the
Guaranteed Obligations. The waiver, renunciation and agreement contained in the
immediately preceding sentence is for the benefit of the Agent and the Banks and
also for the benefit of the Borrower who may assert the benefits thereof as a
third-party beneficiary, and the Guarantors may be released from such waiver,
renunciation and agreement only by the execution and delivery, by the Agent, the
Required Banks and the Borrower, of an instrument expressly releasing the
Guarantors therefrom.
IN WITNESS WHEREOF, the Initial Guarantor has caused this
106
Guaranty to be duly executed, under seal, by its authorized officer as of the
date first above written.
JDN DEVELOPMENT COMPANY, INC.
By:___________________________________
Title:
107
EXHIBIT J
---------
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "Agreement") is entered into as of
February 17, 1999, by and between JDN REALTY CORPORATION, a Maryland corporation
(the "Principal") and JDN DEVELOPMENT COMPANY, INC. a Delaware corporation (the
"Initial Guarantor" and a "Guarantor"; the terms "Guarantor" and "Guarantors"
shall include any Subsidiary of JDN Realty Corporation which becomes a Guarantor
pursuant to the last paragraph hereof and Section 5.29 of the Credit Agreement
referred to below). The Principal and each of the Guarantors are sometimes
hereinafter referred to individually as a "Contributing Party" and collectively
as the "Contributing Parties").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Term Loan Credit Agreement, dated as
of February 17, 1999 among the Principal, the Banks party thereto, Wachovia
Bank, N.A., as Agent and PNC Bank, National Association, as Documentation Agent
(such agreement, as amended as of the date hereof and as the same may from time
to time be amended, modified, restated or extended, being hereinafter referred
to as the "Credit Agreement"; capitalized terms used herein shall have the
meanings ascribed thereto in the Credit Agreement), the Banks have agreed to
extend term loans to the Principal;
WHEREAS, it is required by Section 5.29 of the Credit Agreement that
the Initial Guarantor and each Significant Subsidiary execute and deliver that
certain Guaranty, dated as of even date herewith (such agreement, as the same
may from time to time be amended, modified, restated or extended, being
hereinafter referred to as the "Guaranty"), pursuant to which, among other
things, the Initial Guarantor and, together with Significant Subsidiaries which
become Guarantors as contemplated in the last paragraph hereof, have jointly and
severally agreed to guarantee the "Guaranteed Obligations" (as defined in the
Guaranty); and
WHEREAS, the Principal owns most of the beneficial interests in the
Initial Guarantor, and each Guarantor other than the Initial Guarantor is a
direct or indirect subsidiary of the Principal and is engaged in businesses
related to those of the Principal and each other Guarantor, and each of the
Guarantors will derive direct or indirect economic benefit from the
effectiveness and existence of the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, and to induce each Guarantor to enter into the Guaranty,
it is agreed as follows:
108
To the extent that any Guarantor shall, under the Guaranty, make a
payment (a "Guarantor Payment") of a portion of the Guaranteed Obligations,
then, without limiting its rights of subrogation against the principal, such
Guarantor shall be entitled to contribution and indemnification from, and be
reimbursed by, each of the other Contributing Parties in an amount, for each
such Contributing Party, equal to a fraction of such Guarantor Payment, the
numerator of which fraction is such Contributing Party's Allocable Amount and
the denominator of which is the sum of the Allocable Amounts of all of the
Contributing Parties.
As of any date of determination, the "Allocable Amount" of each
Contributing Party shall be equal to the maximum amount of liability which could
be asserted against such Contributing Party hereunder with respect to the
applicable Guarantor Payment without (i) rendering such Contributing Party
"insolvent" within the meaning of Section 101(31) of the Federal Bankruptcy Code
(the "Bankruptcy Code") or Section 2 of either the Uniform Fraudulent Transfer
Act (the "UFTA") or the Uniform Fraudulent Conveyance Act (the "UFCA"), (ii)
leaving such Contributing Party with unreasonably small capital, within the
meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA or
Section 5 of the UFCA, or (iii) leaving such Contributing Party unable to pay
its debts as they become due within the meaning of Section 548 of the Bankruptcy
Code or Section 4 of the UFTA or Section 6 of the UFCA.
