(i)
TABLE OF CONTENTS
------------------
ARTICLE I Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.01 Defined Terms. . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02 Classification of Loans and Borrowings. . . . . . . 17
SECTION 1.03 Terms Generally. . . . . . . . . . . . . . . . . . . . 17
SECTION 1.04 Accounting Terms; GAAP. . . . . . . . . . . . . . . . 18
ARTICLE II The Credits . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.01 Commitments . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.02 Loans and Borrowings. . . . . . . . . . . . . . . . . 18
SECTION 2.03 Request for Borrowing . . . . . . . . . . . . . . . . 19
SECTION 2.04 Funding of Borrowing. . . . . . . . . . . . . . . . . 19
SECTION 2.05 Interest Elections . . . . . . . . . . . . . . . . . . 19
SECTION 2.06 Repayment of Loans; Evidence of Debt . . . . . . . 20
SECTION 2.07 Prepayment of Loans . . . . . . . . . . . . . . . . . 21
SECTION 2.08 Fees. . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.09 Interest. . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.10 Alternate Rate of Interest . . . . . . . . . . . . . 23
SECTION 2.11 Increased Costs. . . . . . . . . . . . . . . . . . . . 23
SECTION 2.12 Break Funding Payments. . . . . . . . . . . . . . . . 24
SECTION 2.13 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.14 Payments Generally; Pro Rata Treatment;
Sharing of Set-offs . . . . . . . . . . . . . . . . . 25
SECTION 2.15 Mitigation Obligations; Replacement of Lenders. . . 27
SECTION 2.16 Extension . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE III Representations and Warranties . . . . . . . . . . . . . . . . . 29
SECTION 3.01 Organization; Powers . . . . . . . . . . . . . . . . . 29
SECTION 3.02 Authorization; Enforceability. . . . . . . . . . . . . 29
SECTION 3.03 Governmental Approvals; No Conflicts . . . . . . . . 29
SECTION 3.04 Financial Condition; No Material Adverse Change . . . . 29
SECTION 3.05 Properties. . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.06 Intellectual Property. . . . . . . . . . . . . . . . . 31
SECTION 3.07 Litigation and Environmental Matters . . . . . . . . 31
SECTION 3.08 Compliance with Laws and Agreements . . . . . . . . 33
SECTION 3.09 Investment and Holding Company Status . . . . . . . 33
SECTION 3.10 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 3.11 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 3.12 Disclosure. . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 3.13 Insurance . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 3.14 Margin Regulations . . . . . . . . . . . . . . . . . . 34
SECTION 3.15 Subsidiaries. . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE IV Conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 4.01 Effective Date . . . . . . . . . . . . . . . . . . . . 34
(ii)
ARTICLE V Affirmative Covenants. . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 5.01 Financial Statements; Ratings Change
and Other Information . . . . . . . . . . . . . . . . 35
SECTION 5.02 Financial Tests. . . . . . . . . . . . . . . . . . . . 36
SECTION 5.03 Notices of Material Events . . . . . . . . . . . . . 37
SECTION 5.04 Existence; Conduct of Business . . . . . . . . . . . 37
SECTION 5.05 Payment of Obligations. . . . . . . . . . . . . . . . 37
SECTION 5.06 Maintenance of Properties; Insurance . . . . . . . . 38
SECTION 5.07 Books and Records; Inspection Rights. . . . . . . . 38
SECTION 5.08 Compliance with Laws. . . . . . . . . . . . . . . . . 38
SECTION 5.09 Use of Proceeds . . . . . . . . . . . . . . . . . . . 38
SECTION 5.10 Fiscal Year. . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.11 Environmental Matters. . . . . . . . . . . . . . . . . 38
SECTION 5.12 Property Pool. . . . . . . . . . . . . . . . . . . . . 39
SECTION 5.13 Guaranties. . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 5.14 Further Assurances . . . . . . . . . . . . . . . . . . 41
ARTICLE VI Negative Covenants. . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 6.01 Indebtedness. . . . . . . . . . . . . . . . . . . . . . 41
SECTION 6.02 Liens . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 6.03 Fundamental Changes. . . . . . . . . . . . . . . . . . 41
SECTION 6.04 Investments, Loans, Advances and Acquisitions . . . . . 42
SECTION 6.05 Hedging Agreements . . . . . . . . . . . . . . . . . . 43
SECTION 6.06 Restricted Payments. . . . . . . . . . . . . . . . . . 43
SECTION 6.07 Transactions with Affiliates. . . . . . . . . . . . . 44
SECTION 6.08 Restrictive Agreements . . . . . . . . . . . . . . . . 44
ARTICLE VII Events of Default. . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE VIII The Administrative Agent. . . . . . . . . . . . . . . . . . . . 46
ARTICLE IX Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 9.01 Notices . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 9.02 Waivers; Amendments. . . . . . . . . . . . . . . . . . 49
SECTION 9.03 Expenses; Indemnity; Damage Waiver . . . . . . . . . 50
SECTION 9.04 Successors and Assigns. . . . . . . . . . . . . . . . 51
SECTION 9.05 Survival. . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 9.06 Counterparts; Integration; Effectiveness. . . . . . . 54
SECTION 9.07 Severability. . . . . . . . . . . . . . . . . . . . . . 54
SECTION 9.08 Right of Setoff . . . . . . . . . . . . . . . . . . . 54
SECTION 9.09 Governing Law; Jurisdiction; Consent
to Service of Process . . . . . . . . . . . . . . . . 54
SECTION 9.10 WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . 55
SECTION 9.11 Headings. . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 9.12 Confidentiality . . . . . . . . . . . . . . . . . . . . 55
SECTION 9.13 Interest Rate Limitation. . . . . . . . . . . . . . . 56
SECTION 9.14 Liability of Holders. . . . . . . . . . . . . . . . . 56
(iii)
SCHEDULES:
- ---------
Schedule 2.01 - Commitments
Schedule 3.05(f) - Earthquake or Seismic Area
Schedule 3.07 - Disclosed Matters
Schedule 3.15 - Subsidiaries
Schedule 5.12(c) - Property Without Environmental Assessments
Schedule 5.12.A - Pool
Schedule 6.02 - Existing Liens
Schedule 6.04 - Certain Investments
Schedule 6.08 - Existing Restrictions
EXHIBITS:
- --------
Exhibit A - Form of Assignment and Acceptance
Exhibit B - Form of Compliance Certificate
Exhibit C - Form of Guaranty
Exhibit D - Note
Exhibit E - Form of Interest Election Request
CREDIT AGREEMENT
dated as of
_____________, 2001
among
WEINGARTEN REALTY INVESTORS,
The Lenders Party Hereto
And
COMMERZBANK AG, NEW YORK BRANCH,
as Administrative Agent
And
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Syndication Agent
Commerzbank AG, New York Branch,
as Sole Arranger and Book Manager
CREDIT AGREEMENT ("Agreement") dated as of
______________, 2001, among WEINGARTEN REALTY INVESTORS,
a Texas real estate investment trust, the LENDERS party hereto,
COMMERZBANK AG, NEW YORK BRANCH, as Administrative Agent,
and WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Syndication Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
-----------
SECTION 1.01 Defined Terms. As used in this Agreement, the following
-------------
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to whether
---
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing for
--------------------
any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
"Adjusted Net Operating Income" shall mean, for any income producing
--------------------------------
Real Property, the Net Operating Income less the Capital Expenditure Reserve for
such property.
"Administrative Agent" means Commerzbank AG, New York Branch, in its
--------------------
capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire in
-----------------------------
a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
---------
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
--------------------
greater of (a) the Prime Rate in effect on such day, and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Lender, the percentage
----------------------
of the total unpaid Loans represented by such Lender's unpaid Loans.
"Applicable Rate" means, for any day, with respect to any ABR Loan or
----------------
Eurodollar Loan, or with respect to the facility fees payable hereunder, as the
case may be, the applicable rate per annum set forth below under the caption
"ABR Spread" or "Eurodollar Spread" or "Facility Fee Rate", as the case may be,
based upon the ratings by Moody's and S&P, respectively, applicable on such date
to the Index Debt:
ABR Eurodollar Facility Fee Rate
--- ---------- -----------------
Index Debt Ratings: Spread Spread
- -------------------- ------- -----------
Category 1
----------
A/A2 or better 0 0.50% 0.15%
Category 2
----------
A-/A3 0 0.55% 0.15%
Category 3
----------
BBB+Baa1 0 0.65% 0.15%
Category 4
----------
BBB/Baa2 0 0.75% 0.20%
Category 5
----------
BBB-/Baa3 0 0.90% 0.25%
Category 6
----------
Worse than BBB-/Baa3 0.25% 1.45% 0.30%
For purposes of the foregoing, (i) if either Moody's or S&P shall not have
in effect a rating for the Index Debt (other than by reason of the circumstances
referred to in the last sentence of this definition), then such rating agency
shall be deemed to have established a rating in Category 6; (ii) if the ratings
established or deemed to have been established by Moody's and S&P for the Index
Debt shall fall within different Categories, the Applicable Rate shall be based
on the higher of the two ratings unless one of the two ratings is two or more
Categories lower than the other, in which case the Applicable Rate shall be
determined by reference to the Category next below that of the higher of the two
ratings; and (iii) if the ratings established or deemed to have been established
by Moody's and S&P for the Index Debt shall be changed (other than as a result
of a change in the rating system of Moody's or S&P), such change shall be
effective as of the date on which it is first announced by the applicable rating
agency, irrespective of when notice of such change shall have been furnished by
the Borrower to the Agent and the Lenders pursuant to Section 5.01(e) hereof or
---------------
otherwise. Each change in the Applicable Rate shall apply during the period
commencing on the effective date of such change and ending on the date
immediately preceding the effective date of the next such change. If the rating
system of Moody's or S&P shall change, or if either such rating agency shall
cease to be in the business of rating corporate debt obligations, the Borrower
and the Lenders shall negotiate in good faith to amend this definition to
reflect such changed rating system or the unavailability of ratings from such
rating agency and, pending the effectiveness of any such amendment, the
Applicable Rate shall be determined by reference to the rating most recently in
effect prior to such change or cessation.
"Approved Fund" means any Fund that is administered or managed by (a) a
--------------
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
Page 2
"Assignment and Acceptance" means an assignment and acceptance entered into
-------------------------
by a ender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
------------
of Exhibit A or any other form approved by the Administrative Agent.
----------
"Board" means the Board of Governors of the Federal Reserve System of the
-----
United States of America.
"Borrower" means Weingarten Realty Investors, a Texas real estate
--------
investment trust.
"Borrowing" means Loans of the same Type, made, converted or continued on
---------
the same date and, in the case of Eurodollar Loans, as to which a single
Interest Period is in effect.
"Business Day" means any day that is not a Saturday, Sunday or other day
-------------
on which commercial banks in Houston, Texas or New York, New York are authorized
or required by law to remain closed; provided that, when used in connection with
-------------
a Eurodollar Loan, the term "Business Day" shall also exclude any day on which
------------
banks are not open for dealings in dollar deposits in the London interbank
market.
