EXHIBIT 99.2
TERM LOAN AGREEMENT
DATED AS OF DECEMBER 27, 2002
among
JDN REALTY CORPORATION
and
FLEET NATIONAL BANK,
THE OTHER LENDERS WHICH ARE PARTIES TO THIS AGREEMENT
and
OTHER LENDERS THAT MAY BECOME
PARTIES TO THIS AGREEMENT
and
FLEET NATIONAL BANK,
AS AGENT
and
FLEET SECURITIES, INC.,
AS SOLE ARRANGER
TABLE OF CONTENTS
Section 1. DEFINITIONS AND RULES OF INTERPRETATION.................................................... 1
Section 1.1 Definitions................................................................ 1
Section 1.2 Rules of Interpretation.................................................... 18
Section 2. THE FACILITY............................................................................... 19
Section 2.1 Term Loan.................................................................. 19
Section 2.2 [Intentionally Omitted].................................................... 20
Section 2.3 Facility Unused Fee........................................................ 20
Section 2.4 [Intentionally Omitted].................................................... 20
Section 2.5 [Intentionally Omitted].................................................... 20
Section 2.6 Interest on Loans.......................................................... 20
Section 2.7 Requests for Loans......................................................... 21
Section 2.8 Funds for Loans............................................................ 21
Section 2.9 Use of Proceeds............................................................ 22
Section 3. REPAYMENT OF THE LOANS..................................................................... 22
Section 3.1 Stated Maturity............................................................ 22
Section 3.2 Mandatory Prepayments...................................................... 23
Section 3.3 Optional Prepayments....................................................... 23
Section 3.4 Partial Prepayments........................................................ 23
Section 4. CERTAIN GENERAL PROVISIONS................................................................. 23
Section 4.1 Conversion Options......................................................... 23
Section 4.2 Closing Fee................................................................ 24
Section 4.3 Agent's Fee................................................................ 24
Section 4.4 Funds for Payments......................................................... 24
Section 4.5 Computations............................................................... 26
Section 4.6 Inability to Determine LIBOR............................................... 26
Section 4.7 Illegality................................................................. 26
Section 4.8 Additional Interest........................................................ 26
Section 4.9 Additional Costs, Etc...................................................... 27
Section 4.10 Capital Adequacy........................................................... 28
Section 4.11 Indemnity of Borrower...................................................... 28
Section 4.12 Default Interest; Late Charge.............................................. 28
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Section 4.13 Certificate................................................................ 29
Section 4.14 Limitation on Interest..................................................... 29
Section 4.15 Certain Provisions Relating to Increased Costs............................. 29
Section 5. GUARANTY................................................................................... 30
Section 5.1 Guaranty................................................................... 30
Section 5.2 Additional Guarantors...................................................... 30
Section 5.3 Release of Certain Subsidiary Guarantors................................... 30
Section 6. REPRESENTATIONS AND WARRANTIES............................................................. 31
Section 6.1 Corporate Authority, Etc................................................... 31
Section 6.2 Governmental Approvals..................................................... 32
Section 6.3 Title to Properties........................................................ 32
Section 6.4 Financial Statements....................................................... 32
Section 6.5 No Material Changes........................................................ 32
Section 6.6 Franchises, Patents, Copyrights, Etc....................................... 32
Section 6.7 Litigation................................................................. 32
Section 6.8 No Materially Adverse Contracts, Etc....................................... 33
Section 6.9 Compliance with Other Instruments, Laws, Etc............................... 33
Section 6.10 Tax Status................................................................. 33
Section 6.11 No Event of Default........................................................ 33
Section 6.12 Holding Company and Investment Company Acts................................ 33
Section 6.13 Absence of UCC Financing Statements, Etc................................... 33
Section 6.14 [Intentionally Omitted].................................................... 34
Section 6.15 Certain Transactions....................................................... 34
Section 6.16 Employee Benefit Plans..................................................... 34
Section 6.17 Disclosure................................................................. 34
Section 6.18 Trade Name; Place of Business.............................................. 35
Section 6.19 Regulations T, U and X..................................................... 35
Section 6.20 Environmental Compliance................................................... 35
Section 6.21 Subsidiaries............................................................... 37
Section 6.22 [Intentionally Omitted].................................................... 37
Section 6.23 Property................................................................... 37
Section 6.24 Brokers.................................................................... 38
Section 6.25 Other Debt................................................................. 38
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Section 6.26 Solvency................................................................... 38
Section 6.27 No Bankruptcy Filing....................................................... 38
Section 6.28 No Fraudulent Intent....................................................... 38
Section 6.29 Transaction in Best Interests of Borrower; Consideration................... 38
Section 6.30 Contribution Agreement..................................................... 39
Section 6.31 [Intentionally Omitted].................................................... 39
Section 6.32 Transaction Documents...................................................... 39
Section 7. AFFIRMATIVE COVENANTS...................................................................... 39
Section 7.1 Punctual Payment........................................................... 39
Section 7.2 Maintenance of Office...................................................... 39
Section 7.3 Records and Accounts....................................................... 39
Section 7.4 Financial Statements, Certificates and Information......................... 39
Section 7.5 Notices.................................................................... 41
Section 7.6 Existence; Maintenance of Properties....................................... 44
Section 7.7 Insurance.................................................................. 44
Section 7.8 Taxes; Liens............................................................... 44
Section 7.9 Inspection of Properties and Books......................................... 45
Section 7.10 Compliance with Laws, Contracts, Licenses, and Permits..................... 45
Section 7.11 Further Assurances......................................................... 45
Section 7.12 [Intentionally Omitted].................................................... 46
Section 7.13 [Intentionally Omitted].................................................... 46
Section 7.14 Business Operations........................................................ 46
Section 7.15 [Intentionally Omitted].................................................... 46
Section 7.16 Ownership of Real Estate................................................... 46
Section 7.17 Distributions of Income to the Borrower.................................... 46
Section 7.18 Limiting Agreements........................................................ 46
Section 7.19 [Intentionally Omitted].................................................... 47
Section 7.20 [Intentionally Omitted].................................................... 47
Section 7.21 Master Credit Agreement.................................................... 47
Section 8. NEGATIVE COVENANTS......................................................................... 47
Section 8.1 Restrictions on Indebtedness............................................... 47
Section 8.2 Restrictions on Liens, Etc................................................. 48
Section 8.3 Restrictions on Investments................................................ 49
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Section 8.4 Merger, Consolidation...................................................... 50
Section 8.5 Sale and Leaseback......................................................... 51
Section 8.6 Compliance with Environmental Laws......................................... 51
Section 8.7 Distributions.............................................................. 52
Section 8.8 Asset Sales................................................................ 52
Section 8.9 Development Activity....................................................... 53
Section 8.10 Restriction on Prepayment of Indebtedness.................................. 53
Section 8.11 [Intentionally Omitted].................................................... 53
Section 8.12 Derivative Obligations..................................................... 53
Section 8.13 Bankruptcy Remote Subsidiaries............................................. 53
Section 8.14 Employment Contracts....................................................... 54
Section 9. FINANCIAL COVENANTS........................................................................ 54
Section 9.1 [Intentionally Omitted].................................................... 54
Section 9.2 Fixed Charge Coverage...................................................... 54
Section 9.3 Secured Debt Ratio......................................................... 54
Section 9.4 Maximum Land Assets........................................................ 54
Section 9.5 Net Worth.................................................................. 54
Section 9.6 Liabilities to Assets Ratio................................................ 54
Section 9.7 EBITDA Coverage............................................................ 54
Section 9.8 [Intentionally Omitted].................................................... 54
Section 9.9 Limitation on Incurrence of Total Debt..................................... 54
Section 9.10 Total Unencumbered Assets to Unsecured Debt................................ 54
Section 10. CLOSING CONDITIONS......................................................................... 55
Section 10.1 Loan Documents............................................................. 55
Section 10.2 Certified Copies of Organizational Documents............................... 55
Section 10.3 Resolutions................................................................ 55
Section 10.4 Incumbency Certificate; Authorized Signers................................. 55
Section 10.5 Opinion of Counsel......................................................... 55
Section 10.6 Payment of Fees............................................................ 55
Section 10.7 [Intentionally Omitted].................................................... 55
Section 10.8 Performance; No Default.................................................... 55
Section 10.9 Representations and Warranties............................................. 56
Section 10.10 Proceedings and Documents.................................................. 56
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Section 10.11 Master Credit Agreement.................................................... 56
Section 10.12 Compliance Certificate..................................................... 56
Section 10.13 [Intentionally Omitted].................................................... 56
Section 10.14 [Intentionally Omitted].................................................... 56
Section 10.15 Stockholder and Partner Consents........................................... 56
Section 10.16 [Intentionally Omitted].................................................... 56
Section 10.17 Contribution Agreement..................................................... 56
Section 10.18 [Intentionally Omitted].................................................... 56
Section 10.19 Employment Contracts....................................................... 56
Section 10.20 Other...................................................................... 56
Section 11. CONDITIONS TO BORROWING.................................................................... 57
Section 11.1 Prior Conditions Satisfied................................................. 57
Section 11.2 Representations True; No Default........................................... 57
Section 11.3 No Legal Impediment........................................................ 57
Section 11.4 Governmental Regulation.................................................... 57
Section 11.5 Proceedings and Documents.................................................. 57
Section 11.6 Borrowing Documents........................................................ 57
Section 11.7 Maturing Notes............................................................. 57
Section 12. EVENTS OF DEFAULT; ACCELERATION; ETC....................................................... 57
Section 12.1 Events of Default and Acceleration......................................... 57
Section 12.2 Limitation of Cure Periods................................................. 60
Section 12.3 Termination of Commitments................................................. 61
Section 12.4 Remedies................................................................... 61
Section 12.5 Distribution of Collateral Proceeds........................................ 62
Section 13. SETOFF..................................................................................... 62
Section 14. THE AGENT.................................................................................. 63
Section 14.1 Authorization.............................................................. 63
Section 14.2 Employees and Agents....................................................... 63
Section 14.3 No Liability............................................................... 63
Section 14.4 No Representations......................................................... 63
Section 14.5 Payments................................................................... 64
Section 14.6 Holders of Notes........................................................... 65
Section 14.7 Indemnity.................................................................. 65
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Section 14.8 Agent as Lender............................................................ 65
Section 14.9 Resignation; Removal....................................................... 65
Section 14.10 Duties in the Case of Enforcement.......................................... 66
Section 15. EXPENSES................................................................................... 66
Section 16. INDEMNIFICATION............................................................................ 67
Section 17. SURVIVAL OF COVENANTS, ETC................................................................. 68
Section 18. ASSIGNMENT AND PARTICIPATION............................................................... 68
Section 18.1 Conditions to Assignment by Lenders........................................ 68
Section 18.2 Register................................................................... 69
Section 18.3 New Notes.................................................................. 69
Section 18.4 Participations............................................................. 70
Section 18.5 Pledge by Lender........................................................... 70
Section 18.6 No Assignment by Borrower.................................................. 70
Section 18.7 Disclosure................................................................. 70
Section 19. NOTICES.................................................................................... 71
Section 20. RELATIONSHIP............................................................................... 72
Section 21. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE......................................... 72
Section 22. HEADINGS................................................................................... 72
Section 23. COUNTERPARTS............................................................................... 72
Section 24. ENTIRE AGREEMENT, ETC...................................................................... 73
Section 25. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS............................................. 73
Section 26. DEALINGS WITH THE BORROWER................................................................. 73
Section 27. CONSENTS, AMENDMENTS, WAIVERS, ETC......................................................... 73
Section 28. SEVERABILITY............................................................................... 74
Section 29. TIME OF THE ESSENCE........................................................................ 74
Section 30. NO UNWRITTEN AGREEMENTS.................................................................... 74
Section 31. REPLACEMENT NOTES.......................................................................... 75
Section 32. NO THIRD PARTIES BENEFITED................................................................. 75
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EXHIBITS AND SCHEDULES
Exhibit A FORM OF NOTE
Exhibit B [INTENTIONALLY OMITTED]
Exhibit C [INTENTIONALLY OMITTED]
Exhibit D [INTENTIONALLY OMITTED]
Exhibit E FORM OF UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE
Exhibit F [INTENTIONALLY OMITTED]
Exhibit G [INTENTIONALLY OMITTED]
Exhibit H FORM OF REQUEST FOR LOAN
Exhibit I [INTENTIONALLY OMITTED]
Exhibit J [INTENTIONALLY OMITTED]
Exhibit K FORM OF COMPLIANCE CERTIFICATE
Exhibit L FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
Schedule 1.1 COMMITMENTS
Schedule 2.9(a) EXISTING PRE-DEVELOPMENT PROPERTIES
Schedule 2.9(b) EXISTING PROPERTIES UNDER CONSTRUCTION
Schedule 2.9(c) ANNOUNCED PROJECTS
Schedule 2.10 EXISTING LETTERS OF CREDIT
Schedule 6.3 LIST OF ALL ENCUMBRANCES ON BORROWER ASSETS
Schedule 6.7 PENDING LITIGATION OF BORROWER
Schedule 6.15 LIST OF TRANSACTIONS WITH AFFILIATES AND SUBSIDIARIES
Schedule 6.20 ENVIRONMENTAL RELEASES
Schedule 6.21(a) SUBSIDIARIES OF THE BORROWER AND THE GUARANTORS
Schedule 6.21(b) AFFILIATES OF THE BORROWER AND ITS SUBSIDIARIES
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Schedule 6.25 MATERIAL LOAN AGREEMENTS
Schedule 8.3 ADDITIONAL INVESTMENTS
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TERM LOAN AGREEMENT
THIS TERM LOAN AGREEMENT (this "Agreement") is made as of the
27th day of December, 2002, by and among JDN REALTY CORPORATION, a Maryland
corporation ("Borrower"), having its principal place of business at ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, FLEET NATIONAL BANK
("Fleet"), the other lending institutions which are parties to this Agreement as
"Lenders", and the other lending institutions that may become parties hereto
pursuant to Section 18 (together with Fleet, the "Lenders"), and FLEET NATIONAL
BANK, as Agent for the Lenders (the "Agent").
R E C I T A L S
WHEREAS, Borrower has requested that the Lenders provide a loan to
Borrower; and
WHEREAS, the Agent and the Lenders are willing to provide such loan
to Borrower on and subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the recitals herein and mutual
covenants and agreements contained herein, the parties hereto hereby covenant
and agree as follows:
Section 1. DEFINITIONS AND RULES OF INTERPRETATION.
Section 1.1 Definitions. The following terms shall have the
meanings set forth in this Section l or elsewhere in the provisions of this
Agreement referred to below:
Additional Guarantor. Each additional Subsidiary of
Borrower which becomes a Guarantor pursuant to Section 5.2.
Adjusted Consolidated EBITDA. For any period, the sum
of the Consolidated EBITDA for such period less the Capital Improvement Reserve.
Affiliate. An Affiliate, as applied to any Person,
shall mean any other Person directly or indirectly controlling, controlled by,
or under common control with, that Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling",
"controlled by" and "under common control with"), as applied to any Person,
means (a) the possession, directly or indirectly, of the power to vote ten
percent (10%) or more of the stock, shares, voting trust certificates,
beneficial interest, partnership interests, member interests or other interests
having voting power for the election of directors of such Person or otherwise to
direct or cause the direction of the management and policies of that Person,
whether through the ownership of voting securities or by contract or otherwise,
or (b) the ownership of (i) a general partnership interest, (ii) a managing
member's interest in a limited liability company or (iii) a limited partnership
interest or preferred stock (or other ownership interest) representing ten
percent (10%) or more of the outstanding limited partnership interests,
preferred stock or other ownership interests of such Person.
Agent. Fleet National Bank, acting as administrative
agent for the Lenders, and its successors and assigns.
Agent's Head Office. The Agent's head office located
at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other location as
the Agent may designate from time to time by notice to the Borrower and the
Lenders.
Agent's Special Counsel. ▇▇▇▇▇▇▇ Long & ▇▇▇▇▇▇▇▇ LLP
or such other counsel as selected by Agent.
Agreement. This Term Loan Agreement, including the
Schedules and Exhibits hereto.
Announced Projects. The Real Estate of Borrower and
its Subsidiaries described on Schedule 2.9(c) hereto which Borrower has
announced as a retail shopping center development and with respect to which such
Person has purchased the land related thereto, has completed construction of
certain phases of the development and on which construction activities are
taking place as of the date hereof.
Arranger. Fleet Securities, Inc.
Assignment and Acceptance Agreement. See
Section 18.1.
Balance Sheet Date. September 30, 2002.
Bankruptcy Code. Title 11, U.S.C.A., as amended from
time to time or any successor statute thereto.
Base Rate. The greater of (a) the fluctuating annual
rate of interest announced from time to time by the Agent at the Agent's Head
Office as its "prime rate" or (b) one-half of one percent (0.5%) above the
Federal Funds Effective Rate (rounded upwards, if necessary, to the next
one-eighth of one percent). The Base Rate is a reference rate and does not
necessarily represent the lowest or best rate being charged to any customer. Any
change in the rate of interest payable hereunder resulting from a change in the
Base Rate shall become effective as of the opening of business on the day on
which such change in the Base Rate becomes effective, without notice or demand
of any kind.
Base Rate Loans. The Loans when bearing interest by
reference to the Base Rate.
Base Rent. With respect to any Lease, the minimum
periodic contractual rent payable thereunder, excluding reimbursement or
recovery of common area maintenance or other property operating expenses and
excluding percentage rent.
Borrower. As defined in the preamble hereto.
Building. With respect to each parcel of Real Estate,
all of the buildings, structures and improvements now or hereafter located
thereon.
Business Day. Any day on which banking institutions
located in the same city and State as the Agent's Head Office are located are
open for the transaction of banking business and, in the case of LIBOR Rate
Loans, which also is a LIBOR Business Day.
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Capital Improvement Reserve. With respect to any Real
Estate now or hereafter owned or leased by the Borrower, any Guarantor or any of
their respective Subsidiaries, a reserve for capital improvements, leasing
commissions and tenant improvements in an amount equal to ten cents ($.10)
multiplied by the Net Rentable Area contained therein. For purposes of this
calculation, Net Rentable Area shall exclude square footage contained in
Borrower's Rent Roll for any tenant who leases Real Estate pursuant to a ground
lease.
Capitalized Lease. A lease under which the discounted
future rental payment obligations of the lessee or the obligor are required to
be capitalized on the balance sheet of such Person in accordance with GAAP.
CERCLA. See Section 6.20.
Change of Control. A Change of Control shall exist
upon the occurrence of any of the following:
(a) any of the following Persons shall cease to
hold the position set forth below: ▇▇▇▇▇ ▇▇▇▇▇▇ - Chief Executive Officer of
Borrower; ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. -- Chief Financial Officer of Borrower; and ▇▇▇
▇▇▇▇▇▇▇▇▇ -- President and Chief Executive Officer of JDN DCI (each such Person
a "Named Executive"); provided, however, that a Change of Control shall not have
occurred if (i) the Named Executive is terminated (and such termination is not a
Termination for Cause) and a competent and experienced successor for such Named
Executive is approved by the Required Lenders within twenty (20) Business Days
of such event, which approval may be granted or withheld by the Required Lenders
in their sole and absolute discretion; or (ii) the Named Executive voluntarily
terminates his employment with Borrower or JDN DCI, as applicable, is terminated
as a result of a Termination for Cause or is terminated as a result of death or
disability and Borrower (A) presents a plan for the replacement of the Named
Executive reasonably acceptable to the Required Lenders within twenty (20)
Business Days of such event, and (B) a competent and experienced successor for
such Named Executive is approved by the Required Lenders within ninety (90) days
of such event causing the termination of such employment, which approval may be
granted or withheld by the Required Lenders in their sole and absolute
discretion; or
(b) any Person (including a Person's Affiliates
and associates) or group (as that term is understood under Section 13(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and the rules
and regulations thereunder) shall have acquired after March 29, 2001 beneficial
ownership (within the meaning of Rule 13d-3 under the Exchange Act) of a
percentage (based on voting power, in the event different classes of stock shall
have different voting powers) of the voting stock of Borrower equal to at least
twenty percent (20%); or
(c) as of any date a majority of the Board of
Directors of Borrower consists of individuals who were not either (i) directors
of Borrower as of the corresponding date of the previous year (provided,
however, that the initial Board of Directors for reference purposes of this
clause (c)(i) shall be the Board of Directors as of ▇▇▇▇▇ ▇▇, ▇▇▇▇), (▇▇)
selected or nominated to become directors by the Board of Directors of Borrower
of which a majority consisted of individuals described in clause (c)(i) above,
or (iii) selected or nominated to become directors by
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the Board of Directors of Borrower of which a majority consisted of individuals
described in clause (c)(i), above and individuals described in clause (c)(ii),
above.
Closing Date. December 27, 2002.
Code. The Internal Revenue Code of 1986, as amended.
Commitment. With respect to each Lender, the amount
set forth on Schedule 1.1 hereto as the amount of such Lender's Commitment, as
the same may be reduced in accordance with the terms of this Agreement.
Commitment Percentage. With respect to each Lender,
the percentage set forth on Schedule 1.1 hereto as such Lender's percentage of
the Total Commitment, as the same may be changed from time to time in accordance
with the terms of this Agreement.
Compliance Certificate. See Section 7.4(c).
Consolidated. With reference to any term defined
herein, that term as applied to the accounts of a Person and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP.
Consolidated EBITDA. With respect to any period, an
amount equal to the EBITDA of Borrower and its Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP.
Consolidated Fixed Charges. For any period,
determined on a consolidated basis in accordance with GAAP, the sum of (i)
Consolidated Interest Incurred for the fiscal quarter just ended and the
immediately preceding fiscal quarter, plus (ii) all dividends paid or declared
but not yet paid by the Borrower on preferred stock during the fiscal quarter
just ended and the immediately preceding fiscal quarter, plus (iii) the
aggregate amount of scheduled principal amortization paid in the fiscal quarter
just ended and the immediately preceding fiscal quarter as reflected on the
Borrower's most recent quarterly consolidated financial statement submitted to
the Agent and the Lenders, but excluding any principal payments under this
Agreement and excluding any balloon payments on other Indebtedness, plus (iv)
any amounts due and payable by the Borrower or any of its Subsidiaries under any
ground leases to which any of them is a party for the fiscal quarter just ended
and the immediately preceding fiscal quarter.
Consolidated Interest Expense. For any period,
interest expensed in respect of Indebtedness of Borrower and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP.
Consolidated Interest Incurred. For any period,
interest incurred on all Indebtedness of Borrower and its Subsidiaries
(regardless of whether such interest was expensed or capitalized in accordance
with GAAP), determined on a consolidated basis in accordance with GAAP excluding
amortization of deferred loan costs.
Consolidated Liabilities. 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
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Subsidiaries and the Guarantors, and (ii) to the extent not included in clause
(i) of this definition, all Redeemable Preferred Stock.
Consolidated Net Income. For any period, the Net
Income of the Borrower and its Subsidiaries 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 Tangible Net Worth. The total
consolidated shareholders' equity of Borrower and its Subsidiaries as determined
in accordance with GAAP, and less the sum of:
(a) the total book value of all assets of the
Borrower and its Subsidiaries properly classified as intangible assets under
generally accepted accounting principles, including such items as goodwill, the
purchase price of acquired assets in excess of the fair market value thereof,
trademarks, trade names, service marks, brand names, copyrights, patents and
licenses, and rights with respect to the foregoing; plus
(b) all amounts representing any write-up in the
book value of any assets of Borrower or its Subsidiaries resulting from a
revaluation thereof subsequent to the Balance Sheet Date.
Consolidated Total Assets. On a consolidated basis
for the Borrower and its Subsidiaries, Consolidated Total Assets shall mean the
sum of (without duplication with respect to any Real Estate):
(i) an amount equal to the product of (x) the
Net Operating Income for the two (2) fiscal quarters just ended prior to the
date of determination, times (y) two (2) (which is the annualization factor),
divided by (z) 0.10 (which is the capitalization rate), from each separate Real
Estate owned by the Borrower or any Guarantor for at least two fiscal quarters;
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 Real
Estate owned by the Borrower or any Guarantor for less than two fiscal quarters;
plus
(iii) the book value of Land Assets and
Construction in Progress on the last day of the fiscal quarter just ended; plus
(iv) the aggregate amount of all (x) unrestricted
cash and accounts receivable which are not past due of the Borrower and the
Guarantors and (y) restricted cash held by any person serving as a "qualified
intermediary" for purposes of an exchange pursuant to Section 1031 of the Code
on behalf of the Borrower or any Guarantor; plus
(v) the book value of Borrower's interests in
its Subsidiaries that are not Guarantors; plus
(vi) the book value of Borrower's Minority
Interests in Persons other than its Subsidiaries.
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Consolidated Total Assets will be adjusted, as appropriate, for acquisitions,
dispositions and other changes to the portfolio during a quarter. Properties
acquired or assets under development completed during the quarter will be valued
at cost for a maximum of ninety (90) days from acquisition or completion (and
until the end of the following fiscal quarter); provided that thereafter such
properties shall be valued as provided in clause (i) of this definition. All
income, expense and value associated with Real Estate disposed of during any
quarter will be eliminated from calculations.
Consolidated Total Liabilities. At any time, for the
Borrower and its Subsidiaries, determined on a consolidated basis without
duplication, the sum of (i) Consolidated Liabilities, plus (ii) all Indebtedness
of the Borrower or any Subsidiary, plus (iii) the face amount of all letters of
credit issued for the account of the Borrower or any Subsidiary.
Construction in Progress. For any retail Real Estate
(or related improvements), calculated on a consolidated basis for the Borrower,
the Guarantors and their respective Subsidiaries and Affiliates, 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 Real Estate that (i)
previously constituted construction-in-progress and (ii) has not yet become a
Stabilized Property.
Contribution Agreement. That certain Contribution
Agreement dated as of the date hereof among the Borrower, the Subsidiary
Guarantors and each Additional Guarantor which may hereafter become a party
thereto, as the same may be modified, amended or ratified from time to time.
Conversion/Continuation Request. A notice given by
the Borrower to the Agent of its election to convert or continue a Loan in
accordance with Section 4.1.
Debt. Debt of the Borrower or any of its Subsidiaries
means any indebtedness of the Borrower or any of its Subsidiaries, whether or
not contingent, and without duplication, in respect of (i) borrowed money
evidenced by bonds, notes, debentures or similar instruments, (ii) indebtedness
secured by any mortgage, pledge, lien, charge, encumbrance or any security
interest existing on property owned by the Borrower or any of its Subsidiaries,
(iii) the reimbursement obligations, contingent or otherwise, in connection with
any letters of credit actually issued or amounts representing the balance
deferred and unpaid of the purchase price of any property except any such
balance that constitutes an accrued expense or trade payable or (iv) any lease
of property by the Borrower or any of its Subsidiaries as lessee which is
reflected in the balance sheet of the Borrower or any of its Subsidiaries as a
capitalized lease in accordance with GAAP, in the case of items of indebtedness
under (i) through (iii) above to the extent that any such items (other than
letters of credit) would appear as a liability on the balance sheet of the
Borrower or any of its Subsidiaries in accordance with GAAP, and also includes,
to the extent not otherwise included, any obligation by the Borrower or any
Subsidiary to be liable for, or to pay, as obligor, guarantor or otherwise
(other than for purposes of collection in the ordinary course of business),
indebtedness of another person (other than the Borrower or any Subsidiary) (it
being understood that Debt shall be deemed to be incurred by the Borrower or any
of its Subsidiaries whenever the
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Borrower or any of its Subsidiaries shall create, assume, guarantee or otherwise
become liable in respect thereof).
Debt Offering. The issuance and sale by the Borrower
or any Guarantor of any debt securities of the Borrower or such Guarantor;
provided, however, in no event shall either of the following be considered a
Debt Offering: (i) the issuance by the Borrower or any Guarantor of debt
securities which are unsecured obligations of such Person the proceeds of which
are used to repay or reduce the Borrower's indebtedness pursuant to any of the
Unsecured Notes in accordance with the terms of this Agreement (but only to the
extent such proceeds are so used), or (ii) the issuance by the Borrower or any
Guarantor of any debt securities for consideration other than for cash or cash
equivalents.
Default. See Section 12.1.
Default Rate. See Section 4.12.
Derivative Obligations. All Interest Rate Contracts
and all other obligations of any Person in respect of any interest rate swap
transaction, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, forward equity transaction, equity or
equity index option, bond option, interest rate option, foreign exchange
transaction, cap transaction, forward transaction, collar transaction, currency
swap, cross-currency rate swap transaction, currency option or any other similar
transaction (including any option with respect to any of the foregoing
transactions) or any combination of the foregoing transactions.
Distribution. With respect to any Person, the
declaration or payment of any cash, dividend or distribution on or in respect of
any shares of any class of capital stock or other beneficial interest of such
Person; the purchase, redemption, exchange or other retirement by such Person of
any shares of any class of capital stock or other beneficial interest of such
Person, directly or indirectly through a Subsidiary of such Person or otherwise;
the return of capital by such Person to its shareholders, partners, members or
other owners as such; or any other distribution on or in respect of any shares
of any class of capital stock or other beneficial interest of such Person;
provided, however, that the dividend or distribution of common stock of a Person
shall not constitute a Distribution with respect to such Person.
Dollars or $. Dollars in lawful currency of the
United States of America.
Domestic Lending Office. Initially, the office of
each Lender designated as such on Schedule 1.1 hereto; thereafter, such other
office of such Lender, if any, located within the United States that will be
making or maintaining Base Rate Loans.
Drawdown Date. The date on which any Loan is made or
is to be made, and the date on which any Loan which is made prior to the
Maturity Date is converted in accordance with Section 4.1.
EBITDA. With respect to any Person (or any asset of
any Person) for any period, an amount equal to the sum of (a) the Net Income of
such Person (or attributable to such asset) for such period plus (b)
depreciation, amortization, interest expensed, income taxes and any
extraordinary or non-recurring losses (including, without limitation, losses
from the sale or
-7-
anticipated sale of land) deducted in calculating such Net Income minus (c) any
extraordinary or non-recurring gains (including, without limitation, gains from
the sale or anticipated sale of land) included in calculating such Net Income
all as determined in accordance with GAAP. The Net Income of a Person (or any
asset of a Person) shall be adjusted to reflect such Person's (or asset's)
allocable share for the relevant period or as of the date of determination,
taking into account such Person's respective ownership interest in other Persons
or such assets. Notwithstanding anything in this Agreement to the contrary, any
loss associated with a charge attributable to the settlement of the litigation
described as items 1, 5 and 6 in Schedule 6.7 hereto shall, to the extent the
same has been deducted in calculating EBITDA, be added back to EBITDA for the
purposes of the covenants set forth in Section 9.2 and Section 9.7. Except as
set forth in the definition of Funds from Operations, no similar adjustments
shall be made in determining compliance with any other covenants set forth in
this Agreement.
Employee Benefit Plan. Any employee benefit plan
within the meaning of Section 3(3) of ERISA maintained or contributed to by
either of the Borrower or any ERISA Affiliate, other than a Multiemployer Plan.
Employment Contracts. Employment agreements between
Borrower and ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇▇▇, respectively, pursuant to which
▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇▇▇ agree to perform services for the Borrower as
officers, such agreements to have a term extending not less than the Maturity
Date and otherwise being in form and substance satisfactory to Agent.
Environmental Engineer. National Assessment
Corporation or another firm of independent professional engineers or other
scientists generally recognized as expert in the detection, analysis and
remediation of Hazardous Substances and related environmental matters and
acceptable to the Agent in its reasonable discretion and, so long as no Default
or Event of Default exists hereunder, reasonably acceptable to the Borrower.
Environmental Laws. See Section 6.20(a).
Equity Offering. The issuance and sale after the
Closing Date by the Borrower or any Guarantor of any equity securities of such
Person; provided, however, that the issuance by the Borrower or any Guarantor of
any equity securities of such Person or any securities or instruments
convertible, exchangeable or exercisable for equity securities of such Person to
any of the following shall not be deemed an Equity Offering: (i) any Person for
consideration other than for cash or cash equivalents; (ii) any Person not
previously employed by the Borrower or any Guarantor as a material inducement to
such Person's entering into an employment contract with the Borrower or a
Guarantor; (iii) directors, officers and employees of the Borrower or any
Guarantor pursuant to an incentive stock or stock option, employee stock
purchase, long-term incentive or stock bonus plans, whether now in effect or
adopted in the future; or (iv) any Person pursuant to a dividend reinvestment or
stock purchase program sponsored by the Borrower or any Guarantor, whether now
in effect or adopted in the future.
ERISA. The Employee Retirement Income Security Act of
1974, as amended and in effect from time to time.
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ERISA Affiliate. Any Person which is treated as a
single employer with the Borrower, the Guarantors or their respective
Subsidiaries under Section 414 of the Code.
ERISA Reportable Event. A reportable event with
respect to a Guaranteed Pension Plan within the meaning of Section 4043 of ERISA
and the regulations promulgated thereunder as to which the requirement of notice
has not been waived.
Event of Default. See Section 12.1.
Existing Pre-Development Properties. The Real Estate
of Borrower and its Subsidiaries described on Schedule 2.9(a) hereto as to which
pre-development work has commenced as of the date of this Agreement.
Existing Properties Under Construction. The Real
Estate of Borrower and its Subsidiaries described on Schedule 2.9(b) hereto that
is under construction as of the date of this Agreement as such Schedule may be
updated as provided in Section 7.5(h).
Federal Funds Effective Rate. For any day, the rate
per annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of New York,
or, if such rate is not so published the average of the quotations for such day
on such transactions received by the Agent from three (3) Federal funds brokers
of recognized standing selected by the Agent.
Fitch. Fitch, Inc. doing business as Fitch Ratings.
Fleet. As defined in the preamble.
Funds from Operations. With respect to any Person for
any fiscal period, an amount equal to the Net Income (or Loss) of such Person
for such period, computed in accordance with GAAP, excluding gains (or losses)
from sales of property, plus depreciation and amortization, and after
adjustments for unconsolidated partnerships and joint ventures. Adjustments for
unconsolidated partnerships and joint ventures will be recalculated to reflect
funds from operations on the same basis. Notwithstanding anything in this
Agreement to the contrary, non-cash impairment charges of $6,973,000.00 taken by
Borrower during the year ended December 31, 2000, a non-cash charge of
$5,400,000.00 taken by JDN DCI during the year ended December 31, 2000 related
to the creation of a valuation allowance on deferred tax assets and any loss
associated with a charge attributable to the settlement of the litigation
described as items 1, 5 and 6 in Schedule 6.7 hereto shall, to the extent the
same has been previously deducted in calculating Funds from Operations, be added
back to Funds from Operations.
GAAP. Principles that are (a) consistent with the
principles promulgated or adopted by the Financial Accounting Standards Board
and its predecessors, as in effect from time to time and (b) consistently
applied with past financial statements of the Person adopting the same
principles; provided that a certified public accountant would, insofar as the
use of such accounting principles is pertinent, be in a position to deliver an
unqualified opinion (other than a
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qualification regarding changes in generally accepted accounting principles) as
to financial statements in which such principles have been properly applied.
Guarantee. A Guarantee by any Person means any
obligation, contingent or otherwise, of such Person directly or indirectly
guaranteeing any Indebtedness 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 Indebtedness 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 Indebtedness 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.
Guaranteed Pension Plan. Any employee pension benefit
plan within the meaning of Section 3(2) of ERISA maintained or contributed to by
the Borrower or any ERISA Affiliate the benefits of which are guaranteed on
termination in full or in part by the PBGC pursuant to Title IV of ERISA, other
than a Multiemployer Plan.
Guarantors. Collectively, the Subsidiary Guarantors
and each Additional Guarantor, and individually any one of them.
Guaranty. The Unconditional Guaranty of Payment and
Performance dated of even date herewith made by the Subsidiary Guarantors and
each Unconditional Guaranty of Payment and Performance which is hereafter
executed by an Additional Guarantor, in favor of the Agent and the Lenders, as
the same may be modified, amended or ratified, each such Guaranty to be
substantially in the form of Exhibit E attached hereto.
Hazardous Substances. See Section 6.20(b).
Indebtedness. Indebtedness 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 Capitalized 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
under a letter of credit or similar instrument, (viii) all Indebtedness of
others secured by a Lien on any asset of such Person, whether or not such
Indebtedness 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
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by such Person in the applicable hedging agreement, if any), and (x) all
Indebtedness of others Guaranteed by such Person.
Intercompany Debt. Debt to which the only parties are
the Borrower and any of its Subsidiaries, but only so long as such Debt is held
solely by the Borrower and any Subsidiary.
Interest Payment Date. As to each Loan, the first
(1st) day of each calendar month during the term of such Loan.