This Agreement is intended only to define the relative rights of the
Contributing Parties, and nothing set forth in this Agreement is intended to or
shall impair the obligations of the Guarantors, jointly and severally, to pay
any amounts, as and when the same shall become due and payable in accordance
with the terms of the Guaranty.
The parties hereto acknowledge that the rights of contribution and
indemnification hereunder shall constitute assets in favor of each Guarantor to
which such contribution and indemnification is owing.
This Agreement shall become effective upon its execution by each of
the Contributing Parties and shall continue in full force and effect and may not
be terminated or otherwise revoked by any Contributing Party until all of the
Guaranteed Obligations shall have been indefeasibly paid in full (in lawful
money of the United States of America) and discharged and the Credit Agreement
and financing arrangements evidenced and governed by the Credit Agreement shall
have been terminated. Each Contributing Party agrees that if, notwithstanding
the foregoing, such Contributing Party shall have any right under applicable law
to terminate or revoke this Agreement, and such Contributing Party shall attempt
to exercise such right, then such termination or revocation shall not be
effective until a written notice of such revocation or
109
termination, specifically referring hereto and signed by such Contributing
Party, is actually received by each of the other Contributing Parties and by the
Agent at its notice address set forth in the Credit Agreement. Such notice shall
not affect the right or power of any Contributing Party to enforce rights
arising prior to receipt of such written notice by each of the other
Contributing Parties and the Agent. If any Bank grants additional loans to the
Principal or takes other action giving rise to additional Guaranteed Obligations
after any Contributing Party has exercised any right to terminate or revoke this
Agreement but before the Agent receives such written notice, the rights of each
other Contributing Party to contribution and indemnification hereunder in
connection with any Guarantor Payments made with respect to such loans or
Guaranteed Obligations shall be the same as if such termination or revocation
had not occurred.
Section 5.29 of the Credit Agreement provides that new Significant
Subsidiaries must become Guarantors by, among other things, executing and
delivering to the Agent a counterpart of the Guaranty and of this Contribution
Agreement. Any Subsidiary which executes and delivers to the Agent a counterpart
of the Guaranty and of this Contribution Agreement shall be a Guarantor for all
purposes hereunder. Under certain circumstances described in the last sentence
of Section 5.05 of the Credit Agreement, Guarantors may obtain from the Agent a
written release from the Guaranty pursuant to the provisions of such sentence,
and upon obtaining such written release, any such Subsidiary shall no longer be
a Guarantor or Contributing Party hereunder, and such release shall
automatically and without further action constitute a release by each other
Contributing Party of all obligations of such Subsidiary hereunder. Each other
Guarantor consents and agrees to any such release and agrees that no such
release shall affect its obligations hereunder, except as to the Subsidiary so
released.
110
IN WITNESS WHEREOF, each Contributing Party has executed and delivered
this Agreement, under seal, as of the date first above written.
JDN REALTY CORPORATION (SEAL)
By:_________________________________
Title:
JDN DEVELOPMENT COMPANY, INC. (SEAL)
By:_________________________________
Title:
111
EXHIBIT K
---------
BORROWING BASE CERTIFICATE
Reference is made to the Term Loan Credit Agreement dated as of
February 17, 1999 (as modified and supplemented and in effect from time to time,
the "Credit Agreement") among JDN Realty Corporation, the Banks from time to
time parties thereto, Wachovia Bank, N.A., as Agent and PNC Bank, National
Association, as Documentation Agent. Capitalized terms used herein shall have
the meanings ascribed thereto in the Credit Agreement.
Pursuant to Section [3.01(h)][5.01(i)] of the Credit Agreement,
_______________, the duly authorized _______________ of the Borrower, hereby (i)
certifies to the Agent and the Banks that the calculation of the Borrowing Base
contained in this Borrowing Base Certificate is true, accurate and complete in
all material respects as of _______________, ______.
The calculation of the Borrowing Base is as follows:
(a) Net Operating Income for the 3 month period ending
on the last day of the Fiscal Quarter just ended
prior to the date of determination, from each
Eligible Unencumbered Stabilized Property $______________
(b) 10 times (a) $______________
(c) 4 times (b) $______________
(d) 0.60 times (c) $______________
(e) book value of Construction in Progress
on all Eligible Properties $______________
(f) 0.50 times (e) $______________
(g) lesser of (f) and $20,000,000 $______________
BORROWING BASE: sum of (d), plus (g) $______________
----
JDN REALTY CORPORATION
By:______________________________
Its:
112
EXHIBIT L
---------
LIST OF ELIGIBLE PROPERTIES
---------------------------
JDN REALTY CORPORATION
Total GLA in Year Built New to
Property GLA Borrowing Renovated or Borrowing
Number Shopping Center Name Location (Sq.Ft.) Base Expanded Base?