"Capital Expenditure Reserve" means, on an annual basis, an amount equal to
---------------------------
(a) for use in calculating the Fixed Charge Coverage Ratio, the product of (i)
the aggregate number of gross square feet of improvements contained in each Real
Property parcel owned by Borrower or any Subsidiary measured as of the last day
of each of the immediately preceding four (4) calendar quarters and averaged,
multiplied by (ii) (x) $0.25 for Retail Property and (y) $0.15 for Industrial
Property; and (b) for use in calculating Value, the product of (i) the aggregate
number of gross square feet of improvements contained in each Real Property
owned by Borrower or any Subsidiary as of the last day of the immediately
preceding calendar quarter, multiplied by (ii) (x) $0.25 for Retail Property and
(y) $0.15 for Industrial Property. Capital Expenditure Reserve shall be
calculated on a consolidated basis in accordance with GAAP, and including
(without duplication) the Equity Percentage of Capital Expenditure Reserve for
the Borrower's Unconsolidated Affiliates.
"Capital Lease Obligations" of any Person means the obligations of such
---------------------------
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Change in Control" means (a) the acquisition of ownership, directly or
-------------------
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), of shares
representing more than 33% of the aggregate ordinary voting power represented by
the issued and outstanding capital stock of the Borrower; (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the
Borrower by Persons who were neither (i) nominated by the board of directors of
the Borrower nor (ii) appointed by directors so nominated; or (c) the
Page 3
acquisition of direct or indirect Control of the Borrower by any Person or
group.
"Change in Law" means (a) the adoption of any law, rule or regulation after
--------------
the date of this Agreement by any Governmental Authority, (b) any change in any
law, rule or regulation or in the interpretation or application thereof by any
Governmental Authority after the date of this Agreement or (c) compliance by any
Lender (or, for purposes of Section 2.11(b), by any lending office of such
----------------
Lender or by such Lender's holding company, if any) with any request, guideline
or directive (whether or not having the force of law) of any Governmental
Authority made or issued after the date of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time to
----
time.
"Commerzbank" means Commerzbank AG, New York Branch, in its individual
-----------
capacity.
-----------
"Commitment" means, with respect to each Lender, the commitment of such
----------
Lender to make a Loan, expressed as an amount representing the maximum aggregate
amount of such Lender's Loan hereunder, as such commitment may be reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's Commitment is set
------------
forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which
--------------
such Lender shall have assumed its Commitment, as applicable. The initial
aggregate amount of the Lenders' Commitments is $50,000,000.00.
"Compliance Certificate" has the meaning set forth in Section 5.01(c)
---------------------- ---------------
hereof and a form of which is attached hereto as Exhibit B.
----------
"Control" means the possession, directly or indirectly, of the power to
-------
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise, which
includes the customary powers of a managing member of any limited liability
company, any general partner of any limited partnership, or any board of
directors of a corporation. "Controlling" and "Controlled" have meanings
----------- ----------
correlative thereto.
"Credit Party" means the Borrower and each Guarantor, if any.
-------------
"Debt to Total Asset Value Ratio" shall mean the ratio (expressed as a
------------------------------------
percentage) of the Borrower's Indebtedness to Total Asset Value.
"Default" means any event or condition which constitutes an Event of
-------
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings and the
------------------
environmental matters disclosed in Schedule 3.07.
--------------
"Dollars" or "$" refers to lawful money of the United States of America.
------- -
Page 4
"EBITDA" means an amount derived from (a) net income, plus (b) to the
------
extent included in the determination of net income, depreciation, amortization,
interest expense and income taxes, plus or minus (c) to the extent included in
the determination of net income, any extraordinary losses or gains resulting
from sales, write-downs, write-ups, write-offs or other valuation adjustments of
assets or liabilities, in each case, as determined on a consolidated basis in
accordance with GAAP, and including (without duplication) the Equity Percentage
of EBITDA for the Borrower's Unconsolidated Affiliates.
"Effective Date" means the date on which the conditions specified in
---------------
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
- ------------- -------------
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c)
------------------
an Approved Fund; and (d) any other Person (other than a natural Person)
approved by the Administrative Agent and, unless (x) such Person is taking
delivery of an assignment in connection with physical settlement of a credit
derivatives transaction or (y) a Default has occurred and is continuing, the
Borrower (each such approval not to be unreasonably withheld or delayed). If the
consent of the Borrower to an assignment or to an Eligible Assignee is required
hereunder (including a consent to an assignment which does not meet the minimum
assignment thresholds specified in Section 9.04(b)), the Borrower shall be
---------------
deemed to have given its consent ten (10) days after the date notice thereof has
been delivered by the assigning Lender (through the Administrative Agent) unless
such consent is expressly refused by the Borrower prior to such tenth (10th)
day.
"Eligible Ground Lease" shall mean a lease meeting the following
-----------------------
requirements: (a) a remaining term (including renewal options exercisable at
lessee's sole option) of at least twenty-five (25) years, and (b) the
Administrative Agent has determined that the ground lease is financeable in that
it provides or allows for, without further consent from the landlord, (i) notice
and right to cure to lessee's lender, (ii) a pledge and mortgage of the
leasehold interest, and (iii) recognition of a foreclosure of the leasehold
interest including no prohibition on entering into a new lease with the lender.
"Environmental Laws" means all applicable laws, rules, regulations, codes,
-------------------
ordinances, orders, decrees, judgments, injunctions, or binding agreements
issued, promulgated or entered into by any Governmental Authority, relating in
any way to the environment, preservation or reclamation of natural resources,
the management, release or threatened release of any Hazardous Material or to
health and safety matters and includes (without limitation) the Comprehensive
Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C.
-------
9601 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. 1801 et
-- --- --
seq., the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 136
- ---
et seq., the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. 6901
- -- --- -----
et seq., the Toxic Substances Control Act, 15 U.S.C. 2601 et seq., the Clean
- -- --- -- ---
Air Act, 42 U.S.C. 7401 et seq., the Clean Water Act, 33 U.S.C. 1251 et
-- --- --
seq., the Occupational Safety and Health Act, 29 U.S.C. 651 et seq., (to the
-- ---
extent the same relates to any Hazardous Materials), and the Oil Pollution Act
of 1990, 33 U.S.C. 2701 et seq, as such laws have been amended or
-- ---
supplemented, and the regulations promulgated pursuant thereto, and all
analogous state and local statutes.
Page 5
"Environmental Liability" means any liability, contingent or otherwise
------------------------
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) exposure to any Hazardous Materials in violation of any Environmental Law,
(c) the Release or threatened Release of any Hazardous Materials into the
environment in violation of any Environmental Law or (d) any contract, agreement
or other consensual arrangement pursuant to which liability is assumed or
imposed with respect to any of the foregoing.
"Equity Percentage" means the aggregate ownership percentage of Borrower
-----------------
in each Unconsolidated Affiliate, which shall be calculated as follows: (a) for
inclusion in Indebtedness, Borrower's nominal capital ownership interest in the
Unconsolidated Affiliate as set forth in the Unconsolidated Affiliate's
organizational documents, and (b) for all other purposes, the greater of (i)
Borrower's nominal capital ownership interest in the Unconsolidated Affiliate as
set forth in the Unconsolidated Affiliate's organizational documents, and (ii)
Borrower's economic ownership interest in the Unconsolidated Affiliate,
reflecting Borrower's share of income and expenses of the Unconsolidated
Affiliate.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
---------------
that, together with the Borrower, is treated as a single employer under Section
414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer under Section 414 of
the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section 4043
------------
of ERISA or the regulations issued thereunder with respect to a Plan (other than
an event for which the 30-day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers to
----------
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate.
Page 6
"Event of Default" has the meaning assigned to such term in Article VII.
------------------ -----------
"Excluded Taxes" means, with respect to the Administrative Agent, any
--------------
Lender, or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) income or franchise taxes imposed on
(or measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower under
Section 2.15(b)), any withholding tax that is imposed on amounts payable to such
- ----------------
Foreign Lender at the time such Foreign Lender becomes a party to this Agreement
(or designates a new lending office) or is attributable to such Foreign Lender's
failure to comply with Section 2.13(e), except to the extent that such Foreign
--------------
Lender (or its assignor, if any) was entitled, at the time of designation of a
new lending office (or assignment), to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to Section 2.13(a).
---------------
"Extension Request" has the meaning set forth in Section 2.16.
------------------ -------------
"Federal Funds Effective Rate" means, for any day, the weighted average
-------------------------------
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the Vice President of Capital Markets, the
------------------
chief financial officer, principal accounting officer, treasurer or controller
of the Borrower.
"Fixed Charge Coverage Ratio" shall mean the ratio of (a) the Borrower's
----------------------------
EBITDA for the immediately preceding four (4) calendar quarters less the Capital
Expenditure Reserve for such period; to (b) all of the principal due and payable
and principal paid on the Borrower's Indebtedness (excluding balloon payments of
principal due at the stated maturity of such Indebtedness, full loan prepayments
prior to the stated maturity thereof, and any partial loan prepayments made with
casualty or condemnation proceeds), plus all of the Borrower's Interest Expense,
plus the aggregate of all cash dividends payable on the Borrower's or any of its
Subsidiaries' preferred stock, in each case for the period used to calculate
EBITDA, all of the foregoing calculated without duplication.
"Foreign Lender" means any Lender that is organized under the laws of a
---------------
jurisdiction other than that in which the Borrower is organized. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Fund" means any Person (other than a natural Person) that is (or will be)
----
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"Funds From Operations" shall mean net income of the Borrower determined in
---------------------
accordance with GAAP, plus depreciation and amortization; provided, that there
shall not be included in such calculation any gain or loss from debt
restructuring and sales of property. Funds From Operations will be calculated
for the four (4) calendar quarters immediately preceding the date of the
calculation. Funds From Operations shall be calculated on a consolidated basis,
and including (without duplication) the Equity Percentage of Funds From
Operations for the Borrower's Unconsolidated Affiliates.
"GAAP" means generally accepted accounting principles in the United States
----
of America, subject to the provisions of Section 1.04.
-------------
"Governmental Authority" means the government of the United States of
-----------------------
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
--------- ---------
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
----------------
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the term Guarantee shall not include endorsements for
--------
collection or deposit in the ordinary course of business, and shall not include
guaranties or contingent liabilities under operating leases customarily
undertaken or incurred by Borrower or any Subsidiary in the ordinary course of
business as either landlord or tenant.
"Guarantor" means Weingarten Nostat, Inc., a Texas corporation, Weingarten
---------
Realty Management Company, a Texas corporation, WRI/Post Oak, Inc., a Texas
corporation, WRI/7080 Express Lane, Inc., a Texas corporation,
Weingarten/Lufkin, Inc., a Texas corporation, WRI/Pembroke, Ltd., a Texas
limited partnership, Market at Town Center-Sugar Land Partnership, a Texas
general partnership, South Padre Drive L.P., a Texas limited partnership, and
any other Person who from time to time has executed a Guaranty as required by
the terms of this Agreement, and any other Person who from time to time
guarantees payment of the Revolving Credit Facility.