Interest Period. With respect to each LIBOR Rate Loan
(a) initially, the period commencing on the Drawdown Date of such LIBOR Rate
Loan and ending one, two or three months thereafter, and (b) thereafter, each
period commencing on the day following the last day of the next preceding
Interest Period applicable to such Loan and ending on the last day of one of the
periods set forth above, as selected by the Borrower in a Loan Request or
Conversion/Continuation Request; provided that all of the foregoing provisions
relating to Interest Periods are subject to the following:
(i) if any Interest Period with respect to a
LIBOR Rate Loan would otherwise end on a day that is not a LIBOR Business Day,
such Interest Period shall end on the next succeeding LIBOR Business Day, unless
such next succeeding LIBOR Business Day occurs in the next calendar month, in
which case such Interest Period shall end on the next preceding LIBOR Business
Day, as determined conclusively by the Agent in accordance with the then current
bank practice in London;
(ii) if the Borrower shall fail to give notice as
provided in Section 4.1, the Borrower shall be deemed to have requested a
conversion of the affected LIBOR Rate Loan to a Base Rate Loan on the last day
of the then current Interest Period with respect thereto; and
(iii) no Interest Period relating to any LIBOR
Rate Loan shall extend beyond the Maturity Date.
Interest Rate Contracts. Interest rate swap, collar,
cap or similar agreements providing interest rate protection.
Investments. With respect to any Person, all shares
of capital stock, evidences of Indebtedness and other securities issued by any
other Person and owned by such Person, all loans, advances, or extensions of
credit to, or contributions to the capital of, any other Person, all purchases
of the securities or business or integral part of the business of any other
Person and commitments and options to make such purchases, all interests in real
property, and all other investments; provided, however, that the term
"Investment" shall not include (i) equipment, inventory and other tangible
personal property acquired in the ordinary course of business, or (ii) current
trade and customer accounts receivable for services rendered in the ordinary
course of business and payable in accordance with customary trade terms. In
determining the aggregate amount of Investments outstanding at any particular
time: (a) there shall be included as an Investment all interest accrued with
respect to Indebtedness constituting an Investment unless and until such
interest is paid; (b) there shall be deducted in respect of each Investment any
amount received as a return of capital; (c) there shall not be deducted in
respect of any Investment any amounts received as earnings on such Investment,
whether as dividends, interest
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or otherwise, except that accrued interest included as provided in the foregoing
clause (a) may be deducted when paid; and (d) there shall not be deducted in
respect of any Investment any decrease in the value thereof.
JDN AL. JDN Realty AL, Inc., an Alabama corporation.
JDN DCI. JDN Development Company, Inc., a Delaware
corporation.
JDN Holdings. JDN Realty Holdings, L.P., a Georgia
limited partnership.
JDN LP, Inc. JDN Realty LP, Inc., a Delaware
corporation.
JDN Venture. Any Person formed by the Borrower or any
Subsidiary: (i) the accounts of which are not consolidated with Borrower in
accordance with GAAP and (ii) in which the Borrower or such Subsidiary owns
either (x) 50% or more of the beneficial interests therein, but does not have
"control" thereof within the meaning set forth in the definition of Affiliate,
or (y) 20% or more of the beneficial interests therein, but does have control
thereof.
Land Assets. Land with respect to which the
commencement of grading, construction of improvements or infrastructure has not
yet commenced, and all unimproved land according to GAAP. Land Assets shall not
include "outparcels" held in the ordinary course of business for sale or lease.
Lease Summaries. Summaries or abstracts of the
material terms of the Leases. Such Lease Summaries shall be in form and
substance reasonably satisfactory to the Agent.
Leases. Leases, licenses and agreements, whether
written or oral, relating to the use or occupation of space in any Building or
of any Real Estate.
Lenders. Fleet, the other lending institutions which
are party hereto and any other Person which becomes an assignee of any rights of
a Lender pursuant to Section 18 (but not including any participant as described
in Section 18).
LIBOR. As applicable to any Interest Period for any
LIBOR Loan, the rate per annum (rounded upwards, if necessary, to the nearest
1/32nd of one percent) as determined on the basis of the offered rates for
deposits in Dollars, for the period of time comparable to such Interest Period
which appears on the Telerate page 3750 as of 11:00 a.m. London time on the day
that is two (2) LIBOR Business Days preceding the first day of such Interest
Period; provided, however, if the rate described above does not appear on the
Telerate System on any applicable interest determination date, LIBOR shall be
the rate (rounded upwards as described above, if necessary) for deposits in
Dollars for a period substantially equal to the Interest Period on the Reuters
Page "LIBO" (or such other page as may replace the LIBO Page on that service for
the purpose of displaying such rates), as of 11:00 a.m. (London Time), on the
day that is two (2) LIBOR Business Days prior to the beginning of such Interest
Period. If both the Telerate and Reuters systems are unavailable, then the rate
for that date will be determined on the basis of the offered rates for deposits
in Dollars for a period of time comparable to such Interest Period which are
offered by four major banks in the London interbank market at approximately
11:00 a.m. London time, on the day that is two (2) LIBOR Business Days preceding
the first day of
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such Interest Period as selected by Agent. The principal London office of each
of the four major London banks will be requested to provide a quotation of its
U.S. dollar deposit offered rate. If at least two such quotations are provided,
the rate for that date will be the arithmetic mean of the quotations. If fewer
than two quotations are provided, the rate for that date will be determined on
the basis of the rates quoted for loans in Dollars to leading European banks for
a period of time comparable to such Interest Period offered by major banks in
New York City at approximately 11:00 a.m. (New York City time), on the day that
is two (2) LIBOR Business Days preceding the first day of such Interest Period.
In the event that Agent is unable to obtain any such quotation as provided
above, it will be deemed that LIBOR pursuant to a LIBOR Rate Loan cannot be
determined and the provisions of Section 4.6 shall apply. In the event that the
Board of Governors of the Federal Reserve System shall impose a Reserve
Percentage with respect to LIBOR deposits of Agent, then for any period during
which such Reserve Percentage shall apply, LIBOR shall be equal to the amount
determined above divided by an amount equal to 1 minus the Reserve Percentage.
LIBOR Business Day. Any day on which commercial banks
are open for international business (including dealings in Dollar deposits) in
London, England.
LIBOR Lending Office. Initially, the office of each
Lender designated as such on Schedule 1.1 hereto; thereafter, such other office
of such Lender, if any, that shall be making or maintaining LIBOR Rate Loans.
LIBOR Rate Loans. The Loans when bearing interest by
reference to LIBOR.
Lien. See Section 8.2.
Loan Documents. This Agreement, the Notes, the
Guaranty and all other documents, instruments or agreements now or hereafter
executed or delivered by or on behalf of the Borrower or any Guarantor in
connection with the Loans.
Loan Request. See Section 2.7.
Loans. The aggregate Loans to be made by the Lenders
hereunder.
Majority Lenders. As of any date, the Lender or
Lenders whose aggregate Commitment Percentage is greater than fifty percent
(50%) of the Total Commitment.
Master Credit Agreement. That certain Fourth Amended,
Restated and Consolidated Master Credit Agreement dated as of December 27, 2002
among Borrower, Fleet, individually and as Agent, and the other lenders a party
thereto, including the schedules and exhibits thereto, as the same may be
modified, amended, restated, extended, supplemented or varied.
Master Credit Agreement Maturing Notes Contribution.
An amount which is the difference between (i) all amounts due with respect to
the Maturing Notes pursuant to the applicable Indenture (as such term is defined
in the definition of the term "Unsecured Notes"), and (ii) all amounts borrowed
pursuant to this Agreement.
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Material Adverse Effect. A material adverse effect on
(a) the business, properties, assets, condition (financial or otherwise) or
results of operations of the Borrower and its Subsidiaries considered as a
whole; (b) the ability of Borrower or any Guarantor to perform any of its
obligations under the Loan Documents; or (c) the validity or enforceability of
any of the Loan Documents or the rights or remedies of Agent or the Lenders
thereunder.
Maturing Notes. The $75,000,000.00 of 6.918%
Mandatory Par Put Remarketed Securities Due March 31, 2013 issued pursuant to
the Indenture, as amended, described in clause (ii) of the definition of
"Unsecured Notes", which are subject to mandatory repayment on March 31, 2003.
Maturity Date. January 1, 2004, or such earlier date
on which the Loans shall become due and payable pursuant to the terms hereof,
including without limitation and notwithstanding anything to the contrary in any
of the Loan Documents, upon the consummation of the Transaction.
Minimum Consolidated Tangible Net Worth. At any time,
the sum of (a) $400,000,000.00 plus (b) ninety percent (90%) of the aggregate
net proceeds received by the Borrower or any Guarantor after the Closing Date in
connection with any Equity Offering to any other Person.
Minority Interest. As to any Person, an ownership or
other equity investment in any other Person, which investment is not
consolidated with the accounts of such Person in accordance with GAAP.
Moody's. ▇▇▇▇▇'▇ Investor Service, Inc.
Multiemployer Plan. Any multiemployer plan within the
meaning of Section 3(37) of ERISA maintained or contributed to by the Borrower
or any ERISA Affiliate.
Named Executive. See the definition of "Change of
Control".
Net Income (or Loss). With respect to any Person (or
any asset of any Person) for any period, the net income (or loss) of such Person
(or attributable to such asset), determined in accordance with GAAP. The net
income (or loss) of a Person shall include, without duplication, the allocable
share of the net income (or loss) of any other Person in which a Minority
Interest is owned by such Person based on the ownership of such Person in such
other Person.
Net Operating Income. With respect to any Real
Estate, for any period, "property revenues", consisting of minimum and
percentage rents as determined in accordance with GAAP together with recoveries
from tenants as determined in accordance with GAAP, all such amounts shall be
attributable to such period and accrued according to GAAP, less (i) all
"property expenses" consisting of expenses incurred or accrued by the Borrower,
a Guarantor or their respective Subsidiaries that are directly related to the
operation and ownership of such Real Estate, including real estate taxes, sales
taxes, common area maintenance charges, accounting and administration, security,
utilities, maintenance, janitorial, premiums for casualty and liability
insurance, ground lease payments (excluding from the foregoing expenses for
depreciation, amortization, interest and leasing commissions with respect to
such Real Estate), and (ii) an
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allowance for property management expenses calculated at the greater of (A)
three percent (3.0%) of Base Rent or (B) actual property management expenses. If
such period is less than a year, expenses described in clause (i) above that are
payable less frequently than monthly during the course of a year (e.g., real
estate taxes and insurance premiums) shall be adjusted by "straight lining" the
amounts so that such expenses are accrued on a monthly basis over the course of
a year and fairly stated for each period.
Net Rentable Area. With respect to any Real Estate,
the floor area of any buildings, structures or improvements available for
leasing to tenants determined in accordance with the Rent Roll for such Real
Estate, the manner of such determination to be reasonably consistent for all
Real Estate of the same type unless otherwise approved by the Agent.
Notes. See Section 2.1(b).
Notice. See Section 19.
Obligations. All indebtedness, obligations and
liabilities of the Borrower or any Guarantor to any of the Lenders or the Agent,
individually or collectively, under this Agreement or any of the other Loan
Documents or in respect of any of the Loans, the Notes, or other instruments at
any time evidencing any of the foregoing, whether existing on the date of this
Agreement or arising or incurred hereafter, direct or indirect, joint or
several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of law or
otherwise.
Outstanding. With respect to the Loans, the aggregate
unpaid principal thereof as of any date of determination.
PBGC. The Pension Benefit Guaranty Corporation
created by Section 4002 of ERISA and any successor entity or entities having
similar responsibilities.
Permitted Liens. Liens, security interests and other
encumbrances permitted by Section 8.2.
Person. Any individual, corporation, limited
liability company, partnership, trust, unincorporated association, business, or
other legal entity, and any government or any governmental agency or political
subdivision thereof.
Plan Assets. Assets of any employee benefit plan
subject to Part 4, Subtitle A, Title I of ERISA.
Rating. With respect to the Borrower, the most recent
rating issued from time to time by a Rating Agency as is applicable to Borrower
as an issuer with respect to long-term debt (i.e., a corporate credit or issuer
rating with respect to long-term debt), or if no such Rating is in effect, then
the rating applicable to Borrower's senior unsecured debt.
Rating Agencies. S&P, ▇▇▇▇▇'▇ and Fitch.
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Real Estate. All real property at any time owned or
leased (as lessee or sublessee) by the Borrower, any Guarantor or any of their
respective Subsidiaries.
Record. The grid attached to any Note, or the
continuation of such grid, or any other similar record, including computer
records, maintained by the Agent with respect to any Loan referred to in such
Note.
Redeemable Preferred Stock. Any preferred stock
issued by a 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.
Register. See Section 18.2.
REIT Status. With respect to Borrower, its status as
a real estate investment trust as defined in Section 856(a) of the Code.
Release. See Section 6.20(c)(iii).
Required Lenders. As of any date, the Lender or
Lenders whose aggregate Commitment Percentage is equal to or greater than
sixty-six and 2/3 percent (66-2/3%) of the Total Commitment.
Reserve Percentage. For any day with respect to a
LIBOR Rate Loan, the maximum rate (expressed as a decimal) at which any lender
subject thereto would be required to maintain reserves (including, without
limitation, all base, supplemental, marginal and other reserves) under
Regulation D of the Board of Governors of the Federal Reserve System (or any
successor or similar regulations relating to such reserve requirements) against
"Eurocurrency Liabilities" (as that term is used in Regulation D or any
successor or similar regulation), if such liabilities were outstanding. The
Reserve Percentage shall be adjusted automatically on and as of the effective
date of any change in the Reserve Percentage.
Secured Debt. Debt secured by any mortgage, trust
deed, deed of trust, deed to secure debt, security agreement, pledge,
conditional sale or other title retention agreement, capitalized lease, or other
like agreement granting or conveying security title to or a security interest in
real property or other tangible assets, other than those relating to
Intercompany Debt. For purposes hereof, such Debt shall become Secured Debt at
the time it first becomes secured by execution of any of the documents,
instruments or agreements described in the immediately preceding sentence.
S&P. Standard & Poor's Ratings Group.
Short-term Investments. Investments described in
subsections (a) through (g), inclusive, of Section 8.3. For all purposes of this
Agreement and the other Loan Documents, the value of Short-term Investments at
any time shall be the current market value thereof determined in a manner
reasonably satisfactory to the Agent.
Stabilized Property. At any time, Real Estate
improved as retail shopping centers (i) which are at least ninety percent (90%)
leased (pursuant to written Leases which have been
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signed by both landlord and tenant and under which the payment of Base Rent has
commenced) or (ii) which are at least eighty percent (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.
State. A state of the United States of America.
Subsidiary. Any corporation, association,
partnership, limited liability company, trust, or other business entity of which
the designated parent shall at any time own directly or indirectly through a
Subsidiary or Subsidiaries at least a majority (by number of votes or
controlling interests) of the outstanding voting interests or other economic
interest, or any other entity the accounts of which are consolidated with the
parent.
Subsidiary Guarantors. JDN AL, JDN DCI, JDN Holdings,
JDN LP, Inc., and the other parties to the Guaranty as of the Closing Date.
Syndication Agent. As defined in the preamble.
Test Period. See Section 9.2.
Termination For Cause. Termination by Borrower or JDN
DCI of a Named Executive's employment by reason of (a) Named Executive's (i)
failure to adhere to written policies of Borrower or JDN DCI, which failure has
a material adverse effect on Borrower or JDN DCI, (ii) appropriation (or
attempted appropriation) of a material business opportunity of Borrower or JDN
DCI, including attempting to secure or securing any personal profit or benefit
in connection with any transaction entered into on behalf of Borrower or JDN
DCI, or (iii) misappropriation (or attempted misappropriation) of any of
Borrower's or JDN DCI's funds or property, or (b) the conviction of, the
indictment (or its procedural equivalent) for or the entry of a guilty plea or
plea of no contest by a Named Executive with respect to, a felony, the
equivalent thereof, or any other crime with respect to which imprisonment is a
possible punishment.
Total Assets. As of any date, the sum of (i)
Undepreciated Real Estate Assets and (ii) all other assets of the Borrower and
its Subsidiaries determined in accordance with GAAP (but excluding intangibles
and accounts receivable) after eliminating intercompany accounts and
transactions.
Total Commitment. The sum of the Commitments of the
Lenders, as in effect from time to time.
Total Secured Debt. At any time, for the Borrower and
its Subsidiaries, determined on a consolidated basis, the sum of the following,
but only if any Real Estate, or ownership interest of the owner thereof, is
subject to a mortgage, deed of trust, deed to secure debt or similar instrument
encumbering such Real Estate, or with respect to an owner of such Real Estate, a
pledge of any equity interests in such Person with respect thereto: (i) all
indebtedness for borrowed money; (ii) the deferred purchase price of Real
Estate; (iii) all Capitalized 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
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instrument; and (v) all Guarantees of Indebtedness of Persons other than the
Borrower and its Subsidiaries.
Total Unencumbered Assets. At any time, the sum of
(i) those Undepreciated Real Estate Assets not securing any portion of Secured
Debt and (ii) all other assets of the Borrower and its Subsidiaries not securing
any portion of Secured Debt determined in accordance with GAAP (but excluding
accounts receivable and intangibles) after eliminating intercompany accounts and
transactions.
Transaction. The merger and related transactions
described in that certain Agreement and Plan of Merger dated as of October 4,
2002 among Borrower, Developers Diversified Realty Corporation and DDR
Transitory Sub, Inc., as the same may be modified or amended from time to time.
Type. As to any Loan, its nature as a Base Rate Loan
or a LIBOR Rate Loan.
Undepreciated Real Estate Assets. As of any date, the
cost (original cost plus capital improvements) of real estate assets of the
Borrower and its Subsidiaries on such date, before depreciation and
amortization, determined in accordance with GAAP.
Unsecured Debt. Debt of the Borrower or any
Subsidiary that is not Secured Debt, excluding intercompany Debt.
Unsecured Notes. Collectively, (i) the $75,000,000.00
aggregate principal amount of 6.80% Notes Due 2004, and the $85,000,000.00
aggregate principal amount of 6.95% Notes Due 2007, both issued on August 4,
1997, pursuant to that certain Indenture dated as of July 15, 1997, made by
Borrower in favor of First Union National Bank, as Trustee (the "Trustee"), as
supplemented by that certain First Supplemental Indenture dated as of July 31,
1997, between Borrower and the Trustee, (ii) such of the $505,500,000.00
aggregate principal amount of JDN Realty Corporation Medium-Term Notes as may be
issued under the Indenture described above, as supplemented by the First
Supplemental Indenture described above and that certain Second Supplemental
Indenture dated as of February 5, 1998, and that certain First Amendment to
Second Supplemental Indenture, dated as of March 31, 1998, between Borrower and
the Trustee (as supplemented, the "Indenture"), and (iii) such other unsecured
indebtedness as may be issued by Borrower pursuant to the Indenture.
Section 1.2 Rules of Interpretation.
(a) A reference to any document or agreement
shall include such document or agreement as amended, modified or supplemented
from time to time in accordance with its terms and the terms of this Agreement.
(b) The singular includes the plural and the
plural includes the singular.
(c) A reference to any law includes any
amendment or modification of such law.
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(d) A reference to any Person includes its
permitted successors and permitted assigns.
(e) Accounting terms not otherwise defined
herein have the meanings assigned to them by GAAP applied on a consistent basis
by the accounting entity to which they refer.
(f) The words "include", "includes" and
"including" are not limiting.
(g) The words "approval" and "approved", as the
context requires, means an approval in writing given to the party seeking
approval after full and fair disclosure to the party giving approval of all
material facts necessary in order to determine whether approval should be
granted.
(h) All terms not specifically defined herein or
by GAAP, which terms are defined in the Uniform Commercial Code as in effect in
the Commonwealth of Massachusetts, have the meanings assigned to them therein.
(i) Reference to a particular "Section", refers
to that section of this Agreement unless otherwise indicated.
(j) The words "herein", "hereof", "hereunder"
and words of like import shall refer to this Agreement as a whole and not to any
particular section or subdivision of this Agreement.
Section 2. THE FACILITY.
Section 2.1 Term Loan.
(a) Subject to the terms and conditions set
forth in this Agreement, each of the Lenders severally agrees to lend to the
Borrower such Lender's Commitment Percentage of the Total Commitment, and the
Borrower irrevocably agrees to borrow from the Lenders the amount of the Total
Commitment for the sole purpose of repaying in full the Maturing Notes on or
before March 31, 2003 (to the extent the Maturing Notes have not therefore been
paid in full or remarketed such that the maturity date of the Maturing Notes is
March 31, 2013). Notwithstanding anything herein to the contrary, the obligation
of the Lenders to make the Loans (i) is subject to the satisfaction of the
conditions set forth in Sections 10 and 11 and (ii) shall terminate in
the event that the Transaction is consummated.
(b) The Loans shall be evidenced by separate
promissory notes of the Borrower in substantially the form of Exhibit A hereto
(collectively, the "Notes"), dated of even date with this Agreement (except as
otherwise provided in Section 18.3) and completed with appropriate insertions.
One Note shall be payable to the order of each Lender in the principal amount
equal to such Lender's Commitment. The Borrower irrevocably authorizes Agent to
make or cause to be made, at or about the time of receipt of any payment of
principal thereof, an appropriate notation on Agent's Record reflecting the
receipt of such payment. The outstanding amount of the Loans set forth on
Agent's Record shall be prima facie evidence of the principal amount thereof
owing and unpaid to each Lender, but the failure to record, or any error in so
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recording, any such amount on Agent's Record shall not limit or otherwise affect
the obligations of the Borrower hereunder or under any Note to make payments of
principal of or interest on any Note when due.
Section 2.2 [Intentionally Omitted].
Section 2.3 Facility Unused Fee. The Borrower agrees to pay to
the Agent for the account of the Lenders in accordance with their respective
Commitment Percentages a facility unused fee calculated at the rate of 0.50% per
annum on the average daily amount by which the Total Commitment exceeds the
outstanding principal amount of the Loans during each calendar quarter or
portion thereof commencing on the date hereof and ending on the earlier to occur
of the termination of this Agreement or the Maturity Date. The facility unused
fee shall be payable quarterly in arrears on the first day of each calendar
quarter for the immediately preceding calendar quarter or portion thereof, or
any earlier date on which the Commitments shall be terminated and on the
Maturity Date.
Section 2.4 [Intentionally Omitted].
Section 2.5 [Intentionally Omitted].
Section 2.6 Interest on Loans.
(a) Prior to September 30, 2003, each Base Rate
Loan shall bear interest for the period commencing with the Drawdown Date
thereof and ending on the date on which such Base Rate Loan is repaid or
converted to a LIBOR Rate Loan at the rate per annum equal to the sum of the
Base Rate plus one and one-half percent (1.50%). From and after September 30,
2003, each Base Rate Loan (including existing Base Rate Loans) shall bear
interest for the period commencing on the earlier to occur of (i) September 30,
2003 and (ii) the Drawdown Date thereof, and ending on the date on which such
Base Rate Loan is repaid or converted to a LIBOR Rate Loan at the rate per annum
equal to the sum of the Base Rate plus two and one-half percent (2.50%).
(b) Prior to September 30, 2003, each LIBOR Rate
Loan shall bear interest for the period commencing with the Drawdown Date
thereof and ending on the last day of each Interest Period with respect thereto
at the rate per annum equal to the sum of LIBOR determined for such Interest
Period plus four percent (4.0%). From and after September 30, 2003, each LIBOR
Rate Loan (including existing LIBOR Rate Loans) shall bear interest for the
period commencing on the earlier to occur of (i) September 30, 2003 and (ii) the
Drawdown Date thereof and ending on the last day of each Interest Period with
respect thereto at the rate per annum equal to the sum of LIBOR determined for
such Interest Period plus five and one-half percent (5.50%).
(c) The Borrower promises to pay interest on
each Loan in arrears on each Interest Payment Date with respect thereto.
(d) Base Rate Loans and LIBOR Rate Loans may be
converted to Loans of the other Type as provided in Section 4.1.
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Section 2.7 Requests for Loans. The Borrower shall give to the
Agent written notice in the form of Exhibit H hereto (or telephonic notice
confirmed in writing in the form of Exhibit H hereto) of the Loan requested
hereunder (a "Loan Request") by 9:00 a.m. (Boston time) on the Business Day of
the proposed Drawdown Date with respect to Base Rate Loans and three (3)
Business Days prior to the proposed Drawdown Date with respect to LIBOR Rate
Loans; provided that in any event such notice shall be delivered by such date as
will result in the Borrower receiving the proceeds of the Loan on or before
March 28, 2003. Such notice shall specify with respect to the requested Loan the
proposed principal amount of such Loan, the Type of Loan, the initial Interest
Period (if applicable) for such Loan and the Drawdown Date. Such notice shall
also contain (i) a statement that the purpose for such Loan shall be to repay
the Maturing Notes, (ii) an authorization to the Agent permitting Agent to
disburse the amount of the requested Loan directly to the Trustee (or other
paying agent) under the Indenture relating to the Maturity Notes, (iii) a
certification by the chief financial officer or chief accounting officer of the
Borrower that the Borrower and the Guarantors are and will be in compliance with
all covenants under the Loan Documents after giving effect to the making of such
Loan. Promptly upon receipt of any such notice, the Agent shall notify each of
the Lenders thereof. Except as provided in this Section 2.7, the Loan Request
shall be irrevocable and binding on the Borrower and shall obligate the Borrower
to accept the Loan requested from the Lenders on the proposed Drawdown Date;
provided that, in addition to the Borrower's other remedies against any Lender
which fails to advance its proportionate share of the requested Loan, such Loan
Request may be revoked by the Borrower by notice received by the Agent no later
than the Drawdown Date if any Lender fails to advance its proportionate share of
the requested Loan in accordance with the terms of this Agreement; and provided
further that the Borrower shall be liable in accordance with the terms of this
Agreement to any Lender which is prepared to advance its proportionate share of
the requested Loan for any costs, expenses or damages actually incurred by such
Lender as a result of the Borrower's election to revoke such Loan Request.
Nothing herein shall prevent the Borrower from seeking recourse against any
Lender that fails to advance its proportionate share of the requested Loan as
required by this Agreement. The Loan Request shall be (a) for a Base Rate Loan
in a minimum aggregate amount of $1,000,000 or an integral multiple of $100,000
in excess thereof; or (b) for a LIBOR Rate Loan in a minimum aggregate amount of
$2,000,000 or an integral multiple of $100,000 in excess thereof; provided,
however, that there shall be no more than four (4) LIBOR Rate Loans outstanding
at any one time. Notwithstanding anything to the contrary contained herein, the
Borrower acknowledges and agrees that it shall only have the right to submit one
(1) Loan Request hereunder, that the Borrower shall not have the right to
request any additional Loans after submission of such Loan Request, and that
such Loan Request must be submitted so as to comply with the terms of this
Section 2.7. No Lender shall have any obligation to make any Loan after March
28, 2003. In the event the Borrower does not request the full amount of the
aggregate Commitments, each Lender's Commitment shall automatically be reduced
to an amount equal to such Lender's Commitment Percentage multiplied by the
amount of the Loan requested in the Loan Request.
Section 2.8 Funds for Loans.
(a) Not later than 1:00 p.m. (Boston time) on
the proposed Drawdown Date of the Loans, each of the Lenders will make available
to the Agent, at the Agent's Head Office, in immediately available funds, the
amount of such Lender's Commitment Percentage of the amount of the requested
Loans which may be disbursed pursuant to Section 2.1. Upon receipt from
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each Lender of such amount, and upon receipt of the documents required by
Section 10 and Section 11 and the satisfaction of the other conditions set forth
therein, to the extent applicable, the Agent will make available to the Borrower
the aggregate amount of such Loans made available to the Agent by the Lenders by
crediting such amount to the account of the Borrower maintained at the Agent's
Head Office or, at Agent's option, by disbursing such amount directly to the
Trustee under the Indenture (or other paying agent, if applicable), in
connection with the repayment of the Maturing Notes. Such disbursement to the
Trustee or other paying agent shall be made pursuant to the wire transfer
instructions submitted by the Borrower and confirmed by the Trustee or other
paying agent, if applicable. The failure or refusal of any Lender to make
available to the Agent at the aforesaid time and place on any Drawdown Date the
amount of its Commitment Percentage of the requested Loans shall not relieve any
other Lender from its several obligation hereunder to make available to the
Agent the amount of such other Lender's Commitment Percentage of any requested
Loans, including any additional Loans that may be requested subject to the terms
and conditions hereof to provide funds to replace those not advanced by the
Lender so failing or refusing. In the event of any such failure or refusal, the
Lenders not so failing or refusing shall be entitled to a priority secured
position as against the Lender or Lenders so failing or refusing to make
available to the Borrower the amount of its or their Commitment Percentage for
such Loans as provided in Section 12.5.
(b) Unless the Agent shall have been notified by
any Lender prior to the applicable Drawdown Date that such Lender will not make
available to Agent such Lender's Commitment Percentage of the proposed Loan,
Agent may in its discretion assume that such Lender has made such Loan available
to Agent in accordance with the provisions of this Agreement and the Agent may,
if it chooses, in reliance upon such assumption make such Loan available to the
Borrower, and such Lender shall be liable to the Agent for the amount of such
advance. If such Lender does not pay such corresponding amount upon the Agent's
demand therefor, the Agent will promptly notify the Borrower, and the Borrower
shall promptly pay such corresponding amount to the Agent. The Agent shall also
be entitled to recover from the Lender or the Borrower, as the case may be,
interest on such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Agent to the Borrower to the date
such corresponding amount is recovered by the Agent at a per annum rate equal to
(i) from the Borrower at the applicable rate for such Loan or (ii) from a Lender
at the Federal Funds Effective Rate.
Section 2.9 Use of Proceeds. The Borrower will use the proceeds
of the Loans solely to repay the Maturing Notes. Notwithstanding anything herein
to the contrary, Borrower shall not be entitled to receive a Loan unless
Borrower shall have delivered to Agent evidence reasonably satisfactory to the
Agent that the remaining balance of amounts due with respect to the Maturing
Notes is being deposited with the Trustee or other paying agent with respect
thereto, and Agent may at its option disburse such amounts directly to the
Trustee or other paying agent.
Section 3. REPAYMENT OF THE LOANS.
Section 3.1 Stated Maturity. The Borrower promises to pay on the
Maturity Date and there shall become absolutely due and payable on the Maturity
Date all of the Loans outstanding on such date, together with any and all
accrued and unpaid interest thereon.
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Section 3.2 Mandatory Prepayments. If at any time the sum of the
aggregate outstanding principal amount of the Loans exceeds the aggregate
Commitments, then the Borrower shall immediately pay the amount of such excess
to the Agent for the respective accounts of the Lenders, as applicable, for
application to the Loans as provided in Section 3.4, together with any
additional amounts payable pursuant to Section 4.8. Additionally, if the
Borrower shall repay the "Obligations" under and as defined in the Master Credit
Agreement or the Master Credit Agreement shall terminate, then all Obligations
shall immediately become due and payable and Borrower shall immediately pay to
Agent for the respective accounts of the Lenders all Obligations outstanding
hereunder.
Section 3.3 Optional Prepayments. The Borrower shall have the
right, at its election, to prepay the outstanding amount of the Loans, as a
whole or in part, at any time without penalty or premium; provided, that if any
prepayment of the outstanding amount of any LIBOR Rate Loans pursuant to this
Section 3.3 is made on a date that is not the last day of the Interest Period
relating thereto, such prepayment shall be accompanied by the payment of any
amounts due pursuant to Section 4.8. The Borrower shall give the Agent, no later
than 10:00 a.m., Boston time, at least three (3) days prior written notice of
any prepayment pursuant to this Section 3.3, in each case specifying the
proposed date of prepayment of the Loans and the principal amount to be prepaid.
Section 3.4 Partial Prepayments. Each partial prepayment of the
Loans under Section 3.3 shall be in a minimum amount of $1,000,000.00 or an
integral multiple of $100,000 in excess thereof, shall be accompanied by the
payment of accrued interest on the principal prepaid to the date of payment.
Each partial payment under Section 3.2, Section 3.3 and Section 3.5 shall be
applied, in the absence of instruction by the Borrower, first to the principal
of Base Rate Loans and then to the principal of LIBOR Rate Loans. No amount of
the Loans prepaid under this Agreement may be reborrowed.
Section 4. CERTAIN GENERAL PROVISIONS.
Section 4.1 Conversion Options.
(a) The Borrower may elect from time to time to
convert any of its outstanding Loans to a Loan of another Type and such Loan
shall thereafter bear interest as a Base Rate Loan or a LIBOR Rate Loan, as
applicable; provided that (i) with respect to any such conversion of a LIBOR
Rate Loan to a Base Rate Loan, the Borrower shall give the Agent at least one
(1) Business Day's prior written notice of such election, and such conversion
shall only be made on the last day of the Interest Period with respect to such
LIBOR Rate Loan; (ii) with respect to any such conversion of a Base Rate Loan to
a LIBOR Rate Loan, the Borrower shall give the Agent at least three (3) LIBOR
Business Days' prior written notice of such election and the Interest Period
requested for such Loan, the principal amount of the Loan so converted shall be
in a minimum aggregate amount of $2,000,000 or an integral multiple of $100,000
in excess thereof and, after giving effect to the making of such Loan, there
shall be no more than four (4) LIBOR Rate Loans outstanding at any one time; and
(iii) no Loan may be converted into a LIBOR Rate Loan when any Default or Event
of Default has occurred and is continuing. All or any part of the outstanding
Loans of any Type may be converted as provided herein, provided that no partial
conversion shall result in a Base Rate Loan in a principal amount of less than
$1,000,000 or a LIBOR Rate Loan in a principal amount of less than $2,000,000
and that the principal amount of each Loan shall be in an integral multiple of
$100,000. On the date on
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which such conversion is being made, each Lender shall take such action as is
necessary to transfer its Commitment Percentage of such Loans to its Domestic
Lending Office or its LIBOR Lending Office, as the case may be. Each
Conversion/Continuation Request relating to the conversion of a Base Rate Loan
to a LIBOR Rate Loan shall be irrevocable by the Borrower.
(b) Any LIBOR Rate Loan may be continued as such
Type upon the expiration of an Interest Period with respect thereto by
compliance by the Borrower with the terms of Section 4.1; provided that no LIBOR
Rate Loan may be continued as such when any Default or Event of Default has
occurred and is continuing, but shall be automatically converted to a Base Rate
Loan on the last day of the Interest Period relating thereto ending during the
continuance of any Default or Event of Default.
(c) In the event that the Borrower does not
notify the Agent of its election hereunder with respect to any LIBOR Rate Loan,
such Loan shall be automatically converted to a Base Rate Loan at the end of the
applicable Interest Period.
Section 4.2 Closing Fee. Borrower agrees to pay to Fleet on the
Closing Date certain fees ("Closing Date Fees") for services rendered or to be
rendered in connection with the Loans as provided pursuant to an Agreement
Regarding Fees dated as of even date herewith between the Borrower and Fleet.
Fleet shall pay on the Closing Date to the other Lenders a closing fee in
accordance with their separate agreement (provided that Fleet's obligation to
pay such fees shall be subject to the prior payment by Borrower to Fleet of the
Closing Date Fees). Then prior to or simultaneously with the disbursement of any
Loan amounts to Borrower, Borrower will pay to Fleet certain other fees
("Funding Fees") for services rendered or to be rendered in connection with the
Loans also as provided pursuant to the Agreement Regarding Fees. If Fleet does
not receive the total amount of Funding Fees owing from Borrower, then the
Lenders shall be under no obligation to disburse any Loan funds to Borrower. If
Fleet does receive the total amount of Funding Fees owing from Borrower, then
Fleet shall pay to the other Lenders certain other fees in accordance with their
separate agreement (provided that Fleet's obligation to pay such fees shall be
subject to the prior payment by Borrower to Fleet of the Funding Fees).
Section 4.3 Agent's Fee. The Borrower shall pay to the Agent, for
the Agent's own account, an annual Agent's fee as provided in the Agreement
Regarding Fees dated of even date herewith between Borrower and Fleet. The
Agent's fee shall be payable quarterly in arrears on the first day of each
calendar quarter for the immediately preceding calendar quarter or portion
thereof. The Agent's fee shall also be paid upon the Maturity Date or earlier
termination of the Commitments. The Agent's fee for any partial quarter shall be
prorated.
Section 4.4 Funds for Payments.
(a) All payments of principal, interest,
facility fees, closing fees and any other amounts due hereunder or under any of
the other Loan Documents shall be made to the Agent, for the respective accounts
of the Lenders and the Agent, as the case may be, at the Agent's Head Office,
not later than 1:00 p.m. (Boston time) on the day when due, in each case in
lawful money of the United States in immediately available funds. The Agent is
hereby authorized to charge the accounts of the Borrower with Fleet, on the
dates when the amount thereof shall become due
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and payable, with the amounts of the principal of and interest on the Loans and
all fees, charges, expenses and other amounts owing to the Agent and/or the
Lenders under the Loan Documents.