------ -------------------- -------- -------- ---- -------- -----
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ 243,204 243,204 1997 Yes
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ 21,900 21,900 1986 Yes
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ 172,546 64,772 1986 Yes
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ 277,078 277,078 1995 Yes
343 CVS Lawrenceville, GA 10,125 10,125 1998 Yes
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ 95,277 91,197 1995 Yes
Center
▇▇▇ ▇▇▇▇▇▇▇▇'▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ 80,186 22,401 1989 Yes
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ 10,800 10,800 1997 Yes
▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ 43,393 43,393 1997 Yes
▇▇▇ ▇▇▇▇'▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ 145,939 14,364 1997 Yes
▇▇▇ ▇▇▇▇▇▇'▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ 125,657 125,657 1998 Yes
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ 133,052 133,052 1995 Yes
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ 340,029 23,392 1998 Yes
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ 159,684 51,301 1997 Yes
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ 204,291 204,291 1985 Yes
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ 196,049 196,409 1991 Yes
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ 71,311 71,311 1991 Yes
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇/▇ ▇▇▇▇▇▇▇▇, ▇▇ 54,411 54,411 1990 Yes
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇/▇ ▇▇▇▇▇▇▇, ▇▇ 64,223 64,223 1993 Yes
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇/▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ 71,028 71,028 1994 Yes
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ 201,220 201,220 1997 Yes
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ 315,767 270,767 1990 Yes
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ 79,408 79,408 1985 Yes
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ 383,967 383,967 1968 Yes
____ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ 150,010 150,010 1997 Yes
------- -------
Total 3,650,555 2,879,681
113
Schedule 4.08
-------------
Subsidiaries
------------
Name Jurisdiction of Incorporation
---- -----------------------------
JDN Realty AL, Inc. Alabama
JDN Realty Corporation GP, Inc. Delaware
JDN of Pennsylvania Realty Corporation Delaware
JDN Realty LP, Inc. Delaware
JDN West Allis Associates, Limited Partnership Georgia
JDN Realty Investment, L.P. Georgia
Black Cherry Limited Liability Company Colorado
114
Schedule 4.14
-------------
Environmental Matters
---------------------
The Borrower discloses the existence of the following: (i) a remediation
agreement (relating to a leaking, underground storage tank) entered into between
the State of Georgia and the owner of the Stop 'n' Go site adjacent to the
QuikTrip parcel located at the Borrower's Lawrenceville Property; (ii) a
remediation agreement (relating to soil and groundwater contamination) entered
into between the State of North Carolina and the owner of a tract adjoining the
Borrower's Greenville, North Carolina Property; and (iii) a limited Phase II
environmental assessment recommendation that impacted soils be remediated at the
Greensboro, North Carolina Property (but the Borrower has no knowledge that any
soil or water on or adjacent to any Property is contaminated by any Hazardous
Material.
115
Schedule 5.17
-------------
Existing Investments/12/
------------------------
As of February 17, 1999
Investment Amount
---------- ------
1% of Voting Common Stock of JDN Development
Company, Inc. $ 100
100% of Non-Voting Common Stock of JDN
Development Company, Inc. $ 4,043,822
Mortgage Loans to JDN Development Company, Inc. $113,701,000
Advances to JDN Development Company, Inc. $ 28,094,173
Duck Creek, L.L.C $ 8,000,000
Denver Urban Renewal Authority Bonds $ 1,730,204
Cumming Sewer Authority Bonds $ 1,342,673
__________________
/12/Exclude Subsidiaries, which are set forth on Schedule 4.08.
116
Schedule 5.25
-------------
Existing Guarantees
-------------------
In Effect on February 17, 1999
Entity/Instrument Amount
----------------- ------
JDN Development Company, Inc.
Construction loan - Canton, GA $ 9,449,908
Construction loan - Warner Robins, GA $ 7,207,118
------------
Sub-Total $ 16,657,026
Dogwood Drive, LLC
50% of Construction loan $ 4,340,674
------------
Total: $ 20,997,700
============
__________________
117