"Guaranty" means a guaranty in the form of Exhibit C attached hereto.
-------- ----------
"Hazardous Materials" means all explosive or radioactive substances or
--------------------
wastes and all hazardous or toxic substances or wastes, including petroleum or
petroleum distillates, asbestos or asbestos containing materials,
polychlorinated biphenyls, radon gas, infectious or medical wastes and all other
substances or wastes of any nature regulated pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection agreement, foreign
------------------
currency exchange agreement, commodity price protection agreement or other
interest or currency exchange rate or commodity price hedging arrangement.
"Historical Value" shall mean the purchase price of Real Property
-----------------
(including improvements) and ordinary related purchase transaction costs, plus
the cost of subsequent capital improvements (including construction costs for
property under construction or development) made by the Borrower, less any
provision for losses, all determined in accordance with GAAP. If the Real
Property is purchased as a part of a group of properties, the Historical Value
shall be calculated based upon a reasonable allocation of the aggregate purchase
price by the Borrower for all purposes, and consistent with GAAP.
"Indebtedness" of any Person means, without duplication, (a) all
------------
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty, (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances, (k)
all obligations contingent or otherwise, of such Person with respect to any
Hedging Agreements (calculated on a mark-to-market basis as of the reporting
date), however, in the case of more than one Hedging Agreement with the same
counterparty, the obligation shall be netted, and (l) payments received in
consideration of sale of an ownership interest in Borrower when the interest so
sold is determined, and the date of delivery is, more than one (1) month after
receipt of such payment and only to the extent that the obligation to deliver
such interest is not payable solely in such interest of such Person. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
Indebtedness shall be calculated on a consolidated basis in accordance with
GAAP, and including (without duplication) the Equity Percentage of Indebtedness
for the Borrower's Unconsolidated Affiliates.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
------------------
"Index Debt" means senior, unsecured, long-term indebtedness for borrowed
-----------
money of the Borrower that is not guaranteed by any other Person or subject to
any other credit enhancement.
"Industrial Property" means Real Property that is used primarily for
--------------------
service center/light industrial/bulk warehouse (not heavy manufacturing)
purposes.
"Interest Coverage Ratio" shall mean the ratio of (a) the Borrower's EBITDA
------------------------
for the immediately preceding four (4) calendar quarters to (b) all of the
Borrower's Interest Expense for the period used to calculate EBITDA.
"Interest Election Request" means a request by the Borrower to convert or
---------------------------
continue a Borrowing in accordance with Section 2.05.
-------------
"Interest Expense" shall mean all of a Person's paid, accrued or
-----------------
capitalized interest expense on such Person's Indebtedness (whether direct,
indirect or contingent, and including, without limitation, interest on all
convertible debt), and including (without duplication) the Equity Percentage of
Interest Expense for the Borrower's Unconsolidated Affiliates.
"Interest Payment Date" means the first Business Day of each calendar
-----------------------
quarter.
"Interest Period" means with respect to any Eurodollar Borrowing, the
----------------
period commencing on the date of such Borrowing and ending (a) on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, or (b) seven or fourteen days thereafter for no more than
six (6) Eurodollar Borrowings outstanding at one time, as the Borrower may
elect; provided, that (i) if any Interest Period would end on a day other than a
--------
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a Eurodollar Borrowing only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (ii) any
Interest Period pertaining to a Eurodollar Borrowing that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period. For
purposes hereof, the date of a Borrowing initially shall be the date on which
such Borrowing is made and thereafter shall be the effective date of the most
recent conversion or continuation of such Borrowing.
"Lenders" means the Persons listed on Schedule 2.01 and any other Person
------- -------------
that shall have become a party hereto pursuant to an Assignment and Acceptance,
other than any such Person that ceases to be a party hereto pursuant to an
Assignment and Acceptance.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
----------
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
---------
Eurodollar Borrowing for such Interest Period shall be the rate (rounded
upwards, if necessary, to the next 1/100 of 1%) at which dollar deposits of
$5,000,000 and for a maturity comparable to such Interest Period are offered by
the principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time,
two Business Days prior to the commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of trust,
----
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset and (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such securities.
"Loan Documents" means this Agreement, the Notes, any Guaranty and all
---------------
other instruments, agreements and written obligations executed and delivered by
any of the Credit Parties in connection with the transactions contemplated
hereby.
"Loans" means the loans made by the Lenders to the Borrower pursuant to
-----
this Agreement, and "Loan" means each Lender's Loan or the aggregate of all
----
Lender's Loans made pursuant to this Agreement, as applicable.
"Material Adverse Effect" means a material adverse effect on (a) the
-------------------------
business, assets, operations, or condition, financial or otherwise, of the
Borrower and the Subsidiaries taken as a whole, (b) the ability of the Credit
Parties (as a whole) to perform their obligations under the Loan Documents or
(c) the rights of or benefits available to the Lenders under the Loan Documents.
"Material Indebtedness" means Indebtedness (other than the Loans and
----------------------
Non-recourse Debt), or obligations in respect of one or more Hedging Agreements,
of any one or more of the Borrower and the other Credit Parties in an aggregate
principal amount exceeding $10,000,000.
"Maturity Date" means November 21, 2003, as the same may be extended in
--------------
accordance with Section 2.16.
-------------
"Maximum Rate" shall have the meaning set forth in Section 9.13.
------------- -------------
"Minority Subsidiary" means a Subsidiary whose accounts are consolidated
--------------------
with those of its parent (as defined in the definition of Subsidiary) as
provided in the definition of Subsidiary, but the parent (a) does not own the
minimum amount set forth in clause (a) of the definition of Subsidiary, or (b)
does not Control the Subsidiary as set forth in clause (b) of the definition of
Subsidiary.
"Moody's" means Moody's Investors Service, Inc.
-------
"Multiemployer Plan" means a multiemployer plan as defined in Section
------------------
4001(a)(3) of ERISA.
"Net Operating Income" shall mean, for any income producing operating Real
----------------------
Property, the difference between (a) any rentals (other than those paid or
payable other than in cash), proceeds and other income received from such
property, including all pass-through reimburseables (to the extent the expense
being reimbursed is included as an expense in clause (b) below) and percentage
----------
rent (but excluding security or other deposits, early lease termination or other
penalties, or other income of a non-recurring nature) during the determination
period, less (b) an amount equal to all costs and expenses (excluding interest
----
expense and any expenditures that are capitalized in accordance with GAAP)
incurred as a result of, or in connection with, or properly allocated to, the
operation or leasing of such property during the determination period; provided,
however, that the amount for the expenses for the management of a property
included in clause (b) above shall be set at three percent (3%) of the amount
-----------
provided in clause (a) above. Net Operating Income shall be calculated on a
-----------
consolidated basis in accordance with GAAP, and including (without duplication)
the Equity Percentage of Net Operating Income for the Borrower's Unconsolidated
Affiliates.
"Net Worth" means Total Asset Value less Indebtedness of the Borrower.
----------
"Non-recourse Debt" means any Indebtedness the payment of which the
------------------
Borrower or any of its Subsidiaries is not obligated to make other than to the
extent of any security therefor and customary carve-outs, including, without
limitation, fraud, criminal activity, misapplication of funds, ad valorem taxes,
and environmental matters.
"Note" means a promissory note in the form attached hereto as Exhibit D
---- ---------
payable to a Lender evidencing certain of the obligations of the Borrower to
such Lender and executed by Borrower, as the same may be amended, supplemented,
modified or restated from time to time; "Notes" means, collectively, all of such
-----
Notes outstanding at any given time.
"Occupancy Level" means the occupancy level of a Real Property that is
---------------
leased to bona fide tenants not Affiliates of any Credit Party or the subject
property manager (or any of their respective Affiliates) paying rent under
written leases, based on the square feet of occupancy at the time of
determination.
"Other Taxes" means any and all present or future stamp or documentary
------------
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
----
defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
-----------------------
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.05;
-------------
(b) carriers', warehousemen's, mechanics', materialmen's, workers',
repairmen's and other like Liens imposed by law, arising in the ordinary course
of business and securing obligations that are not overdue by more than 30 days
or are being contested in compliance with Section 5.05;
-------------
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other social
security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
purchase, construction or sales contracts and similar obligations, leases,
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature, in each case in the ordinary course of business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (j)of Article VII;
----------- ------------
(f) easements, outstanding mineral and royalty interests, building
setback lines, maintenance liens, use restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary course
of business that do not secure any monetary obligations and do not materially
detract from the value of the affected property or interfere with the ordinary
conduct of business of the Borrower or any Subsidiary;
(g) uniform commercial code protective filings with respect to personal
property leased to the Borrower or any Subsidiary; and
(h) landlords' liens for rent not yet due and payable;
provided that the term "Permitted Encumbrances" shall not include any Lien
- --------
securing Indebtedness consisting of borrowed money.
"Permitted Investments" means:
----------------------
(a) direct obligations of, or obligations the principal of and interest
on which are unconditionally guaranteed by, the United States of America (or by
any agency thereof to the extent such obligations are backed by the full faith
and credit of the United States of America), in each case maturing within one
year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, a credit
rating from S&P or from Moody's of A2/P2 or better;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts issued
or offered by, any domestic office of any commercial bank organized under the
laws of the United States of America or any State thereof which has a combined
capital and surplus and undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) above and entered into with
a financial institution satisfying the criteria described in clause (c) above;
(e) investments in Subsidaries and Unconsolidated Affiliates made
in accordance with this Agreement;
(f) investments in obligations of the Federal National Mortgage
Association and the Federal Home Loan Mortgage Corporation, with the highest
credit rating obtainable from S&P or from Moody's; and
(g) investments in other real estate investment trusts.
"Person" means any natural person, corporation, limited liability company,
------
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any employee pension benefit plan (other than a Multiemployer
----
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 302 of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Pool" has the meaning set forth in Section 5.12.
---- -------------
"Prime Rate" means the rate of interest per annum publicly announced from
-----------
time to time by Commerzbank as its prime rate in effect at its principal office
in New York City; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective.
"Real Property" means, collectively, all interest in any land and
--------------
improvements located thereon (including direct financing leases of land and
improvements owned by a Person), together with all equipment, furniture,
materials, supplies and personal property now or hereafter located at or used in
connection with the land and all appurtenances, additions, improvements,
renewals, substitutions and replacements thereof now or hereafter acquired by
any Person.
"Register" has the meaning set forth in Section 9.04.
-------- -------------
"Related Parties" means, with respect to any specified Person, such
----------------
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Release" means any release, spill, emission, leaking, pumping, pouring,
-------
dumping, emptying, injection, deposit, disposal, discharge, dispersal, leaching
or migration on or into the indoor or outdoor environment or into or out of any
property.