(b) All payments by the Borrower hereunder and
under any of the other Loan Documents shall be made without setoff or
counterclaim and free and clear of and without deduction for any taxes (other
than income or franchise taxes imposed on any Lender), levies, imposts, duties,
charges, fees, deductions, withholdings, compulsory loans, restrictions or
conditions of any nature now or hereafter imposed or levied by any jurisdiction
or any political subdivision thereof or taxing or other authority therein unless
the Borrower is compelled by law to make such deduction or withholding. If any
such obligation is imposed upon the Borrower with respect to any amount payable
by it hereunder or under any of the other Loan Documents, the Borrower will pay
to the Agent, for the account of the Lenders or (as the case may be) the Agent,
on the date on which such amount is due and payable hereunder or under such
other Loan Document, such additional amount in Dollars as shall be necessary to
enable the Lenders or the Agent to receive the same net amount which the Lenders
or the Agent would have received on such due date had no such obligation been
imposed upon the Borrower. The Borrower will deliver promptly to the Agent
certificates or other valid vouchers for all taxes or other charges deducted
from or paid with respect to payments made by the Borrower hereunder or under
any other Loan Document.
(c) Each Lender organized under the laws of a
jurisdiction outside the United States, if requested in writing by the Borrower
(but only so long as such Lender remains lawfully able to do so), shall provide
the Borrower with such duly executed form(s) or statement(s) which may, from
time to time, be prescribed by law and, which, pursuant to applicable provisions
of (i) an income tax treaty between the United States and the country of
residence of such Lender, (ii) the Code, or (iii) any applicable rules or
regulations in effect under (i) or (ii) above, indicates the withholding status
of such Lender; provided that nothing herein (including without limitation the
failure or inability to provide such form or statement) shall relieve the
Borrower of its obligations under Section 4.4(b). In the event that the Borrower
shall have delivered the certificates or vouchers described above for any
payments made by the Borrower and such Lender receives a refund of any taxes
paid by the Borrower pursuant to Section 4.4(b), such Lender will pay to the
Borrower the amount of such refund promptly upon receipt thereof; provided that
if at any time thereafter such Lender is required to return such refund, the
Borrower shall promptly repay to such Lender the amount of such refund.
(d) The obligations of the Borrower to the
Lenders under this Agreement shall be absolute, unconditional and irrevocable,
and shall be paid and performed strictly in accordance with the terms of this
Agreement, under all circumstances whatsoever, including, without limitation,
the following circumstances: (i) any lack of validity or enforceability of this
Agreement, or any of the other Loan Documents; (ii) the existence of any claim,
set-off, defense or any right which the Borrower or any of its Subsidiaries or
Affiliates may have at any time against the Lenders (other than the defense of
payment to the Lenders in accordance with the terms of this Agreement) or any
other person, whether in connection this Agreement, any other Loan Document, or
any unrelated transaction; (iii) the surrender or impairment of any security for
the performance or observance of any of the terms of any of the Loan Documents;
(iv) the occurrence of any Default or Event of Default; and (v) any other
circumstance or happening whatsoever, whether or not similar to any of the
foregoing.
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Section 4.5 Computations. All computations of interest on the
Loans and of other fees to the extent applicable shall be based on a 360-day
year and paid for the actual number of days elapsed. Except as otherwise
provided in the definition of the term "Interest Period" with respect to LIBOR
Rate Loans, whenever a payment hereunder or under any of the other Loan
Documents becomes due on a day that is not a Business Day, the due date for such
payment shall be extended to the next succeeding Business Day, and interest
shall accrue during such extension. The Outstanding Loans as reflected on the
records of the Agent from time to time shall be considered prima facie evidence
of such amount.
Section 4.6 Inability to Determine LIBOR. In the event that,
prior to the commencement of any Interest Period relating to any LIBOR Rate
Loan, the Agent shall determine that adequate and reasonable methods do not
exist for ascertaining LIBOR for such Interest Period, the Agent shall forthwith
give notice of such determination (which shall be conclusive and binding on the
Borrower and the Lenders absent manifest error) to the Borrower and the Lenders.
In such event (a) any Loan Request with respect to a LIBOR Rate Loan shall be
automatically withdrawn and shall be deemed a request for a Base Rate Loan and
(b) each LIBOR Rate Loan will automatically, on the last day of the then current
Interest Period applicable thereto, become a Base Rate Loan, and the obligations
of the Lenders to make LIBOR Rate Loans shall be suspended until the Agent
determines that the circumstances giving rise to such suspension no longer
exist, whereupon the Agent shall so notify the Borrower and the Lenders.
Section 4.7 Illegality. Notwithstanding any other provisions
herein, if any present or future law, regulation, treaty or directive or the
interpretation or application thereof shall make it unlawful, or any central
bank or other governmental authority having jurisdiction over a Lender or its
LIBOR Lending Office shall assert that it is unlawful, for any Lender to make or
maintain LIBOR Rate Loans, such Lender shall forthwith give notice of such
circumstances to the Agent and the Borrower and thereupon (a) the commitment of
the Lenders to make LIBOR Rate Loans shall forthwith be suspended and (b) the
LIBOR Rate Loans then outstanding shall be converted automatically to Base Rate
Loans on the last day of each Interest Period applicable to such LIBOR Rate
Loans or within such earlier period as may be required by law. Notwithstanding
the foregoing, before giving such notice, the applicable Lender shall designate
a different lending office if such designation will void the need for giving
such notice and will not, in the judgment of such Lender, be otherwise
materially disadvantageous to such Lender. In the event that the applicable
Lender shall be replaced pursuant to Section 4.15, then to the extent the terms
of this Section 4.7 are not otherwise applicable, Borrower again shall be
permitted to request LIBOR Rate Loans.
Section 4.8 Additional Interest. If any LIBOR Rate Loan or
any portion thereof is repaid or is converted to a Base Rate Loan for any reason
on a date which is prior to the last day of the Interest Period applicable to
such LIBOR Rate Loan, or if repayment of the Loans has been accelerated as
provided in Section 12.1, the Borrower will pay to the Agent upon demand for the
account of the applicable Lenders in accordance with their respective Commitment
Percentages, in addition to any amounts of interest otherwise payable hereunder,
any amounts required to compensate such Lenders for any losses, costs or
expenses which may reasonably be incurred as a result of such payment or
conversion, including, without limitation, an amount equal to daily interest for
the unexpired portion of such Interest Period on the LIBOR Rate Loan or portion
thereof so repaid or converted at a per annum rate equal to the excess, if any,
of (a) the interest rate calculated on the basis of LIBOR applicable to such
LIBOR Rate Loan (including any
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spread over LIBOR) minus (b) the yield obtainable by the Agent upon the purchase
of debt securities customarily issued by the Treasury of the United States of
America which have a maturity date most closely approximating the last day of
such Interest Period (it being understood that the purchase of such securities
shall not be required in order for such amounts to be payable) and that a Lender
shall not be obligated or required to have actually obtained funds at LIBOR or
to have actually reinvested such amounts as described above. Such amount shall
be reduced to present value by using the rate on the United States Treasury
Securities described in the foregoing sentence and the number of days remaining
in the unexpired portion of the Interest Period in question.
Section 4.9 Additional Costs, Etc. Notwithstanding anything
herein to the contrary, if any present or future applicable law, which
expression, as used herein, includes statutes, rules and regulations thereunder
and interpretations thereof by any competent court or by any governmental or
other regulatory body or official charged with the administration or the
interpretation thereof and requests, directives, instructions and notices at any
time or from time to time hereafter made upon or otherwise issued to any Lender
or the Agent by any central bank or other fiscal, monetary or other authority
(whether or not having the force of law), shall:
(a) subject any Lender or the Agent to any tax,
levy, impost, duty, charge, fee, deduction or withholding of any nature with
respect to this Agreement, the other Loan Documents, such Lender's Commitment or
the Loans (other than taxes based upon or measured by the gross receipts, income
or profits of such Lender or the Agent or its franchise tax), or
(b) materially change the basis of taxation
(except for changes in taxes on gross receipts, income or profits or its
franchise tax) of payments to any Lender of the principal of or the interest on
any Loans or any other amounts payable to any Lender under this Agreement or the
other Loan Documents, or
(c) impose or increase or render applicable any
special deposit, reserve, assessment, liquidity, capital adequacy or other
similar requirements (whether or not having the force of law and which are not
already reflected in any amounts payable by Borrower hereunder) against assets
held by, or deposits in or for the account of, or loans by, or commitments of an
office of any Lender, or
(d) impose on any Lender or the Agent any other
conditions or requirements with respect to this Agreement, the other Loan
Documents, the Loans, such Lender's Commitment, or any class of loans or
commitments of which any of the Loans or such Lender's Commitment forms a part;
and the result of any of the foregoing is:
(i) to increase the cost to any Lender
of making, funding, issuing, renewing, extending or maintaining any of the
Loans, or such Lender's Commitment, or
(ii) to reduce the amount of principal,
interest or other amount payable to any Lender or the Agent hereunder on account
of such Lender's Commitment or any of the Loans, or
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(iii) to require any Lender or the Agent
to make any payment or to forego any interest or other sum payable hereunder,
the amount of which payment or foregone interest or other sum is calculated by
reference to the gross amount of any sum receivable or deemed received by such
Lender or the Agent from the Borrower hereunder,
then, and in each such case, the Borrower will, within fifteen (15) days of
demand made by such Lender or (as the case may be) the Agent at any time and
from time to time and as often as the occasion therefor may arise, pay to such
Lender or the Agent such additional amounts as such Lender or the Agent shall
determine in good faith to be sufficient to compensate such Lender or the Agent
for such additional cost, reduction, payment or foregone interest or other sum.
Each Lender and the Agent in determining such amounts may use any reasonable
averaging and attribution methods generally applied by such Lender or the Agent.
Section 4.10 Capital Adequacy. If after the date hereof any Lender
determines that (a) the adoption of or change in any law, rule, regulation or
guideline regarding capital requirements for banks or bank holding companies or
any change in the interpretation or application thereof by any governmental
authority charged with the administration thereof, or (b) compliance by such
Lender or its parent bank holding company with any guideline, request or
directive of any such entity regarding capital adequacy (whether or not having
the force of law), has the effect of reducing the return on such Lender's or
such holding company' s capital as a consequence of such Lender's commitment to
make Loans hereunder to a level below that which such Lender or holding company
could have achieved but for such adoption, change or compliance (taking into
consideration such Lender's or such holding company' s then existing policies
with respect to capital adequacy and assuming the full utilization of such
entity's capital) by any amount deemed by such Lender to be material, then such
Lender may notify the Borrower thereof. The Borrower agrees to pay to such
Lender the amount of such reduction in the return on capital as and when such
reduction is determined, upon presentation by such Lender of a statement of the
amount setting forth the Lender's calculation thereof. In determining such
amount, such Lender may use any reasonable averaging and attribution methods
generally applied by such Lender.
Section 4.11 Indemnity of Borrower. The Borrower agrees to
indemnify each Lender and to hold each Lender harmless from and against any
loss, cost or expense that such Lender may sustain or incur as a consequence of
(a) default by the Borrower in payment of the principal amount of or any
interest on any LIBOR Rate Loans as and when due and payable, including any such
loss or expense arising from interest or fees payable by such Lender to lenders
of funds obtained by it in order to maintain its LIBOR Rate Loans, or (b)
default by the Borrower in making a borrowing or a conversion after the Borrower
has given (or is deemed to have given) a Loan Request or a
Conversion/Continuation Request.
Section 4.12 Default Interest; Late Charge. Following the
occurrence and during the continuance of any Event of Default, and regardless of
whether or not the Agent or the Lenders shall have accelerated the maturity of
the Loans, all Loans shall bear interest payable on demand at a rate per annum
equal to four percent (4%) above the rate that would otherwise be applicable at
such time (the "Default Rate"), until such amount shall be paid in full (after
as well as before judgment). In addition, the Borrower shall pay a late charge
equal to five percent (5.0%) of any amount of interest and/or principal payable
on the Loans or any other amounts payable hereunder
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or under the Loan Documents, which is not paid by the Borrower within ten (10)
days of the date when due.
Section 4.13 Certificate. A certificate setting forth any
amounts payable pursuant to Section 4.8, Section 4.9, Section 4.10, Section 4.11
or Section 4.12 and a reasonably detailed explanation of such amounts which are
due, submitted by any Lender or the Agent to the Borrower, shall be conclusive
in the absence of manifest error.
Section 4.14 Limitation on Interest. Notwithstanding anything in
this Agreement or the other Loan Documents to the contrary, all agreements
between or among the Borrower, the Guarantors, the Lenders and the Agent,
whether now existing or hereafter arising and whether written or oral, are
hereby limited so that in no contingency, whether by reason of acceleration of
the maturity of any of the Obligations or otherwise, shall the interest
contracted for, charged or received by the Lenders exceed the maximum amount
permissible under applicable law. If, from any circumstance whatsoever, interest
would otherwise be payable to the Lenders in excess of the maximum lawful
amount, the interest payable to the Lenders shall be reduced to the maximum
amount permitted under applicable law; and if from any circumstance the Lenders
shall ever receive anything of value deemed interest by applicable law in excess
of the maximum lawful amount, an amount equal to any excessive interest shall be
applied to the reduction of the principal balance of the Obligations and to the
payment of interest or, if such excessive interest exceeds the unpaid balance of
principal of the Obligations, such excess shall be refunded to the Borrower. All
interest paid or agreed to be paid to the Lenders shall, to the extent permitted
by applicable law, be amortized, prorated, allocated and spread throughout the
full period until payment in full of the principal of the Obligations (including
the period of any renewal or extension thereof) so that the interest thereon for
such full period shall not exceed the maximum amount permitted by applicable
law. This Section shall control all agreements between or among the Borrower,
the Guarantors, the Lenders and the Agent.
Section 4.15 Certain Provisions Relating to Increased Costs. If a
Lender gives notice of the existence of the circumstances set forth in Section
4.7 or any Lender requests compensation for any losses or costs to be reimbursed
pursuant to any one or more of the provisions of Section 4.9 or Section 4.10,
then, upon request of Borrower, such Lender, as applicable, shall use reasonable
efforts in a manner consistent with such institution's practice in connection
with loans like the Loan of such Lender to eliminate, mitigate or reduce amounts
that would otherwise be payable by Borrower under the foregoing provisions,
provided that such action would not be otherwise prejudicial to such Lender,
including, without limitation, by designating another of such Lender's offices,
branches or affiliates; the Borrower agreeing to pay all reasonably incurred
costs and expenses incurred by such Lender in connection with any such action.
Notwithstanding anything to the contrary contained herein, if no Default or
Event of Default shall have occurred and be continuing, and if any Lender has
given notice of the existence of the circumstances set forth in Section 4.7 or
has requested payment or compensation for any losses or costs to be reimbursed
pursuant to any one or more of the provisions of Section 4.9 or Section 4.10
(each, an "Affected Lender"), then, within thirty (30) days after such notice or
request for payment or compensation, Borrower shall have the one-time right as
to such Affected Lender, to be exercised by delivery of written notice delivered
to the Agent and the Affected Lender within thirty (30) days of receipt of such
notice, to elect to cause the Affected Lender to transfer its Commitment. The
Agent shall promptly notify the remaining Lenders that each of such Lenders
shall have the right, but not the
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obligation, to acquire a portion of the Commitment, pro rata based upon their
relevant Commitment Percentages, of the Affected Lender (or if any of such
Lenders does not elect to purchase its pro rata share, then to such remaining
Lenders in such proportion as approved by the Agent). In the event that the
Lenders do not elect to acquire all of the Affected Lender's Commitment, then
the Agent shall endeavor to obtain a new Lender to acquire such remaining
Commitment. Upon any such purchase of the Commitment of the Affected Lender, the
Affected Lender's interest in the Obligations and its rights hereunder and under
the Loan Documents shall terminate at the date of purchase, and the Affected
Lender shall promptly execute all documents reasonably requested to surrender
and transfer such interest. The purchase price for the Affected Lender's
Commitment shall equal any and all amounts outstanding and owed by Borrower to
the Affected Lender, including principal and all accrued and unpaid interest or
fees.
Section 5. GUARANTY.
Section 5.1 Guaranty. The Obligations shall be guaranteed
pursuant to the Guaranty.
Section 5.2 Additional Guarantors. In the event that Borrower
shall, after the date hereof, have an Investment in any Subsidiary in which
Borrower directly or indirectly owns a one hundred percent (100%) interest
(including, without limitation, any Subsidiaries owned by JDN Development
Investment, L.P. and JDN Holdings), Borrower shall cause each such Subsidiary to
execute and deliver to Agent a Guaranty, and such Subsidiary shall become a
Guarantor hereunder; provided, however, to the extent Borrower has an Investment
in any such Subsidiary which is established as a special purpose entity to own
Real Estate or equity interests related thereto and any loan documents, if any,
to which any new Subsidiary directly owning title to any Real Estate is a party
prohibit such new Subsidiary from guarantying the Obligations, Borrower shall
not be obligated to cause such new Subsidiary to become a Guarantor. Borrower
further covenants and agrees that Borrower shall cause each Subsidiary of
Borrower that becomes a Guarantor pursuant to this Section 5.2 to become a party
to the Contribution Agreement. The organizational agreements of each such
Subsidiary created after the date hereof shall specifically authorize each such
Subsidiary to guarantee the Obligations and to execute the Contribution
Agreement. Borrower shall further cause all representations, covenants and
agreements in the Loan Documents with respect to Guarantors to be true and
correct with respect to each such Subsidiary. In connection with the delivery of
such Guaranty, Borrower shall deliver to the Agent such organizational
agreements, resolutions, consents, opinions and other documents and instruments
as the Agent may reasonably require. Nothing herein shall modify the provisions
of Section 8.3(i).
Section 5.3 Release of Certain Subsidiary Guarantors. In the
event that a Subsidiary Guarantor shall transfer all of its assets for fair
value and for cash in the ordinary course of its business, then such Subsidiary
Guarantor may be released by Agent from liability under the Guaranty provided
that the Borrower shall deliver to Agent evidence satisfactory to Agent that (a)
the Borrower will be in compliance with all covenants of this Agreement after
giving effect to such sale and release, (b) such Subsidiary Guarantor shall be
legally dissolved after its release from the Guaranty, and (c) the net cash
proceeds from such sale are being distributed to Borrower as part of such
dissolution. The provisions of this Section 5.3 shall not apply to JDN AL, JDN
DCI, JDN Holdings, JDN LP, Inc.
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Section 6. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Agent and the Lenders
as follows.
Section 6.1 Corporate Authority, Etc.
(a) Incorporation; Good Standing. The Borrower
is a Maryland corporation duly organized pursuant to articles of incorporation
filed with the Maryland Secretary of State, and is in good standing under the
laws of Maryland. Borrower conducts its business in a manner which enables it to
qualify as a real estate investment trust under, and to be entitled to the
benefits of, Section 856 of the Code, and has elected to be treated as and is
entitled to the benefits of a real estate investment trust thereunder. The
Borrower (i) has all requisite power to own its property and conduct its
business as now conducted and as presently contemplated, and (ii) is in good
standing and is duly authorized to do business in the jurisdictions where the
properties owned or leased by it are located and in each other jurisdiction
where a failure to be so qualified in such other jurisdiction could have a
materially adverse effect on the business, assets or financial condition of
Borrower.
(b) Subsidiaries. Each of the Guarantors and
each of the Subsidiaries of the Borrower and each Guarantor (i) is a
corporation, limited partnership, general partnership, limited liability company
or trust duly organized under the laws of its State of organization and is
validly existing and in good standing under the laws thereof, (ii) has all
requisite power to own its property and conduct its business as now conducted
and as presently contemplated and (iii) is in good standing and is duly
authorized to do business in each jurisdiction where a failure to be so
qualified could have a materially adverse effect on the business, assets or
financial condition of the Borrower, the Guarantors or such Subsidiary.
(c) Authorization. The execution, delivery and
performance of this Agreement and the other Loan Documents to which any of the
Borrower or any Guarantor is a party and the transactions contemplated hereby
and thereby (i) are within the authority of such Person, (ii) have been duly
authorized by all necessary proceedings on the part of such Person, (iii) do not
and will not conflict with or result in any breach or contravention of any
provision of law, statute, rule or regulation to which such Person is subject or
any judgment, order, writ, injunction, license or permit applicable to such
Person, (iv) do not and will not conflict with or constitute a default (whether
with the passage of time or the giving of notice, or both) under any provision
of the partnership agreement, articles of incorporation or other charter
documents or bylaws of, or any agreement or other instrument binding upon, such
Person or any of its properties (including, without limitation, any agreements
relating to the Transaction), (v) do not and will not result in or require the
imposition of any lien or other encumbrance on any of the properties, assets or
rights of such Person, and (vi) do not require the approval or consent of any
Person other than those already obtained and delivered to Agent.
(d) Enforceability. The execution and delivery
of this Agreement and the other Loan Documents to which any of the Borrower or
any Guarantor is a party are valid and legally binding obligations of such
Person enforceable in accordance with the respective terms and provisions hereof
and thereof, except as enforceability is limited by bankruptcy, insolvency,
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reorganization, moratorium or other laws relating to or affecting generally the
enforcement of creditors' rights and general principles of equity.
Section 6.2 Governmental Approvals. The execution, delivery and
performance of this Agreement and the other Loan Documents to which the Borrower
or any Guarantor is a party and the transactions contemplated hereby and thereby
do not require the approval or consent of, or filing with, any governmental
agency or authority other than those already obtained.
Section 6.3 Title to Properties. Except as indicated on Schedule
6.3 hereto, the Borrower, the Guarantors and their respective Subsidiaries own
or lease all of the assets reflected in the consolidated balance sheet of
Borrower as at the Balance Sheet Date or acquired or leased since that date
(except property and assets sold or otherwise disposed of in the ordinary course
of business since that date) or other adjustments that are not material in
amount, subject to no rights of others, including any mortgages, leases pursuant
to which Borrower or any of such Subsidiaries is the lessee, conditional sales
agreements, title retention agreements, liens or other encumbrances except
Permitted Liens.
Section 6.4 Financial Statements. The Borrower has furnished to
Agent: (a) the consolidated balance sheet of Borrower and its Subsidiaries as of
the Balance Sheet Date and the related consolidated statement of income and cash
flow for the fiscal year then ended, and (b) certain other financial information
relating to the Borrower, the Guarantors and the Real Estate. Such balance sheet
and statements have been prepared in accordance with generally accepted
accounting principles and fairly present the consolidated financial condition of
the Borrower and its Subsidiaries as of such dates and the consolidated results
of the operations of the Borrower and its Subsidiaries for such periods. There
are no liabilities, contingent or otherwise, of the Borrower or any of its
Subsidiaries involving material amounts not disclosed in said financial
statements and the related notes thereto.
Section 6.5 No Material Changes. Since the Balance Sheet Date,
there has occurred no materially adverse change in the financial condition or
business of the Borrower, any Guarantor and their respective Subsidiaries taken
as a whole as shown on or reflected in the consolidated balance sheet of the
Borrower as of the Balance Sheet Date, or its consolidated statement of income
or cash flows for the fiscal year then ended, other than changes in the ordinary
course of business that could not reasonably be expected to have a Material
Adverse Effect.
Section 6.6 Franchises, Patents, Copyrights, Etc. The Borrower,
the Guarantors and their respective Subsidiaries possess all franchises,
patents, copyrights, trademarks, trade names, service marks, licenses and
permits, and rights in respect of the foregoing, adequate for the conduct of
their business substantially as now conducted without known conflict with any
rights of others.
Section 6.7 Litigation. Except as stated on Schedule 6.7, there
are no actions, suits, proceedings or investigations of any kind pending or to
the knowledge of the Borrower threatened against the Borrower, any Guarantor or
any of their respective Subsidiaries before any court, tribunal, arbitrator,
mediator or administrative agency or board which question the validity of this
Agreement or any of the other Loan Documents, any action taken or to be taken
pursuant hereto or thereto or any lien, security title or security interest
created or intended to be created
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pursuant hereto or thereto, which relate to or arise from the Transaction, or
which if adversely determined could reasonably be expected to have a Material
Adverse Effect. Except as set forth on Schedule 6.7, there are no judgments,
final orders or awards outstanding against or affecting the Borrower, any
Guarantor, any of their respective Subsidiaries or any property owned by any of
them. The litigation and investigations described in items 1, 2, 3, 4, 5 and 6
in Schedule 6.7 hereto have been settled and such settlements have received
final approval by all applicable courts and other Persons, all funds or other
consideration to be paid or otherwise provided in connection therewith has been
fully paid or provided by Borrower and all claims relating to such litigation
and investigations have been dismissed with prejudice.
Section 6.8 No Materially Adverse Contracts, Etc. None of the
Borrower, any Guarantor or any of their respective Subsidiaries is subject to
any charter, corporate or other legal restriction, or any judgment, decree,
order, rule or regulation that has or is expected in the future to have a
materially adverse effect on the business, assets or financial condition of such
Person. None of the Borrower, any Guarantor or any of their respective
Subsidiaries is a party to any contract or agreement that has or could
reasonably be expected to have a Material Adverse Effect.
Section 6.9 Compliance with Other Instruments, Laws, Etc. None of
the Borrower, the Guarantors or any of their respective Subsidiaries is in
violation of any provision of its charter or other organizational documents,
bylaws, or any agreement or instrument to which it is subject or by which it or
any of its properties is bound or any decree, order, judgment, statute, license,
rule or regulation, in any of the foregoing cases in a manner that could
reasonably be expected to materially and adversely affect the financial
condition, properties or business of such Person.
Section 6.10 Tax Status. Each of the Borrower, the Guarantors and
their respective Subsidiaries (a) has made or filed all federal and state income
and all other material tax returns, reports and declarations required by any
jurisdiction to which it is subject or has obtained an extension for filing, (b)
has paid prior to delinquency all taxes and other governmental assessments and
charges shown or determined to be due on such returns, reports and declarations,
except those being contested in good faith and by appropriate proceedings and
(c) has set aside on its books provisions reasonably adequate for the payment of
all taxes for periods subsequent to the periods to which such returns, reports
or declarations apply. There are no unpaid taxes in any material amount claimed
to be due by the taxing authority of any jurisdiction, and the officers or
partners of such Person know of no basis for any such claim.
Section 6.11 No Event of Default. No Default or Event of Default
has occurred and is continuing.
Section 6.12 Holding Company and Investment Company Acts. None of
the Borrower, the Guarantors or any of their respective Subsidiaries is a
"holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company", as such terms are defined in the Public
Utility Holding Company Act of 1935; nor is any of them an "investment company",
or an "affiliated company" or a "principal underwriter" of an "investment
company", as such terms are defined in the Investment Company Act of 1940.
Section 6.13 Absence of UCC Financing Statements, Etc. Except with
respect to Permitted Liens or as disclosed on the lien search reports delivered
to and approved by the Agent, there is
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no financing statement (but excluding any financing statements that may be filed
against Borrower, any Guarantor or their respective Subsidiaries without the
consent or agreement of such Persons), security agreement, chattel mortgage,
real estate mortgage or other document filed or recorded with any applicable
filing records, registry, or other public office, that purports to cover, affect
or give notice of any present or possible future lien on, or security interest
or security title in, any property of the Borrower, any Guarantor or their
respective Subsidiaries or rights thereunder.
Section 6.14 [Intentionally Omitted].
Section 6.15 Certain Transactions. Except as disclosed on Schedule
6.15 hereto, none of the partners, officers, trustees, managers, members,
directors, or employees of the Borrower, any Guarantor or any of their
respective Subsidiaries is a party to any material agreement with the Borrower,
any Guarantor or any of their respective Subsidiaries (other than for services
as partners, managers, members, employees, officers and directors), including
any such agreement providing for the furnishing of services to or by, providing
for rental of real or personal property to or from, or otherwise requiring
payments to or from any partner, officer, trustee, director or such employee or,
to the knowledge of the Borrower, any corporation, partnership, trust or other
entity in which any partner, officer, trustee, director, or any such employee
has a substantial interest or is an officer, director, trustee or partner, which
are on terms less favorable to the Borrower, a Guarantor or any of their
respective Subsidiaries than those that would be obtained in a comparable
arms-length transaction.
Section 6.16 Employee Benefit Plans. The Borrower, each Guarantor
and each ERISA Affiliate has fulfilled its obligation, if any, under the minimum
funding standards of ERISA and the Code with respect to each Employee Benefit
Plan, Multiemployer Plan or Guaranteed Pension Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the Code
with respect to each Employee Benefit Plan, Multiemployer Plan or Guaranteed
Pension Plan. Neither the Borrower, any Guarantor nor any ERISA Affiliate has
(a) sought a waiver of the minimum funding standard under Section 412 of the
Code in respect of any Employee Benefit Plan, Multiemployer Plan or Guaranteed
Pension Plan, (b) failed to make any contribution or payment to any Employee
Benefit Plan, Multiemployer Plan or Guaranteed Pension Plan, or made any
amendment to any Employee Benefit Plan, Multiemployer Plan or Guaranteed Pension
Plan, which has resulted or could result in the imposition of a Lien or the
posting of a bond or other security under ERISA or the Code, or (c) incurred any
liability under Title IV of ERISA other than a liability to the PBGC for
premiums under Section 4007 of ERISA.
Section 6.17 Disclosure. All of the representations and warranties
made by or on behalf of the Borrower, the Guarantors and their respective
Subsidiaries in this Agreement and the other Loan Documents or any document or
instrument delivered to the Agent or the Lenders pursuant to or in connection
with any of such Loan Documents are true and correct in all material respects,
and neither the Borrower nor any Guarantor has failed to disclose such
information as is necessary to make such representations and warranties not
misleading. There is no material fact or circumstance that has not been
disclosed to the Agent and the Lenders, and the written information, reports and
other papers and data with respect to the Borrower, any Subsidiary, any
Guarantor or the properties thereof (other than projections and estimates)
furnished to the Agent or the Lenders in connection with this Agreement or the
obtaining of the Commitments of the
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Lenders hereunder was, at the time so furnished, complete and correct in all
material respects, or has been subsequently supplemented by other written
information, reports or other papers or data, to the extent necessary to give in
all material respects a true and accurate knowledge of the subject matter in all
material respects; provided that such representation shall not apply to (a) the
accuracy of any engineering and environmental reports prepared by third parties
or legal conclusions or analysis provided by the Borrower's and/or Guarantors'
counsel (although the Borrower and the Guarantors have no reason to believe that
the Agent and the Lenders may not rely on the accuracy thereof) or (b) budgets,
projections and other forward-looking speculative information prepared in good
faith by the Borrower (except to the extent the related assumptions were when
made manifestly unreasonable).
Section 6.18 Trade Name; Place of Business. Neither the Borrower
nor any Guarantor uses any trade name and conducts business under any name other
than its actual name set forth in the Loan Documents. The principal place of
business of each of the Borrower and each Guarantor is ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
Section 6.19 Regulations T, U and X. No portion of any Loan is to
be used for the purpose of purchasing or carrying any "margin security" or
"margin stock" as such terms are used in Regulations T, U and X of the Board of
Governors of the Federal Reserve System, 12 C.F.R. Parts 220, 221 and 224.
Neither the Borrower nor any Guarantor is engaged, nor will it engage,
principally or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any "margin security" or
"margin stock" as such terms are used in Regulations T, U and X of the Board of
Governors of the Federal Reserve System, 12 C.F.R. Parts 220, 221 and 224.
Section 6.20 Environmental Compliance. The Borrower has taken all
commercially reasonable steps to investigate the past and present conditions and
usage of the Real Estate and the operations conducted thereon and, except as
specifically set forth in the written environmental site assessment reports of
the Environmental Engineer provided to the Agent on or before the date hereof,
or in the case of Real Estate acquired after the date hereof, the environmental
site assessment reports with respect thereto provided to the Agent, makes the
following representations and warranties:
(a) Neither the Borrower, any Guarantor, their
respective Subsidiaries nor to the best knowledge and belief of Borrower any
operator of the Real Estate, nor any operations thereon, is in violation, or
alleged violation, of any judgment, decree, order, law, license, rule or
regulation pertaining to environmental matters, including without limitation,
those arising under the Resource Conservation and Recovery Act ("RCRA"), the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 as
amended ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986
("▇▇▇▇"), the Federal Clean Water Act, the Federal Clean Air Act, the Toxic
Substances Control Act, or any state or local statute, regulation, ordinance,
order or decree relating to the environment (hereinafter "Environmental Laws"),
which violation involves Real Estate and would have a Material Adverse Effect.
(b) Neither the Borrower, any Guarantor nor any
of their respective Subsidiaries has received notice from any third party
including, without limitation, any federal, state or local governmental
authority, (i) that it has been identified by the United States
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Environmental Protection Agency ("EPA") as a potentially responsible party under
CERCLA with respect to a site listed on the National Priorities List, 40 C.F.R.
Part ▇▇▇ ▇▇▇▇▇▇▇▇ ▇ (1986); (ii) that any hazardous waste, as defined by 42
U.S.C. Section 9601(5), any hazardous substances as defined by 42 U.S.C. Section
9601(14), any pollutant or contaminant as defined by 42 U.S.C. Section 9601(33)
or any toxic substances, oil or hazardous materials or other chemicals or
substances regulated by any Environmental Laws ("Hazardous Substances") which it
has generated, transported or disposed of have been found at any site at which a
federal, state or local agency or other third party has conducted or has ordered
that the Borrower, any Guarantor or any of their respective Subsidiaries conduct
a remedial investigation, removal or other response action pursuant to any
Environmental Law; or (iii) that it is or shall be a named party to any claim,
action, cause of action, complaint, or legal or administrative proceeding (in
each case, contingent or otherwise) arising out of any third party's incurrence
of costs, expenses, losses or damages of any kind whatsoever in connection with
the release of Hazardous Substances.
(c) (i) No portion of the Real Estate has been
used for the handling, processing, storage or disposal of Hazardous Substances
except in accordance with applicable Environmental Laws, and no underground tank
or other underground storage receptacle for Hazardous Substances is located on
any portion of the Real Estate except those which are being operated and
maintained in compliance with Environmental Laws; (ii) in the course of any
activities conducted by the Borrower, any Guarantor, their respective
Subsidiaries or, to the best knowledge and belief of the Borrower, the operators
of their properties, no Hazardous Substances have been generated or are being
used on the Real Estate except in the ordinary course of business and in
accordance with applicable Environmental Laws; (iii) there has been no past or
present releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, disposing or dumping (other than the storing
of materials in reasonable quantities to the extent necessary for the operation
of an office building or retail establishment in the ordinary course of
business, and in any event in compliance with all Environmental Laws) (a
"Release") or threatened Release of Hazardous Substances on, upon, into or from
any Real Estate, which Release could have a Material Adverse Effect; (iv) except
as set forth on Schedule 6.20 hereto, there have been no Releases on, upon, from
or into any real property in the vicinity of any of the Real Estate which,
through soil or groundwater contamination, may have come to be located on, and
which would have a material adverse effect on the value of, the Real Estate; and
(v) any Hazardous Substances that have been generated on any of the Real Estate
have been transported off-site in accordance with all applicable Environmental
Laws. The representation set forth in this Section 6.20(c) with respect to
activities of lessees and other third parties unrelated to Borrower or any
Guarantor shall be limited to the best knowledge and belief of the Borrower.
(d) None of the Borrower, any Guarantor, their
respective Subsidiaries nor the Real Estate is subject to any applicable
Environmental Law requiring the performance of Hazardous Substances site
assessments, or the removal or remediation of Hazardous Substances, or the
giving of notice to any governmental agency or the recording or delivery to
other Persons of an environmental disclosure document or statement in each case
by virtue of the transactions set forth herein and contemplated hereby, or as a
condition to the effectiveness of any other transactions contemplated hereby
except for such matters that shall be complied with as of the Closing Date.
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(e) There are no existing or closed sanitary
landfills, solid waste disposal sites, or hazardous waste treatment, storage or
disposal facilities on or affecting the Real Estate.
(f) There has been no claim by any party that
any use, operation, or condition of the Real Estate has caused any nuisance or
any other liability or adverse condition on any other property which could
reasonably be expected to have a Material Adverse Effect, nor is there any
knowledge of any basis for such a claim.
(g) In the event that any event or circumstance
described in Section 6.20 shall occur with respect to any Real Estate of
Borrower, Guarantor or their respective Subsidiaries after the date hereof that
Borrower is permitted to address pursuant to Section 8.6, such event or
circumstance shall not constitute a misrepresentation of Borrower at any time
the representations and warranties under this Section 6.20 are repeated or
deemed repeated.
Section 6.21 Subsidiaries. Schedule 6.21(a) sets forth, as of the
date hereof, all of the Subsidiaries of the Borrower and the Guarantors, the
form and jurisdiction of organization of each of the Subsidiaries, and the
owners of the direct and indirect ownership interests therein. Schedule 6.21(b)
sets forth, as of the date hereof, all of the Affiliates of the Borrower and its
Subsidiaries that are not also Subsidiaries, the form and jurisdiction of
organization of each of the Affiliates, the Borrower's or its Subsidiary's
ownership interest therein and the other owners of the applicable Affiliates. No
Person owns any legal, equitable or beneficial interest in any of the Persons
set forth on Schedules 6.21(a) and 6.21(b) except as set forth on such
Schedules.
Section 6.22 [Intentionally Omitted].
Section 6.23 Property. All of the Real Estate of the Borrower,
Guarantors and their respective Subsidiaries is in good condition and working
order subject to ordinary wear and tear and casualty and condemnation permitted
in the Loan Documents, except for such portion of such Real Estate which is not
occupied by any tenant and where such failure would not have a Material Adverse
Effect. Such Real Estate, and the use and operation thereof, is in material
compliance with all applicable zoning, building codes and other applicable
governmental regulations. There are no unpaid or outstanding real estate or
other taxes or assessments on or against any Real Estate which are payable by
the Borrower or any Guarantor (except only real estate or other taxes or
assessments, that are not yet delinquent or are being protested as permitted by
this Agreement). There are no unpaid or outstanding real estate or other taxes
or assessments on or against any other property of the Borrower, the Guarantors
or any of their respective Subsidiaries which are payable by any of such Persons
in any material amount (except only real estate or other taxes or assessments,
that are not yet delinquent or are being protested as permitted by this
Agreement). There are no pending eminent domain proceedings against any property
of the Borrower, the Guarantors or their respective Subsidiaries or any part
thereof, and, to the knowledge of the Borrower, no such proceedings are
presently threatened or contemplated by any taking authority which may
individually or in the aggregate have any Material Adverse Effect. None of the
property of the Borrower, the Guarantors or their respective Subsidiaries is now
damaged as a result of any fire, explosion, accident, flood or other casualty in
any manner which individually or in the aggregate would have any Material
Adverse Effect.
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Section 6.24 Brokers. Neither the Borrower, any Guarantor nor any
of their respective Subsidiaries has engaged or otherwise dealt with any broker,
finder or similar entity in connection with this Agreement or the Loans
contemplated hereunder.
Section 6.25 Other Debt. Neither the Borrower, any Guarantor nor
any of their respective Subsidiaries is in default of the payment of any
Indebtedness in an amount equal to or greater than $1,000,000.00 or the
performance of any related agreement, mortgage, deed of trust, security
agreement, financing agreement, indenture or lease to which any of them is a
party. Neither the Borrower nor any Guarantor is a party to or bound by any
agreement, instrument or indenture that may require the subordination in right
or time or payment of any of the Obligations to any other indebtedness or
obligation of the Borrower or any Guarantor. Schedule 6.25 hereto sets forth all
agreements, mortgages, deeds of trust, financing agreements or other material
agreements binding upon the Borrower and each Guarantor or their respective
properties and entered into by the Borrower and/or such Guarantor as of the date
of this Agreement with respect to any Indebtedness of the Borrower or any
Guarantor in an amount equal to or greater than $1,000,000.00, and the Borrower
has provided the Agent with true, correct and complete copies thereof.
Section 6.26 Solvency. As of the Closing Date and after giving
effect to the transactions contemplated by this Agreement and the other Loan
Documents, including all Loans made or to be made hereunder, neither the
Borrower nor any Guarantor is insolvent on a balance sheet basis such that the
sum of such Person's assets exceeds the sum of such Person's liabilities, the
Borrower and each Guarantor is able to pay its debts as they become due, and the
Borrower and each Guarantor has sufficient capital to carry on its business.
Section 6.27 No Bankruptcy Filing. None of the Borrower or any
Guarantor is contemplating either the filing of a petition by it under any state
or federal bankruptcy or insolvency laws or the liquidation of its assets or
property, and the Borrower has no knowledge of any Person contemplating the
filing of any such petition against it or any Guarantor.
Section 6.28 No Fraudulent Intent. Neither the execution and
delivery of this Agreement or any of the other Loan Documents nor the
performance of any actions required hereunder or thereunder is being undertaken
by the Borrower or any Guarantor or any of their respective Subsidiaries with or
as a result of any actual intent by any of such Persons to hinder, delay or
defraud any entity to which any of such Persons is now or will hereafter become
indebted.
Section 6.29 Transaction in Best Interests of Borrower;
Consideration. The transaction evidenced by this Agreement and the other Loan
Documents is in the best interests of the Borrower, each Guarantor, their
respective Subsidiaries and the creditors of such Persons. The direct and
indirect benefits to inure to the Borrower, their respective Subsidiaries, the
Guarantors and their respective Subsidiaries pursuant to this Agreement and the
other Loan Documents constitute substantially more than "reasonably equivalent
value" (as such term is used in Section 548 of the Bankruptcy Code) and
"valuable consideration," "fair value," and "fair consideration," (as such terms
are used in any applicable state fraudulent conveyance law), in exchange for the
benefits to be provided by the Borrower, the Guarantors and their respective
Subsidiaries pursuant to this Agreement and the other Loan Documents, and but
for the willingness of each Guarantor to guaranty the Loan, the Borrower would
be unable to obtain the financing
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contemplated hereunder which financing will enable the Borrower, each Guarantor
and their respective Subsidiaries to have available financing to conduct and
expand their business.
Section 6.30 Contribution Agreement. The Borrower and the
Guarantors have executed and delivered the Contribution Agreement, and the
Contribution Agreement constitutes the valid and legally binding obligations of
such parties enforceable against them in accordance with the terms and
provisions thereof, except as enforceability is limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or affecting
generally the enforcement of creditors' rights and except to the extent that
availability of the remedy of specific performance or injunctive relief is
subject to the discretion of the court before which any proceeding therefor may
be brought.
Section 6.31 [Intentionally Omitted].
Section 6.32 Transaction Documents. Borrower has delivered to
Agent true, correct and complete copies of all agreements relating to the
Transaction.
Section 7. AFFIRMATIVE COVENANTS.
The Borrower covenants and agrees that, so long as any Loan or
Note is outstanding or any Lender has any obligation to make any Loan:
Section 7.1 Punctual Payment. The Borrower will duly and
punctually pay or cause to be paid the principal and interest on the Loans and
all interest and fees provided for in this Agreement, all in accordance with the
terms of this Agreement and the Notes, as well as all other sums owing pursuant
to the Loan Documents.
Section 7.2 Maintenance of Office. The Borrower and each
Guarantor will maintain its respective chief executive office at ▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place in
the United States of America as the Borrower or any Guarantor shall designate
upon thirty (30) days prior written notice to the Agent and the Lenders, where
notices, presentations and demands to or upon the Borrower or such Guarantor in
respect of the Loan Documents may be given or made.
Section 7.3 Records and Accounts. The Borrower and each Guarantor
will (a) keep, and cause each of their respective Subsidiaries to keep, proper
records and books of account in which true and correct entries will be made in
accordance with GAAP and (b) maintain adequate accounts and reserves for all
taxes (including income taxes), depreciation and amortization of its properties
and the properties of their respective Subsidiaries, contingencies and other
reserves. Neither the Borrower, any Guarantor nor any of their respective
Subsidiaries shall, without the prior written consent of the Required Lenders,
(x) make any material change to the accounting procedures used by such Person in
preparing the financial statements and other information described in Section
6.4 or Section 7.4, or (y) change its fiscal year.
Section 7.4 Financial Statements, Certificates and Information.
Borrower will deliver or cause to be delivered to the Agent with sufficient
copies for each of the Lenders:
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(a) as soon as practicable, but in any event not
later than ninety (90) days after the end of each fiscal year of Borrower, the
audited consolidated balance sheet of Borrower and its Subsidiaries at the end
of such year, and the related audited consolidated statements of income, changes
in capital and cash flows for such year, each setting forth in comparative form
the figures for the previous fiscal year and all such statements to be in
reasonable detail, prepared in accordance with GAAP, and accompanied by an
auditor's report prepared without qualification as to the scope of the audit by
a nationally recognized accounting firm reasonably approved by Agent (the
foregoing may be satisfied by delivery of the Form 10-K of the Borrower filed
with the SEC), and any other information the Lenders may reasonably request to
complete a financial analysis of the Borrower and its Subsidiaries, together
with a written statement from such accountants to the effect that they have read
this Agreement, and that, in making the examination necessary to said
certification, they have obtained no knowledge of any Default or Event of
Default, or, if such accountants shall have obtained knowledge of any Default or
Event of Default they shall disclose in such statement any such Default or Event
of Default;
(b) as soon as practicable, but in any event not
later than forty-five (45) days after the end of each of the first three fiscal
quarters of Borrower, copies of the unaudited consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such quarter, and the related
unaudited consolidated statements of income and cash flows for the portion of
Borrower's fiscal year then elapsed, all in reasonable detail and prepared in
accordance with GAAP (the foregoing may be satisfied by delivery of the Form
10-Q of the Borrower filed with the SEC), together with a certification by the
chief financial officer or accounting officer of Borrower that the information
contained in such financial statements fairly presents the financial position of
the Borrower and its Subsidiaries on the date thereof (subject to year-end
adjustments);
(c) simultaneously with the delivery of the
financial statements referred to in subsections (a) and (b) above, a statement
(a "Compliance Certificate") certified by the chief financial officer or chief
accounting officer of Borrower in the form of Exhibit K hereto (or in such other
form as the Agent may approve from time to time) setting forth in reasonable
detail computations evidencing compliance or non-compliance (as the case may be)
with the covenants contained in Section 9 and the other covenants described in
such certificate and (if applicable) setting forth reconciliations to reflect
changes in GAAP since the Balance Sheet Date. All income, expense and value
associated with Real Estate or other Investments disposed of during any quarter
will be eliminated from calculations, where applicable.
(d) contemporaneously with the delivery of the
financial statements referred to in clause (a) above, the statement of all
contingent liabilities involving amounts of $1,000,000.00 or more of the
Borrower and its Subsidiaries which are not reflected in such financial
statements or referred to in the notes thereto (including, without limitation,
all guaranties, endorsements and other contingent obligations in respect of the
indebtedness of others, and obligations to reimburse the issuer in respect of
any letters of credit);
(e) [Intentionally omitted];
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(f) simultaneously with the delivery of the
financial statement referred to in subsections (a) and (b) above, a supplemental
investor package containing financial and statistical information related to the
applicable quarter in the form delivered to the Agent prior to the Closing Date,
together with a statement of sources and uses of funds with respect to
properties under development;
(g) contemporaneously with the filing or mailing
thereof, copies of all material of a financial nature, reports or proxy
statements sent to the shareholders of the Borrower;
(h) promptly after they are filed with the
Internal Revenue Service, copies of all annual federal income tax returns and
amendments thereto of the Borrower and each Guarantor;
(i) promptly upon the filing hereof, 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 file with the SEC;
(j) not later than five (5) Business Days after
the Borrower receives notice of the same from any of the Rating Agencies or
otherwise learns of the same, notice of the issuance of any change in the Rating
by any of the Rating Agencies in respect of the Borrower or any debt of the
Borrower (including any change in the Rating), together with the details
thereof, and of any announcement by any of the Rating Agencies that any such
Rating is "under review" or that any such Rating has been placed on a watch list
or that any similar action has been taken by any of the Rating Agencies;
(k) intentionally omitted;
(l) not later than November 15 of each year, the
cash flow projections for the Borrower and its Subsidiaries for the next three
(3) years; and
(m) from time to time such other financial data
and information in the possession of the Borrower, each Guarantor or their
respective Subsidiaries (including without limitation auditors' management
letters, status of litigation or investigations against the Borrower and any
settlement discussions relating thereto, property inspection and environmental
reports and information as to zoning and other legal and regulatory changes
affecting the Borrower or any Guarantor) as the Agent may reasonably request.
Information concerning such litigation or settlement discussions shall not
include attorney-client privileged communications, but shall otherwise include
information which may be confidential or subject to a work-product privilege so
that the Agent and the Lenders receive the same level of disclosure from the
Borrower with respect to such matters as has been made prior to the Closing
Date.
Section 7.5 Notices.
(a) Defaults. The Borrower will immediately upon
becoming aware of same notify the Agent in writing of the occurrence of any
Default or Event of Default, which notice shall describe such occurrence with
reasonable specificity and shall state that such notice is a "notice of
default". If any Person shall give any notice or take any other action in
respect of a
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claimed default (whether or not constituting an Event of Default) under this
Agreement or under any note, evidence of indebtedness, indenture or other
obligation to which or with respect to which the Borrower, any Guarantor or any
of their respective Subsidiaries is a party or obligor, whether as principal or
surety, and such default would permit the holder of such note or obligation or
other evidence of indebtedness to accelerate the maturity thereof, which
acceleration would either cause a Default or have a Material Adverse Effect, the
Borrower shall forthwith give written notice thereof to the Agent and each of
the Lenders, describing the notice or action and the nature of the claimed
default.
(b) Environmental Events. The Borrower will give
notice to the Agent within five (5) Business Days of becoming aware of (i) any
potential or known Release, or threat of Release, of any Hazardous Substances in
an amount that may be required to be contained, removed or otherwise remediated
at or from any Real Estate; (ii) any violation of any Environmental Law that the
Borrower, any Guarantor or any of their respective Subsidiaries reports in
writing or is reportable by such Person in writing (or for which any written
report supplemental to any oral report is made) to any federal, state or local
environmental agency or (iii) any inquiry, proceeding, investigation, or other
action, including a notice from any agency of potential environmental liability,
of any federal, state or local environmental agency or board, that in either
case involves Real Estate and could reasonably be expected to have a Material
Adverse Effect.
(c) [Intentionally Omitted].
(d) Notice of Litigation and Judgments. The
Borrower will give notice to the Agent in writing within five (5) Business Days
of becoming aware of any litigation or proceedings threatened in writing or any
pending litigation and proceedings affecting the Borrower, any Guarantor or any
of their respective Subsidiaries or to which the Borrower, any Guarantor or any
of their respective Subsidiaries is or is to become a party involving an
uninsured claim against any of the Borrower, any Guarantor or any of their
respective Subsidiaries that could reasonably be expected to have a Material
Adverse Effect and stating the nature and status of such litigation or
proceedings. The Borrower and each Guarantor will give notice to the Agent, in
writing, in form and detail reasonably satisfactory to the Agent and each of the
Lenders, within ten days of any judgment not covered by insurance, whether final
or otherwise, against any of the Borrower, any Guarantor or any of their
respective Subsidiaries in an amount in excess of $1,000,000.
(e) Notice of Proposed Sales, Encumbrances,
Refinance or Transfer of Real Estate. The Borrower will give notice to the Agent
of any completed sale, encumbrance, refinance or transfer of any Real Estate or
other Investments of the type described in Section 8.3(i) of the Borrower, any
Guarantor or their respective Subsidiaries within any fiscal quarter of
Borrower, such notice to be submitted together with the Compliance Certificate
provided or required to be provided to the Agent and the Lenders under Section
7.4 with respect to such fiscal quarter. The Compliance Certificate shall with
respect to any completed sale, encumbrance, refinance or transfer be adjusted in
the best good faith estimate of Borrower to give effect to such sale,
encumbrance, refinance or transfer and demonstrate that no Default or Event of
Default with respect to the covenants referred to therein shall exist after
giving effect to such sale, encumbrance, refinance or transfer. Notwithstanding
the foregoing, in the event of any sale,
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encumbrance, refinance or transfer of any Real Estate or other Investment of the
type described in Section 8.3(i) involving Real Estate or such other Investment
in an amount in excess of $50,000,000.00, the Borrower shall promptly give
notice to the Agent of such transaction, which notice shall be accompanied by a
Compliance Certificate prepared using the financial statements of Borrower most
recently provided or required to be provided to the Agent and the Lenders under
Section 6.4 or Section 7.4, adjusted as provided in this paragraph.
(f) ERISA. The Borrower will give notice to the
Agent within five (5) Business Days after the Borrower or any ERISA Affiliate
(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 Guaranteed Pension
Plan, Multiemployer Plan or Employee Benefit Plan, or knows that the plan
administrator of any such plan has given or is required to give notice of any
such reportable event; (ii) gives a copy of any notice of complete or partial
withdrawal liability under Title IV of ERISA; or (iii) receives any notice from
the PBGC under Title IV or ERISA of an intent to terminate or appoint a trustee
to administer any such plan.
(g) Notification of Lenders. Within five (5)
Business Days after receiving any notice under this Section 7.5, the Agent will
forward a copy thereof to each of the Lenders, together with copies of any
certificates or other written information that accompanied such notice.
(h) Notice of Designation of Additional Existing
Properties Under Construction. At any time prior to March 14, 2003, Borrower may
deliver to Agent written notice that an Existing Pre-Development Property or
Announced Project has become part of the Existing Properties Under Construction.
No such designation as to an Existing Pre-Development Property may be made
unless Borrower delivers to Agent reasonably satisfactory evidence to Agent that
Borrower or its Subsidiary has acquired such land, has with respect to such
property entered into a lease or commitment letter with an anchor tenant
consistent with anchors of the other retail shopping centers of Borrower and its
Subsidiaries (or, consistent with Borrower's business strategy prior to the date
hereof, if such project does not contemplate the inclusion of an anchor tenant,
Borrower delivers evidence to the reasonable satisfaction of Agent that
construction activities should commence), and construction of above-ground
improvements (not including infrastructure or other site improvements) has
begun. Upon satisfaction of the foregoing conditions prior to March 14, 2003, a
property that is one of the Existing Pre-Development Properties will become one
of the Existing Properties Under Construction, and Agent may unilaterally amend
Schedule 2.9(b) to reflect such addition. In addition, no such designation as to
an Announced Project may be made unless Borrower delivers to Agent reasonably
satisfactory evidence to Agent that Borrower or its Subsidiary has with respect
to such property entered into a lease or commitment letter with an anchor tenant
consistent with anchors of the other retail shopping centers of Borrower and its
Subsidiaries (or, consistent with Borrower's business strategy prior to the date
hereof, if such project does not contemplate the inclusion of an anchor tenant,
Borrower delivers evidence to the reasonable satisfaction of Agent that
construction activities should commence). Upon satisfaction of the foregoing
condition prior to March 14, 2003, a property that is one of the Announced
Projects will become one of the Existing Properties Under Construction, and
Agent may unilaterally amend Schedule 2.9(b) to reflect such addition. No
property may be added to Existing Properties Under Construction on or after
March 14, 2003 without the consent of the Required Lenders.
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Section 7.6 Existence; Maintenance of Properties.
(a) The Borrower will preserve and keep in full
force and effect its existence as a Maryland corporation. Each Guarantor will
preserve and keep in full force and effect its legal existence in the
jurisdiction of its incorporation or formation. The Borrower and each Guarantor
will cause each of their respective Subsidiaries to preserve and keep in full
force and effect their legal existence in the jurisdiction of its incorporation
or formation. The Borrower will preserve and keep in full force all of its
rights and franchises and those of its Subsidiaries, the preservation of which
is necessary to the conduct of their business. Borrower shall at all times
comply with all requirements and applicable laws and regulations necessary to
maintain REIT status. The common stock of Borrower shall at all times be listed
for trading and be traded on the New York Stock Exchange (NYSE), unless
otherwise consented to by the Required Lenders. The Borrower shall continue to
own directly or indirectly one hundred percent (100%) of the Guarantors.
(b) The Borrower (i) will cause all of its
properties and those of its Subsidiaries used or useful in the conduct of its
business or the business of its Subsidiaries to be maintained and kept in good
condition, repair and working order (ordinary wear and tear excepted) and
supplied with all necessary equipment, and (ii) will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof
in all cases in which the failure so to do would cause a Material Adverse
Effect.
Section 7.7 Insurance.
(a) The Borrower will procure and maintain or
cause to be procured and maintained insurance covering the Borrower and the
Guarantors and their respective Subsidiaries, and their respective properties
(the cost of such insurance to be borne by the insured thereunder) with
financially sound and reputable insurers (or self-insurance provided by
creditworthy tenants) in such amounts and against such risks and casualties as
are customary for properties of similar character and location, due regard being
given to the type of improvements thereon, their construction, location, use and
occupancy.
(b) The Borrower or the applicable Guarantor
shall pay all premiums on insurance policies.
Section 7.8 Taxes; Liens. The Borrower and the Guarantors will,
and will cause their respective Subsidiaries to, duly pay and discharge, or
cause to be paid and discharged, before the same shall become delinquent, all
taxes, assessments and other governmental charges imposed upon them or upon the
Real Estate, sales and activities, or any part thereof, or upon the income or
profits therefrom as well as all claims for labor, materials or supplies that if
unpaid might by law become a lien or charge upon any of its property or other
Liens affecting any other property of Borrower, the Guarantors or their
respective Subsidiaries, provided that any such tax, assessment, charge or levy
or claim need not be paid if the validity or amount thereof shall currently be
contested in good faith by appropriate proceedings which shall suspend the
collection thereof with respect to such property, neither such property nor any
portion thereof or interest therein would be in any danger of sale, forfeiture
or loss by reason of such proceeding and the Borrower, any such Guarantor or any
such Subsidiary shall have set aside on its books
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adequate reserves in accordance with GAAP; and provided, further, that forthwith
upon the commencement of proceedings to foreclose any lien that may have
attached as security therefor, the Borrower, any such Guarantor or any such
Subsidiary either (i) will provide a bond issued by a surety reasonably
acceptable to the Agent and sufficient to stay all such proceedings or (ii) if
no such bond is provided, will pay each such tax, assessment, charge or levy.
Section 7.9 Inspection of Properties and Books. The Borrower and
the Guarantors will, and will cause their respective Subsidiaries to, permit the
Lenders, through the Agent or any representative designated by the Agent, at the
Borrower's expense and upon reasonable prior notice, to visit and inspect any of
the properties of the Borrower, each Guarantor or any of their respective
Subsidiaries, to examine the books of account of the Borrower, each Guarantor
and their respective Subsidiaries (and to make copies thereof and extracts
therefrom) and to discuss the affairs, finances and accounts of the Borrower,
any Guarantor and their respective Subsidiaries with, and to be advised as to
the same by, their respective officers, all at such reasonable times and
intervals as the Agent or any Lender may reasonably request, provided that so
long as no Default or Event of Default shall have occurred and be continuing,
the Borrower shall not be required to pay for such visits and inspections more
often than once in any twelve (12) month period. The Lenders shall use good
faith efforts to coordinate such visits and inspections so as to minimize the
interference with and disruption to the normal business operations of the
Borrower, the Guarantors and their respective Subsidiaries.
Section 7.10 Compliance with Laws, Contracts, Licenses, and
Permits. The Borrower and the Guarantors will, and will cause each of their
respective Subsidiaries to, comply in all respects with (i) all applicable laws
and regulations now or hereafter in effect wherever its business is conducted,
including all Environmental Laws, (ii) the provisions of its corporate charter,
partnership agreement, limited liability company agreement or declaration of
trust, as the case may be, and other charter documents and bylaws, (iii) all
agreements and instruments to which it is a party or by which it or any of its
properties may be bound, (iv) all applicable decrees, orders, and judgments, and
(v) all licenses and permits required by applicable laws and regulations for the
conduct of its business or the ownership, use or operation of its properties,
except where a failure to so comply with any of clauses (i) through (v) would
not have a Material Adverse Effect. If any authorization, consent, approval,
permit or license from any officer, agency or instrumentality of any government
shall become necessary or required in order that the Borrower, any Guarantor or
their respective Subsidiaries may fulfill any of its obligations hereunder, the
Borrower, such Guarantor or such Subsidiary will immediately take or cause to be
taken all steps necessary to obtain such authorization, consent, approval,
permit or license and furnish the Agent and the Lenders with evidence thereof.
Borrower shall develop and implement such programs, policies and procedures as
are necessary to comply with the USA Patriot Act and shall promptly advise Agent
in writing in the event that Borrower shall determine that any investors in
Borrower are in violation of such act.
Section 7.11 Further Assurances. The Borrower and each Guarantor
will and will cause each of their respective Subsidiaries to, cooperate with the
Agent and the Lenders and execute such further instruments and documents as the
Lenders or the Agent shall reasonably request to carry out to their satisfaction
the transactions contemplated by this Agreement and the other Loan Documents.
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Section 7.12 [Intentionally Omitted].
Section 7.13 [Intentionally Omitted].
Section 7.14 Business Operations. The Borrower, the Guarantors and
their respective Subsidiaries shall operate their respective businesses in
substantially the same manner and in substantially the same fields and lines of
business as such business is now conducted and in compliance with the terms and
conditions of this Agreement and the Loan Documents.
Section 7.15 [Intentionally Omitted].
Section 7.16 Ownership of Real Estate. Without the prior written
consent of Agent, all Real Estate and all interests (whether direct or indirect)
of the Borrower, the Guarantors and any of their respective Subsidiaries in
income-producing real estate assets now owned or leased or acquired or leased
after the date hereof shall be owned or leased directly by the Borrower;
provided, however that (i) subject to the restrictions contained in Section 8.3,
the Borrower shall be permitted to own or lease interests in Real Estate
together with other third party joint venture partners; (ii) any Subsidiary may
acquire Real Estate in a like-kind exchange of Real Estate of such Person; (iii)
Real Estate may be owned by Subsidiaries of the Borrower as permitted in Section
8.13 or with respect to development permitted pursuant to Section 8.9; and (iv)
a Subsidiary of the Borrower which has developed income-producing real estate
may continue to own such property provided that the owner thereof is a
Guarantor.
Section 7.17 Distributions of Income to the Borrower. The Borrower
shall cause all of its Subsidiaries to promptly distribute to the Borrower (but
not less frequently than once each fiscal quarter of the Borrower, unless
otherwise approved by the Agent), whether in the form of dividends,
distributions or otherwise, all profits, proceeds or other income relating to or
arising from its Subsidiaries' use, operation, financing, refinancing, sale or
other disposition of their respective assets and properties after (a) the
payment by each Subsidiary of its debt service and operating expenses for such
quarter and (b) the establishment of reasonable reserves for the payment of
operating expenses not paid on at least a quarterly basis and capital
improvements to be made to such Subsidiary's assets and properties approved by
such Subsidiary in the ordinary course of business consistent with its past
practices.
Section 7.18 Limiting Agreements. Should the Borrower, the
Guarantors or any of their respective Subsidiaries enter into or modify any
agreements or documents pertaining to any existing or future Indebtedness or
Debt Offering providing for Indebtedness in excess of $500,000.00 or any Equity
Offering, which agreements or documents include covenants, whether affirmative
or negative, or any other provision which may have the same practical effect as
any of the foregoing, which are individually or in the aggregate more
restrictive against the Borrower, the Guarantors or their respective
Subsidiaries than those set forth in Articles 8 or 9 of this Agreement, the
Borrower shall promptly notify the Agent and, if requested by the Agent or the
Required Lenders, the Borrower, the Agent, and the Lenders shall promptly amend
this Agreement and the other Loan Documents to include some or all of such more
restrictive provisions as determined by the Agent or the Required Lenders in
their sole discretion, and the Borrower shall cause the Guarantors to consent to
such amendment. The Borrower agrees to deliver to the Agent copies of any
agreements or documents (or modifications thereof) pertaining
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to existing or future Indebtedness, Debt Offering or Equity Offering from the
Borrower, the Guarantors or any of their respective Subsidiaries as the Agent
from time to time may request. Notwithstanding the foregoing, this Section 7.18
shall not apply to covenants (whether affirmative or negative), warranties,
defaults or events of default (or any other provision which may have the same
practical effect as any of the foregoing) contained in any agreements or
documents evidencing or securing Indebtedness that relate only to specific Real
Estate that is collateral for such Indebtedness.
Section 7.19 [Intentionally Omitted].
Section 7.20 [Intentionally Omitted].
Section 7.21 Master Credit Agreement. Borrower shall perform all
of its covenants under the Master Credit Agreement and any and all "Loan
Documents" (as defined therein), and shall not permit the occurrence of an
"Event of Default" thereunder. Borrower shall at all times maintain an amount of
availability under the Master Credit Agreement not less than the Master Credit
Agreement Maturing Notes Contribution and shall not terminate the Master Credit
Agreement or any "Loan Documents" (as defined therein). In the event that the
Maturing Notes come due on March 31, 2003, then on or before March 28, 2003, the
Borrower shall draw and cause to be funded from the Master Credit Agreement, an
amount equal to the Master Credit Agreement Maturing Notes Contribution. Such
proceeds shall be used solely to pay the Maturing Notes on or before March 31,
2003. Borrower shall cause the Maturing Notes to be paid in full on or before
March 31, 2003 in the event that the Maturing Notes mature or otherwise come due
on March 31, 2003.
Section 8. NEGATIVE COVENANTS.
The Borrower covenants and agrees that, so long as any Loan or Note
is outstanding or any of the Lenders has any obligation to make any Loans:
Section 8.1 Restrictions on Indebtedness. The Borrower will not,
and will not permit its respective Subsidiaries to, create, incur, assume,
guarantee or be or remain liable, contingently or otherwise, with respect to any
Indebtedness other than:
(a) Indebtedness to the Lenders arising under
any of the Loan Documents;
(b) current liabilities of the Borrower, the
Guarantors or their respective Subsidiaries incurred in the ordinary course of
business but not incurred through (i) the borrowing of money, or (ii) the
obtaining of credit except for credit on an open account basis customarily
extended and in fact extended in connection with normal purchases of goods and
services;
(c) Indebtedness in respect of taxes,
assessments, governmental charges or levies and claims for labor, materials and
supplies to the extent that payment therefor shall not at the time be required
to be made in accordance with the provisions of Section 7.8;
(d) Indebtedness in respect of judgments only to
the extent, for the period and for an amount not resulting in a Default;
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(e) endorsements for collection, deposit or
negotiation and warranties of products or services, in each case incurred in the
ordinary course of business;
(f) Indebtedness in respect of reverse
repurchase agreements having a term of not more than 180 days with respect to
Investments described in Section 8.3(d) or (e);
(g) subject to the provisions of Section 9,
Indebtedness of the Borrower and its Subsidiaries; provided that, unless
otherwise approved by Agent, no Indebtedness incurred after the Closing Date
that is recourse to Borrower shall bear a maturity date that is sooner than 180
days after the Maturity Date;
(h) unsecured Indebtedness of Subsidiaries of
the Borrower to Borrower provided that repayment of such Indebtedness shall be
subordinate at all times to the repayment of the Obligations pursuant to a
subordination agreement reasonably satisfactory to Agent; and
(i) Indebtedness under the Master Credit
Agreement and the "Loan Documents" (as defined therein).
Section 8.2 Restrictions on Liens, Etc. The Borrower will not,
and will not permit its Subsidiaries to (a) create or incur or suffer to be
created or incurred or to exist any lien, security title, encumbrance, mortgage,
pledge, negative pledge, charge, restriction or other security interest of any
kind upon any of their respective property or assets of any character whether
now owned or hereafter acquired, or upon the income or profits therefrom; (b)
transfer any of their property or assets or the income or profits therefrom for
the purpose of subjecting the same to the payment of Indebtedness or performance
of any other obligation in priority to payment of its general creditors; (c)
acquire, or agree or have an option to acquire, any property or assets upon
conditional sale or other title retention or purchase money security agreement,
device or arrangement; (d) suffer to exist for a period of more than thirty (30)
days after the same shall have been incurred any Indebtedness or claim or demand
against any of them that if unpaid might by law or upon bankruptcy or
insolvency, or otherwise, be given any priority whatsoever over any of their
general creditors; (e) sell, assign, pledge or otherwise transfer any accounts,
contract rights, general intangibles, chattel paper or instruments, with or
without recourse(provided that this clause (e) shall not prohibit a true sale of
a land option or development agreement); or (f) incur or maintain any obligation
to any holder of Indebtedness of any of such Persons which prohibits the
creation or maintenance of any lien securing the Obligations (collectively,
"Liens"); provided that the Borrower and any such Subsidiary may create or incur
or suffer to be created or incurred or to exist:
(i) Liens on properties to secure
taxes, assessments and other governmental charges or claims for labor, material
or supplies in respect of obligations not then delinquent;
(ii) deposits or pledges made in
connection with, or to secure payment of, workers' compensation, unemployment
insurance, old age pensions or other social security obligations;
(iii) Liens in respect of judgments,
awards or Indebtedness which is permitted by Section 8.1(d) or Section 8.1(g);
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(iv) encumbrances on properties other
than a "Mortgaged Property" (as such term is defined in the Master Credit
Agreement) consisting of easements, rights of way, zoning restrictions,
restrictions on the use of real property and defects and irregularities in the
title thereto, landlord's or lessor's liens under leases to which the Borrower,
the Guarantors or any such Subsidiary is a party, purchase money security
interests and other liens or encumbrances, which do not individually or in the
aggregate have a materially adverse effect on the business of the Borrower on a
consolidated basis; and
(v) liens in favor of the "Agent" and
the "Lenders" under and as defined in the Master Credit Agreement to secure the
"Obligations" and the "Hedge Obligations" (as such terms are defined in the
Master Credit Agreement).
Section 8.3 Restrictions on Investments. The Borrower will not,
and will not permit any of its Subsidiaries to, make or permit to exist or to
remain outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations
of the United States of America that mature within one (1) year from the date of
purchase by the Borrower or any such Subsidiary;
(b) marketable direct obligations of any of the
following: Federal Home Loan Mortgage Corporation, Student Loan Marketing
Association, Federal Home Loan Banks, Federal National Mortgage Association,
Government National Mortgage Association, Bank for Cooperatives, Federal
Intermediate Credit Banks, Federal Financing Banks, Export-Import Bank of the
United States, Federal Land Banks, or any other agency or bank of the United
States of America;
(c) demand deposits, certificates of deposit,
bankers acceptances and time deposits of any of the Lenders or any United States
banks having total assets in excess of $100,000,000; provided, however, that the
aggregate amount at any time so invested with any single bank having total
assets of less than $1,000,000,000 will not exceed $1,000,000;
(d) securities commonly known as "commercial
paper" issued by any Lender, or by a corporation organized and existing under
the laws of the United States of America or any State which at the time of
purchase are rated by ▇▇▇▇▇'▇ Investors Service, Inc. or by Standard & Poor's
Corporation at not less than "P 1" if then rated by ▇▇▇▇▇'▇ Investors Service,
Inc., and not less than "A 1", if then rated by Standard & Poor's Corporation;
(e) mortgage-backed securities guaranteed by the
Government National Mortgage Association, the Federal National Mortgage
Association or the Federal Home Loan Mortgage Corporation and other
mortgage-backed bonds which at the time of purchase are rated by ▇▇▇▇▇'▇
Investors Service, Inc. or by Standard & Poor's Corporation at not less than
"Aa" if then rated by ▇▇▇▇▇'▇ Investors Service, Inc. and not less than "AA" if
then rated by Standard & Poor's Corporation;
(f) repurchase agreements having a term not
greater than 180 days and fully secured by securities described in the foregoing
subsections (a), (b) or (e) with the Lenders,
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banks described in the foregoing subsection (c) or financial institutions or
other corporations having total assets in excess of $500,000,000;
(g) shares of so-called "money market funds"
registered with the Securities and Exchange Commission under the Investment
Company Act of 1940 which maintain a level per-share value, invest principally
in investments described in the foregoing subsections (a) through (f) and have
total assets in excess of $50,000,000;
(h) subject to Section 7.16 and Section 9,
options, easements, licenses, fee interests and leasehold interests and similar
interests in Real Estate utilized or to be utilized principally for retail
shopping center purposes or a related purpose, including ▇▇▇▇▇▇▇ money deposits
relating thereto and transaction costs;
(i) subject to the terms of this Agreement,
Investments in Subsidiaries of Borrower existing as of the date hereof;
(j) loans or advances to employees and directors
not exceeding $1,000,000.00 in the aggregate principal amount outstanding at any
time;
(k) deposits required by government agencies or
public utilities;
(l) loans and advances existing as of the date
of this Agreement by the Borrower and the Guarantors to any JDN Venture which
are evidenced by notes in an aggregate amount which, together with Investments
permitted by Section 8.3(m), do not exceed ten percent (10%) of Borrower's
Consolidated Total Assets as of the end of the most recent fiscal quarter of
Borrower;
(m) other Investments (i) existing as of the
date of this Agreement by the Borrower and the Guarantors (including Investments
in Persons over which, after giving effect to such Investment, the Borrower or
the Guarantors do not have control), (ii) in those properties or Persons
described on Schedule 8.3 in the amounts set forth therein, or (iii) in an
amount not to exceed $1,000,000.00, which Investments in the aggregate do not
exceed five percent (5%) of Borrower's Consolidated Total Assets as of the end
of the most recent fiscal quarter of Borrower; and
(n) Investments existing as of the date of this
Agreement in any common stock issued by the Borrower which has been repurchased
by the Borrower or any of its Subsidiaries, provided that in no event shall such
Investments exceed in the aggregate $25,000,000.00 (based upon the cost to
acquire such stock).