"Remedial Action" means all actions, including without limitation any
----------------
capital expenditures, required or necessary to (i) clean up, remove, treat or in
any other way address any Hazardous Material; (ii) prevent the Release or threat
of Release, or minimize the further Release, of any Hazardous Material so it
does not migrate or endanger public health or the environment; (iii) perform
pre-remedial studies and investigations or post-remedial monitoring and care; or
(iv) bring facilities on any property owned or leased by the Borrower or any of
its Subsidiaries into compliance with all Environmental Laws.
"Required Lenders" means, at any time, Lenders having unpaid Loans
-----------------
representing at least 66-2/3% of the sum of the total unpaid Loans under this
Agreement.
"Restricted Payment" means any dividend or other distribution (whether in
-------------------
cash, securities or other property) with respect to any shares of any class of
capital stock of the Borrower or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such shares of capital stock of the Borrower
or any option, warrant or other right to acquire any such shares of capital
stock of the Borrower. Notwithstanding the foregoing, (a) the use of proceeds of
the issuance of capital stock to purchase or redeem capital stock, and (b)
amounts paid by the Borrower to redeem the Borrower's 7.125% Series B cumulative
redeemable preferred shares and Borrower's 7.0% Series C cumulative redeemable
preferred shares in response to the holders' thereof requirement that the
Borrower so redeem in accordance with the holders' rights, shall not be
Restricted Payments.
"Retail Property" means Real Property that is used primarily as a
----------------
retail shopping center, which may include ancillary uses such as office, medical
and restaurant uses.
"Revolving Credit Facility" means, the revolving credit facility of the
-------------------------
Borrower under the Credit Agreement dated November 21, 2000 (as such agreement
exists on the date hereof), agented by The Chase Manhattan Bank, or any
refinancing or modification thereof agreed to by the Administrative Agent and
the Required Lenders.
"S&P" means Standard & Poor's Rating Group.
---
"Secured Debt" means the Indebtedness of the Borrower and any of its
-------------
subsidiaries secured by a Lien, and (without duplication) any Indebtedness
(secured and unsecured) of any Subsidiary of the Borrower that is not a
Guarantor.
"Secured Debt to Total Asset Value Ratio" means the ratio (expressed
---------------------------------------------
as a percentage) of Secured Debt to Total Asset Value.
"Stabilization Date" shall mean, with respect to a property, the earlier
-------------------
of (a) twelve (12) months after substantial completion of new construction or
development, and (b) the date the Occupancy Level is at least ninety percent
(90%).
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
------------------------
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Governmental Authority to which either Lender is subject
(whichever is greater), with respect to the Adjusted LIBO Rate, for eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of
the Board). Such reserve percentages shall include those imposed pursuant to
such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Subsidiary" means, with respect to any Person (the "parent") at any date,
---------- ------
any corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent's consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date (but excluding ownership
interests accounted for under the equity method of accounting and included in
clause (a) of the definition of Unconsolidated Affiliates), as well as any other
corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50%
of the equity or more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held, or (b) that is, as of such date, otherwise
Controlled, by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent.
"Taxes" means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
"Total Asset Value" means the sum of (without duplication) (a) the
-------------------
aggregate Value of all of Borrower's Real Property (subject to the applicable
maximum investment limitations in Section 6.04), plus (b) the amount of any cash
and cash equivalents, excluding tenant security and other restricted deposits of
the Borrower, plus (c) investments in Unconsolidated Affiliates that are engaged
primarily in the business of investment in and operation of Retail Property or
Industrial Property, valued at an amount equal to the Value of each
Unconsolidated Affiliate's Real Property multiplied by the Equity Percentage for
that Unconsolidated Affiliate (subject to the maximum investment limitation
contained in Section 6.04(c)), plus (d) investments in mortgages and notes
----------------
receivable permitted by Section 6.04(d) that are not then in default (calculated
---------------
on the book value of the investment in accordance with GAAP) (subject to the
maximum investment limitations in Section 6.04(d)). Total Asset Value for items
---------------
(a) through (d) above shall be calculated on a consolidated basis in accordance
with GAAP.
"Transactions" means the execution, delivery and performance by the Credit
------------
Parties of the Loan Documents, the borrowing of Loans, the use of the proceeds
thereof.
"Type", when used in reference to any Loan or Borrowing, refers to whether
----
the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.
"Unconsolidated Affiliate" means, without duplication, (a) in respect of
-------------------------
any Person, any other Person (other than a Person whose stock is traded on a
national trading exchange) in whom such Person holds a voting equity or
ownership interest and whose financial results would not be consolidated under
GAAP with the financial results of such Person on the consolidated financial
statements of such Person, and (b) a Minority Subsidiary.
"Unencumbered Interest Coverage Ratio" means the ratio of (a) the
--------------------------------------
Adjusted Net Operating Income for Real Property in the Pool for the immediately
preceding four (4) calendar quarters, to (b) the Borrower's Interest Expense on
all of the Borrower's Indebtedness other than Secured Debt for the period used
to calculate Adjusted Net Operating Income.
"Value" means the sum of the following:
-----
(a) for Real Property that has reached the Stabilization Date and that
Borrower or Subsidiary of Borrower has owned for all of the immediately
preceding six (6) calendar months, the result of dividing (i) the aggregate Net
Operating Income of the subject property based on the immediately preceding six
(6) calendar months and multiplied by two (2), less the Capital Expenditure
Reserve for such property, by (ii) nine and three-fourths percent (9.75%); plus
(b) for Real Property that is completed but has not reached the
Stabilization Date or that has not been owned by Borrower or a Subsidiary of
Borrower for all of the immediately preceding six (6) calendar months, the
Historical Value of the subject property; plus
(c) for Real Property that is under construction or development, the
Historical Value of the subject property; plus
(d) for Real Property that is undeveloped land, the Historical Value of
the subject property calculated in accordance with GAAP.
"Withdrawal Liability" means liability to a Multiemployer Plan as a result
---------------------
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02 Classification of Loans and Borrowings. For purposes of
---------------------------------------
this Agreement, Loans and Borrowings may be classified and referred to by Type
(e.g., a "Eurodollar Loan" or a "Eurodollar Borrowing").
SECTION 1.03 Terms Generally. The definitions of terms herein shall
----------------
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding mascu-line,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04 Accounting Terms; GAAP. Except as otherwise expressly
---------------------
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith. Without limiting the
generality of the foregoing, if the Borrower changes its method of accounting to
the full consolidation method of accounting for financial accounting purposes,
in accordance with GAAP, the Borrower shall continue to calculate compliance
with the financial covenants in this Agreement based on GAAP prior to the
change, and shall prepare footnotes to each Compliance Certificate and the
financial statements required to be delivered under this Agreement that show the
differences between the financial statements delivered (which reflect such
changes) and the basis for calculating financial covenant compliance (without
reflecting such changes).
ARTICLE II
The Credits
SECTION 2.01 Commitments. Subject to the terms and conditions set
----------
forth herein, each Lender agrees to make a Loan to the Borrower on the Effective
Date in the amount of such Lender's Commitment. The Borrower may not prepay and
reborrow the Loan.
SECTION 2.02 Loans and Borrowings. (a) The failure of any Lender to
-------------------
make the Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder. Each Lender's obligation to make the Loan is several
and not joint.
(b) Subject to Section 2.10, the initial Borrowing shall be comprised
------------
entirely of ABR Loans or Eurodollar Loans as the Borrower may request in
accordance herewith. Each Lender at its option may make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation
--------
of the Borrower to repay such Loan in accordance with the terms of this
Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $5,000,000. At the time that each ABR
Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $5,000,000. Borrowings of more
than one Type may be outstanding at the same time; provided that there shall not
--------
at any time be more than a total of six (6) Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Maturity Date.
SECTION 2.03 Request for Borrowing. To request the Borrowing, the
--------------------
Borrower shall notify the Administrative Agent of such request in writing (a) in
the case of a Eurodollar Borrowing, not later than 12:00 noon, New York, New
York time., three Business Days before the Effective Date or (b) in the case of
an ABR Borrowing, not later than 12:00 noon, New York, New York time, one
Business Day before the Effective Date. Such borrowing request shall specify the
following information in compliance with Section 2.02:
(i) the date of such Borrowing, which shall be a Business Day;
(ii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(iii) in the case of a Eurodollar Borrowing, the Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of
the term "Interest Period"; and
(iv) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section 2.04.
------------
If no election as to the Type of Borrowing is specified in the borrowing
request, then the requested Borrowing shall be an ABR Borrowing. If no Interest
Period is specified with respect to any requested Eurodollar Borrowing, then the
Borrower shall be deemed to have selected an Interest Period of seven days'
duration.
SECTION 2.04 Funding of Borrowing. Each Lender shall make the Loan
---------------------
to be made by it hereunder on the Effective Date by wire transfer of immediately
available funds by 1:00 p.m., New York, New York time, to the account of the
Administrative Agent designated by it for such purpose by notice to the Lenders.
The Administrative Agent will make such Loans available to the Borrower by
promptly crediting the amounts so received, in like funds, to an account of the
Borrower maintained with the Administrative Agent in New York, New York and
designated by the Borrower in writing, or such other account as Borrower may
designate in writing.
SECTION 2.05 Interest Elections. (a) The Borrower may elect to
------------------
convert a Borrowing to a different Type or to continue such Borrowing and, in
the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as
provided in this Section. The Borrower may elect different options with respect
to different portions of the affected Borrowing, in which case each such portion
shall be allocated ratably among the Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that
the borrowing request would be required under Section 2.03 if the Borrower were
------------
requesting a Borrowing of the Type resulting from such election to be made on
the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election Request in
the form of Exhibit E attached hereto and hereby made a part hereof signed by
---------
the Borrower.
(c) Each telephonic and written Interest Election Request shall specify
the following information in compliance with Section 2.02:
-------------
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing (in
which case the information to be specified pursuant to clauses (iii) and (iv)
below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing
or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such election,
which shall be a period contemplated by the definition of the term "Interest
Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of seven days' duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request
with respect to a Eurodollar Borrowing prior to the end of the Interest Period
applicable thereto, then, unless such Borrowing is repaid as provided herein, at
the end of such Interest Period such Borrowing shall be converted to a
Eurodollar Borrowing with an Interest Period of seven days' duration.
Notwithstanding any contrary provision hereof, if an Event of Default has
occurred and is continuing and the Administrative Agent, at the request of the
Required Lenders, so notifies the Borrower, then, so long as an Event of Default
is continuing (i) no outstanding Borrowing may be converted to or continued as a
Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be
converted to an ABR Borrowing at the end of the Interest Period applicable
thereto.