Section 8.4 Merger, Consolidation. The Borrower will not, and
will not permit its Subsidiaries to, become a party to any dissolution,
liquidation, disposition of all or substantially all of its assets or business,
merger, reorganization, consolidation or other business combination or agree to
effect any asset acquisition, stock acquisition or other acquisition
individually or in a series of transactions involving amounts in excess of
$50,000,000.00 which may have a similar effect as any of the foregoing, in each
case without the prior written consent of the Required Lenders, except for (i)
the merger or consolidation of two or more Subsidiaries of the Borrower or any
Guarantor, and (ii) the merger or consolidation of one or more of the
Subsidiaries of the
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Borrower with and into the Borrower where the Borrower is the sole surviving
entity. Without limiting the foregoing, the consummation of the Transaction
shall constitute a violation of this Section 8.4.
Section 8.5 Sale and Leaseback. The Borrower will not, and
will not permit its Subsidiaries, to enter into any arrangement, directly or
indirectly, whereby the Borrower or any such Subsidiary shall sell or transfer
any Real Estate owned by it in order that then or thereafter the Borrower or any
such Subsidiary shall lease back such Real Estate.
Section 8.6 Compliance with Environmental Laws. The Borrower
will not, and will not permit its Subsidiaries or any other Person to, do any of
the following: (a) use any of the Real Estate or any portion thereof as a
facility for the handling, processing, storage or disposal of Hazardous
Substances, except for small quantities of Hazardous Substances used in the
ordinary course of business and in material compliance with all applicable
Environmental Laws, (b) cause or permit to be located on any of the Real Estate
any underground tank or other underground storage receptacle for Hazardous
Substances except in full compliance with Environmental Laws, (c) generate any
Hazardous Substances on any of the Real Estate except in full compliance with
Environmental Laws, (d) conduct any activity at any Real Estate or use any Real
Estate in any manner so as to cause a Release of Hazardous Substances on, upon
or into the Real Estate or any surrounding properties or any threatened Release
of Hazardous Substances which might give rise to liability under CERCLA or any
other Environmental Law, or (e) directly or indirectly transport or arrange for
the transport of any Hazardous Substances (except in compliance with all
Environmental Laws).
The Borrower shall, and shall cause its Subsidiaries to:
(i) in the event of any change in
Environmental Laws governing the assessment, release or removal of Hazardous
Substances, take all reasonable action (including, without limitation, the
conducting of engineering tests at the sole expense of the Borrower) to confirm
that no Hazardous Substances are or ever were Released or disposed of on the
Real Estate in violation of applicable Environmental Laws; and
(ii) if any Release or disposal of
Hazardous Substances which any Person may be legally obligated to contain,
correct or otherwise remediate or which may otherwise expose it to liability
shall occur or shall have occurred on the Real Estate (including without
limitation any such Release or disposal occurring prior to the acquisition or
leasing of such Real Estate by the Borrower or any such Subsidiary), the
Borrower shall, after obtaining knowledge thereof, cause the prompt containment
and removal of such Hazardous Substances and remediation of the Real Estate in
full compliance with all applicable laws and regulations and to the reasonable
satisfaction of the Agent; provided, that each of the Borrower and its
Subsidiaries shall be deemed to be in compliance with Environmental Laws for the
purpose of this clause (ii) so long as it or a responsible third party with
sufficient financial resources is taking reasonable action to remediate or
manage any event of noncompliance to the satisfaction of the Agent and no action
shall have been commenced by any enforcement agency. The Agent may engage its
own Environmental Engineer to review the environmental assessments and the
compliance with the covenants contained herein.
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Section 8.7 Distributions. The Borrower will not make any
Distributions which would violate any of the following covenants:
(a) The Borrower will not pay any Distributions
to its shareholders except as follows:
(i) For the fourth (4th) calendar
quarter of 2002, Borrower's quarterly dividend with respect to common stock
outstanding as of the date of this Agreement, which dividend shall not exceed
$0.27 per share;
(ii) For the first (1st) calendar
quarter of 2003, Borrower's quarterly dividend with respect to common stock
outstanding as of the date of this Agreement, which dividend shall not exceed
$0.20 per share; and
(iii) For the first (1st) and second
(2nd) calendar quarters of 2003, Borrower shall be permitted to pay quarterly
dividends on its preferred stock outstanding as of the date of this Agreement in
the amount of $0.586 per share; and
(iv) From and after the payment by
Borrower of its Distribution to its common shareholders during the first (1st)
calendar quarter of 2003 and the payment of its quarterly dividend on its
preferred stock as provided in Section 8.7(a)(iii) during the second (2nd)
calendar quarter of 2003, Borrower shall not make any Distributions to its
common shareholders other than the amount which, when added to the amount of
Distributions paid on its preferred stock pursuant to Section 8.7(a)(iii) for
such quarter and all Distributions previously paid during such calendar year, do
not exceed in the aggregate ninety percent (90%) of "REIT taxable income" (as
defined in the Code) calculated on a cumulative basis for such calendar year;
(b) Notwithstanding the terms of Section 8.7(a),
commencing with the third (3rd) calendar quarter of 2003 and for each calendar
quarter thereafter, the Borrower shall not make any Distributions other than
Distributions to its common or preferred shareholders provided that such
Distributions in the aggregate do not exceed ninety percent (90%) of "REIT
taxable income" calculated on a cumulative basis in a calendar year;
(c) In the event that an Event of Default shall
have occurred and be continuing, the Borrower shall not make any Distributions
other than the minimum Distributions required under the Code to maintain the
REIT Status of Borrower, as evidenced by a certification of the chief financial
officer of the Borrower containing calculations in reasonable detail reasonably
satisfactory in form and substance to the Agent; and
(d) In the event that an Event of Default shall
have occurred and be continuing and the maturity of the Obligations has been
accelerated, the Borrower shall not make any Distributions whatsoever, either
directly or indirectly.
Section 8.8 Asset Sales. The Borrower will not, and will not
permit its Subsidiaries to, sell, transfer or otherwise dispose of any asset
other than for fair market value. In the event that such disposition is of Real
Estate or equity interests having a value greater than $50,000,000.00, a
Compliance Certificate demonstrating compliance with the covenants referred to
therein after giving effect to such sale, transfer or other disposition.
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Section 8.9 Development Activity. The Borrower will not, and will
not permit its Subsidiaries or Affiliates to, engage, directly or indirectly
(including through any Affiliate in which the Borrower or its Subsidiaries owns
a Minority Interest or through other Investments), in the development of
properties without the prior written consent of the Required Lenders in their
sole discretion; provided that without the consent of the Required Lenders,
prior to March 14, 2003 the Borrower or any of its Subsidiaries or Affiliates
may engage in the development of Existing Pre-Development Properties, Announced
Projects and Existing Properties Under Construction, provided that the aggregate
amount of Construction in Progress with respect thereto at any time shall not
exceed thirty percent (30%) of the Consolidated Total Assets of Borrower, and
from and after March 14, 2003, the Borrower or any of its Subsidiaries or
Affiliates may only engage in the development of Announced Projects in an
aggregate amount not to exceed $50,000.00 in any fiscal quarter and Existing
Properties Under Construction provided that the aggregate amount of Construction
in Progress at any time shall not exceed thirty percent (30%) of the
Consolidated Total Assets of the Borrower. For purposes of this Section 8.9, the
term "development" shall include the new construction of a shopping center or a
substantial renovation or expansion of improvements to Real Estate which
materially change the character or size thereof. The Borrower will, and will
cause each of its Subsidiaries to, at all times that it is engaging in any
development as provided herein, maintain available sources of capital acceptable
to the Agent in its reasonable discretion equal to the total cost to acquire and
complete such developments and to purchase such properties except where such a
failure could not be reasonably expected to have a Material Adverse Effect.
Amounts available to be disbursed for such purposes pursuant to this Agreement
may be considered as a source of capital for the purposes of this Section 8.9.
Section 8.10 Restriction on Prepayment of Indebtedness. The
Borrower will not, and will not permit its Subsidiaries to, (a) prepay, redeem,
defease, purchase or otherwise retire the principal amount, in whole or in part,
of any Indebtedness other than the Obligations after the occurrence of any Event
of Default, or (b) modify any document evidencing any Indebtedness (other than
the Obligations) to accelerate the maturity date of such Indebtedness; provided,
that this Section 8.10 shall not prohibit (x) the prepayment of Indebtedness
which is financed solely from the proceeds of a new loan which would otherwise
be permitted by the terms of Section 8.1; and (y) the prepayment of Indebtedness
secured by Real Estate which is satisfied solely from the proceeds of a sale of
the Real Estate securing such Indebtedness.
Section 8.11 [Intentionally Omitted].
Section 8.12 Derivative Obligations. Neither the Borrower nor any
of its Subsidiaries shall contract, create, incur, assume or suffer to exist any
Derivative Obligations except the Interest Rate Contracts permitted pursuant to
Section 8.1.
Section 8.13 Bankruptcy Remote Subsidiaries. Without the consent
of the Agent, neither the Borrower nor any of its Subsidiaries shall create any
new single purpose, special purpose or other so-called bankruptcy remote
subsidiaries (such as an entity to be a borrower in a REMIC), as determined by
the Agent in its reasonable discretion.
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Section 8.14 Employment Contracts. Borrower shall not modify or
amend in any material respect any of the Employment Contracts, and shall cause
the Employment Contracts at all times to remain in full force and effect.
Section 9 FINANCIAL COVENANTS.
The Borrower covenants and agrees that, so long as any Loan or Note is
outstanding or any Lender has any obligation to make any Loan:
Section 9.1 [Intentionally Omitted].
Section 9.2 Fixed Charge Coverage. Borrower will not permit the
Adjusted Consolidated EBITDA of the Borrower and its Subsidiaries for any period
of two consecutive fiscal quarters (treated as a single accounting) (the "Test
Period") to be less than 1.40 times the Consolidated Fixed Charges of the
Borrower and its Subsidiaries for the Test Period.
Section 9.3 Secured Debt Ratio. Borrower will not permit the
aggregate principal amount of all outstanding Secured Debt of the Borrower and
its Subsidiaries other than Intercompany Debt to be greater than 40% of the
Total Assets of the Borrower and its Subsidiaries.
Section 9.4 Maximum Land Assets. The Borrower shall not permit
the ratio of the value, determined in accordance with GAAP, of its direct and
indirect interests in Land Assets to the Consolidated Total Assets of the
Borrower and its Subsidiaries to exceed 0.05 to 1.
Section 9.5 Net Worth. The Consolidated Tangible Net Worth of the
Borrower will not at any time be less than Minimum Consolidated Tangible Net
Worth.
Section 9.6 Liabilities to Assets Ratio. The ratio of
Consolidated Total Liabilities of Borrower and its Subsidiaries to Consolidated
Total Assets of Borrower and its Subsidiaries at the end of any fiscal quarter
shall not exceed 0.60 to 1.
Section 9.7 EBITDA Coverage. The Consolidated EBITDA of Borrower
and its Subsidiaries for the Test Period shall not be less than 2.00 times the
Consolidated Interest Expense of Borrower and its Subsidiaries for such period.
Section 9.8 [Intentionally Omitted].
Section 9.9 Limitation on Incurrence of Total Debt. The Borrower
will not permit the aggregate principal amount of all outstanding Debt of the
Borrower and its Subsidiaries determined in accordance with GAAP other than
Intercompany Debt to be greater than 60% of Total Assets.
Section 9.10 Total Unencumbered Assets to Unsecured Debt. The
Borrower will not permit the Total Unencumbered Assets of Borrower and its
Subsidiaries to be less than 150% of the aggregate outstanding principal amount
of the Unsecured Debt of the Borrower and its Subsidiaries.
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Section 10. CLOSING CONDITIONS.
The obligation of the Agent and the Lenders to enter into this
Agreement shall be subject to the satisfaction of the following conditions
precedent:
Section 10.1 Loan Documents. Each of the Loan Documents shall have
been duly executed and delivered by the respective parties thereto and shall be
in full force and effect. The Agent shall have received a fully executed
counterpart of each such document, except that each Lender shall have received
the fully executed original of its Note.
Section 10.2 Certified Copies of Organizational Documents. The
Agent shall have received from the Borrower and each Guarantor a copy, certified
as of a recent date by the appropriate officer of each State in which such
Person is organized and a duly authorized officer or partner of such Person, as
applicable, to be true and complete, of the partnership agreement or corporate
charter of the Borrower and such Guarantor, as applicable, or its qualification
to do business, as applicable, as in effect on such date of certification.
Section 10.3 Resolutions. All action on the part of the Borrower
and each applicable Guarantor, as applicable, necessary for the valid execution,
delivery and performance by such Person of this Agreement and the other Loan
Documents to which such Person is or is to become a party shall have been duly
and effectively taken, and evidence thereof reasonably satisfactory to the Agent
shall have been provided to the Agent.
Section 10.4 Incumbency Certificate; Authorized Signers. The Agent
shall have received from Borrower and each applicable corporate Guarantor an
incumbency certificate, dated as of the Closing Date, signed by a duly
authorized officer of such Person and giving the name and bearing a specimen
signature of each individual who shall be authorized to sign, in the name and on
behalf of such Person, each of the Loan Documents to which such Person is or is
to become a party. The Agent shall have also received from each applicable
partnership Guarantor a certificate, dated as of the Closing Date, signed by a
duly authorized representative of such Person and giving the name and specimen
signature of each individual who shall be authorized to make Loan Requests and
to give notices and to take other action on behalf of the Borrower under the
Loan Documents.
Section 10.5 Opinion of Counsel. The Agent shall have received an
opinion addressed to the Lenders and the Agent and dated as of the Closing Date
from counsel to the Borrower and each Guarantor in form and substance reasonably
satisfactory to the Agent.
Section 10.6 Payment of Fees. The Borrower shall have paid to the
Agent the fees payable pursuant to Section 4.2.
Section 10.7 [Intentionally Omitted].
Section 10.8 Performance; No Default. Borrower and the applicable
Guarantors shall have performed and complied with all terms and conditions
herein required to be performed or complied with by it on or prior to the
Closing Date, and on the Closing Date there shall exist no Default or Event of
Default.
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Section 10.9 Representations and Warranties. The representations
and warranties made by the Borrower and the Guarantors in the Loan Documents or
otherwise made by or on behalf of the Borrower, the Guarantors and their
respective Subsidiaries in connection therewith or after the date thereof shall
have been true and correct in all material respects when made and shall also be
true and correct in all material respects on the Closing Date.
Section 10.10 Proceedings and Documents. All proceedings in
connection with the transactions contemplated by this Agreement and the other
Loan Documents shall be reasonably satisfactory to the Agent and the Agent's
counsel in form and substance, and the Agent shall have received all information
and such counterpart originals or certified copies of such documents and such
other certificates, opinions, assurances, consents, approvals or documents as
the Agent and the Agent's counsel may reasonably require.
Section 10.11 Master Credit Agreement. The Master Credit Agreement
shall be in full force and effect and no "Default" or "Event of Default" shall
have occurred thereunder.
Section 10.12 Compliance Certificate. The Agent shall have received
a Compliance Certificate dated as of the date of the Closing Date demonstrating
compliance with each of the covenants calculated therein as of the most recent
fiscal quarter for which Borrower has provided financial statements under
Section 6.4 adjusted in the best good faith estimate of Borrower as of the
Closing Date.
Section 10.13 [Intentionally Omitted].
Section 10.14 [Intentionally Omitted].
Section 10.15 Stockholder and Partner Consents. The Agent shall
have received evidence reasonably satisfactory to the Agent that all necessary
stockholder, partner, member or other consents required in connection with the
consummation of the transactions contemplated by this Agreement and the other
Loan Documents have been obtained.
Section 10.16 [Intentionally Omitted].
Section 10.17 Contribution Agreement. The Agent shall have received
an executed counterpart of the Contribution Agreement.
Section 10.18 [Intentionally Omitted].
Section 10.19 Employment Contracts. The Agent shall have received
copies of the executed Employment Contracts, each of which shall be in full
force and effect.
Section 10.20 Other. The Agent shall have reviewed such other
documents, instruments, certificates, opinions, assurances, consents and
approvals as the Agent or the Agent's Special Counsel may reasonably have
requested.
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Section 11. CONDITIONS TO BORROWING.
The obligations of the Lenders to make their respective Loan shall
be subject to the satisfaction of the following conditions precedent:
Section 11.1 Prior Conditions Satisfied. All conditions set forth
in Section 10 shall continue to be satisfied as of the date upon which any Loan
is to be made.
Section 11.2 Representations True; No Default. Each of the
representations and warranties made by or on behalf of the Borrower, the
Guarantors or any of their respective Subsidiaries contained in this Agreement,
the other Loan Documents or in any document or instrument delivered pursuant to
or in connection with this Agreement shall be true in all material respects both
as of the date as of which they were made and shall also be true in all material
respects as of the time of the making of such Loan, with the same effect as if
made at and as of that time, except to the extent of changes resulting from
transactions permitted by the Loan Documents (it being understood and agreed
that any representation or warranty which by its terms is made as of a specified
date shall be required to be true and correct only as of such specified date),
and no Default or Event of Default shall have occurred and be continuing.
Section 11.3 No Legal Impediment. No change shall have occurred in
any law or regulations thereunder or interpretations thereof that in the
reasonable opinion of any Lender would make it illegal for such Lender to make
such Loan.
Section 11.4 Governmental Regulation. Each Lender shall have
received such statements in substance and form reasonably satisfactory to such
Lender as such Lender shall require for the purpose of compliance with any
applicable regulations of the Comptroller of the Currency or the Board of
Governors of the Federal Reserve System.
Section 11.5 Proceedings and Documents. All proceedings in
connection with such Loan shall be reasonably satisfactory in substance and in
form to the Agent, and the Agent's counsel in form and substance and the Agent
shall have received all information and such counterpart originals or certified
or other copies of such documents and such other certificates, opinions,
assurances, consents, approvals or documents as the Agent and the Agent's
counsel may reasonably require.
Section 11.6 Borrowing Documents. The Agent shall have received a
fully completed Loan Request for such Loan and the other documents and
information (including, without limitation, a Compliance Certificate) as
required by Section 2.7.
Section 11.7 Maturing Notes. Borrower shall have delivered to
Agent evidence reasonably satisfactory to the Agent that the remaining balance
of amounts due with respect to the Maturing Notes is being deposited with the
Trustee or other paying agent therefor.
Section 12. EVENTS OF DEFAULT; ACCELERATION; ETC.
Section 12.1 Events of Default and Acceleration. If any of the
following events ("Events of Default" or, if the giving of notice or the lapse
of time or both is required, then, prior to such notice or lapse of time,
"Defaults") shall occur:
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(a) the Borrower shall fail to pay any principal
of the Loans when the same shall become due and payable, whether at the stated
date of maturity or any accelerated date of maturity or at any other date fixed
for payment;
(b) the Borrower shall fail to pay any interest
on the Loans, or any other sums due hereunder or under any of the other Loan
Documents when the same shall become due and payable, whether at the stated date
of maturity or any accelerated date of maturity or at any other date fixed for
payment;
(c) intentionally omitted;
(d) the Borrower shall fail to comply with any
covenant contained in Section 9.2, Section 9.3, Section 9.4, Section 9.5,
Section 9.6, Section 9.7, Section 9.9 or Section 9.10 and such failure shall
continue for thirty (30) days after written notice thereof shall have been given
to the Borrower by the Agent;
(e) any of the Borrower, the Guarantors, or any
of their respective Subsidiaries shall fail to perform any other term, covenant
or agreement contained herein or in any of the other Loan Documents which they
are required to perform (other than those specified in the other subclauses of
this Section 12 or in the other Loan Documents);
(f) any representation or warranty made by or on
behalf of the Borrower, the Guarantors, or any of their respective Subsidiaries
in this Agreement or any other Loan Document, or any report, certificate,
financial statement, request for a Loan, or in any other document or instrument
delivered pursuant to or in connection with this Agreement, any advance of a
Loan, or any of the other Loan Documents shall prove to have been false in any
material respect upon the date when made or deemed to have been made or
repeated;
(g) any of the Borrower, the Guarantors, or any
of their respective Subsidiaries (i) shall fail to pay at maturity, or within
any applicable period of grace, any obligation for borrowed money or credit
received or other Indebtedness, or (ii) shall fail to observe or perform any
term, covenant or agreement contained in any agreement by which it is bound,
evidencing or securing any obligation for borrowed money or credit received or
other Indebtedness for such period of time as would permit (assuming the giving
of appropriate notice if required) the holder or holders thereof or of any
obligations issued thereunder to accelerate the maturity thereof; provided that
the events described in this Section 12.1(g) shall not constitute an Event of
Default unless such failure to perform, together with other failures to perform
as described in this Section 12.1(g), involve singly or in the aggregate
obligations for borrowed money or credit received totaling in excess of
$5,000,000.00;
(h) any of the Borrower, the Guarantors, or any
of their respective Subsidiaries, (i) shall make an assignment for the benefit
of creditors, or admit in writing its general inability to pay or generally fail
to pay its debts as they mature or become due, or shall petition or apply for
the appointment of a trustee or other custodian, liquidator or receiver for it
or any substantial part of its assets, (ii) shall commence any case or other
proceeding relating to it under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation or similar law of
any jurisdiction, now or hereafter in effect, or (iii) shall take any action to
authorize or in furtherance of any of the foregoing;
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(i) a petition or application shall be filed for
the appointment of a trustee or other custodian, liquidator or receiver of any
of the Borrower, the Guarantors, or any of their respective Subsidiaries or any
substantial part of the assets of any thereof, or a case or other proceeding
shall be commenced against any such Person under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation or
similar law of any jurisdiction, now or hereafter in effect, and any such Person
shall indicate its approval thereof, consent thereto or acquiescence therein or
such petition, application, case or proceeding shall not have been dismissed
within sixty (60) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a
trustee, custodian, liquidator or receiver for any of the Borrower, the
Guarantors, or any of their respective Subsidiaries or adjudicating any such
Person, bankrupt or insolvent, or approving a petition in any such case or other
proceeding, or a decree or order for relief is entered in respect of any such
Person in an involuntary case under federal bankruptcy laws as now or hereafter
constituted;
(k) there shall remain in force, undischarged,
unsatisfied and unstayed, for more than sixty (60) days, whether or not
consecutive, one or more uninsured or unbonded final judgments against any of
the Borrower, the Guarantors, or any of their respective Subsidiaries that,
either individually or in the aggregate, exceed $5,000,000;
(l) any of the Loan Documents or the
Contribution Agreement shall be canceled, terminated, revoked or rescinded
otherwise than in accordance with the terms thereof or the express prior written
agreement, consent or approval of the Lenders, or any action at law, suit in
equity or other legal proceeding to cancel, revoke or rescind any of the Loan
Documents or the Contribution Agreement shall be commenced by or on behalf of
any of the Borrower or the Guarantors, or any court or any other governmental or
regulatory authority or agency of competent jurisdiction shall make a
determination, or issue a judgment, order, decree or ruling, to the effect that
any one or more of the Loan Documents or the Contribution Agreement is illegal,
invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or
complete liquidation, merger or consolidation of any of the Borrower or any
Guarantor shall occur or any sale, transfer or other disposition of the assets
of any of the Borrower or any Guarantor shall occur other than as permitted
under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan,
an ERISA Reportable Event shall have occurred and the Required Lenders shall
have determined in their reasonable discretion that such event reasonably could
be expected to result in liability of any of the Borrower, the Guarantors or any
of their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in
an aggregate amount exceeding $2,000,000 and such event in the circumstances
occurring reasonably could constitute grounds for the termination of such
Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate
United States District Court of a trustee to administer such Guaranteed Pension
Plan; or a trustee shall have been appointed by the United States District Court
to administer such Plan; or the PBGC shall have instituted proceedings to
terminate such Guaranteed Pension Plan;
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(o) any suit or proceeding shall be filed
against or with respect to the Borrower, any Guarantor, any of their respective
Subsidiaries or any Collateral which in the good faith business judgment of the
Required Lenders after giving consideration to the likelihood of success of such
suit or proceeding and the availability of insurance to cover any judgment with
respect thereto and based on the information available to them if adversely
determined, would have a materially adverse effect on the ability of the
Borrower, any Guarantor or any of their respective Subsidiaries to perform each
and every one of its obligations under and by virtue of the Loan Documents and
such suit or proceeding shall not have been dismissed within sixty (60) days
following the filing thereof;
(p) the Borrower, any Guarantor or any of their
respective Subsidiaries or any Person so connected with any of them shall be
indicted for a federal crime, a punishment for which could include the
forfeiture of any assets of Borrower, any Guarantor or any of their respective
Subsidiaries which in the good faith judgment of the Required Lenders could have
a Material Adverse Effect;
(q) any Guarantor denies that it has any
liability or obligation under the Guaranty or any other Loan Document, or shall
notify the Agent or any of the Lenders of such Guarantor's intention to attempt
to cancel or terminate the Guaranty or any other Loan Document, or shall fail to
observe or comply with any term, covenant, condition or agreement under the
Guaranty or any other Loan Document beyond any applicable cure period;
(r) any Change of Control shall occur;
(s) an Event of Default under any of the other
Loan Documents shall occur; or
(t) an "Event of Default" (as defined in the
Master Credit Agreement) shall occur;
then, and in any such event, the Agent may, and upon the request of the Required
Lenders shall, by notice in writing to the Borrower declare all amounts owing
with respect to this Agreement, the Notes and the other Loan Documents to be,
and they shall thereupon forthwith become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Borrower; provided that in the event of any Event
of Default specified in Section 12.1(h), Section 12.1(i) or Section 12.1(j), all
such amounts shall become immediately due and payable automatically and without
any requirement of presentment, demand, protest or other notice of any kind from
any of the Lenders or the Agent.
Section 12.2 Limitation of Cure Periods.
(a) Notwithstanding anything contained in
Section 12.1 to the contrary, (i) no Event of Default shall exist hereunder upon
the occurrence of any failure described in Section 12.1(b) in the event that the
Borrower cures such Default within five (5) days following receipt of written
notice of such Default, provided, however, that Borrower shall not be entitled
to receive more than two (2) notices in the aggregate pursuant to this clause
(i) in any period of 365 days ending on the date of any such occurrence of
Default, and provided further that no such cure period shall apply to any
payments due upon the maturity of the Notes, and (ii) no Event of Default shall
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exist hereunder upon the occurrence of any failure described in Section 12.1(e)
in the event that the Borrower cures such Default within thirty (30) days
following receipt of written notice of such default, provided that the
provisions of this clause (ii) shall not pertain to defaults consisting of a
failure to provide insurance as required by Section 7.7(a), to any default
consisting of a failure to comply with Section 4.2, Section 7.4(c), Section
7.21, Section 8.1, Section 8.2, Section 8.4, Section 8.7(b), Section 8.7(c),
Section 8.7(d) or to any Default excluded from any provision of cure of defaults
contained in any other of the Loan Documents, and (iii) no Event of Default
shall exist hereunder upon the occurrence of any failure described in Section
8.7(a) resulting from events occurring after the declaration of a Distribution
and not reasonably anticipated by Borrower that cause Borrower's estimate of its
Funds from Operations to be incorrect, in the event that the Borrower cures such
Default on or before the end of the next fiscal quarter of Borrower occurring
after such Default.
(b) Notwithstanding the provisions of subsection
(d) of Section 12.1, the cure period provided therein shall not be allowed and
the occurrence of a Default thereunder immediately shall constitute an Event of
Default for all purposes of this Agreement and the other Loan Documents if,
within the period of twelve months immediately preceding the occurrence of such
Default, there shall have occurred two periods of cure or portions thereof under
any one or more than one of said subsections.
Section 12.3 Termination of Commitments. If any one or more Events
of Default specified in Section 12.1(h), Section 12.1(i) or Section 12.1(j)
shall occur, then immediately and without any action on the part of the Agent or
any Lender, the Lenders shall be relieved of all obligations to make Loans to
the Borrower. If any other Event of Default shall have occurred, the Agent, upon
the election of the Required Lenders, shall by notice to the Borrower terminate
the obligation to make Loans. No termination under this Section 12.3 shall
relieve the Borrower of its obligations to the Lenders arising under this
Agreement or the other Loan Documents.
Section 12.4 Remedies. In case any one or more Events of Default
shall have occurred and be continuing, and whether or not the Lenders shall have
accelerated the maturity of the Loans pursuant to Section 12.1, the Agent on
behalf of the Lenders may, with the consent of the Required Lenders but not
otherwise, proceed to protect and enforce their rights and remedies under this
Agreement, the Notes and/or any of the other Loan Documents by suit in equity,
action at law or other appropriate proceeding, including to the full extent
permitted by applicable law the specific performance of any covenant or
agreement contained in this Agreement and the other Loan Documents, the
obtaining of the ex parte appointment of a receiver, and, if any amount shall
have become due, by declaration or otherwise, the enforcement of the payment
thereof. No remedy herein conferred upon the Agent or the holder of any Note is
intended to be exclusive of any other remedy and each and every remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute or any other provision
of law. If Borrower or any Guarantor fails to perform any agreement or covenant
contained in this Agreement or any of the other Loan Documents beyond any
applicable period for notice and cure, Agent may itself perform, or cause to be
performed, any agreement or covenant of such Person contained in this Agreement
or any of the other Loan Documents which such Person shall fail to perform, and
the out-of-pocket costs of such performance, together with any reasonable
expenses, including reasonable attorneys' fees actually incurred (including
attorneys' fees incurred in any appeal) by Agent in connection therewith, shall
be payable by Borrower upon demand and shall constitute a part of the
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Obligations and shall if not paid within five (5) days after demand bear
interest at the rate for overdue amounts as set forth in this Agreement. In the
event that all or any portion of the Obligations is collected by or through an
attorney-at-law, the Borrower shall pay all costs of collection including, but
not limited to, reasonable attorney's fees.
Section 12.5 Distribution of Collateral Proceeds. In the event
that, following the occurrence and during the continuance of any Event of
Default, any monies are received in connection with the enforcement of any of
the Loan Documents, or otherwise with respect to the realization upon any of the
assets of Borrower or the Guarantors, such monies shall be distributed for
application as follows:
(a) First, to the payment of, or (as the case
may be) the reimbursement of the Agent for or in respect of, all reasonable
costs, expenses, disbursements and losses which shall have been paid, incurred
or sustained by the Agent in connection with the collection of such monies by
the Agent, for the exercise, protection or enforcement by the Agent of all or
any of the rights, remedies, powers and privileges of the Agent or the Lenders
under this Agreement or any of the other Loan Documents or in support of any
provision of adequate indemnity to the Agent against any taxes or liens which by
law shall have, or may have, priority over the rights of the Agent or the
Lenders to such monies;
(b) Second, to all other Obligations (including
any interest, expenses or other obligations incurred after the commencement of a
bankruptcy) in such order or preference as the Required Lenders shall determine;
provided, that (i) distributions in respect of such other Obligations shall
include, on a pari passu basis, the fees payable pursuant to Section 4.2 and the
Agent's fee payable pursuant to Section 4.3; (ii) in the event that any Lender
shall have wrongfully failed or refused to make an advance under Section 2.7 and
such failure or refusal shall be continuing, advances made by other Lenders
during the pendency of such failure or refusal shall be entitled to be repaid as
to principal and accrued interest in priority to the other Obligations described
in this subsection (b), and (iii) except as otherwise provided in clause (i),
Obligations owing to the Lenders with respect to each type of Obligation such as
interest, principal, fees and expenses shall be made among the Lenders pro rata;
and provided, further that the Required Lenders may in their discretion make
proper allowance to take into account any Obligations not then due and payable;
and
(c) Third, the excess, if any, shall be returned
to the Borrower or to such other Persons as are entitled thereto.
Section 13. SETOFF.
During the continuance of any Event of Default, any deposits
(general or specific, time or demand, provisional or final, regardless of
currency, maturity, or the branch where such deposits are held) or other sums
credited by or due from any Lender to the Borrower or the Guarantors and any
securities or other property of the Borrower or the Guarantors in the possession
of such Lender may be applied to or set off against the payment of Obligations
and any and all other liabilities, direct, or indirect, absolute or contingent,
due or to become due, now existing or hereafter arising, of the Borrower or the
Guarantors to such Lender. Each of the Lenders agrees with each other Lender
that if such Lender shall receive from the Borrower or the Guarantors,
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whether by voluntary payment, exercise of the right of setoff, or otherwise, and
shall retain and apply to the payment of the Note or Notes held by such Lender
any amount in excess of its ratable portion of the payments received by all of
the Lenders with respect to the Notes held by all of the Lenders, such Lender
will make such disposition and arrangements with the other Lenders with respect
to such excess, either by way of distribution, pro tanto assignment of claims,
subrogation or otherwise as shall result in each Lender receiving in respect of
the Notes held by it its proportionate payment as contemplated by this
Agreement; provided that if all or any part of such excess payment is thereafter
recovered from such Lender, such disposition and arrangements shall be rescinded
and the amount restored to the extent of such recovery, but without interest.
Section 14. THE AGENT.
Section 14.1 Authorization. The Agent is authorized to take such
action on behalf of each of the Lenders and to exercise all such powers as are
hereunder and under any of the other Loan Documents and any related documents
delegated to the Agent, together with such powers as are reasonably incident
thereto, provided that no duties or responsibilities not expressly assumed
herein or therein shall be implied to have been assumed by the Agent. The
obligations of the Agent hereunder are primarily administrative in nature, and
nothing contained in this Agreement or any of the other Loan Documents shall be
construed to constitute the Agent as a trustee for any Lender or to create an
agency or fiduciary relationship. Agent shall act as the contractual
representative of the Lenders hereunder, and notwithstanding the use of the term
"Agent", it is understood and agreed that Agent shall not have any fiduciary
duties or responsibilities to any Lender by reason of this Agreement or any
other Loan Document and is acting as an independent contractor, the duties and
responsibilities of which are limited to those expressly set forth in this
Agreement and the other Loan Documents. The Borrower and any other Person shall
be entitled to conclusively rely on a statement from the Agent that it has the
authority to act for and bind the Lenders pursuant to this Agreement and the
other Loan Documents.
Section 14.2 Employees and Agents. The Agent may exercise its
powers and execute its duties by or through employees or agents and shall be
entitled to take, and to rely on, advice of counsel concerning all matters
pertaining to its rights and duties under this Agreement and the other Loan
Documents. The Agent may utilize the services of such Persons as the Agent may
reasonably determine, and all reasonable fees and expenses of any such Persons
shall be paid by the Borrower.
Section 14.3 No Liability. Neither the Agent nor any of its
shareholders, directors, officers or employees nor any other Person assisting
them in their duties nor any agent, or employee thereof, shall be liable to any
of the Lenders for any waiver, consent or approval given or any action taken, or
omitted to be taken, in good faith by it or them hereunder or under any of the
other Loan Documents, or in connection herewith or therewith, or be responsible
for the consequences of any oversight or error of judgment whatsoever, except
that the Agent or such other Person, as the case may be, shall be liable for
losses due to its willful misconduct or gross negligence.
Section 14.4 No Representations. The Agent shall not be
responsible for the execution or validity or enforceability of this Agreement,
the Notes, any of the other Loan Documents or any
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instrument at any time constituting, or intended to constitute, collateral
security for the Notes, or for the value of any such collateral security or for
the validity, enforceability or collectability of any amounts owing with respect
to the Notes, or for any recitals or statements, warranties or representations
made herein or in any of the other Loan Documents or in any certificate or
instrument hereafter furnished to it by or on behalf of the Borrower, the
Guarantors or any of their respective Subsidiaries, or be bound to ascertain or
inquire as to the performance or observance of any of the terms, conditions,
covenants or agreements herein or in any of the other Loan Documents. The Agent
shall not be bound to ascertain whether any notice, consent, waiver or request
delivered to it by the Borrower, the Guarantors or any holder of any of the
Notes shall have been duly authorized or is true, accurate and complete. The
Agent has not made nor does it now make any representations or warranties,
express or implied, nor does it assume any liability to the Lenders, with
respect to the creditworthiness or financial condition of the Borrower, the
Guarantors, or any of their respective Subsidiaries. Each Lender acknowledges
that it has, independently and without reliance upon the Agent or any other
Lender, and based upon such information and documents as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon the Agent or any other Lender, based upon such information and
documents as it deems appropriate at the time, continue to make its own credit
analysis and decisions in taking or not taking action under this Agreement and
the other Loan Documents.