SECTION 2.06 Repayment of Loans; Evidence of Debt. (a) The Borrower
-----------------------------------
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender the then unpaid principal amount of the Loans on the
Maturity Date. The Loans shall be evidenced by the Notes, one to each Lender for
such Lender's Commitment.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of the Loans made hereunder, the Type thereof and
the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
---------
(b) or (c) of this Section shall be prima facie evidence of the existence and
- --- --- ----- -----
amounts of the obligations recorded therein; provided that the failure of any
--------
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
SECTION 2.07 Prepayment of Loans. (a) The Borrower shall have the
------------------
right at any time and from time to time to prepay, without penalty, the Loans in
whole or in part, subject to prior notice in accordance with paragraph (b) of
this Section, and subject to Section 2.12, if applicable.
b) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 2:00 p.m., New York, New
York time, three Business Days before the date of prepayment, or (ii) in the
case of prepayment of an ABR Borrowing, not later than 2:00 p.m., New York, New
York time, one Business Day before the date of prepayment. Each such notice
shall be irrevocable and shall specify the prepayment date and the principal
amount of each Borrowing or portion thereof to be prepaid. Promptly following
receipt of any such notice the Administrative Agent shall advise the Lenders of
the contents thereof. Each partial prepayment of the Loans shall be in an amount
that would be permitted in the case of a Borrowing of the same Type as provided
in Section 2.02. Each prepayment of the Loans shall be applied ratably to the
------------
Loans included in the prepaid Borrowing. Prepayments shall be accompanied by
accrued interest to the extent required by Section 2.09.
------------
(c) In connection with the prepayment of any Loan prior to the
expiration of the Interest Period applicable thereto, the Borrower shall also
pay any applicable expenses pursuant to Section 2.12.
-------------
(d) Amounts to be applied to the prepayment of Loans pursuant to any
of the preceding subsections of this Section shall be applied, first, to reduce
outstanding ABR Loans and next, to the extent of any remaining balance, to
reduce outstanding Eurodollar Loans. Each such prepayment shall be applied to
prepay ratably the Loans of the Lender.
SECTION 2.08 Fees. (a) The Borrower agrees to pay to the
----
Administrative Agent, for its own account, fees payable in the amounts and at
the times separately agreed upon between the Borrower and the Administrative
Agent.
(b) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the case of facility fees and participation fees, to the Lenders. Fees paid
shall not be refundable under any circumstances.
(c) In the event that the Maturity Date is extended in accordance with
the terms of Section 2.16, the Borrower agrees to pay to the Administrative
-------------
Agent for the account of each Lender an extension fee equal to 0.20% of the
aggregate unpaid principal balance of the Loan on the first effective day of
each extension.
(d) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a facility fee, which shall accrue at the Applicable Rate
on the amount of the Commitment of such Lender during the period from and
including the date of this Agreement to but excluding the date of full and final
payment of all Loans. Accrued facility fees shall be payable in arrears on each
Interest Payment Date, on the Maturity Date, and on such other dates that
interest shall be payable pursuant to Sections 2.09(d)(ii) and (iii) hereof. All
-------------------- -----
facility fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).
SECTION 2.09 Interest. (a) The Loans comprising each ABR Borrowing
-------
shall bear interest at the lesser of (x) the Alternate Base Rate plus the
Applicable Rate, or (y) the Maximum Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
at the lesser of (x) the Adjusted LIBO Rate for the Interest Period in effect
for such Borrowing plus the Applicable Rate, or (y) the Maximum Rate.
(c) Notwithstanding the foregoing, (A) if any principal of or interest
on any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, the lesser
of (x) 2% plus the rate otherwise applicable to such Loan as provided in the
preceding paragraphs of this Section, or (y) the Maximum Rate, or (ii) in the
case of any other amount, the lesser of (x) 2% plus the rate applicable to ABR
Loans as provided in paragraph (a) of this Section, or (y) the Maximum Rate; and
-------------
(B) after the occurrence of any Event of Default, at the option of the
Administrative Agent, or if the Administrative Agent is directed in writing by
the Required Lenders to do so, the Loan shall bear interest at a rate per annum
equal to the lesser of (x) 2% plus the rate otherwise applicable to such Loan as
provided in the preceding paragraphs of this Section, or (y) the Maximum Rate.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and on the Maturity Date; provided that (i)
--------
interest accrued pursuant to paragraph (c) of this Section shall be payable on
-------------
demand, (ii) in the event of any repayment or prepayment of any Loan, accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such
conversion.
(e) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). The applicable Alternate
Base Rate or Adjusted LIBO Rate shall be determined by the Administrative Agent,
and such determination shall be conclusive absent manifest error.
SECTION 2.10 Alternate Rate of Interest. If prior to the
---------------------------
commencement of any Interest Period for a Eurodollar Borrowing: (a) the
Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining
the Adjusted LIBO Rate for such Interest Period; or (b) the Administrative Agent
is advised by the Required Lenders that (i) the Adjusted LIBO Rate for such
Interest Period will not adequately and fairly reflect the cost to such Lenders
(or Lender) of making or maintaining their Loans (or its Loan) included in such
Borrowing for such Interest Period and (ii) such fact is generally applicable to
its loans of this type to similar borrowers, as evidenced by a certification
from such Lenders; then the Administrative Agent shall give notice thereof to
the Borrower and the Lenders by telephone or telecopy as promptly as practicable
thereafter and, until the Administrative Agent notifies the Borrower and the
Lenders that the circumstances giving rise to such notice no longer exist, any
Interest Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective.
SECTION 2.11 Increased Costs.
---------------
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any
other condition (other than one relating to Excluded Taxes) affecting this
Agreement or Eurodollar Loans made by such Lender; and the result of any of the
foregoing shall be to increase the cost to such Lender of making or maintaining
any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or
to reduce the amount of any sum received or receivable by such Lender hereunder
(whether of principal, interest or otherwise), then the Borrower will pay to
such Lender such additional amount or amounts as will compensate such Lender for
such additional costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return
on such Lender's capital or on the capital of such Lender's holding company, if
any, as a consequence of this Agreement or the Loan made by such Lender to a
level below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section shall be delivered
------------- ---
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; provided that the Borrower shall not be required to
--------
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than 60 days prior to the date that such Lender
notifies the Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender's intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs
- -------- -------
or reductions is retroactive, then the 60-day period referred to above shall be
extended to include the period of retroactive effect thereof.
SECTION 2.12 Break Funding Payments. In the event of (a) the payment
---------------------
of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section
2.07(b)), or (d) the assignment of any Eurodollar Loan other than on the last
day of the Interest Period applicable thereto as a result of a request by the
Borrower pursuant to Section 2.15, then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurodollar Loan, such loss, cost or expense to any
Lender shall be deemed to include an amount determined by such Lender to be the
excess, if any, of (i) the amount of interest which would have accrued on the
principal amount of such Loan had such event not occurred, at the Adjusted LIBO
Rate that would have been applicable to such Loan, for the period from the date
of such event to the last day of the then current Interest Period therefor (or,
in the case of a failure to borrow, convert or continue, for the period that
would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement of
such period, for dollar deposits of a comparable amount and period from other
banks in the eurodollar market. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
SECTION 2.13 Taxes.
----
(a) Any and all payments by or on account of any obligation of the
Borrower hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agent or Lender receives an amount equal
to the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each
Lender, within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender, on or with respect to any payment by or on account of any obligation of
the Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or by the Administrative Agent on its own behalf or on
behalf of a Lender shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate.
SECTION 2.14 Payments Generally; Pro Rata Treatment; Sharing of
-------------------------------------------------------
Set-offs.
- --------
(a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees, or of amounts payable under
Section 2.11, 2.12 or 2.13, or otherwise) prior to 1:00 p.m., New York, New York
time, on the date when due, in immediately available funds, without set-off or
counterclaim. Any amounts received after such time on any date may, in the
discretion of the Administrative Agent, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made to the Administrative Agent at its offices at 2
World Financial Center, New York, New York 10281-1050, except that payments
pursuant to Sections 2.11, 2.12, 2.13 and 9.03 shall be made directly to the
Persons entitled thereto. If the Administrative Agent receives a payment for the
account of a Lender prior to 1:00 p.m., New York, New York time, such payment
must be delivered to the Lender on the same day and if it is not so delivered
due to the fault of the Administrative Agent, the Administrative Agent shall pay
to the Lender entitled to the payment interest thereon for each day after
payment should have been received by the Lender pursuant hereto until the Lender
receives payment, at the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation. If any payment hereunder shall be due on a day that
is not a Business Day, the date for payment shall be extended to the next
succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, interest and
fees then due hereunder, such funds shall be applied (i) first, towards payment
of interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, towards payment of principal then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on its Loan resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Loan and accrued interest thereon than
the proportion received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in the
Loans of other Lenders to the extent necessary so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the aggregate
amount of principal of and accrued interest on their respective Loans; provided
--------
that (i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be rescinded
and the purchase price restored to the extent of such recovery, without
interest, and (ii) the provisions of this paragraph shall not be construed to
apply to any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in its Loan to
any assignee or participant, other than to the Borrower or any Subsidiary or
Affiliate thereof (as to which the provisions of this paragraph shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders hereunder that the Borrower will not make
such payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.14(d), then the Administrative Agent may, in its
----------------
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for the account of such Lender
to satisfy such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION 2.15 Mitigation Obligations; Replacement of Lenders.
--------------------------------------------------
(a) Each Lender will notify the Borrower of any event occurring after
the date of this Agreement which will entitle such Person to compensation
pursuant to Sections 2.09 and 2.11 as promptly as practicable after it obtains
------------- ----
knowledge thereof and determines to request such compensation, provided that
such Person shall not be liable for the failure to provide such notice. If any
Lender requests compensation under Section 2.09, or if the Borrower is required
------------
to pay any additional amount to any such Person or any Governmental Authority
for the account of any Lender pursuant to Section 2.11, then such Lender shall
------------
use reasonable efforts to avoid or minimize the amounts payable, including,
without limitation, the designation of a different lending office for funding or
booking its Loan or the assignment of its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.09 or 2.11, as the case may be, in the future and
--------------------
(ii) would not subject such Lender to any unreimbursed cost or expense and would
not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to
pay all reasonable and documented costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.09, or if the
-------------
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.11,
------------
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
------
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
--------
shall have received the prior written consent of the Administrative Agent, which
consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loan, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts), and (iii)
in the case of any such assignment resulting from a claim for compensation under
Section 2.09 or payments required to be made pursuant to Section 2.11, such
- ------------- ------------
assignment will result in a reduction in such compensation or payments. A
Lender shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.
SECTION 2.16 Extension.
---------
(a) Subject to the provisions of this Section, the Borrower may extend
the Maturity Date of the Loan two (2) times for one (1) year each time by giving
written request therefor (an "Extension Request") to the Administrative Agent of
-----------------
the Borrower's desire to extend such term, at least ninety (90) days prior to
the then existing Maturity Date. The second Extension Request may only be made
after the first extension of the Maturity Date hereunder has become effective.
(b) If the Maturity Date is extended, all of the other terms and
conditions of this Agreement and the other Loan Documents (including interest
payment dates) shall remain in full force and effect and unmodified, except as
expressly provided for herein. The extension of the Maturity Date for each one
(1) year period is subject to the satisfaction of each of the following
additional conditions for each extension:
(i) The representations and warranties of each Credit Party set
forth in this Agreement or any other Loan Document to which such Credit Party is
a signatory shall be true and correct in all material respects on the date that
the Extension Request is given to the Administrative Agent and on the first day
of the applicable extension (except to the extent such representations and
warranties relate to a specified date);
(ii) no Default or Event of Default has occurred and is
continuing on the date on which the Borrower gives the Administrative Agent the
Extension Request or on the first day of the extension;
(iii) the Borrower shall be in compliance with all of the
financial covenants set forth in Article VI hereof both on the date on which the
----------
Extension Request is given to the Administrative Agent and on the first day of
the extension;
(iv) the Borrower shall have paid to the Administrative Agent all
amounts then due and payable to any of the Lenders and the Administrative Agent
under the Loan Documents, including the extension fee described in Section
-------
2.08(c) hereof;
- ------
(v) the Borrower shall pay for any and all reasonable
out-of-pocket costs and expenses, including, reasonable attorneys' fees and
disbursements, incurred by the Administrative Agent in connection with or
arising out of the extension of the Maturity Date;
(vi) no change in the business, assets, management, operations or
financial condition of any Credit Party shall have occurred since the Effective
Date, which change, in the judgment of the Administrative Agent, will have or is
reasonably likely to have a Material Adverse Effect;
(vii) the Borrower shall execute and deliver to Administrative
Agent such other documents, financial statements, instruments, certificates,
opinions of counsel, reports, or amendments to the Loan Documents as the
Administrative Agent shall reasonably request regarding the Credit Parties as
shall be necessary to effect such extension; and
(viii) a written agreement evidencing the extension is signed by
the Administrative Agent, the Lenders, the Credit Parties and any other Person
to be charged with compliance therewith, which agreement such parties agree to
execute if the extension conditions set forth above have been satisfied.
ARTICLE III
Representations and Warranties
--------------------------------
The Borrower represents and warrants to the Lenders and the Administrative
Agent that:
SECTION 3.01 Organization; Powers. Each Credit Party is duly
--------------------
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, has all requisite power and authority to carry
on its business as now conducted and, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required.
SECTION 3.02 Authorization; Enforceability. The Transactions are
----------------------------
within the corporate, partnership or limited liability company powers (as
applicable) of the respective Credit Parties and have been duly authorized by
all necessary corporate, partnership or limited liability company action. This
Agreement and the Loan Documents have been duly executed and delivered by each
Credit Party which is a party thereto and constitute the legal, valid and
binding obligation of each such Person, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
SECTION 3.03 Governmental Approvals; No Conflicts. The Transactions
-----------------------------------
(a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as
have been obtained or made and are in full force and effect, (b) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of any Credit Party or any of the Borrower's
Subsidiaries or any order of any Governmental Authority, (c) will not violate or
result in a default under any indenture, agreement or other instrument binding
upon any Credit Party or any of the Borrower's Subsidiaries or its assets, or
give rise to a right thereunder to require any payment to be made by any Credit
Party or any of the Borrower's Subsidiaries, and (d) will not result in the
creation or imposition of any Lien on any asset of any Credit Party or any of
the Borrower's Subsidiaries.
SECTION 3.04 Financial Condition; No Material Adverse Change.
---------------------------------------------------
(a) The Borrower has heretofore furnished to the Lenders financial
statements (i) as of and for the fiscal year ended December 31, 2000,reported
on by Deloitte & Touche LLP, independent public accountants, and (ii) as of and
for the fiscal quarter and the portion of the fiscal year ended March 31, 2001,
certified by its chief financial officer. Such financial statements present
fairly, in all material respects, the financial position and results of
operations and cash flows of the Borrower and its consolidated Subsidiaries as
of such dates and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii) above.
(b) Since March 31, 2001, there has been no material adverse change in
the business, assets, operations, prospects or condition, financial or
otherwise, of the Borrower and its Subsidiaries, taken as a whole.
SECTION 3.05 Properties.
----------
(a) Subject to Liens permitted by Section 6.02, each of the Borrower
and its Subsidiaries has title to, or valid leasehold interests in, all its real
and personal property material to its business, except for minor defects in
title that do not interfere with its ability to conduct its business as
currently conducted or to utilize such properties for their intended purposes.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed to
use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to the Borrower's business, and the use thereof by the
Borrower and its Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
(c) All components of all improvements included within the Real
Property owned or leased, as lessee, by any Credit Party, including, without
limitation, the roofs and structural elements thereof and the heating,
ventilation, air conditioning, plumbing, electrical, mechanical, sewer, waste
water, storm water, paving and parking equipment, systems and facilities
included therein, are in good working order and repair, subject to such
exceptions which are not reasonably likely to have, in the aggregate, a Material
Adverse Effect. All water, gas, electrical, steam, compressed air,
telecommunication, sanitary and storm sewage lines and systems and other similar
systems serving the Real Property owned or leased by any Credit Party are
installed and operating and are sufficient to enable the Real Property to
continue to be used and operated in the manner currently being used and
operated, and no Credit Party has any knowledge of any factor or condition that
reasonably could be expected to result in the termination or material impairment
of the furnishing thereof, subject to such exceptions which are not likely to
have, in the aggregate, a Material Adverse Effect. No improvement or portion
thereof is dependent for its access, operation or utility on any land, building
or other improvement not included in the Real Property owned or leased by the
Borrower or its Subsidiaries, other than for access provided pursuant to a
recorded easement or other right of way establishing the right of such access
subject to such exceptions which are not likely to have, in the aggregate, a
Material Adverse Effect.
(d) All franchises, licenses, authorizations, rights of use,
governmental approvals and permits (including all certificates of occupancy and
building permits) required to have been issued by Governmental Authority to
enable all Real Property owned or leased by Borrower or any of its Subsidiaries
to be operated as then being operated have been lawfully issued and are in full
force and effect, other than those which the failure to obtain in the aggregate
could not be reasonably expected to have a Material Adverse Effect. No Credit
Party is in violation of the terms or conditions of any such franchises,
licenses, authorizations, rights of use, governmental approvals and permits,
which violation would reasonably be expected to have a Material Adverse Effect.
(e) None of the Credit Parties has received any notice or has any
knowledge, of any pending, threatened or contemplated condemnation proceeding
affecting any Real Property owned or leased by Borrower or any of its
Subsidiaries or any part thereof, or any proposed termination or impairment of
any parking at any such owned or leased Real Property or of any sale or other
disposition of any Real Property owned or leased by Borrower or any of its
Subsidiaries or any part thereof in lieu of condemnation, which in the
aggregate, are reasonably likely to have a Material Adverse Effect.
(f) Except for events or conditions not reasonably likely to have, in
the aggregate, a Material Adverse Effect, (i) no portion of any Real Property
owned or leased by Borrower or any of its Subsidiaries has suffered any material
damage by fire or other casualty loss which has not heretofore been completely
repaired and restored to its condition prior to such casualty, and (ii) no
portion of any Real Property owned or leased by Borrower or any of its
Subsidiaries is located in a special flood hazard area as designated by any
federal Government Authorities or any area identified by the insurance industry
or other experts acceptable to the Administrative Agent as an area that is a
high probable earthquake or seismic area, except as set forth on Schedule
--------
3.05(f).
- -------
SECTION 3.06 Intellectual Property. To the knowledge of each Credit
--------------------
Party, such Credit Party owns, or is licensed to use, all trademarks, trade
names, copyrights, patents and other intellectual property material to its
business, and the use thereof by such Credit Party does not infringe upon the
rights of any other Person, except for any such infringements that, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect. To the knowledge of each Credit Party, there are no material
slogans or other advertising devices, projects, processes, methods, substances,
parts or components, or other material now employed, or now contemplated to be
employed, by any Credit Party with respect to the operation of any Real
Property, and no claim or litigation regarding any slogan or advertising device,
project, process, method, substance, part or component or other material
employed, or now contemplated to be employed by any Credit Party, is pending or
threatened, the outcome of which could reasonably be expected to have a Material
Adverse Effect.
SECTION 3.07 Litigation and Environmental Matters.
---------------------------------------
(a) There are no actions, suits or proceedings by or before any
arbitrator or Governmental Authority pending against or, to the knowledge of the
Borrower, threatened against or affecting any Credit Party or any of the
Borrower's Subsidiaries (i) as to which there is a reasonable possibility of an
adverse determination and that, if adversely determined, could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect (other than the Disclosed Matters) or (ii) that involve this Agreement or
the Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect :
(i) to the knowledge of the Credit Parties, all Real Property
leased or owned by Borrower or any of its Subsidiaries is free from
contamination by any Hazardous Material, except to the extent such contamination
could not reasonably be expected to cause a Material Adverse Effect;
(ii) to the knowledge of the Credit Parties, the operations of
Borrower and its Subsidiaries, and the operations at the Real Property leased or
owned by Borrower or any of its Subsidiaries are in compliance with all
applicable Environmental Laws, except to the extent such noncompliance could not
reasonably be expected to cause a Material Adverse Effect;
(iii) neither the Borrower nor any of its Subsidiaries have known
liabilities with respect to Hazardous Materials and, to the knowledge of each
Credit Party, no facts or circumstances exist which could reasonably be expected
to give rise to liabilities with respect to Hazardous Materials, in either case,
except to the extent such liabilities could not reasonably be expected to have a
Material Adverse Effect;
(iv) neither the Real Property currently leased or owned by
Borrower nor any of its Subsidiaries, nor, to the knowledge of any Credit Party,
(x) any predecessor of any Credit Party, nor (y) any of Credit Parties' Real
Property owned or leased in the past, nor (z) any owner of Real Property leased
or operated by Borrower or any of its Subsidiaries, are subject to any
outstanding written order or contract, with any Governmental Authority or other
Person, or to any federal, state, local, foreign or territorial investigation of
which a Credit Party has been given notice respecting (A) Environmental Laws,
(B) Remedial Action, or (C) the Release or threatened Release of any Hazardous
Material, in each case, except to the extent such written order, contract or
investigation could not reasonably be expected to have a Material Adverse
Effect;
(v) none of the Credit Parties is subject to any pending legal
proceeding alleging the violation of any Environmental Law nor, to the knowledge
of each Credit Party, are any such proceedings threatened, in either case,
except to the extent any such proceedings could not reasonably be expected to
have a Material Adverse Effect;
(vi) neither the Borrower nor any of its Subsidiaries nor, to the
knowledge of each Credit Party, any predecessor of any Credit Party, nor to the
knowledge of each Credit Party, any owner of Real Property leased by Borrower or
any of its Subsidiaries, have filed any notice under federal, state or local,
territorial or foreign law indicating past or present treatment, storage, or
disposal of or reporting a Release of Hazardous Material into the environment,
in each case, except to the extent such Release of Hazardous Material could not
reasonably be expected to have a Material Adverse Effect;
(vii) none of the operations of the Borrower or any of its
Subsidiaries or, to the knowledge of each Credit Party, of any owner of premises
currently leased by Borrower or any of its Subsidiaries or of any tenant of
premises currently leased from Borrower or any of its Subsidiaries, involve or
previously involved the generation, transportation, treatment, storage or
disposal of hazardous waste, as defined under 40 C.F.R. Part 261.3 (in effect as
of the date of this Agreement) or any state, local, territorial or foreign
equivalent, in violation of Environmental Laws, except to the extent the same
could not readily be expected to have a Material Adverse Effect; and
(viii) to the knowledge of the Credit Parties, there is not now,
nor has there been in the past (except, in all cases, to the extent the
existence thereof could not reasonably be expected to have a Material Adverse
Effect), on, in or under any Real Property leased or owned by Borrower or any of
its Subsidiaries, or any of their predecessors (A) any underground storage tanks
or surface tanks, dikes or impoundments (other than for surface water); (B) any
friable asbestos-containing materials; (C) any polychlorinated biphenyls; or (D)
any radioactive substances other than naturally occurring radioactive material.