Section 14.5 Payments.
(a) A payment by the Borrower or any Guarantor
to the Agent hereunder or under any of the other Loan Documents for the account
of any Lender shall constitute a payment to such Lender. The Agent agrees to
distribute to each Lender not later than one Business Day after the Agent's
receipt of good funds, determined in accordance with the Agent's customary
practices, such Lender's pro rata share of payments received by the Agent for
the account of the Lenders except as otherwise expressly provided herein or in
any of the other Loan Documents. In the event that the Agent fails to distribute
such amounts within one Business Day as provided above, the Agent shall pay
interest on such amount at a rate per annum equal to the Federal Funds Effective
Rate from time to time in effect.
(b) If in the opinion of the Agent the
distribution of any amount received by it in such capacity hereunder, under the
Notes or under any of the other Loan Documents might involve it in liability, it
may refrain from making such distribution until its right to make such
distribution shall have been adjudicated by a court of competent jurisdiction.
If a court of competent jurisdiction shall adjudge that any amount received and
distributed by the Agent is to be repaid, each Person to whom any such
distribution shall have been made shall either repay to the Agent its
proportionate share of the amount so adjudged to be repaid or shall pay over the
same in such manner and to such Persons as shall be determined by such court. In
the event that the Agent shall refrain from making any distribution of any
amount received by it as provided in this Section 14.5(b), the Agent shall
endeavor to hold such amounts in an interest bearing account and at such time as
such amounts may be distributed to the Lenders, the Agent shall distribute to
each Lender, based on their respective Commitment Percentages, its pro rata
share of the interest or other earnings from such deposited amount.
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(c) Notwithstanding anything to the contrary
contained in this Agreement or any of the other Loan Documents, any Lender that
fails (i) to make available to the Agent its pro rata share of any Loan or (ii)
to comply with the provisions of Section 13 with respect to making dispositions
and arrangements with the other Lenders, where such Lender's share of any
payment received, whether by setoff or otherwise, is in excess of its pro rata
share of such payments due and payable to all of the Lenders, in each case as,
when and to the full extent required by the provisions of this Agreement, shall
be deemed delinquent (a "Delinquent Lender") and shall be deemed a Delinquent
Lender until such time as such delinquency is satisfied. A Delinquent Lender
shall be deemed to have assigned any and all payments due to it from the
Borrower or the Guarantors, whether on account of outstanding Loans, interest,
fees or otherwise, to the remaining nondelinquent Lenders for application to,
and reduction of, their respective pro rata shares of all outstanding Loans. The
Delinquent Lender hereby authorizes the Agent to distribute such payments to the
nondelinquent Lenders in proportion to their respective pro rata shares of all
outstanding Loans. A Delinquent Lender shall be deemed to have satisfied in full
a delinquency when and if, as a result of application of the assigned payments
to all outstanding Loans of the nondelinquent Lenders or as a result of other
payments by the Delinquent Lenders to the nondelinquent Lenders, the Lenders'
respective pro rata shares of all outstanding Loans have returned to those in
effect immediately prior to such delinquency and without giving effect to the
nonpayment causing such delinquency.
Section 14.6 Holders of Notes. Subject to the terms of Section 18,
the Agent may deem and treat the payee of any Note as the absolute owner or
purchaser thereof for all purposes hereof until it shall have been furnished in
writing with a different name by such payee or by a subsequent holder, assignee
or transferee.
Section 14.7 Indemnity. The Lenders ratably agree hereby to
indemnify and hold harmless the Agent from and against any and all claims,
actions and suits (whether groundless or otherwise), losses, damages, costs,
expenses (including any expenses for which the Agent has not been reimbursed by
the Borrower as required by Section 15), and liabilities of every nature and
character arising out of or related to this Agreement, the Notes, or any of the
other Loan Documents or the transactions contemplated or evidenced hereby or
thereby, or the Agent's actions taken hereunder or thereunder, except to the
extent that any of the same shall be directly caused by the Agent's willful
misconduct or gross negligence.
Section 14.8 Agent as Lender. In its individual capacity, Fleet
shall have the same obligations and the same rights, powers and privileges in
respect to its Commitment and the Loans made by it, and as the holder of any of
the Notes as it would have were it not also the Agent.
Section 14.9 Resignation; Removal. The Agent may resign at any
time by giving 60 days' prior written notice thereof to the Lenders and the
Borrower. The Required Lenders may remove the Agent from its capacity as Agent
for failure to perform its material obligations under this Agreement provided
that the Required Lenders shall have given prior written notice to the Agent of
its failure to perform any of its material obligations under this Agreement and
such failure shall not have been cured within thirty (30) calendar days after
receipt of notice of such failure (or such failure cannot reasonably be cured
within such thirty (30) day period, then within such longer period of time as
may be necessary to complete such cure so long as Agent commences such cure
within such thirty (30) day period and thereafter diligently pursues such cure
to
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completion). Upon any such resignation or removal, the Required Lenders shall
have the right to appoint as a successor Agent any Lender or any financial
institution whose senior debt obligations are rated not less than "A2" or its
equivalent by ▇▇▇▇▇'▇ or not less than "A2" or its equivalent by S&P and which
has a net worth of not less than $500,000,000. Unless a Default or Event of
Default shall have occurred and be continuing, such successor Agent shall be
reasonably acceptable to the Borrower. If no successor Agent shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Agent's giving of notice of resignation or its
removal, then the retiring or removed Agent may, on behalf of the Lenders,
appoint a successor Agent, which shall be any Lender or any financial
institution whose senior debt obligations are rated not less than "A2" or its
equivalent by ▇▇▇▇▇'▇ or not less than "A" or its equivalent by S&P and which
has a net worth of not less than $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 or removed Agent, and the retiring or removed Agent
shall be discharged from its duties and obligations hereunder as Agent
thereafter arising. After any retiring or removed Agent's resignation or
removal, the provisions of this Agreement and the other Loan Documents 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 Agent.
Section 14.10 Duties in the Case of Enforcement. In case one
or more Events of Default have occurred and shall be continuing, and whether or
not acceleration of the Obligations shall have occurred, the Agent shall, if (a)
so requested by the Required Lenders and (b) the Lenders have provided to the
Agent such additional indemnities and assurances against expenses and
liabilities as the Agent may reasonably request, proceed to enforce the
provisions of the Loan Documents and exercise all or any such other legal and
equitable and other rights or remedies as it may have. The Required Lenders may
direct, subject to the terms of any intercreditor agreement among the Agent and
the Lenders, the Agent in writing as to the method and the extent of any such
sale or other disposition, the Lenders hereby agreeing to indemnify and hold the
Agent harmless from all liabilities incurred in respect of all actions taken or
omitted in accordance with such directions, provided that the Agent need not
comply with any such direction to the extent that the Agent reasonably believes
that the Agent's compliance with such direction to be unlawful or commercially
unreasonable in any applicable jurisdiction.
Section 15. EXPENSES.
The Borrower agrees to pay (a) the reasonable costs of producing
and reproducing this Agreement, the other Loan Documents and the other
agreements and instruments mentioned herein, (b) any taxes (including any
interest and penalties in respect thereto) payable by the Agent or any of the
Lenders (other than taxes based upon the Agent's or any Lender's gross or net
income) including any documentary or intangibles taxes in connection with the
Loan Documents, or other taxes payable on or with respect to the transactions
contemplated by this Agreement, including any such taxes payable by the Agent or
any of the Lenders after the Closing Date (the Borrower hereby agreeing to
indemnify the Agent and each Lender with respect thereto), (c) the reasonable
fees, expenses and disbursements of the counsel to the Agent and any local
counsel to the Agent incurred in connection with the preparation,
administration, syndication or interpretation of the Loan Documents and other
instruments mentioned herein (excluding, however, the preparation of agreements
evidencing participations granted under
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Section 18.4), and amendments, modifications, approvals, consents or waivers
hereto or hereunder, (d) all other reasonable out of pocket fees, expenses and
disbursements of the Agent actually incurred by the Agent in connection with the
preparation or interpretation of the Loan Documents and other instruments
mentioned herein, the making of each Loan hereunder, and the syndication of the
Commitments pursuant to Section 18 (without duplication of those items addressed
in subparagraph (c), above), (e) all reasonable internal charges of the Agent
(determined in good faith and in accordance with the Agent's internal policies
applicable generally to its customers) for commercial finance exams, (f) all
reasonable out-of-pocket expenses (including reasonable attorneys' fees and
costs, and the fees and costs of appraisers, engineers, investment bankers or
other experts retained by any Lender or the Agent) actually incurred by any
Lender or the Agent in connection with (i) the enforcement of or preservation of
rights under any of the Loan Documents against the Borrower or the Guarantors or
the administration thereof after the occurrence of a Default or Event of Default
and (ii) any litigation, proceeding or dispute whether arising hereunder or
otherwise, in any way related to the Agent's or any of the Lenders' relationship
with the Borrower or the Guarantors, and (g) all reasonable fees, expenses and
disbursements (including reasonable attorneys' fees and costs) which may be
incurred by Fleet in connection with the execution and delivery of this
Agreement and the other Loan Documents (without duplication of any of the items
listed above). The covenants of this Section 15 shall survive the repayment of
the Loans and the termination of the obligations of the Lenders hereunder.
Section 16. INDEMNIFICATION.
The Borrower agrees to indemnify and hold harmless the Agent and the
Lenders and each director, officer, employee, agent and Person who controls the
Agent or any Lender from and against any and all claims, actions and suits,
whether groundless or otherwise, and from and against any and all liabilities,
losses, damages and expenses of every nature and character arising out of or
relating to this Agreement or any of the other Loan Documents or the
transactions contemplated hereby and thereby or the Transaction including,
without limitation, (a) any and all claims for brokerage, leasing, finders or
similar fees which may be made relating to the Loans, (b) any actual or proposed
use by the Borrower of the proceeds of any of the Loans, (c) the Borrower and
the Guarantors entering into or performing this Agreement or any of the other
Loan Documents, (d) with respect to the Borrower, the Guarantors and their
respective Subsidiaries and their respective properties and assets, the
violation of any Environmental Law, the Release or threatened Release of any
Hazardous Substances or any action, suit, proceeding or investigation brought or
threatened with respect to any Hazardous Substances (including, but not limited
to, claims with respect to wrongful death, personal injury, nuisance or damage
to property), or (h) shareholder or other lawsuits threatened or filed, or
investigations undertaken, as a result of or in any way arising out of or
relating to the contemplation of the Transaction, the execution of documents
relating to the Transaction, or the consummation of the Transaction, in each
case including, without limitation, the reasonable fees and disbursements of
counsel incurred in connection with any such investigation, litigation or other
proceeding; provided, however, that the Borrower shall not be obligated under
this Section 16 to indemnify any Person for liabilities arising from such
Person's own gross negligence or willful misconduct. In litigation, or the
preparation therefor, the Lenders and the Agent shall be entitled to select a
single law firm as their own counsel and, in addition to the foregoing
indemnity, the Borrower agrees to pay promptly the reasonable fees and expenses
of such counsel. If, and to the extent that the obligations of the Borrower
under this Section 16 are unenforceable for any reason, the Borrower
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hereby agrees to make the maximum contribution to the payment in satisfaction of
such obligations which is permissible under applicable law. The provisions of
this Section 16 shall survive the repayment of the Loans and the termination of
the obligations of the Lenders hereunder.
Section 17. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and warranties made
herein, in the Notes, in any of the other Loan Documents or in any documents or
other papers delivered by or on behalf of the Borrower or the Guarantors or any
of their respective Subsidiaries pursuant hereto or thereto shall be deemed to
have been relied upon by the Lenders and the Agent, notwithstanding any
investigation heretofore or hereafter made by any of them, and shall survive the
making by the Lenders of any of the Loans, as herein contemplated, and shall
continue in full force and effect so long as any amount due under this Agreement
or the Notes or any of the other Loan Documents remains outstanding or any
Lender has any obligation to make any Loans. The indemnification obligations of
the Borrower provided herein and in the other Loan Documents shall survive the
full repayment of amounts due and the termination of the obligations of the
Lenders hereunder and thereunder to the extent provided herein and therein. All
statements contained in any certificate delivered to any Lender or the Agent at
any time by or on behalf of the Borrower or the Guarantors or any of their
respective Subsidiaries pursuant hereto or in connection with the transactions
contemplated hereby shall constitute representations and warranties by such
Person hereunder.
Section 18. ASSIGNMENT AND PARTICIPATION.
Section 18.1 Conditions to Assignment by Lenders. Except as
provided herein, each Lender may assign to one or more banks or other entities
all or a portion of its interests, rights and obligations under this Agreement
(including all or a portion of its Commitment Percentage and Commitment and the
same portion of the Loans at the time owing to it and the Notes held by it);
provided that (a) the Agent and, so long as no Default or Event of Default
exists hereunder, the Borrower shall have each given its prior written consent
to such assignment, which consent shall not be unreasonably withheld or delayed
(provided that (i) such consent shall not be required for any assignment to
another Lender, to a lender which is and remains under common control with the
assigning Lender or to a wholly-owned Subsidiary of such Lender, provided that
such assignee shall remain a wholly-owned Subsidiary of such Lender, and (ii)
the consent of Agent shall not be required if an Event of Default exists and is
continuing so long as the assignee is an institutional lender), (b) each such
assignment shall be of a constant, and not a varying, percentage of all the
assigning Lender's rights and obligations under this Agreement, (c) the parties
to such assignment shall execute and deliver to the Agent, for recording in the
Register (as hereinafter defined) an Assignment and Acceptance Agreement in the
form of Exhibit L annexed hereto, together with any Notes subject to such
assignment, (d) in no event shall any voting, consent or approval rights of a
Lender be assigned to any Person controlling, controlled by or under common
control with, or which is not otherwise free from influence or control by, the
Borrower or any Guarantor, which rights shall instead be allocated pro rata
among the other remaining Lenders, (e) if such assignee is to become a Lender
prior to the funding of the Loan, such assignee shall have a net worth or
unfunded commitments as of the date of such assignment of not less than
$200,000,000, unless waived by the Agent and the Borrower, (f) such assignee
shall acquire an interest in the Loans of not less than $5,000,000 (or if less,
the remaining Loans
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of the assignor), unless waived by the Agent, and so long as no Default or Event
of Default exists hereunder, the Borrower, and (g) such assignee shall be
subject to the terms of any intercreditor agreement among the Lenders and the
Agent. Upon execution, delivery, acceptance and recording of such Assignment and
Acceptance Agreement, (i) the assignee thereunder shall be a party hereto and
all other Loan Documents executed by the Lenders and have the rights and
obligations of a Lender hereunder, (ii) the assigning Lender shall, upon payment
to the Agent of the registration fee referred to in Section 18.2, be released
from its obligations under this Agreement arising after the effective date of
such assignment with respect to the assigned portion of its interests, rights
and obligations under this Agreement, and (iii) the Agent may unilaterally amend
Schedule 1.1 to reflect such assignment. In connection with each assignment, the
assignee shall represent and warrant to the Agent, the assignor and each other
Lender as to whether such assignee is controlling, controlled by, under common
control with or is not otherwise free from influence or control by, the
Borrower. Notwithstanding anything herein to the contrary, in the event that
Agent shall at any time hold a Commitment less than $10,000,000.00, then such
Agent shall promptly provide written notice thereof to the Lenders and the
Required Lenders shall have the right, to be exercised within fifteen (15) days
of delivery of such notice by such Agent, to elect to remove such Agent as Agent
and replace such Agent as Agent under the Loan Documents, subject to the terms
of Section 14.9.
Section 18.2 Register. The Agent shall maintain on behalf of the
Borrower a copy of each assignment delivered to it and a register or similar
list (the "Register") for the recordation of the names and addresses of the
Lenders and the Commitment Percentages of and principal amount of the Loans
owing to the Lenders from time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, the Guarantors,
the Agent and the Lenders may treat each Person whose name is recorded in the
Register as a Lender hereunder for all purposes of this Agreement. The Register
shall be available for inspection by the Borrower and the Lenders at any
reasonable time and from time to time upon reasonable prior notice. Upon each
such recordation, the assigning Lender agrees to pay to the Agent a registration
fee in the sum of $3,500 (provided that with respect to any assignment by a
Lender to a Subsidiary as provided herein, the assigning Lender shall pay to
Agent its reasonable expenses incurred in connection with such assignment in
lieu of such registration fee).
Section 18.3 New Notes. Upon its receipt of an Assignment and
Acceptance Agreement executed by the parties to such assignment, together with
each Note subject to such assignment, the Agent shall record the information
contained therein in the Register. Within five (5) Business Days after receipt
of notice of such assignment from Agent, the Borrower, at its own expense, shall
execute and deliver to the Agent, in exchange for each surrendered Note, a new
Note to the order of such assignee in an amount equal to the amount assigned to
such assignee pursuant to such Assignment and Acceptance Agreement and, if the
assigning Lender has retained some portion of its obligations hereunder, a new
Note to the order of the assigning Lender in an amount equal to the amount
retained by it hereunder. Such new Notes shall provide that they are
replacements for the surrendered Notes, shall be in an aggregate principal
amount equal to the aggregate principal amount of the surrendered Notes, shall
be dated the effective date of such Assignment and Acceptance Agreement and
shall otherwise be in substantially the form of the assigned Notes. The
surrendered Notes shall be canceled and returned to the Borrower.
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Section 18.4 Participations. Each Lender may sell participations
to one or more Lenders or other entities in all or a portion of such Lender's
rights and obligations under this Agreement and the other Loan Documents;
provided that (a) any such sale or participation shall not affect the rights and
duties of the selling Lender hereunder, (b) such participation shall not entitle
such participant to any rights or privileges under this Agreement or any Loan
Documents, including without limitation, rights granted to the Lenders under
Section 4.8, Section 4.9 and Section 4.10, (c) such participation shall not
entitle the participant to the right to approve waivers, amendments or
modifications, (d) such participant shall have no direct rights against the
Borrower, (e) such sale is effected in accordance with all applicable laws, and
(f) such participant shall not be a Person controlling, controlled by or under
common control with, or which is not otherwise free from influence or control by
any of the Borrower or any Guarantor. Any Lender which sells a participation
shall promptly notify the Agent of such sale and the identity of the purchaser
of such interest.
Section 18.5 Pledge by Lender. Any Lender may at any time pledge
all or any portion of its interest and rights under this Agreement (including
all or any portion of its Note) to any of the twelve Federal Reserve Banks
organized under Section 4 of the Federal Reserve Act, 12 U.S.C. Section 341 or
to such other Person as the Agent may approve to secure obligations of such
lenders. No such pledge or the enforcement thereof shall release the pledgor
Lender from its obligations hereunder or under any of the other Loan Documents.
Section 18.6 No Assignment by Borrower. The Borrower shall not
assign or transfer any of its rights or obligations under this Agreement without
the prior written consent of each of the Lenders.
Section 18.7 Disclosure. Borrower agrees to promptly cooperate
with any Lender in connection with any proposed assignment or participation of
all or any portion of its Commitment. Each of the Lenders and the Agent
acknowledges and agrees for itself that certain written information provided and
to be provided by the Borrower contains confidential non-public information
related to Borrower and JDN DCI and agrees to keep any information delivered or
made available by the Borrower to it confidential from anyone other than its
employees, officers, attorneys and other advisors who are or are expected to
become engaged in evaluating, administering or syndicating the Loan or rendering
advice in connection therewith, and each of Agent and the Lenders agrees not to
trade in the Borrower's securities in violation of Section 10(b) of the
Securities Exchange Act of 1934, as amended, or Rule 10b-5 thereunder, provided
that nothing herein shall prevent any of the foregoing Persons from disclosing
such information (a) to any potential assignees or participants who have agreed
to maintain the confidentiality of such information in the manner and to the
extent provided in this Section 18.7, (b) upon the order of any court or
administrative agency or upon the request of any administrative agency or
authority having jurisdiction over any of the foregoing Persons or such
potential assignees or participants, (c) upon the request or demand of any
regulatory agency or authority, (d) to the extent that such information has been
publicly disclosed other than as a result of a disclosure by the foregoing
Persons, (e) otherwise as required by law or (f) to the extent necessary to
enforce the Loan Documents. In addition, the Lenders may make disclosure of such
information to any contractual counterparty in swap agreements or such
contractual counterparty's professional advisors (so long as such contractual
counterparty or professional advisors to such contractual counterparty agree to
be bound by the provisions of this Section 18.7).
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Section 19. NOTICES.
Each notice, demand, election or request provided for or permitted
to be given pursuant to this Agreement (hereinafter in this Section 19 referred
to as "Notice"), but specifically excluding to the maximum extent permitted by
law any notices of the institution or commencement of foreclosure proceedings,
must be in writing and shall be deemed to have been properly given or served by
personal delivery or by sending same by overnight courier or by depositing same
in the United States Mail, postpaid and registered or certified, return receipt
requested, or as expressly permitted herein, by telegraph, telecopy, telefax or
telex, and addressed as follows:
If to the Agent or Fleet:
Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Real Estate Division
With a copy to:
Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Borrower:
JDN Realty Corporation
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
to any other Lender which is a party hereto, at the address for such Lender set
forth on its signature page hereto, and to any Lender which may hereafter become
a party to this Agreement, at such address as may be designated by such Lender.
Each Notice shall be effective upon being personally delivered or upon being
sent by overnight courier or upon being deposited in the United States Mail as
aforesaid, or if transmitted by telegraph, telecopy, telefax or telex is
permitted, upon being sent and confirmation of receipt. The time period in which
a response to such Notice must be given or any action taken with respect thereto
(if any), however, shall commence to run from the date of receipt if personally
delivered or sent by overnight courier, or if so deposited in the United States
Mail, the earlier of three (3) Business Days following such deposit or the date
of receipt as disclosed on the return receipt. Rejection or other refusal to
accept or the inability to deliver because of changed address for which no
notice was given shall be deemed to be receipt of the Notice sent. By giving at
least fifteen (15) days prior Notice
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thereof, the Borrower, a Lender or Agent shall have the right from time to time
and at any time during the term of this Agreement to change their respective
addresses and each shall have the right to specify as its address any other
address within the United States of America.
Section 20. RELATIONSHIP.
Neither the Agent nor any Lender has any fiduciary relationship
with or fiduciary duty to the Borrower, the Guarantors or their respective
Subsidiaries arising out of or in connection with this Agreement or the other
Loan Documents or the transactions contemplated hereunder and thereunder, and
the relationship between each Lender and Agent, and the Borrower is solely that
of a lender and borrower, and nothing contained herein or in any of the other
Loan Documents shall in any manner be construed as making the parties hereto
partners, joint venturers or any other relationship other than lender and
borrower.
Section 21. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE.
THIS AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS, EXCEPT AS
OTHERWISE SPECIFICALLY PROVIDED HEREIN OR THEREIN, ARE CONTRACTS UNDER THE LAWS
OF THE COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SUCH COMMONWEALTH (EXCLUDING THE
LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE BORROWER AGREES THAT ANY
SUIT FOR THE ENFORCEMENT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS
MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY FEDERAL
COURT SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH
COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER
BY MAIL AT THE ADDRESS SPECIFIED IN Section 19. THE BORROWER HEREBY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY
SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
Section 22. HEADINGS.
The captions in this Agreement are for convenience of reference
only and shall not define or limit the provisions hereof.
Section 23. COUNTERPARTS.
This Agreement and any amendment hereof may be executed in several
counterparts and by each party on a separate counterpart, each of which when so
executed and delivered shall be an original, and all of which together shall
constitute one instrument. In proving this Agreement it shall not be necessary
to produce or account for more than one such counterpart signed by the party
against whom enforcement is sought.
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Section 24. ENTIRE AGREEMENT, ETC.
The Loan Documents express the entire understanding of the parties
with respect to the transactions contemplated hereby. Neither this Agreement nor
any term hereof may be changed, waived, discharged or terminated, except as
provided in Section 27.
Section 25. WAIVER OF JURY TRIAL AND CERTAIN DAMAGE CLAIMS.
EACH OF THE BORROWER, THE AGENT AND THE LENDERS HEREBY WAIVES ITS
RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY
DISPUTE IN CONNECTION WITH THIS AGREEMENT, ANY NOTE OR ANY OF THE OTHER LOAN
DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE
OF SUCH RIGHTS AND OBLIGATIONS. EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY
LAW, THE BORROWER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY
SUCH LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY
DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. THE BORROWER (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY LENDER OR THE AGENT
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH LENDER OR THE AGENT WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B)
ACKNOWLEDGES THAT THE AGENT AND THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH THEY ARE PARTIES BY, AMONG OTHER
THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED IN THIS Section 25. THE
BORROWER ACKNOWLEDGES THAT IT HAS HAD AN OPPORTUNITY TO REVIEW THIS Section 25
WITH LEGAL COUNSEL AND THAT THE BORROWER AGREES TO THE FOREGOING AS ITS FREE,
KNOWING AND VOLUNTARY ACT.
Section 26. DEALINGS WITH THE BORROWER.
The Lenders and their Affiliates may accept deposits from, extend
credit to and generally engage in any kind of banking, trust or other business
with the Borrower, the Guarantors and their respective Subsidiaries or any of
their Affiliates regardless of the capacity of the Lender hereunder.
Section 27. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Except as otherwise expressly provided in this Agreement, any
consent or approval required or permitted by this Agreement may be given, and
any term of this Agreement or of any other instrument related hereto or
mentioned herein may be amended, and the performance or observance by the
Borrower or the Guarantors of any terms of this Agreement or such other
instrument or the continuance of any Default or Event of Default may be waived
(either generally or in a particular instance and either retroactively or
prospectively) with, but only with, the written consent of the Majority Lenders.
Notwithstanding the foregoing, there shall be no modification or waiver of any
of the covenants set forth in Section 8.7, Section 8.9 or in Section 9 without
the written
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consent of the Required Lenders. Notwithstanding the foregoing, none of the
following may occur without the written consent of each Lender: a reduction in
the rate of interest on the Notes; an increase in the amount of the Commitments
of the Lenders (except as provided in Section 18.1); a forgiveness, reduction or
waiver of the principal of any unpaid Loan or any interest thereon or fee
payable under the Loan Documents; a change in the amount of any fee payable to a
Lender hereunder; the postponement of any date fixed for any payment of
principal of or interest on the Loan; an extension of the Maturity Date; a
change in the manner of distribution of any payments to the Lenders or the
Agent; the release of the Borrower or any Guarantor except as otherwise provided
in Section 5.6; an amendment of the definition of Majority Lenders or Required
Lenders or of any requirement for consent by all of the Lenders; any
modification to require a Lender to fund a pro rata share of a request for an
advance of the Loan made by the Borrower other than based on its Commitment
Percentage; an amendment to this Section 27; a modification or waiver of Section
9.6; an amendment of any of the definitions used within Section 9.6; a waiver of
any indemnity of a Lender; or an amendment of any provision of this Agreement or
the Loan Documents which requires the approval of all of the Lenders or the
Required Lenders to require a lesser number of Lenders to approve such action.
The provisions of Section 14 may not be amended without the written consent of
the Agent. No waiver shall extend to or affect any obligation not expressly
waived or impair any right consequent thereon. No course of dealing or delay or
omission on the part of the Agent or any Lender in exercising any right shall
operate as a waiver thereof or otherwise be prejudicial thereto. No notice to or
demand upon any of the Borrower or the Guarantors shall entitle the Borrower or
any Guarantor to other or further notice or demand in similar or other
circumstances.
Section 28. SEVERABILITY.
The provisions of this Agreement are severable, and if any one
clause or provision hereof shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such invalidity or unenforceability shall affect
only such clause or provision, or part thereof, in such jurisdiction, and shall
not in any manner affect such clause or provision in any other jurisdiction, or
any other clause or provision of this Agreement in any jurisdiction.
Section 29. TIME OF THE ESSENCE.
Time is of the essence with respect to each and every covenant,
agreement and obligation of the Borrower and the Guarantors under this Agreement
and the other Loan Documents.
Section 30. NO UNWRITTEN AGREEMENTS.
THE LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES. ANY ADDITIONAL TERMS OF THE AGREEMENT BETWEEN
THE PARTIES ARE SET FORTH BELOW.
-74-
Section 31. REPLACEMENT NOTES.
Upon receipt of evidence reasonably satisfactory to Borrower of the
loss, theft, destruction or mutilation of any Note, and in the case of any such
loss, theft or destruction, upon delivery of an indemnity agreement reasonably
satisfactory to Borrower or, in the case of any such mutilation, upon surrender
and cancellation of the applicable Note, Borrower will execute and deliver, in
lieu thereof, a replacement Note, identical in form and substance to the
applicable Note and dated as of the date of the applicable Note and upon such
execution and delivery all references in the Loan Documents to such Note shall
be deemed to refer to such replacement Note.
Section 32. NO THIRD PARTIES BENEFITED.
This Agreement and the other Loan Documents are made and entered
into for the sole protection and legal benefit of the Borrower, the Lenders and
the Agent, and their permitted successors and assigns, and no other Person shall
be a direct or indirect legal beneficiary of, or have any direct or indirect
cause of action or claim in connection with, this Agreement or any of the other
Loan Documents. All conditions to the performance of the obligations of the
Agent and the Lenders under this Agreement, including the obligation to make
Loans, are imposed solely and exclusively for the benefit of the Agent and the
Lenders and no other Person shall have standing to require satisfaction of such
conditions in accordance with their terms or be entitled to assume that the
Agent and the Lenders will refuse to make Loans in the absence of strict
compliance with any or all thereof and no other Person shall, under any
circumstances, be deemed to be a beneficiary of such conditions, any and all of
which may be freely waived in whole or in part by the Agent and the Lenders at
any time if in their sole discretion they deem it desirable to do so.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, each of the undersigned have caused this
Agreement to be executed by its duly authorized representatives as of the date
first set forth above.
BORROWER:
JDN REALTY CORPORATION,
a Maryland corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
--------------------------
Title: Chief Financial Officer
--------------------------
(CORPORATE SEAL)
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FLEET NATIONAL BANK,
individually and as Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Title: Senior Banker
----------------------------
-▇▇-
▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ AND GRAND
CAYMAN BRANCHES
By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: E. ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Title: Assistant Vice President
----------------------------
By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
----------------------------
Title: Assistant Vice President
----------------------------
Address:
Commerzbank AG, New York and
Grand Cayman Branches
2 World Financial Center
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier number: ▇▇▇-▇▇▇-▇▇▇▇
-▇▇-
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
By: /s/ T. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: T. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Title: Vice President
---------------------------
Address:
Sovereign Bank
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ 1 SST 04 11
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: T. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier number: 617/757-5653
-79-
EXHIBIT A
FORM OF NOTE
$______________ _____________, 2002
FOR VALUE RECEIVED, the undersigned, JDN REALTY CORPORATION, a Maryland
corporation ("Maker"), hereby promises to pay to ______________________
("Payee"), or order, in accordance with the terms of that certain Term Loan
Agreement, dated as of December 27, 2002, as from time to time in effect, among
Maker, Fleet National Bank, for itself and as Agent, and such other Lenders as
may be from time to time named therein (the "Credit Agreement"), to the extent
not sooner paid, on or before the Maturity Date, the principal sum of
_________________ ($__________), with daily interest from the date thereof,
computed as provided in the Credit Agreement, on the principal amount hereof
from time to time unpaid, at a rate per annum on each portion of the principal
amount which shall at all times be equal to the rate of interest applicable to
such portion in accordance with the Credit Agreement, and with interest on
overdue principal and, to the extent permitted by applicable law, on overdue
installments of interest and late charges at the rates provided in the Credit
Agreement. Interest shall be payable on the dates specified in the Credit
Agreement, except that all accrued interest shall be paid at the stated or
accelerated maturity hereof or upon the prepayment in full hereof. Capitalized
terms used herein and not otherwise defined herein shall have the meanings set
forth in the Credit Agreement.
Payments hereunder shall be made to the Agent for the Payee at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other address as Agent
may designate from time to time.
This Note is one of one or more Notes evidencing borrowings under and
is entitled to the benefits and subject to the provisions of the Credit
Agreement. The principal of this Note may be due and payable in whole or in part
prior to the Maturity Date and is subject to mandatory prepayment in the amounts
and under the circumstances set forth in the Credit Agreement, and may be
prepaid in whole or from time to time in part, all as set forth in the Credit
Agreement.
Notwithstanding anything in this Note to the contrary, all agreements
between the undersigned Maker and the Lenders and the Agent, whether now
existing or hereafter arising and whether written or oral, are hereby limited so
that in no contingency, whether by reason of acceleration of the maturity of any
of the Obligations or otherwise, shall the interest contracted for, charged or
received by the Lenders exceed the maximum amount permissible under applicable
law. If, from any circumstance whatsoever, interest would otherwise be payable
to the Lenders in excess of the maximum lawful amount, the interest payable to
the Lenders shall be reduced to the maximum amount permitted under applicable
law; and if from any circumstance the Lenders shall ever receive anything of
value deemed interest by applicable law in excess of the maximum lawful amount,
an amount equal to any excessive interest shall be applied to the reduction of
the principal balance of the Obligations of the undersigned Maker and to the
payment of interest or, if such excessive interest exceeds the unpaid balance of
principal of
A-1
the Obligations of the undersigned Maker, such excess shall be refunded to the
undersigned Maker. All interest paid or agreed to be paid to the Lenders shall,
to the extent permitted by applicable law, be amortized, prorated, allocated and
spread throughout the full period until payment in full of the principal of the
Obligations of the undersigned Maker (including the period of any renewal or
extension thereof) so that the interest thereon for such full period shall not
exceed the maximum amount permitted by applicable law. This paragraph shall
control all agreements between the undersigned Maker and the Lenders and the
Agent.
In case an Event of Default shall occur, the entire principal amount of
this Note may become or be declared due and payable in the manner and with the
effect provided in said Credit Agreement.
This Note shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts (without giving effect to the conflict
of laws rules of any jurisdiction).
The undersigned Maker and all guarantors and endorsers hereby waive
presentment, demand, notice, protest, notice of intention to accelerate the
indebtedness evidenced hereby, notice of acceleration of the indebtedness
evidenced hereby and all other demands and notices in connection with the
delivery, acceptance, performance and enforcement of this Note, except as
specifically otherwise provided in the Credit Agreement, and assent to
extensions of time of payment or forbearance or other indulgence without notice.
IN WITNESS WHEREOF, the undersigned has duly executed this Note on the
day and year first above written.
JDN REALTY CORPORATION,
a Maryland corporation
By:_____________________________________
Name:________________________________
Title:_______________________________
(CORPORATE SEAL)
A-2
EXHIBIT B
[INTENTIONALLY OMITTED]
B-1
EXHIBIT C
[INTENTIONALLY OMITTED]
C-1
EXHIBIT D
[INTENTIONALLY OMITTED]
D-1
EXHIBIT E
FORM OF UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE
E-1
UNCONDITIONAL GUARANTY OF
PAYMENT AND PERFORMANCE
FOR AND IN CONSIDERATION OF the sum of Ten and No/100 Dollars ($10.00)
and other good and valuable consideration paid or delivered to the undersigned
JDN DEVELOPMENT COMPANY, INC., a Delaware corporation ("JDN DCI"), JDN REALTY
AL, INC., an Alabama corporation ("JDN AL"), JDN REALTY HOLDINGS, L.P., a
Georgia limited partnership ("JDN Holdings"), JDN REALTY LP, INC., a Delaware
corporation ("JDN LP"), and the other parties executing this Guaranty as a
Guarantor (JDN DCI, JDN AL, JDN Holdings, JDN LP and such other parties are
sometimes hereinafter referred to individually as "Guarantor" and collectively
as "Guarantors"), the receipt and sufficiency whereof are hereby acknowledged by
Guarantors, and for the purpose of seeking to induce FLEET NATIONAL BANK, a
national banking association (hereinafter referred to as "Lender", which term
shall also include each other Lender which may now be or hereafter become a
party to the "Loan Agreement" (as hereinafter defined), any Lender acting as the
Issuing Lender under the Loan Agreement and shall also include any such
individual Lender acting as agent for all of the Lenders), to extend credit or
otherwise provide financial accommodations to JDN REALTY CORPORATION, a Maryland
corporation (hereinafter referred to as "Borrower"), which extension of credit
and provision of financial accommodations will be to the direct interest,
advantage and benefit of Guarantors, Guarantors do hereby, jointly and
severally, absolutely, unconditionally and irrevocably guarantee to Lender:
(a) the full and prompt payment when due, whether by acceleration
or otherwise, either before or after maturity thereof, of the Notes made by
Borrower to the order of the Lenders in the aggregate principal face amount of
Fifty Million and No/100 Dollars ($50,000,000.00), together with interest as
provided in such Notes and together with any replacements, supplements,
renewals, modifications, consolidations, restatements and extensions thereof;
and
(b) the full and prompt payment when due, whether by acceleration
or otherwise, either before or after maturity thereof, of each other note as may
be issued under that certain Term Loan Agreement dated of even date herewith
(hereinafter referred to as the "Loan Agreement") among Borrower, Fleet, for
itself and as agent, and the other lenders now or hereafter a party thereto,
together with interest as provided in each such note, together with any
replacements, supplements, renewals, modifications, consolidations, restatements
and extensions thereof (the Notes described in subparagraph (a) above and each
of the notes described in this subparagraph (b) are hereinafter referred to
collectively as the "Note"); and
(c) the full and prompt payment and performance of all obligations
of Borrower to Lender under the terms of the Loan Agreement, together with any
replacements, supplements, renewals, modifications, consolidations, restatements
and extensions thereof; and
(d) the full and prompt payment and performance of any and all
other obligations of Borrower to Lender under any other agreements, documents or
instruments now or hereafter evidencing, securing or otherwise relating to the
indebtedness evidenced by the Note or the Loan Agreement (the Note, the Loan
Agreement, and said other agreements, documents and instruments are hereinafter
collectively referred to as the "Loan Documents" and individually
referred to as a "Loan Document"). All terms used herein and not otherwise
defined herein shall have the meanings set forth in the Loan Agreement.