(c) Since the date of this Agreement, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.08 Compliance with Laws and Agreements. Each of the
--------------------------------------
Credit Parties is in compliance with all laws, regulations and orders of any
Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. No Default has occurred and is
continuing.
SECTION 3.09 Investment and Holding Company Status. Neither any
----------------------------------------
of the Credit Parties nor any of the Borrower's Subsidiaries is (a) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
SECTION 3.10 Taxes. Each Credit Party and each of the Borrower's
----
Subsidiaries that Borrower Controls has timely filed or caused to be filed all
Tax returns and reports required to have been filed and has paid or caused to be
paid all Taxes required to have been paid by it, except (a) Taxes that are being
contested in good faith by appropriate proceedings and for which such Person has
set aside on its books adequate reserves or (b) to the extent that the failure
to do so could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.11 ERISA. No ERISA Event has occurred or is reasonably
----
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed by more
than $10,000,000 the fair market value of the assets of such Plan, and the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $10,000,000 the fair
market value of the assets of all such underfunded Plans.
SECTION 3.12 Disclosure. The Borrower has disclosed or made available
----------
to the Lenders all agreements, instruments and corporate or other restrictions
to which it, any other Credit Party, or any of its Subsidiaries is subject, and
all other matters known to it, that, in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. None of the reports, financial
statements, certificates or other information furnished by or on behalf of the
Borrower to the Administrative Agent or any Lender in connection with the
negotiation of this Agreement or delivered hereunder (as modified or
supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
SECTION 3.13 Insurance. Borrower has provided to Administrative Agent
--------
an insurance schedule which accurately sets forth, in all material respects, as
of the Effective Date all insurance policies and programs currently in effect
with respect to the assets and business of Borrower and its Subsidiaries,
specifying for each such policy and program, (i) the amount thereof, (ii) the
risks insured against thereby, (iii) the name of the insurer and each insured
party thereunder, (iv) the policy or other identification number thereof and (v)
the expiration date thereof. Such insurance policies and programs (or such other
similar policies as are permitted pursuant to Section 5.06) are currently in
full force and effect, and, together with payment by the insured of scheduled
deductible payments, are in amounts sufficient to cover the replacement value of
the respective assets of the Borrower and its Subsidiaries.
SECTION 3.14 Margin Regulations. The Borrower is not engaged in the
------------------
business of extending credit for the purpose of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the Board), and no proceeds
of any Loan will be used to purchase or carry any margin stock.
SECTION 3.15 Subsidiaries. As of the Effective Date, the Borrower has
-----------
only the Subsidiaries listed on Schedule 3.15 attached hereto. Each of the
Borrower's Subsidiaries that is a corporation other than Weingarten Investments
Inc. is a "qualified REIT subsidiary" under Section 856 of the Code.
ARTICLE IV
Conditions
SECTION 4.01 Effective Date. The obligations of the Lenders to make
---------------
the Loans shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from
each Credit Party either (i) a counterpart of this Agreement and all other Loan
Documents to which it is party signed on behalf of such party or (ii) written
evidence satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of each such Loan Document other than
the Notes) that such party has signed a counterpart of the Loan Documents,
together with copies of all Loan Documents.
(b) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated the
Effective Date) of Dow, Cogburn & Friedman, P.C., Texas counsel for the
Borrower, covering such matters relating to the Credit Parties, the Loan
Documents or the Transactions as the Required Lenders shall reasonably request.
The Borrower hereby requests such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of the Credit Parties,
the authorization of the Transactions and any other legal matters relating to
the Credit Parties, this Agreement or the Transactions, all in form and
substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a Compliance
Certificate, dated the date of this Agreement and signed by a Financial Officer
of the Borrower, in form and substance satisfactory to the Administrative Agent.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses required
to be reimbursed or paid by the Borrower hereunder. The Administrative Agent
shall notify the Borrower and the Lenders of the Effective Date, and such notice
shall be conclusive and binding.
ARTICLE V
Affirmative Covenants
----------------------
Until the principal of and interest on each Loan and all fees payable
hereunder shall have been paid in full, the Borrower covenants and agrees with
the Lenders that:
SECTION 5.01 Financial Statements; Ratings Change and Other Information.
-----------------------------------------------------------
The Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower,
its audited consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows as of the end of and for such year, setting
forth in each case in comparative form the figures for the previous fiscal year,
all reported on by Deloitte & Touche LLP or other independent public accountants
of recognized national standing (without a "going concern" or like qualification
or exception and without any qualification or exception as to the scope of such
audit) to the effect that such consolidated financial statements present fairly
in all material respects the financial condition and results of operations of
the Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, its consolidated balance sheet and
related statements of operations, stockholders' equity and cash flows as of the
end of and for such fiscal quarter and the then elapsed portion of the fiscal
year, setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet, as of
the end of) the previous fiscal year, all certified by one of its Financial
Officers as presenting fairly in all material respects the financial condition
and results of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the Borrower
(the "Compliance Certificate") in the form of Exhibit B attached hereto;
----------------------- ----------
(d) promptly after the same become publicly available for Forms 10-K
and 10-Q described below, and upon written request for items other than Forms
10-K and 10-Q described below, copies of all periodic and other reports, proxy
statements and other materials filed by the Borrower or any Subsidiary with the
Securities and Exchange Commission (including registration statements and
reports on Form 10-K, 10-Q and 8-K (or their equivalents)), or any Govern-mental
Authority succeeding to any or all of the functions of said Commission, or with
any national securities exchange, or distributed by the Borrower to its
share-holders generally, as the case may be;
(e) promptly after Moody's or S&P shall have announced a change in the
rating established or deemed to have been established for the Index Debt,
written notice of such rating change;
(f) concurrently with any delivery of financial statements under
clause (a) above (or earlier if prepared and completed earlier by the Borrower)
- -----------
a current capital plan of the Borrower and its Subsidiaries (based on the
Borrower's good faith estimates and projections) for the next four (4) calendar
quarters including projected sources and uses of funds (including dividend and
debt payments); and
(g) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of any Credit
Party or any Subsidiary of the Borrower, or compliance with the terms of the
Loan Documents, as the Administrative Agent or any Lender may reasonably
request.
SECTION 5.02 Financial Tests. The Borrower shall have and maintain,
----------------
on a consolidated basis in accordance with GAAP:
(a) a Secured Debt to Total Asset Value Ratio no greater than
thirty-five percent (35%) at all times;
(b) an Interest Coverage Ratio of not less than 2.25:1.00 at all
times;
(c) a Fixed Charge Coverage Ratio of not less than 1.75:1.00 at all
times;
(d) a Net Worth of at least Nine Hundred Fifty Million Dollars
($950,000,000), plus fifty percent (50%) of the net proceeds (gross proceeds
less reasonable and customary costs of sale and issuance paid to Persons not
Affiliates of any Credit Party) received by the Borrower at any time from the
issuance of capital stock of the Borrower after the date of this Agreement, at
all times;
(e) an Unencumbered Interest Coverage Ratio of not less than 2.25:1.00
at all times; and
(f) a Debt to Total Asset Value Ratio no greater than fifty-five
percent (55%) at all times.
SECTION 5.03 Notices of Material Events. The Borrower will furnish
--------------------------
to the Administrative Agent and each Lender written notice of the following
promptly after it becomes aware of same:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting any Credit
Party or any Affiliate thereof that, if adversely determined, could reasonably
be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to result in
liability of the Borrower and its Subsidiaries in an aggregate amount exceeding
$10,000,000;
(d) any requested waiver under or amendment of the Revolving Credit
Facility; and
(e) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.04 Existence; Conduct of Business. The Borrower will, and
--------------------------------
will cause each of its Subsidiaries that it Controls to, do or cause to be done
all things necessary to preserve, renew and keep in full force and effect its
legal existence and the rights, licenses, permits, privileges and franchises
material to the conduct of its business; provided that the foregoing shall not
prohibit any merger, consolidation, liquidation or dissolution permitted under
Section 6.03. The Borrower will maintain at least one class of common shares of
the Borrower having trading privileges on the New York Stock Exchange.
SECTION 5.05 Payment of Obligations. The Borrower will, and will cause
----------------------
each of its Subsidiaries that it Controls to, pay its obligations, including
Tax liabilities, that, if not paid, could result in a Material Adverse Effect
before the same shall become delinquent or in default, except where (a) the
validity or amount thereof is being contested in good faith by appropriate
proceedings, (b) the Borrower or such Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP and (c) the
failure to make payment pending such contest could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 5.06 Maintenance of Properties; Insurance. The Borrower will,
------------------------------------
and will cause each of its Subsidiaries that it Controls to, (a) keep and
maintain all property material to the conduct of its business in good working
order and condition, ordinary wear and tear excepted, and (b) maintain, with
financially sound and reputable insurance companies, insurance in such amounts
and against such risks as are set forth in the schedule provided pursuant to
Section 3.13, or as are customarily maintained by companies engaged in the same
or similar businesses operating in the same or similar locations.
SECTION 5.07 Books and Records; Inspection Rights.
----------------------------------------
(a) The Borrower will, and will cause each of its Subsidiaries that it
Controls to, keep proper books of record and account in which full, true and
correct entries are made of all dealings and transactions in relation to its
business and activities. (b) The Borrower will, and will cause each of its
Subsidiaries that it Controls to, permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable prior notice and subject to
rights of tenants, to visit and inspect its properties, to examine and make
extracts from its books and records, and to discuss its affairs, finances and
condition with its officers and independent accountants, all at such reasonable
times and as often as reasonably requested.
SECTION 5.08 Compliance with Laws. The Borrower will, and will cause
---------------------
each of its Subsidiaries that it Controls to, comply with all laws, rules,
regulations and orders of any Governmental Authority (a) applicable to it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect, and (b)
required to maintain, and will at all times qualify as and maintain, its status
as a real estate investment trust under Section 856(c)(1) of the Code.
SECTION 5.09 Use of Proceeds. The proceeds of the Loan will be
-----------------
used for general corporate purposes including acquisition, development and
enhancement of Real Property. No part of the proceeds of the Loan will be used,
whether directly or indirectly, for financing, funding or completing the hostile
acquisition of publicly traded Persons or for any purpose that entails a
violation of any of the Regulations of the Board, including Regulations U and X.