1. Agreement to Pay and Perform; Costs of Collection. Guarantors
do hereby agree that if the Note is not paid by Borrower in accordance with its
terms, or if any and all sums which are now or may hereafter become due from
Borrower to Lender under the Loan Documents are not paid by Borrower in
accordance with their terms, or if any and all other obligations of Borrower to
Lender under the Note and the Loan Documents are not performed by Borrower in
accordance with their terms, Guarantors will immediately make such payments and
perform such obligations. Guarantors further agree to pay Lender on demand all
reasonable costs and expenses (including court costs and reasonable attorneys'
fees and disbursements) paid or incurred by Lender in endeavoring to collect the
indebtedness guaranteed hereby, to enforce any of the other obligations of
Borrower guaranteed hereby, or any portion thereof, or to enforce this Guaranty,
and until paid to Lender, such sums shall bear interest at the default rate set
forth in the Loan Agreement unless collection from Guarantors of interest at
such rate would be contrary to applicable law, in which event such sums shall
bear interest at the highest rate which may be collected from Guarantors under
applicable law.
2. Reinstatement of Refunded Payments. If, for any reason, any
payment to Lender of any of the obligations guaranteed hereunder is required to
be refunded by Lender to Borrower, or paid or turned over to any other person,
including, without limitation, by reason of the operation of bankruptcy,
reorganization, receivership or insolvency laws or similar laws of general
application relating to creditors' rights and remedies now or hereafter enacted,
Guarantors agree to pay to the Lender on demand an amount equal to the amount so
required to be refunded, paid or turned over (the "Turnover Payment"), the
obligations of Guarantors shall not be treated as having been discharged by the
original payment to Lender giving rise to the Turnover Payment, and this
Guaranty shall be treated as having remained in full force and effect for any
such Turnover Payment so made by Lender, as well as for any amounts not
theretofore paid to Lender on account of such obligations.
3. Rights of Lender to Deal with Collateral, Borrower and Other
Persons. Each Guarantor hereby consents and agrees that Lender may at any time,
and from time to time, without thereby releasing any Guarantor from any
liability hereunder and without notice to or further consent from any other
Guarantor, either with or without consideration: release or surrender any lien
or other security of any kind or nature whatsoever held by it or by any person,
firm or corporation on its behalf or for its account, securing any indebtedness
or liability hereby guaranteed; substitute for any collateral so held by it,
other collateral of like kind, or of any kind; modify the terms of the Note or
the Loan Documents; extend or renew the Note for any period; grant releases,
compromises and indulgences with respect to the Note or the Loan Documents and
to any persons or entities now or hereafter liable thereunder or hereunder;
release any other Guarantor, surety, endorser or accommodation party of the Note
or any other Loan Documents; or take or fail to take any action of any type
whatsoever. No such action which Lender shall take or fail to take in connection
with the Note or the Loan Documents, or any of them, or any security for the
payment of the indebtedness of Borrower to Lender or for the performance of any
obligations or undertakings of Borrower, nor any course of dealing with Borrower
or any other person, shall release any Guarantor's obligations hereunder, affect
this Guaranty in any way or afford any Guarantor any recourse against Lender.
The provisions of this Guaranty shall extend and be applicable to all
replacements, supplements, renewals, amendments, extensions,
consolidations, restatements and modifications of the Note and the Loan
Documents, and any and all references herein to the Note and the Loan Documents
shall be deemed to include any such replacements, supplements, renewals,
extensions, amendments, consolidations, restatements or modifications thereof.
Without limiting the generality of the foregoing, Guarantors acknowledge the
terms of Section 18.3 of the Loan Agreement and agrees that this Guaranty shall
extend and be applicable to each new or replacement note delivered by Borrower
pursuant thereto without notice to or further consent from Guarantors.
4. No Contest with Lender; Subordination. So long as any
obligation hereby guaranteed remains unpaid or undischarged, Guarantors will
not, by paying any sum recoverable hereunder (whether or not demanded by Lender)
or by any means or on any other ground, claim any set-off or counterclaim
against Borrower in respect of any liability of Guarantors to Borrower or, in
proceedings under federal bankruptcy law or insolvency proceedings of any
nature, prove in competition with Lender in respect of any payment hereunder or
be entitled to have the benefit of any counterclaim or proof of claim or
dividend or payment by or on behalf of Borrower or the benefit of any other
security for any obligation hereby guaranteed which, now or hereafter, Lender
may hold or in which it may have any share. Guarantors hereby expressly waive
any right of contribution from or indemnity against Borrower, whether at law or
in equity, arising from any payments made by Guarantors pursuant to the terms of
this Guaranty, and Guarantors acknowledge that Guarantors have no right
whatsoever to proceed against Borrower for reimbursement of any such payments.
In connection with the foregoing, Guarantors expressly waive any and all rights
of subrogation to Lender against Borrower, and Guarantors hereby waive any
rights to enforce any remedy which Lender may have against Borrower and any
rights to participate in any collateral for Borrower's obligations under the
Loan Documents. Guarantors hereby subordinate any and all indebtedness of
Borrower now or hereafter owed to Guarantors to all indebtedness of Borrower to
Lender, and agree with Lender that (a) Guarantors shall not demand or accept any
payment from Borrower on account of such indebtedness, (b) Guarantors shall not
claim any offset or other reduction of Guarantors' obligations hereunder because
of any such indebtedness, and (c) Guarantors shall not take any action to obtain
any interest in any of the security described in and encumbered by the Loan
Documents because of any such indebtedness; provided, however, that, if Lender
so requests, such indebtedness shall be collected, enforced and received by
Guarantors as trustee for Lender and be paid over to Lender on account of the
indebtedness of Borrower to Lender, but without reducing or affecting in any
manner the liability of Guarantors under the other provisions of this Guaranty
except to the extent the principal amount of such outstanding indebtedness shall
have been reduced by such payment.
5. Waiver of Defenses. Guarantors hereby agree that their
obligations hereunder shall not be affected or impaired by, and hereby waive and
agree not to assert or take advantage of any defense based on:
(a) any statute of limitations in any action hereunder or for the
collection of the Note or for the payment or performance of any obligation
hereby guaranteed;
(b) the incapacity, lack of authority, death or disability of
Borrower or any other person or entity, or the failure of Lender to file or
enforce a claim against the estate (either in administration, bankruptcy or in
any other proceeding) of Borrower or any Guarantor or any other person or
entity;
(c) the dissolution or termination of existence of Borrower, any
Guarantor or any other Person;
(d) the voluntary or involuntary liquidation, sale or other
disposition of all or substantially all of the assets of Borrower or any other
Person;
(e) the voluntary or involuntary receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization, assignment,
composition, or readjustment of, or any similar proceeding affecting, Borrower
or any Guarantor, or any of Borrower's or any Guarantor's properties or assets;
(f) the damage, destruction, condemnation, foreclosure or
surrender of all or any part of the Real Estate or any of the improvements
located thereon;
(g) the failure of Lender to give notice of the existence,
creation or incurring of any new or additional indebtedness or obligation or of
any action or nonaction on the part of any other person whomsoever in connection
with any obligation hereby guaranteed;
(h) any failure or delay of Lender to commence an action against
Borrower or any other Person, to assert or enforce any remedies against Borrower
under the Note or the Loan Documents, or to realize upon any security;
(i) any failure of any duty on the part of Lender to disclose to
any Guarantor any facts it may now or hereafter know regarding Borrower, any
other Person or any collateral, whether such facts materially increase the risk
to Guarantors or not;
(j) failure to accept or give notice of acceptance of this
Guaranty by Lender;
(k) failure to make or give notice of presentment and demand for
payment of any of the indebtedness or performance of any of the obligations
hereby guaranteed;
(l) failure to make or give protest and notice of dishonor or of
default to Guarantors or to any other party with respect to the indebtedness or
performance of obligations hereby guaranteed;
(m) except as otherwise specifically provided in this Guaranty,
any and all other notices whatsoever to which Guarantors might otherwise be
entitled;
(n) any lack of diligence by Lender in collection, protection or
realization upon any collateral securing the payment of the indebtedness or
performance of obligations hereby guaranteed;
(o) the invalidity or unenforceability of the Note or any of the
Loan Documents;
(p) the compromise, settlement, release or termination of any or
all of the obligations of Borrower under the Note or the Loan Documents;
(q) any transfer by Borrower or any other Person of all or any
part of the security encumbered by the Loan Documents;
(r) the failure of Lender to perfect any security or to extend or
renew the perfection of any security; or
(s) to the fullest extent permitted by law, any other legal,
equitable or surety defenses whatsoever to which Guarantors might otherwise be
entitled, it being the intention that the obligations of Guarantors hereunder
are absolute, unconditional and irrevocable.
6. Guaranty of Payment and Performance and Not of Collection.
This is a Guaranty of payment and performance and not of collection. The
liability of Guarantors under this Guaranty shall be primary, direct and
immediate and not conditional or contingent upon the pursuit of any remedies
against Borrower or any other person, nor against securities or liens available
to Lender, its successors, successors in title, endorsees or assigns. Guarantors
hereby waive any right to require that an action be brought against Borrower or
any other person or to require that resort be had to any security or to any
balance of any deposit account or credit on the books of Lender in favor of
Borrower or any other person.
7. Rights and Remedies of Lender. In the event of an Event of
Default under the Note or the Loan Documents, or any of them, that is continuing
(it being understood that the Lender has no obligation to accept cure after an
Event of Default occurs), Lender shall have the right to enforce its rights,
powers and remedies thereunder or hereunder or under any other agreement,
document or instrument now or hereafter evidencing, securing or otherwise
relating to the indebtedness evidenced or secured by the Note or the Loan
Documents, in any order, and all rights, powers and remedies available to Lender
in such event shall be nonexclusive and cumulative of all other rights, powers
and remedies provided thereunder or hereunder or by law or in equity.
Accordingly, Guarantors hereby authorize and empower Lender upon the occurrence
of any Event of Default under the Note or the Loan Documents, at its sole
discretion, and without notice to Guarantors, to exercise any right or remedy
which Lender may have, including, but not limited to, judicial foreclosure,
exercise of rights of power of sale, acceptance of a deed or assignment in lieu
of foreclosure, appointment of a receiver to collect rents and profits, exercise
of remedies against personal property, or enforcement of any assignment of
leases, as to any security, whether real, personal or intangible. At any public
or private sale of any security or collateral for any indebtedness or any part
thereof guaranteed hereby, whether by foreclosure or otherwise, Lender may, in
its discretion, purchase all or any part of such security or collateral so sold
or offered for sale for its own account and may apply against the amount bid
therefor all or any part of the balance due it pursuant to the terms of the Note
or Security Documents or any other Loan Document without prejudice to Lender's
remedies hereunder against Guarantors for deficiencies. If the indebtedness
guaranteed hereby is partially paid by reason of the election of Lender to
pursue any of the remedies available to Lender, or if such indebtedness is
otherwise partially paid, this Guaranty shall nevertheless remain in full force
and effect, and Guarantors shall remain liable for the entire balance of the
indebtedness guaranteed hereby even though any rights which Guarantors may have
against Borrower may be destroyed or diminished by the exercise of any such
remedy.
8. Application of Payments. Guarantors hereby authorize Lender,
without notice to Guarantors, to apply all payments and credits received from
Borrower or from Guarantors or realized from any security in such manner and in
such priority as Lender in its sole judgment shall see fit to the indebtedness,
obligation and undertakings which are the subject of this Guaranty.
9. Business Failure, Bankruptcy or Insolvency. In the event of
the business failure of any Guarantor or if there shall be pending any
bankruptcy or insolvency case or proceeding with respect to any Guarantor under
federal bankruptcy law or any other applicable law or in connection with the
insolvency of any Guarantor, or if a liquidator, receiver, or trustee shall have
been appointed for any Guarantor or any Guarantor's properties or assets, Lender
may file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of Lender allowed in any proceedings
relative to such Guarantor, or any of such Guarantor's properties or assets,
and, irrespective of whether the indebtedness or other obligations of Borrower
guaranteed hereby shall then be due and payable, by declaration or otherwise,
Lender shall be entitled and empowered to file and prove a claim for the whole
amount of any sums or sums owing with respect to the indebtedness or other
obligations of Borrower guaranteed hereby, and to collect and receive any moneys
or other property payable or deliverable on any such claim. Guarantors covenant
and agree that upon the commencement of a voluntary or involuntary bankruptcy
proceeding by or against Borrower, Guarantors shall not seek a supplemental stay
or otherwise pursuant to 11 U.S.C. Section 105 or any other provision of the
Bankruptcy Code, as amended, or any other debtor relief law (whether statutory,
common law, case law, or otherwise) of any jurisdiction whatsoever, now or
hereafter in effect, which may be or become applicable, to stay, interdict,
condition, reduce or inhibit the ability of Lender to enforce any rights of
Lender against Guarantors by virtue of this Guaranty or otherwise.
10. Financial Statements and Other Information. Guarantors hereby
represent and warrant to Lender that all financial statements of Guarantors and
their respective Subsidiaries heretofore delivered by Guarantors to Lender are
true and correct in all material respects, have been prepared in accordance with
generally accepted accounting principles consistently applied, and fairly
present the financial condition of Guarantors and their respective Subsidiaries
as at the close of business on the date thereof and the results of operations
for the period then ended; that no material adverse change has occurred in the
assets, liabilities, financial condition or business of Guarantors and their
respective Subsidiaries as shown or reflected therein since the date thereof;
and that Guarantors and their respective Subsidiaries have no liabilities or
known contingent liabilities involving material amounts which are not reflected
in such financial statements or referred to in the notes thereto other than
Guarantors' obligations under this Guaranty. Guarantors will permit any
representative designated by Lender, at Guarantors' expense, to visit and
inspect any of the properties of Guarantors and their respective Subsidiaries,
to examine the records and books of account of Guarantors and their respective
Subsidiaries (and to make copies thereof and extracts therefrom) and to discuss
the affairs, finances and accounts of Guarantors with, and to be advised as to
the same by, its officers, all at such reasonable times and intervals Lender may
reasonably request.
11. Covenants of Guarantors. Guarantors hereby covenant and agree
with Lender that until all indebtedness guaranteed hereby has been completely
repaid, all obligations and undertakings of Borrower under, by reason of, or
pursuant to the Note and the Loan Documents have been completely performed and
Lender has no further obligation to make Loans to Borrower pursuant to the Loan
Agreement, Guarantors shall, and shall cause their respective Subsidiaries to,
at all times comply with all covenants and provisions of the Loan Agreement and
the Loan Documents applicable to Guarantors. Guarantors will cooperate with
Lender and execute such further instruments and documents as Lender shall
reasonably request to carry out to their satisfaction the transactions
contemplated by this Guaranty and the other Loan Documents.
12. Security and Rights of Set-off. Guarantors hereby grant to
Lender, as security for the full and prompt payment and performance of
Guarantors' obligations hereunder, a continuing lien on and security interest in
any and all securities or other property belonging to Guarantors now or
hereafter held by Lender and in any and all deposits (general or specific, time
or demand, provisional or final, regardless of currency, maturity, or the branch
of Lender where the deposits are held) now or hereafter held by Lender and other
sums credited by or due from Lender to a Guarantor or subject to withdrawal by a
Guarantor; and regardless of the adequacy of any collateral or other means of
obtaining repayment of such obligations, during the continuance of any Event of
Default under the Note or the Loan Documents, Lender may at any time and without
notice to Guarantors set-off and apply the whole or any portion or portions of
any or all such deposits and other sums against amounts payable under this
Guaranty, whether or not any other person or persons could also withdraw money
therefrom. Any security now or hereafter held by or for Guarantors and provided
by Borrower, or by anyone on Borrower's behalf, in respect of liabilities of
Guarantors hereunder shall be held in trust for Lender as security for the
liabilities of Guarantors hereunder.
13. Changes in Writing; No Revocation. This Guaranty may not be
changed orally, and no obligation of Guarantors can be released or waived by
Lender except by a writing signed by a duly authorized officer of Lender. This
Guaranty shall be irrevocable by Guarantors until all indebtedness guaranteed
hereby has been completely repaid and all obligations and undertakings of
Borrower under, by reason of, or pursuant to the Note and the Loan Documents
have been completely performed and the Lenders have no further obligation to
advance Loans under the Loan Agreement.
14. Notices. All notices, demands or requests provided for or
permitted to be given pursuant to this Guaranty (hereinafter in this paragraph
referred to as "Notice") must be in writing and shall be deemed to have been
properly given or served by personal delivery or by sending same by overnight
courier or by depositing the same in the United States mail, postpaid and
registered or certified, return receipt requested, at the addresses set forth
below. Each Notice shall be effective upon being delivered personally or upon
being sent by overnight courier or upon being deposited in the United States
Mail as aforesaid. The time period in which a response to any such Notice must
be given or any action taken with respect thereto, however, shall commence to
run from the date of receipt if personally delivered or sent by overnight
courier or, if so deposited in the United States Mail, the earlier of three (3)
Business Days following such deposit and the date of receipt as disclosed on the
return receipt. Rejection or other refusal to accept or the inability to deliver
because of changed address of which no Notice was given shall be deemed to be
receipt of the Notice sent. By giving at least fifteen (15) days prior Notice
thereof, Guarantors or Lender shall have the right from time to time and at any
time during the term of this Guaranty to change their respective addresses and
each shall have the right to specify as its address any other address within the
United States of America. For the purposes of this Guaranty:
The address of Lender is:
Fleet National Bank, as Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Real Estate Division
with a copy to:
Fleet National Bank, as Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
and a copy to each other Lender which may now or hereafter become a party to the
Loan Agreement at such address as may be designated by such Lender.
The address of Guarantors is:
c/o JDN Realty Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
15. GOVERNING LAW. GUARANTORS ACKNOWLEDGE AND AGREE THAT THIS
GUARANTY AND THE OBLIGATIONS OF GUARANTORS HEREUNDER SHALL BE GOVERNED BY AND
INTERPRETED AND DETERMINED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW).
16. CONSENT TO JURISDICTION; WAIVERS. GUARANTORS HEREBY
IRREVOCABLY AND UNCONDITIONALLY (A) SUBMIT TO PERSONAL JURISDICTION IN THE
COMMONWEALTH OF MASSACHUSETTS OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS GUARANTY, AND (B) WAIVE ANY AND ALL PERSONAL RIGHTS UNDER
THE LAWS OF ANY STATE (I) TO THE RIGHT, IF ANY, TO TRIAL BY JURY(LENDER HAVING
ALSO WAIVED SUCH RIGHT TO TRIAL BY JURY), (II) TO OBJECT TO JURISDICTION WITHIN
THE COMMONWEALTH OF MASSACHUSETTS OR VENUE IN ANY PARTICULAR FORUM WITHIN THE
COMMONWEALTH OF MASSACHUSETTS, AND (III) TO THE RIGHT, IF ANY, TO CLAIM OR
RECOVER ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES
OTHER THAN OR IN ADDITION TO ACTUAL DAMAGES. EACH LENDER IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS UNDER THE LAWS OF ANY STATE TO THE
RIGHT, IF ANY, TO TRIAL BY JURY. GUARANTORS AGREE THAT, IN ADDITION TO ANY
METHODS OF SERVICE OF PROCESS PROVIDED FOR UNDER APPLICABLE LAW, ALL SERVICE OF
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING MAY BE MADE BY CERTIFIED OR
REGISTERED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO GUARANTORS AT THE ADDRESS
SET FORTH IN PARAGRAPH 14 ABOVE, AND SERVICE SO MADE SHALL BE COMPLETE FIVE (5)
DAYS AFTER THE SAME SHALL BE SO MAILED. NOTHING CONTAINED HEREIN, HOWEVER, SHALL
PREVENT LENDER FROM BRINGING ANY SUIT, ACTION OR PROCEEDING OR EXERCISING ANY
RIGHTS AGAINST ANY SECURITY AND AGAINST GUARANTORS PERSONALLY, AND AGAINST ANY
PROPERTY OF GUARANTORS, WITHIN ANY OTHER STATE. INITIATING SUCH SUIT, ACTION
OR PROCEEDING OR TAKING SUCH ACTION IN ANY STATE SHALL IN NO EVENT CONSTITUTE A
WAIVER OF THE AGREEMENT CONTAINED HEREIN THAT THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS SHALL GOVERN THE RIGHTS AND OBLIGATIONS OF GUARANTORS AND LENDER
HEREUNDER OR OF THE SUBMISSION HEREIN MADE BY GUARANTORS TO PERSONAL
JURISDICTION WITHIN THE COMMONWEALTH OF MASSACHUSETTS. EACH GUARANTOR HEREBY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
GUARANTORS CERTIFY THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY LENDER HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH LENDER WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND ACKNOWLEDGE THAT LENDER
HAS BEEN INDUCED TO ENTER INTO THIS GUARANTY AND THE OTHER LOAN DOCUMENTS TO
WHICH THEY ARE PARTIES BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS
CONTAINED IN THIS PARAGRAPH 16. GUARANTORS ACKNOWLEDGE THAT THEY HAVE HAD AN
OPPORTUNITY TO REVIEW THIS PARAGRAPH 16 WITH THEIR LEGAL COUNSEL AND THAT
GUARANTORS AGREE TO THE FOREGOING AS THEIR FREE, KNOWING AND VOLUNTARY ACT.
17. Successors and Assigns. The provisions of this Guaranty shall
be binding upon Guarantors and their respective heirs, successors, successors in
title, legal representatives, and assigns, and shall inure to the benefit of
Lender, its successors, successors in title, legal representatives and assigns.
No Guarantor shall assign or transfer any of its rights or obligations under
this Guaranty without the prior written consent of Lender.
18. Assignment by Lender. This Guaranty is assignable by Lender in
whole or in part in conjunction with any assignment of the Note or portions
thereof, and any assignment hereof or any transfer or assignment of the Note or
portions thereof by Lender shall operate to vest in any such assignee the rights
and powers, in whole or in part, as appropriate, herein conferred upon and
granted to Lender.
19. Severability. If any term or provision of this Guaranty shall
be determined to be illegal or unenforceable, all other terms and provisions
hereof shall nevertheless remain effective and shall be enforced to the fullest
extent permitted by law.
20. Disclosure. Guarantors agree that in addition to disclosures
made in accordance with standard banking practices, any Lender may disclose
information obtained by such Lender pursuant to this Guaranty to assignees or
participants and potential assignees or participants hereunder.
21. NO UNWRITTEN AGREEMENTS. THIS GUARANTY REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
22. Time of the Essence. Time is of the essence with respect to
each and every covenant, agreement and obligation of Guarantors under this
Guaranty.
23. Ratification. Guarantors do hereby restate, reaffirm and
ratify each and every warranty and representation regarding Guarantors or their
Subsidiaries set forth in the Loan Agreement as if the same were more fully set
forth herein.
24. Joint and Several Liability. Each of the Guarantors covenants
and agrees that each and every covenant and obligation of Guarantors hereunder
shall be the joint and several obligations of each of the Guarantors.
25. Counterparts. This Guaranty and any amendment hereof may be
executed in several counterparts and by each party on a separate counterpart,
each of which when so executed and delivered shall be an original, and all of
which together shall constitute one instrument. In proving this Guaranty it
shall not be necessary to produce or account for more than one such counterpart
signed by the party against whom enforcement is sought.
(SIGNATURES ON FOLLOWING PAGE)
IN WITNESS WHEREOF, Guarantors have executed this Guaranty under seal
as of this 27th day of December, 2002.
JDN DEVELOPMENT COMPANY, INC., a
Delaware corporation
By:_____________________________________
Name:___________________________________
Title:__________________________________
[SEAL]
JDN REALTY AL, INC., an Alabama
corporation
By:_____________________________________
Name:___________________________________
Title:__________________________________
[SEAL]
JDN REALTY HOLDINGS, L.P., a Georgia
limited partnership
By: JDN Realty Corporation, a Maryland
corporation, its sole general partner
By:_____________________________________
Name:___________________________________
Title:__________________________________
[SEAL]
JDN REALTY LP, INC., a Delaware
corporation
By:_____________________________________
Name:___________________________________
Title:__________________________________
[SEAL]
JDN REAL ESTATE-BRIDGEWOOD
FORT WORTH, L.P.
JDN REAL ESTATE-▇▇▇▇▇▇▇, ▇.▇.
JDN REAL ESTATE-CUMMING, L.P.
JDN REAL ESTATE-ERIE, L.P.
JDN REAL ESTATE-FAYETTEVILLE, L.P.
JDN REAL ESTATE-FRISCO, L.P.
JDN REAL ESTATE-GULF BREEZE II, L.P.
JDN REAL ESTATE-▇▇▇▇▇▇▇▇, ▇.▇.
JDN REAL ESTATE-HICKORY CREEK, L.P.
JDN REAL ESTATE-LAKELAND, L.P.
JDN REAL ESTATE-MCDONOUGH II, L.P.
JDN REAL ESTATE-▇▇▇▇▇▇▇▇, ▇.▇.
JDN REAL ESTATE-MESQUITE, L.P.
JDN REAL ESTATE-OVERLAND PARK, L.P.
JDN REAL ESTATE-▇▇▇▇▇▇ PAVILIONS, L.P.
JDN REAL ESTATE-PENSACOLA, L.P.
JDN REAL ESTATE-PIONEER HILLS II, L.P.
JDN REAL ESTATE-▇▇▇▇▇▇, ▇.▇.
JDN REAL ESTATE-SACRAMENTO, L.P.
JDN REAL ESTATE-▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
JDN REAL ESTATE-WEST LAFAYETTE, L.P.
JDN REAL ESTATE-WEST LANSING, L.P.
JDN REAL ESTATE-STONE MOUNTAIN, L.P.
JDN REAL ESTATE-SUWANEE, L.P.
JDN REAL ESTATE-OAKLAND, L.P.
JDN REAL ESTATE-FREEHOLD, L.P.
JDN REAL ESTATE-APEX, L.P.
each a Georgia limited partnership
By: JDN Development Investment, L.P., a
Georgia limited partnership, their sole
general partner
By: JDN Development Company, Inc., its sole
general partner
By:_____________________________________
Name:___________________________________
Title:__________________________________
(CORPORATE SEAL)
JDN REAL ESTATE-▇▇▇▇▇▇▇▇▇, ▇.▇., a Georgia
limited partnership
By: JDN Realty Holdings, L.P., a Georgia
limited partnership, its sole general
partner
By: JDN Realty Corporation, a Maryland
corporation, its sole general partner
By:_____________________________________
Name:___________________________________
Title:__________________________________
(CORPORATE SEAL)
CHESTERFIELD EXCHANGE, LLC
FAYETTEVILLE EXCHANGE, LLC,
each a Georgia limited liability company
By: JDN Realty Corporation, a Maryland
corporation, their manager
By:_____________________________________
Name:___________________________________
Title:__________________________________
(CORPORATE SEAL)
HICKORY HOLLOW EXCHANGE, LLC,
a Georgia limited liability company
By: JDN Development Company, Inc.,
a Delaware corporation, its manager
By:_____________________________________
Name:___________________________________
Title:__________________________________
(CORPORATE SEAL)
JDN INTERMOUNTAIN DEVELOPMENT, ▇▇▇▇▇▇
PAVILION, LLC, a Georgia limited liability
company
By: JDN Real Estate-▇▇▇▇▇▇ Pavilions, L.P.,
a Georgia limited partnership, its manager
By: JDN Development Investment, L.P., a
Georgia limited partnership, its sole
general partner
By: JDN Development Company, Inc., a
Delaware corporation, its sole general
partner
By:_____________________________________
Name:___________________________________
Title:__________________________________
(CORPORATE SEAL)
JDN REAL ESTATE-▇▇▇▇▇▇▇, LLC (formerly known
as JDN Real Estate-▇▇▇▇▇▇▇, ▇.▇.), a Georgia
limited liability company
By: JDN Development Investment, L.P., a
Georgia limited partnership, its member and
sole manager
By: JDN Development Company, Inc., a
Delaware corporation, its sole general
partner
By:_____________________________________
Name:___________________________________
Title:__________________________________
(CORPORATE SEAL)
CANAL STREET PARTNERS, L.L.C., a Michigan
limited liability company
By: JDN Realty Corporation, a Maryland
corporation, its manager
By:_____________________________________
Name:___________________________________
Title:__________________________________
(CORPORATE SEAL)
BLACK CHERRY LIMITED LIABILITY COMPANY, a
Colorado limited liability company
By: JDN Realty Corporation, a Maryland
corporation, its sole member
By:_____________________________________
Name:___________________________________
Title:__________________________________
(CORPORATE SEAL)
GEORGIA FINANCE CORPORATION, a Delaware
corporation
By:_____________________________________
Name:___________________________________
Title:__________________________________
(CORPORATE SEAL)
JDN REALTY CORPORATION GP, INC., a Delaware
corporation
By:_____________________________________
Name:___________________________________
Title:__________________________________
(CORPORATE SEAL)
JDN INTERMOUNTAIN DEVELOPMENT CORP., a
Delaware corporation
By:_____________________________________
Name:___________________________________
Title:__________________________________
(CORPORATE SEAL)
JDN DEVELOPMENT LP, INC., a Delaware
corporation
By:_____________________________________
Name:___________________________________
Title:__________________________________
(CORPORATE SEAL)
JDN OF ALABAMA REALTY CORPORATION, an
Alabama corporation
By:_____________________________________
Name:___________________________________
Title:__________________________________
(CORPORATE SEAL)
WHF, INC., a Georgia corporation
By:_____________________________________
Name:___________________________________
Title:__________________________________
(CORPORATE SEAL)
▇▇▇▇▇▇▇▇ BRIDGE ASSOCIATES, INC., a Georgia
corporation
By:_____________________________________
Name:___________________________________
Title:__________________________________
(CORPORATE SEAL)
FAYETTEVILLE BLACK INVESTMENT, INC., a
Georgia corporation
By:_____________________________________
Name:___________________________________
Title:__________________________________
(CORPORATE SEAL)
JDN DEVELOPMENT INVESTMENT, L.P., a Georgia
limited partnership
By: JDN Development Company, Inc., its sole
general partner
By:_____________________________________
Name:___________________________________
Title:__________________________________
(CORPORATE SEAL)
18
Lender joins in the execution of this Guaranty for the sole and limited
purpose of evidencing its agreement to waiver of the right to trial by jury
contained in Section 16(b)(i) hereof and Section 25 of the Loan Agreement.
FLEET NATIONAL BANK,
as Agent for Lender
By:_____________________________________
Name:________________________________
Title:_______________________________
19
EXHIBIT F
[INTENTIONALLY OMITTED]
F-1
EXHIBIT G
[INTENTIONALLY OMITTED]
G-1
EXHIBIT H
FORM OF REQUEST FOR LOAN
Fleet National Bank, as Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Ladies and Gentlemen:
Pursuant to the provisions of Section 2.7 of the Term Loan Agreement
dated as of December 27, 2002 (as the same may hereafter be amended, the "Credit
Agreement"), among JDN Realty Corporation (the "Borrower"), Fleet National Bank
for itself and as Agent, and the other Lenders from time to time party thereto,
the undersigned Borrower hereby requests and certifies as follows:
1. Loan. The undersigned Borrower hereby requests a Loan under
Section 2.1 of the Credit Agreement:
Principal Amount: $__________
Type (LIBOR Rate, Base Rate):
Drawdown Date:
Interest Period for LIBOR Rate Loans:
by, at Agent's option, credit to the general account of the Borrower with the
Agent at the Agent's Head Office or disbursement to the Trustee (or other paying
agent) on account of the Maturing Notes.
2. Use of Proceeds. Such Loan shall be used for the purpose
permitted by Section 2.9 of the Credit Agreement.
3. No Default. The undersigned chief financial officer or chief
accounting officer of Borrower certifies that the Borrower and the Guarantors
are and will be in compliance with all covenants under the Loan Documents after
giving effect to the making of the Loan requested hereby.
4. Representations True. Each of the representations and
warranties made by or on behalf of the Borrower, the Guarantors or their
respective Subsidiaries, contained in the Credit Agreement, in the other Loan
Documents or in any document or instrument delivered pursuant to or in
connection with the Credit Agreement was true in all material respects as of the
date on which it was made and at and as of the Drawdown Date for the Loan
requested hereby, with the same effect as if made at and as of such Drawdown
Date, except to the extent of changes resulting from transactions permitted by
the Loan Documents (it being understood and agreed that any representation or
warranty which by its terms is made as of a specified date shall be
H-1
required to be true and correct only as of such specified date), and no Default
or Event of Default has occurred and is continuing.
5. Other Conditions. All other conditions to the making of the
Loan requested hereby set forth in the Credit Agreement have been satisfied.
6. Definitions. Terms defined in the Credit Agreement are used
herein with the meanings so defined.
IN WITNESS WHEREOF, the undersigned has duly executed this request this
_____ day of _____________, 200__.
JDN REALTY CORPORATION,
a Maryland corporation
By:_____________________________________
Name:________________________________
Title:_______________________________
(CORPORATE SEAL)
H-2
EXHIBIT I
[INTENTIONALLY OMITTED]
I-1
EXHIBIT J
[INTENTIONALLY OMITTED]
J-1
EXHIBIT K
FORM OF COMPLIANCE CERTIFICATE
Fleet National Bank, as Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to the Term Loan Agreement dated as of December 27,
2002 (as the same may hereafter be amended, the "Credit Agreement") by and among
JDN Realty Corporation (the "Borrower"), Fleet National Bank for itself and as
Agent, and the other Lenders from time to time party thereto. Terms defined in
the Credit Agreement and not otherwise defined herein are used herein as defined
in the Credit Agreement.
Pursuant to the Credit Agreement, Borrower is furnishing to you
herewith (or have most recently furnished to you) the consolidated financial
statement of Borrower for the fiscal period ended _______________ (the "Balance
Sheet Date"). Such financial statement has been prepared in accordance with GAAP
and presents fairly the consolidated financial position of Borrower covered
thereby at the date thereof and the results of its operations for the periods
covered thereby, subject in the case of interim statements only to normal
year-end audit adjustments.
This certificate is submitted in compliance with requirements of
Section 7.4(c), Section 7.5(e), Section 8.8 or Section 10.12 of the Credit
Agreement. If this certificate is provided under a provision other than Section
7.4(c), the calculations provided below are made using the consolidated
financial statement of Borrower as of the Balance Sheet Date adjusted in the
best good faith estimate of Borrower to give effect to the making of a Loan,
acquisition or disposition of property or other event that occasions the
preparation of this certificate; and the nature of such event and the estimate
of Borrower of its effects are set forth in reasonable detail in an attachment
hereto. The undersigned officer is the chief financial officer or chief
accounting officer of Borrower.
The undersigned representatives have caused the provisions of the Loan
Documents to be reviewed and have no knowledge of any Default or Event of
Default. (Note: If the signer does have knowledge of any Default or Event of
Default, the form of certificate should be revised to specify the Default or
Event of Default, the nature thereof and the actions taken, being taken or
proposed to be taken by the Borrower with respect thereto.)
Borrower is providing the attached information to demonstrate
compliance as of the date hereof with the covenants described in the attachment
hereto.
K-1
IN WITNESS WHEREOF, the undersigned have duly executed this Compliance
Certificate this _____ day of ___________, 200__.
JDN REALTY CORPORATION,
a Maryland corporation
By:_____________________________________
Name:________________________________
Title:_______________________________
(CORPORATE SEAL)
K-2
APPENDIX TO
COMPLIANCE CERTIFICATE
I. Section 8.3. Investments.
A. Investments pursuant to Section 8.3(l) and Section 8.3(m)
1. Investments permitted by
Section 8.3(l) $__________
2. Investments permitted by
Section 8.3(m) $__________
3. Sum of A.1 plus A.2 $__________
Consolidated Total Assets $__________
(Attach worksheet showing
calculation of Consolidated
Total Assets)
A.3 is ___% of A.4
A.3 may not exceed 10% of A.4
B. Investments pursuant to Section 8.3(m)
1. Investments permitted by
Section 8.3(m) $__________
2. Consolidated Total Assets
(from I.A.4) $__________
B.1 is ___% of B.2
B.1 may not exceed 5% of B.2
C. Investments pursuant to Section 8.3(n)
Aggregate amount of Common Stock
Repurchased as of Closing Date $__________
Amount repurchased may not exceed
$25,000,000.00
II. Section 8.7. Distributions.
A. Attach Worksheet of Distributions for
previous quarter (or quarters, as
applicable)
Distributions may not exceed amount
permitted pursuant to Section 8.7
III. Section 8.9. Development Activity.
1
A. Aggregate Amount of Construction in $__________
Progress for Existing Projects under
Construction, Existing Pre-Development
Properties and Announced Projects (after
March 14, 2003, such development is
limited to Existing Properties Under
Construction and Announced Projects
(up to $50,000 per quarter)
B. Consolidated Total Assets (from I.A.4) $__________
C. A is ___% of B
A may not exceed 30% of B
IV. Section 9.2. Fixed Charge Coverage.
A. Adjusted Consolidated EBITDA
1. Consolidated EBITDA for previous
2 quarters
For quarter ending _________ $__________
For quarter ending _________ $__________
Total Consolidated EBITDA for
previous 2 quarters $__________
2. Capital Improvement Reserve $__________
3. A.1 minus A.2 (Adjusted
Consolidated EBITDA) $__________
B. Consolidated Fixed Charges
1. Consolidated Interest Incurred
for previous 2 quarters
For quarter ending ___________ $__________
For quarter ending ___________ $__________
Total Consolidated Interest
Incurred for previous two
quarters $__________
2. Dividends paid or declared but
not yet paid on preferred stock
for previous 2 quarters
For quarter ending ___________ $__________
For quarter ending ___________ $__________
Total Dividends $__________
2
3. Scheduled principal amortization
for previous 2 quarters
For quarter ending ___________ $__________
For quarter ending ___________ $__________
Total Principal Amortization $__________
4. Ground lease payments for
previous 2 quarters
For quarter ending ___________ $__________
For quarter ending ___________ $__________
Total Ground Lease Payments $__________
5. Sum of 1 through 4 $__________
Ratio of A.3 to B.5 ___________
A.3 may not be less than 1.60
times B.5
V. Section 9.3. Secured Debt Ratio.
A. Total Secured Debt of Borrower and
its Subsidiaries (excluding $__________
Intercompany Debt)
B. Adjusted Total Assets $__________
Ratio of A to B ___________
A may not exceed 40% of B
VI. Section 9.4. Land Assets.
A. Value of direct and indirect
interests in Land Assets $__________
B. Consolidated Total Assets
(from I.A.4) $__________
Ratio of A to B ___________
A may not exceed 5% of B
VII. Section 9.5. Net Worth.
A. Consolidated Tangible Net Worth
Consolidated Shareholder's Equity $__________
Minus total book value of
intangible assets ($__________)
3
Minus asset write-up amounts ($__________)
Total $__________
B. Equity Offerings
1. Aggregate net proceeds from
Equity Offerings after Closing
Date $__________
2. $400,000,000.00 plus 90% of B.1 $__________
Total of A may not be less than B.2
VIII. Section 9.6. Liabilities to Assets Ratio.
A. Consolidated Total Liabilities
1. Consolidated Liabilities $__________
2. Plus Indebtedness Guaranteed
by Borrower or any Subsidiary $__________
3. Plus Letters of Credit issued
for the account of Borrower and
its Subsidiaries $__________
Consolidated Total Liabilities $__________
B. Consolidated Total Assets (from
item I.A.4) $__________
C. Ratio of A to B ___________
Ratio may not exceed 0.60 to 1
IX. Section 9.7. EBITDA Coverage.
A. Consolidated EBITDA for previous
2 quarters
For quarter ending $__________
For quarter ending $__________
Total Consolidated EBITDA
for previous 2 quarters $__________
B. Consolidated Interest Expense
for previous 2 quarters
For quarter ending $__________
For quarter ending $__________
4
Total Consolidated Interest
Expense for previous 2 quarters $__________
C. Ratio of A to B ___________
Ratio of A to B shall not be
less than 2:1
X. Section 9.9. Limitation on Incurrence of
Total Debt.
A. Debt (excluding Intercompany
Debt) $__________
B. Adjusted Total Assets $__________
C. Ratio of A to B ___________%
Ratio of A to B shall not be
greater than 60%
XI. Section 9.10. Total Unencumbered Assets to
Unsecured Debt.
A. Total Unencumbered Assets $__________
B. Unsecured Debt $__________
C. Ratio of A to B ___________%
Ratio of A to B shall not be
less than 150%
5
WORKSHEET
CONSOLIDATED TOTAL ASSETS
A. Capitalized Net Operating Income for Real Estate owned
by Borrower or Guarantor at least 2 quarters
1. Net Operating Income for Real Estate owned by
Borrower or Guarantor for at least 2 quarters $__________
(NOTE: Management expenses, calculated as the
greater of actual property management expenses
for such period or 3% of Base Rent, to be
deducted in calculating Net Operating Income)
2. Amount of A.1 multiplied by 2
3. Amount on A.2 divided by 0.10 $__________
B. Book Value as of end of month just ended of Real Estate
owned by Borrower or Guarantor less than 2 quarters $__________
C. Book Value as of end of quarter just ended of Land
Assets and Construction in Progress $__________
D. Aggregate of unrestricted cash and accounts receivable
not past due and restricted cash held by "qualified
intermediary" $__________
E. Book Value of Borrower's interest in Subsidiaries that
are not Guarantors $__________
F. Book Value of Borrower's Minority Interests in Persons
other than its Subsidiaries $__________
Consolidated Total Assets equals sum of A plus B plus C $__________
plus D plus E plus F
(Enter figure in Line I.A.4 of Compliance Certificate)
6
EXHIBIT L
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
THIS ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "Agreement") dated
____________________, by and between ____________________________ ("Assignor"),
and ____________________________ ("Assignee").
W I T N E S E T H:
WHEREAS, Assignor is a party to that certain Term Loan Agreement, dated
December 27, 2002, by and among JDN REALTY CORPORATION, a Maryland corporation
("Borrower"), the other lenders that are or may become a party thereto, and
FLEET NATIONAL BANK, as Agent (the "Loan Agreement"); and
WHEREAS, Assignor desires to transfer to Assignee [DESCRIBE ASSIGNED
COMMITMENTS] under the Loan Agreement and its rights with respect to the
Commitment assigned and its Outstanding Loans with respect thereto;
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other good and valuable considerations, the receipt and
sufficiency of which are hereby acknowledged, Assignor and Assignee hereby agree
as follows:
7. Definitions. Terms defined in the Loan Agreement and used
herein without definition shall have the respective meanings assigned to such
terms in the Loan Agreement.
8. Assignment.
(a) Subject to the terms and conditions of this Agreement and in
consideration of the payment to be made by Assignee to Assignor pursuant to
Paragraph 5 of this Agreement, effective as of the "Assignment Date" (as defined
in Paragraph 7 below), Assignor hereby irrevocably sells, transfers and assigns
to Assignee, without recourse, a portion of its Note in the amount of
$_______________ representing a $_______________ Commitment, and a
____________________ percent (_____%) Commitment Percentage, and a corresponding
interest in and to all of the other rights and obligations under the Loan
Agreement and the other Loan Documents relating thereto (the assigned interests
being hereinafter referred to as the "Assigned Interests"), including Assignor's
share of all outstanding Loans with respect to the Assigned Interests and the
right to receive interest and principal on and all other fees and amounts with
respect to the Assigned Interests, all from and after the Assignment Date, all
as if Assignee were an original Lender under and signatory to the Loan Agreement
having a Commitment Percentage equal to the amount of the respective Assigned
Interests.
(b) Assignee, subject to the terms and conditions hereof, hereby
assumes all obligations of Assignor with respect to the Assigned Interests from
and after the Assignment Date as if Assignee were an original Lender under and
signatory to the Loan Agreement and the "Intercreditor Agreement" (as
hereinafter defined), which obligations shall include, but shall not be limited
to, the obligation to make Loans to the Borrower with respect to the Assigned
Interests and to indemnify the Agent as provided therein (such obligations,
together with all
L-1
other obligations set forth in the Loan Agreement and the other Loan Documents
are hereinafter collectively referred to as the "Assigned Obligations").
Assignor shall have no further duties or obligations with respect to, and shall
have no further interest in, the Assigned Obligations or the Assigned Interests.
9. Representations and Requests of Assignor.
(a) Assignor represents and warrants to Assignee (i) that it is
legally authorized to, and has full power and authority to, enter into this
Agreement and perform its obligations under this Agreement; (ii) that as of the
date hereof, before giving effect to the assignment contemplated hereby the
principal face amount of Assignor's Note is $____________ and the aggregate
outstanding principal balance of the Loans made by it equals $____________, and
(iii) that it has forwarded to the Agent the Note held by Assignor. Assignor
makes no representation or warranty, express or implied, and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Loan Documents or the execution, legality,
validity, enforceability, genuineness or sufficiency of any Loan Document or any
other instrument or document furnished pursuant thereto or in connection with
the Loan, the collectability of the Loans, the continued solvency of the
Borrower or the Guarantors or the continued existence, sufficiency or value of
the Collateral or any assets of the Borrower or the Guarantors which may be
realized upon for the repayment of the Loans, or the performance or observance
by the Borrower or the Guarantors of any of their respective obligations under
the Loan Documents to which it is a party or any other instrument or document
delivered or executed pursuant thereto or in connection with the Loan; other
than that it is the legal and beneficial owner of, or has the right to assign,
the interests being assigned by it hereunder and that such interests are free
and clear of any adverse claim.
(b) Assignor requests that the Agent obtain replacement notes for
each of Assignor and Assignee as provided in the Loan Agreement.
10. Representations of Assignee. Assignee makes and confirms to
the Agent, Assignor and the other Lenders all of the representations, warranties
and covenants of a Lender under Articles 14 and 18 of the Loan Agreement and
Paragraph 4 of the Intercreditor Agreement. Without limiting the foregoing,
Assignee (a) represents and warrants that it is legally authorized to, and has
full power and authority to, enter into this Agreement and perform its
obligations under this Agreement; (b) confirms that it has received copies of
such documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Agreement; (c) agrees that it
has and will, independently and without reliance upon Assignor, any other Lender
or the Agent and based upon such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in evaluating
the Loans, the Loan Documents, the creditworthiness of the Borrower and the
Guarantors and the value of the assets of the Borrower and the Guarantors, and
taking or not taking action under the Loan Documents and any intercreditor
agreement among the Lenders and the Agent (the "Intercreditor Agreement"); (d)
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers as are reasonably incidental thereto pursuant to the
terms of the Loan Documents and the Intercreditor Agreement; (e) agrees that, by
this Assignment, Assignee has become a party to and will perform in accordance
with their terms all the obligations which by the terms of the Loan Documents
and the Intercreditor Agreement are
L-2
required to be performed by it as a Lender; (f) represents and warrants that
Assignee does not control, is not controlled by, is not under common control
with and is otherwise free from influence or control by, the Borrower or any
Guarantor, (g) represents and warrants that Assignee is subject to control,
regulation or examination by a state or federal regulatory agency, (h) agrees
that if Assignee is not incorporated under the laws of the United States of
America or any State, it has on or prior to the date hereof delivered to
Borrower and Agent certification as to its exemption (or lack thereof) from
deduction or withholding of any United States federal income taxes and (i) if
Assignee is an assignee prior to the funding of the Loans, it has a net worth or
unfunded capital commitment as of the date hereof of not less than
$200,000,000.00 unless waived in writing by Borrower and Agent.
11. Payments to Assignor. In consideration of the assignment made
pursuant to Paragraph 1 of this Agreement, Assignee agrees to pay to Assignor on
the Assignment Date, an amount equal to $____________ representing the aggregate
principal amount outstanding of the Loans owing to Assignor under the Loan
Agreement and the other Loan Documents with respect to the Assigned Interests.
12. Payments by Assignor. Assignor agrees to pay the Agent on the
Assignment Date the registration fee required by Section 18.2 of the Loan
Agreement.
13. Effectiveness.
(a) The effective date for this Agreement shall be _______________
(the "Assignment Date"). Following the execution of this Agreement, each party
hereto shall deliver its duly executed counterpart hereof to the Agent for
acceptance and recording in the Register by the Agent.
(b) Upon such acceptance and recording and from and after the
Assignment Date, (i) Assignee shall be a party to the Loan Agreement and the
Intercreditor Agreement and, to the extent of the Assigned Interests, have the
rights and obligations of a Lender thereunder, and (ii) Assignor shall, with
respect to the Assigned Interests, relinquish its rights and be released from
its obligations under the Loan Agreement and the Intercreditor Agreement.
(c) Upon such acceptance and recording and from and after the
Assignment Date, the Agent shall make all payments in respect of the rights and
interests assigned hereby accruing after the Assignment Date (including payments
of principal, interest, fees and other amounts) to Assignee.
(d) All outstanding LIBOR Rate Loans shall continue in effect for
the remainder of their applicable Interest Periods and Assignee shall accept the
currently effective interest rates on its Assigned Interest of each LIBOR Rate
Loan.
14. Notices. Assignee specifies as its address for notices and its
Lending Office for all assigned Loans, the offices set forth below:
Notice Address: _____________________
_____________________
_____________________
L-3
_____________________
Attn:________________
Facsimile: __________
Domestic Lending Office: Same as above
Eurodollar Lending Office: Same as above
15. Payment Instructions. All payments to Assignee under the Loan
Agreement shall be made as provided in the Loan Agreement in accordance with the
following instructions:
_____________________
_____________________
_____________________
_____________________
_____________________
_____________________
16. Governing Law. THIS AGREEMENT IS INTENDED TO TAKE EFFECT AS A
SEALED INSTRUMENT FOR ALL PURPOSES AND TO BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS (WITHOUT
REFERENCE TO CONFLICT OF LAWS).
17. Counterparts. This Agreement may be executed in any number of
counterparts which shall together constitute but one and the same agreement.
18. Amendments. This Agreement may not be amended, modified or
terminated except by an agreement in writing signed by Assignor and Assignee,
and consented to by Agent.
19. Successors. This Agreement shall inure to the benefit of the
parties hereto and their respective successors and assigns as permitted by the
terms of Loan Agreement and the Intercreditor Agreement.
[signatures on following page]
L-4
IN WITNESS WHEREOF, intending to be legally bound, each of the
undersigned has caused this Agreement to be executed on its behalf by its
officers thereunto duly authorized, as of the date first above written.
ASSIGNEE:
________________________________________
By:_____________________________________
Title:_______________________________
ASSIGNOR:
________________________________________
By:_____________________________________
Title:_______________________________
RECEIPT ACKNOWLEDGED AND
ASSIGNMENT CONSENTED TO BY:
FLEET NATIONAL BANK, as Agent
By:________________________________
Title:________________________
ASSIGNMENT CONSENTED TO BY:
JDN REALTY CORPORATION
By:________________________________
Title:________________________
L-5
SCHEDULE 1.1
LENDERS AND COMMITMENTS
Revolving Credit Revolving Credit
Name and Address Commitment Commitment Percentage
---------------- ---------- ---------------------
Fleet National Bank $25,000,000.00 50%
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
LIBOR Lending Office
Same as above
Commerzbank AG, New York and $15,000,000.00 30%
Grand Cayman Branches 2 World
Financial Center ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
LIBOR Lending Office
Same as above
Sovereign Bank $10,000,000.00 20%
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ 1 SST 04 11
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
LIBOR Lending Office
Same as above
Total $50,000,000.00 100%
Percentages may not equal 100% due to rounding.
Schedule 1.1 - Page 1
SCHEDULE 2.9(a)
EXISTING PRE-DEVELOPMENT PROPERTIES
Project Total Costs
------- -----------
1. Apex, NC $38,851,684
2. ▇▇▇▇▇▇▇, CO $13,241,777
3. Boulder, CO $13,241,777
4. Egg Harbor, NJ $20,004,614
5. Freehold, NJ $34,905,511
6. Grand Junction, CO $4,716,901
7. John's Creek II $5,000,000
8. Lakewood, CO $20,004,614
9. McKinney, TX $8,227,553
10. Middletown, NJ $13,241,777
11. Nashville, TN $10,415,646
12. Oakland, TN $5,919,682
13. Parker South, CO $16,262,074
14. Philadelphia, PA $14,589,009
Schedule 2.9(a) - Page 1
SCHEDULE 2.9(b)
EXISTING PROPERTIES UNDER CONSTRUCTION
Project Net GLA Total Costs
------- ------- -----------
1. Aurora, CO 139,473 sf $18,404,403
2. Fayetteville, AR 50,375 sf $5,413,080
3. Frisco, TX 21,000 sf $3,594,811
4. Fort ▇▇▇▇▇▇▇, CO 21,840 sf $6,054,680
5. Grandville, MI 35,170 sf $4,514,746
6. Gulf Breeze, FL 14,490 sf $2,480,362
7. ▇▇▇▇▇▇▇▇, NJ 465,279 sf $78,922,413
8. Lansing, MI 21,000 sf $3,291,129
9. Mesquite, TX 93,587 sf $13,070,056
10. Norwood, MA 146,933 sf $7,228,364
11. Overland Park, KS 19,600 sf $4,806,027
12. Sacramento, CA 17,855 sf $3,943,502
13. St. John's, MO 22,200 sf $2,790,915
14. ▇▇▇▇▇▇ ▇▇▇▇, GA 52,900 sf $7,063,218
Schedule 2.9(b) - Page 1
SCHEDULE 2.9(c)
ANNOUNCED PROPERTIES
Project Net GLA Total Costs
1. Beaver Valley II, CO 83,550 sf $ 9,267,260
2. Chesterfield, MI 105,745 sf $14,007,546
3. Erie, PA 34,872 sf $ 4,938,403
4. Frisco LP, TX 9,800 sf $ 1,588,994
5. Grandville, MI 38,960 sf $ 4,905,341
6. Irving, TX 95,300 sf $10,981,622
7. Lansing, MI 70,500 sf $ 9,599,210
8. McDonough South, GA 46,555 sf $ 5,639,897
9. McKinney, TX 69,235 sf $ 8,727,735
10. Overland Park, KS 55,575 sf $10,878,350
11. Stone Mountain 115,396 sf $14,628,282
Schedule 2.10 - Page 1
SCHEDULE 2.10
EXISTING LETTERS OF CREDIT
1. $551,663.75 Letter of Credit issued in favor of the Town of ▇▇▇▇▇▇ (CO).
2. $42,076.43 Letter of Credit issued in favor of the Town of ▇▇▇▇▇▇ (CO) Water
and Sanitation District.
3. $236,900.00 Letter of Credit issued in favor of the City of Franklin, TN
(Wal-Mart).
4. $75,000.00 Letter of Credit issued in favor of ▇▇▇▇-▇▇▇▇ (▇▇▇▇▇▇▇▇).
5. $47,100.00 Letter of Credit issued in favor of the Town of ▇▇▇▇▇▇ (Flat
Acres).
Schedule 1.3 -- Page 2
SCHEDULE 6.3
LIST OF ALL ENCUMBRANCES ON BORROWER ASSETS
The following is a listing of all encumbrances on the Borrower assets (excluding
the Mortgage Properties).
PRINCIPAL BALANCE AS OF 9/30/02
Mortgage note payable -- Richmond, KY $5,705,000
Mortgage note payable -- Milwaukee, WI $3,792,000
Mortgage note payable -- Marietta, GA $10,252,000
Mortgage note payable -- Lilburn, GA $11,703,000
Mortgage note payable -- Woodstock, GA $11,007,000
Mortgage note payable -- Hendersonville, TN $10,065,000
Mortgage note payable -- Alpharetta, GA $12,576,000
Mortgage note payable -- Denver, CO $29,929,000
Mortgage note payable -- Allentown, PA $19,915,000
Construction loan payable -- Aurora, CO $0*
Construction loan payable -- Grandville, MI $10,074,000
Construction loan payable -- Mesquite, TX $12,184,000
Construction loan payable -- St. ▇▇▇▇, MO $4,061,000
------------
Total Principal Balance on Encumbered Assets $141,263,000
* This loan closed in the third quarter, however, funding did not occur until
October 2002.
Schedule 6.3 -- Page 1
SCHEDULE 6.7
------------
LITIGATION OF BORROWER
1. A number of class action lawsuits have been filed by the Borrower's common
and preferred shareholders in federal and state court against the Borrower,
its subsidiary, JDN DCI, and certain current and former officers and
directors of those companies. The lawsuits were filed after a February 14,
2000 announcement by the Borrower that it had discovered certain
undisclosed compensation arrangements, payments and related party
transactions involving two former employees of JDN DCI, which were not
accurately reported on the books and records of JDN DCI and the Borrower
for the years ended December 31, 1994 through 1998. The multiple class
actions filed in federal court allege violations of the federal securities
laws, and allege that by failing to report the compensation arrangements,
payments and related party transactions and other matters to the public in
the Borrower's financial statements, public filings, and otherwise, the
defendants made or participated in making material misstatements or
omissions which caused the plaintiffs to purchase the Borrower's stock at
an artificially inflated price. The plaintiffs seek compensatory damages of
an indeterminate amount, interest, attorney's fees, expert's fees and other
costs and disbursements. The federal class actions have been consolidated
and are pending in the United States District Court for the Northern
District of Georgia.
2. On April 28, 2000, Lake Lucerne Estates Civic Club, Inc., a nonprofit
homeowners association located in Gwinnett County, Georgia, and a number of
individual plaintiffs, filed suit against JDN DCI, ▇▇▇▇'▇ Companies, Inc.,
and ▇▇▇▇▇▇▇ Contracting, Inc. The suit was filed in the Superior Court of
▇▇▇▇▇▇ County, Georgia. The complaint asserts trespass, nuisance and
negligence against JDN DCI in connection with the development of a shopping
center anchored by Lowe's.
3. The Company is also subject to a formal order of investigation initiated by
the SEC as of August 2, 2000. Pursuant to this order, the Company has
voluntarily provided certain documents and other information to the SEC
regarding the compensation arrangements, unauthorized benefits and related
party transactions. By letter dated March 5, 2001, the SEC staff advised
the Company that it intended to recommend that the SEC institute an
administrative proceeding against the Company. The Company continues to
cooperate fully with the SEC staff in order to resolve this matter as
expeditiously as practicable. Management of the Company does not expect
that the resolution of this matter will have a material adverse effect on
the Company's business, financial condition or results of operation.
However, the Company is unable to predict with certainty the timing or
ultimate outcome of this matter.
4. In a lawsuit filed in Superior Court of Gwinnett County, Georgia on
February 2, ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, L.L.C. ("Dogwood") brought claims against
the Borrower and WHF, Inc. ("WHF"), a wholly-owned subsidiary of JDN DCI.
Until April 1999, WHF owned a seventy-two percent (72%) interest in Dogwood
and served as the operating member of
the entity. The complaint asserts, among other things, breach of fiduciary
duty against WHF and improper receipt of funds by the Borrower. The case is
currently in the discovery phase.
5. A class action lawsuit was also filed by the Borrower's shareholders
against the Borrower, JDN DCI, and four former officers and/or directors of
those companies in the Superior Court of ▇▇▇▇▇▇ County, Georgia. The
complaint contains substantially the same factual allegations asserted in
the federal class actions, but purports to seek relief under state law for
"lost dividends". The amended complaint contains claims of conversion and
purported violations of the ▇▇▇▇▇▇▇ ▇▇▇▇ statute, and the plaintiffs seek
compensatory and punitive damages, attorney fees and expenses, interest and
equitable relief.
6. In July 2000, a purported derivative actions was filed in federal district
court against the Borrower as a nominal defendant, and certain former and
current officers and directors of the Borrower. The lawsuit was filed in
the United States District Court for the Northern District of Georgia. The
plaintiffs allege that the individual defendants breached certain duties
between 1994 and 1998 in connection with undisclosed compensation
arrangements, payments and related party transactions discussed above. The
complaints allege claims for breach of fiduciary duty, abuse of control,
waste of corporate assets, unjust enrichment and gross mismanagement.
Similar actions have been filed in the Superior Court and the State Court
of ▇▇▇▇▇▇ County.
7. On October 7, 2002, a JDN shareholder filed a purported class action and
derivative suit in the Superior Court of ▇▇▇▇▇▇ County, Georgia, against
JDN, JDN's board of directors and DDR alleging claims of breach of
fiduciary duty, waste, abuse of control, and unjust enrichment. The
complaint seeks declaratory relief, an order enjoining consummation of the
merger and an accounting for unspecified damages. All defendants have moved
to dismiss the complaint on several grounds. The defendants' motion is
pending.
8. On October 10, 2002, a JDN shareholder filed a purported class action suit
in the Circuit Court for Baltimore, Maryland, against JDN and JDN's board
of directors alleging a claim of breach of fiduciary duty. The complaint
seeks declaratory relief, an order enjoining consummation of the merger and
unspecified damages. On November 22, 2002, the defendants removed the
action to the United States District Court for the District of Maryland. On
December 2, 2002, the defendants moved to stay the Maryland litigation
pending the outcome of the Georgia litigation or, in the alternative, to
dismiss the case. On December 11, 2002, the plaintiff filed a motion to
remand the action to the Circuit Court for Baltimore, Maryland. Those
motions are pending.
SCHEDULE 6.15
LIST OF TRANSACTIONS WITH AFFILIATES AND SUBSIDIARIES
None
Schedule 6.15-Page 1
SCHEDULE 6.20
ENVIRONMENTAL RELEASES
None
Schedule 6.20-Page 1
SCHEDULE 6.21(a)
SUBSIDIARIES OF THE BORROWER AND THE GUARANTORS
FORM/
JURISDICTION
SUBSIDIARY NAME OF ORGANIZATION OWNERSHIP
-----------------------------------------------------------------------------------------------------------------------------------
1. Black Cherry Limited Liability Company Colorado JDN Realty Corporation - 100%
2. CANAL STREET PARTNERS, L.L.C. - ? MICHIGAN JDN REALTY CORPORATION - 100%
3. Chesterfield Exchange, L.L.C. Georgia JDN Realty Corporation - 100%
4. Fayetteville Black Investment, Inc. Georgia JDN Development Company, Inc. - 100%
5. Fayetteville Exchange, L.L.C. Georgia JDN Realty Corporation - 100%
6. Freehold Marketplace, Inc. (f/k/a WHF Inc.) Georgia JDN Development Company, Inc. - 100%
7. Georgia Finance Corporation Delaware JDN Realty Corporation - 100%
8. Hickory Hollow Exchange, L.L.C. Georgia JDN Development Company, Inc. - 100%
9. JDN Development Company, Inc. Delaware JDN Realty Corporation - 100% Voting;
100% Non-Voting
10. JDN Development Investment, LP Georgia JDN Development Company, Inc. (GP);
JDN Development LP, Inc. (LP)
11. JDN Development LP, Inc. Delaware JDN Development Company, Inc. - 100%
12. JDN Intermountain Development Corp. Delaware JDN Development Company, Inc. - 100%
13. JDN Intermtn. Dev., ▇▇▇▇▇▇ Pavillion L.L.C. Georgia JDN Real Estate ▇▇▇▇▇▇ Pavillions, L.P. - 100%
14. JDN of Alabama Realty Corporation Alabama JDN Development Company, Inc. - 100%
15. JDN Real Estate - Apex, LP Georgia JDN Development L.P. (GP);
JDN Realty Holdings, L.P. (LP)
16. JDN Real Estate - Bridgewood Fort Worth LP Georgia JDN Development L.P. (GP);
JDN Realty Holdings, L.P. (LP)
17. JDN Real Estate - ▇▇▇▇▇▇▇, ▇▇ Georgia JDN Development L.P. (GP);
JDN Realty Holdings, L.P. (LP)
18. JDN Real Estate - Cumming, LP Georgia JDN Development L.P. (GP);
JDN Realty Holdings, L.P. (LP)
19. JDN Real Estate - Erie, LP Georgia JDN Development L.P. (GP);
JDN Realty Holdings, L.P. (LP)
20. JDN Real Estate - Fayetteville, LP Georgia JDN Development L.P. (GP);
JDN Realty Holdings, L.P. (LP)
21. JDN Real Estate - Freehold, LP Georgia JDN Development L.P. (GP);
JDN Realty Holdings, L.P. (LP)
22. JDN Real Estate - Frisco, LP Georgia JDN Development L.P. (GP);
JDN Realty Holdings, L.P. (LP)
23. JDN Real Estate - Gulf Breeze, II, LP Georgia JDN Development L.P. (GP);
JDN Realty Holdings, L.P. (LP)
24. JDN Real Estate - ▇▇▇▇▇▇▇▇, ▇▇ Georgia JDN Development L.P. (GP);
JDN Realty Holdings, L.P. (LP)
25. JDN Real Estate - Hickory Creek, LP Georgia JDN Development L.P. (GP);
JDN Realty Holdings, L.P. (LP)
26. JDN Real Estate - Lakeland, LP Georgia JDN Development L.P. (GP);
JDN Realty Holdings, L.P. (LP)
27. JDN Real Estate - McDonough II, LP Georgia JDN Development L.P. (GP);
JDN Realty Holdings, L.P. (LP)
28. JDN Real Estate - ▇▇▇▇▇▇▇▇▇, ▇▇ Georgia JDN Development L.P. (GP);
JDN Realty Holdings, L.P. (LP)
29. JDN Real Estate - ▇▇▇▇▇▇▇▇, ▇▇ Georgia JDN Development L.P. (GP);
JDN Realty Holdings, L.P. (LP)
30. JDN REAL ESTATE - MESQUITE, LP - ? GEORGIA JDN DEVELOPMENT L.P. (GP);
JDN REALTY HOLDINGS, L.P. (LP)
Schedule 6.21(b) - Page 1
31. JDN Real Estate -- ▇▇▇▇▇▇▇, LLC Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
32. JDN REAL ESTATE -- OAKLAND, LP-? GEORGIA JDN DEVELOPMENT INVESTMENT, L.P. (GP); JDN REALTY HOLDINGS, L.P. (LP)
33. JDN Real Estate -- Overland Park, LP Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
34. JDN Real Estate -- ▇▇▇▇▇▇ Pavillions, LP Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
35. JDN Real Estate -- Pensacola, LP Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
36. JDN Real Estate -- Pioneer Hills, II, LP Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
37. JDN Real Estate -- ▇▇▇▇▇▇, ▇▇ Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
38. JDN Real Estate -- Sacramento, LP Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
39. JDN Real Estate -- Stone Mtn., LP Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
40. JDN Real Estate -- Suwanee, LP Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
41. JDN Real Estate -- ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
42. JDN Real Estate -- West Lafayette, LP Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
43. JDN Real Estate -- West Lansing, LP Georgia JDN Development Investment, L.P. (GP); JDN Realty Holdings, L.P. (LP)
44. JDN Realty AL, Inc. Alabama JDN Realty Corporation -- 100%
45. JDN Realty Corporation, GP, Inc. Delaware JDN Realty Corporation -- 100%
46. JDN Realty Holdings, L.P. Georgia JDN Realty Corporation (GP); JDN Realty LP, Inc. (LP)
47. JDN Realty LP, Inc. Delaware JDN Realty Corporation -- 100%
48. ▇▇▇▇▇▇▇▇ Bridge Associates, Inc. Georgia JDN Development Company, Inc. -- 100%
SCHEDULE 6.21(b)
SCHEDULE OF BORROWER'S AND GUARANTORS' OWNERSHIP OF AFFILIATES
WHICH ARE NOT SUBSIDIARIES
FORM/
JURISDICTION
OWNERSHIP OF ORGANIZATION OWNERSHIP
------------------------------------------------------------------------------------------------------------------------------------
1. FlatAcres MarketCenter, LLC ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Property Associates, Inc.(100%)
2. Ft. ▇▇▇▇▇▇▇ Partners, LLC Colorado ▇▇▇▇▇▇▇▇ Property Associates, Inc.(100%)
3. ▇▇▇▇▇▇▇▇ Property Associates, Inc. Colorado JDN Intermountain Development Corp. (100%); ▇▇▇▇ ▇▇▇▇▇▇▇▇ owns 20% of
Second Class of Non-Voting Stock
4. Hendon/Atlantic Rim ▇▇▇▇ Creek LLC Georgia ▇▇▇▇▇▇ ▇▇▇▇▇ Creek, LLC (50%); JDN Realty Corporation (49%);
Hendon Invest Inc (1%)
5. Hendon/JDN ▇▇▇▇▇ Creek Village, LLC ▇▇▇▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇▇ Creek Village, LLC (51%); JDN Real Estate - Suwanee, LP
(49%)
6. JDN Intermountain Development ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Property Associates, Inc.(100%)
Pioneer Hills, LLC
7. JDN West Allis Associates, Limited Georgia JDN Realty Corporation - 100% of GP Interest, third parties own 100% LP
Partnership Interest
8. JDN-▇▇▇▇▇▇▇ Venture I, LLC Delaware JDN Real Estate - ▇▇▇▇▇▇, ▇▇ (50% and Managing Member); ▇▇▇▇▇▇▇
Foxfield ▇▇▇▇▇▇, ▇▇ (50%) Third Party
9. ▇▇▇▇▇ ▇▇▇▇▇▇▇ Development Company Mississippi ▇▇▇▇▇▇▇ Properties, Inc. (50%) - JDN Development Company, Inc. (50%)
LLC
10. Pecan Park, LLC Mississippi ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (50%); JDN Development Company, Inc. (50%)
11. Pepperell Corners, L.P. Alabama JDN of Alabama Realty Corporation - 10.84% LP Interest, 1% GP Interest;
third parties own 89.16% LP Interest, 99% GP interest
12. St. ▇▇▇▇ Crossings, LLC Missouri JDN Development Company, Inc. (99%); ▇▇▇▇▇▇▇ Properties, Inc. (1%)
OAKLAND - ?
SCHEDULE 6.25
-------------
MATERIAL LOAN AGREEMENTS
DEBT PRINCIPAL(1) RATE(1) MATURITY
---- ------------ ------- ---------
Mandatory Par Put Remarketed Securities 75,000,000 7.08% 31-Mar-03
Mortgage Note Payable - Richmond, KY 5,705,000 7.63% ▇▇-▇▇▇-▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇▇▇▇▇▇▇, ▇▇ 10,074,000 3.88% ▇▇-▇▇▇-▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇▇▇▇▇, ▇▇ 12,184,000 3.81% 12-Apr-04
Construction Loan - St. ▇▇▇▇, MO 4,061,000 3.88% 31-Jul-04
Seven Year Notes 74,935,000 7.10% 01-Aug-04
Ten Year Notes 84,871,000 7.23% 01-Aug-07
Mortgage Note Payable - Milwaukee, WI 3,792,000 7.75% 01-Aug-09
Mortgage Note Payable - Marietta, GA 10,252,000 7.72% ▇▇-▇▇▇-▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇, ▇▇ 11,703,000 6.74% ▇▇-▇▇▇-▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇, ▇▇ 11,007,000 6.63% 15-Apr-18
Mortgage Note Payable - Hendersonville, TN 10,065,000 7.71% 15-Jan-19
Mortgage Note Payable - Alpharetta, GA 12,576,000 6.70% 15-Apr-19
Mortgage Note Payable - Allentown, PA 19,915,000 7.01% 28-Jun-21
Mortgage Note Payable - Denver, CO 29,929,000 7.41% 21-Jun-27
(1) Rounded to nearest 1,000 as of 9/30/2002
(2) Effective interest rates as of 9/30/2002
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SCHEDULE 8.3
OTHER INVESTMENTS
Project Total Costs JV Partner % JDN will hold
------- ----------- ---------- ---------------
1. ▇▇▇▇▇▇▇, CO $13,241,777 Kroger 50%
2. Boulder, CO $13,241,777 Kroger 50%
3. Grand Junction, CO $4,716,901 Kroger 50%
4. John's Creek II $5,000,000 Hendon Properties 49%
5. Nashville, TN $10,415,646 Kroger 50%
6. Oakland, TN $5,919,682 Kroger 50%
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