SECTION 5.10 Fiscal Year. The Borrower shall maintain as its fiscal
-----------
year the twelve (12)-month period ending on December 31 of each year.
SECTION 5.11 Environmental Matters.
----------------------
(a) Borrower shall comply and shall cause each of its Subsidiaries
that it Controls and each Real Property owned or leased by such parties to
comply in all material respects with all applicable Environmental Laws currently
or hereafter in effect, except to the extent noncompliance could not reasonably
be expected to have a Material Adverse Effect.
(b) If the Administrative Agent or the Required Lenders at any time
have a reasonable basis to believe that there may be a material violation of any
Environmental Law related to any Real Property owned or leased by Borrower or
any of its Subsidiaries that it Controls, or Real Property adjacent to such Real
Property, which could reasonably be expected to have a Material Adverse Effect ,
then Borrower agrees, upon request from the Administrative Agent, to provide the
Administrative Agent, at the Borrower's expense, with such reports,
certificates, engineering studies or other written material or data as the
Administrative Agent or the Required Lenders may reasonably require so as to
reasonably satisfy the Administrative Agent and the Required Lenders that any
Credit Party or Real Property owned or leased by them is in material compliance
with all applicable Environmental Laws.
(c) Borrower shall, and shall cause each of its Subsidiaries that it
Controls to, take such Remedial Action or other action as required by
Environmental Law or any Governmental Authority
SECTION 5.12 Property Pool. A. The Borrower will at all times own
-------------
(in fee simple title, through an Eligible Ground Lease, or (subject to
Subsection C below) in a Subsidiary of Borrower) a pool (the "Pool") of Real
Property assets that are not subject to a Lien in any manner, other than
Permitted Encumbrances, with an aggregate Value equal to at least one hundred
eighty-five percent (185%) of the Borrower's Indebtedness other than Secured
Debt outstanding from time to time, with the following characteristics:
(a) assets in the Pool shall be completed income producing Retail
Property or Industrial Property with parking consistent with market conditions
that will accommodate full occupancy of the building; provided, however, that
the River Pointe Apartment project in Conroe, Texas may be included in the Pool
if it satisfies the other requirements of this section, and its Value shall be
determined using a Capital Expenditure Reserve of $200.00 per apartment unit;
(b) each individual property must have signed leases with bonafide
tenants not Affiliates of the Borrower or any of its Subsidiaries covering at
least eighty percent (80%) of the net rentable space in such property, as of the
date of determination of the Value of the Pool;
(c) (i) except for the property listed on Schedule 5.12(c) attached
----------------
hereto, the Borrower must have received Phase I environmental reports from third
party independent consultants for each property in, or to be added to, the Pool
that do not disclose any adverse material environmental conditions, and (ii) the
Borrower must be able to make the representations and warranties in Section 3.05
------------
as to each property in, or to be added to, the Pool;
(d) the property is not subject to or affected by any limiting
agreement described in Section 6.08(a); and
----------------
(e) the Occupancy Level of the Pool in the aggregate must be at least
eighty-five percent (85%) as of the date of determination of the Value of the
Pool.
As of the Effective Date the Real Property assets included in the Pool are
listed on Schedule 5.12.A attached hereto.
----------------
If requested by the Administrative Agent, the Borrower will provide to the
Administrative Agent written assessments from third party independent
environmental consultants for all Pool properties acquired after the date of
this Agreement. If the Administrative Agent determines that there are material
environmental conditions existing on or risks to such properties, the properties
will be excluded from the Pool.
B. Notwithstanding the foregoing, at all times the maximum value of the
-----------------------------
Pool that consists of Eligible Ground Leases is ten percent (10%) of the value
of the Pool.
C. Real Property to be included in the Pool may be owned by a Subsidiary of
the Borrower if:
(a) it is owned by either (i) a wholly owned Subsidiary of the
Borrower, or (ii) if not a wholly owned Subsidiary then (1) the value of the
Real Property owned by such Subsidiary ("Partial Subsidiary Real Property") to
be used in the calculation of the Value of the Pool shall be as provided in the
definition of Value multiplied by the Equity Percentage of the Subsidiary owned
by the Borrower, (2) the maximum value of the Pool that consists of Partial
Subsidiary Real Property cannot be greater than ten percent (10%) of the value
of the Pool, and (3) the Borrower must own at least 66-2/3% of the indicia of
ownership of such Subsidiary and control all major decisions of such Subsidiary;
and
(b) the Subsidiary owning the Real Property executes a guaranty and
delivers to the Administrative Agent such Subsidiary's organizational documents
and current certificates of existence and good standing for the state in which
it is organized.
D. If the Borrower requests inclusion of assets in the Pool that do not
meet the requirements of this Section, then such assets may only be included in
the Pool upon the prior written approval of the Required Lenders; provided,
however that the requirements of Section 5.12.C(b) may not be waived without the
-----------------
prior written approval of all of the Lenders.
SECTION 5.13 Guaranties. In addition to any Guaranty required to be
----------
executed pursuant to Section 5.12, each wholly owned Subsidiary of Borrower now
or hereafter in existence that (a) is not a special purpose entity, or formed
solely to own an interest in a special purpose entity, formed to own a single
asset or group of assets in a bankruptcy remote manner, and (b) owns material
unencumbered assets (as determined by the Administrative Agent), must execute
and deliver to the Administrative Agent a Guaranty (within forty-five (45) days
after the calendar quarter when the Subsidiary was formed or otherwise acquired
for Subsidiaries formed or otherwise acquired after the Effective Date). Each
Guaranty executed pursuant to Section 5.12 must remain in full force and effect
so long as the related Real Property is included in the calculation of Value of
the Pool. Notwithstanding the foregoing SPM/WRI Overland Park, L.P. will not be
a Guarantor unless it is still a wholly owned Subsidiary of Borrower one hundred
twenty (120) days after the date of this Agreement. If SPM/WRI Overland Park,
L.P. is required to become a Guarantor it will then comply with the terms of
this Agreement to become a Guarantor within sixty (60) days after the date of
this Agreement.
SECTION 5.14 Further Assurances. At any time upon the request of the
------------------
Administrative Agent, Borrower will, promptly and at its expense, execute,
acknowledge and deliver such further documents and perform such other acts and
things as the Administrative Agent may reasonably request to evidence the Loans
made hereunder and interest thereon in accordance with the terms of this
Agreement.
ARTICLE VI
Negative Covenants
- -------------------
Until the principal of and interest on each Loan and all fees payable
hereunder have been paid in full, the Borrower covenants and agrees with the
Lenders that:
SECTION 6.01 Indebtedness. The Borrower will not, and will not permit
-----------
any Subsidiary that it Controls to, create, incur, assume or permit to exist any
Secured Debt, not including (a) Non-recourse Debt and (b) liabilities
customarily excepted from nonrecourse mortgage financing, including, without
limitation, fraud, criminal activity, misapplication of funds, ad valorem taxes
and environmental matters, exceeding $125,000,000 at any time outstanding.
SECTION 6.02 Liens. The Borrower will not create, incur, assume or
----
permit to exist any Lien on any property or asset now owned or hereafter
acquired by it, or assign or sell any income or revenues (including accounts
receivable) or rights in respect of any thereof, except: (a) Permitted
Encumbrances;
(b) any Lien on any property or asset of the Borrower or any Subsidiary
existing on the date hereof and set forth in Schedule 6.02; provided that (i)
------------- --------
such Lien shall not apply to any other property or asset of the Borrower or any
Subsidiary and (ii) such Lien shall secure only those obligations (whether
present or future) set forth in the governing loan documents, as of the date
hereof and extensions, renewals and replacements thereof that do not increase
the outstanding principal amount thereof; and
(c) any Lien securing Indebtedness permitted under Section 6.01.
--------------
SECTION 6.03 Fundamental Changes.
-------------------
(a) The Borrower will not, and will not permit any Subsidiary to, merge
into or consolidate with any other Person, or permit any other Person to merge
into or consolidate with it, or sell, transfer, lease or otherwise dispose of
(in one transaction or in a series of transactions) all or substantially all of
the assets of the Borrower and its Subsidiaries when taken as a whole, or all or
substantially all of the stock of its Subsidiaries when taken as a whole
(in each case, whether now owned or here-after acquired), or liquidate or
dissolve, except that, if at the time thereof and immediately after giving
effect thereto no Default shall have occurred and be continuing (i) any Person
may merge into, or consolidate with, the Borrower in a transaction in which the
Borrower is the surviving corporation, (ii) any Person not a Credit Party may
merge into, or consolidate with, any Subsidiary in a transaction in which the
surviving entity is a Subsidiary, (iii) any Subsidiary not a Credit Party may
sell, transfer, lease or otherwise dispose of its assets to the Borrower or to
another Subsidiary, (iv) any Subsidiary not a Credit Party may liquidate or
dissolve if the Borrower determines in good faith that such liquidation or
dissolution is in the best interests of the Borrower and is not materially
disadvantageous to the Lenders, (v) any Subsidiary which is a Credit Party may
merge into (or consolidate with) or liquidate or dissolve into, any other
Subsidiary which is a Credit Party, and (vi) any Subsidiary which is a Credit
Party may sell, transfer, lease or otherwise dispose of its assets to Borrower
or to any other Subsidiary which is a Credit Party; provided that any such
merger involving a Person that is not a wholly owned Subsidiary immediately
prior to such merger shall not be permitted unless also permitted by Section
6.04.
(b) The Borrower will not, and will not permit any of its Subsidiaries to,
engage to any material extent in any business other than businesses of the type
conducted by the Borrower and its Subsidiaries on the date of execution of this
Agreement and businesses reasonably related thereto.
SECTION 6.04 Investments, Loans, Advances and Acquisitions. The
----------------------------------------------
Borrower will not, and will not permit any of its Subsidiaries to, purchase,
hold or acquire (including pursuant to any merger with any Person that was not a
wholly owned Subsidiary prior to such merger) any capital stock, evidences of
indebtedness or other securities (including any option, warrant or other right
to acquire any of the foregoing) of, make or permit to exist any loans or
advances to, or make or permit to exist any investment or any other interest in,
any other Person, or purchase or otherwise acquire (in one transaction or a
series of transactions) any assets of any other Person constituting a business
unit, not including receivables, deposits or prepaid items, except:
(a) Permitted Investments;
(b) investments in the capital stock of new or existing Subsidiaries and
intercompany loans between or among the Borrower and/or its Subsidiaries;
(c) investments in Unconsolidated Affiliates (valued at an amount equal to
the Value of each Unconsolidated Affiliate's Real Property multiplied by the
Equity Percentage for that Unconsolidated Affiliate), and in other real estate
investment trusts (at market value) so long as the aggregate amount of such
investments described in this clause (c) does not exceed ten percent (10%) of
----------
the Total Asset Value after giving effect to such investments; provided, however
-------- -------
that the investments listed on Schedule 6.04 attached hereto shall not be
--------------
included for the purposes of the ten percent limitation;
(d) loans, advances, and extensions of credit to Persons secured by valid
and enforceable first priority liens on real estate so long as (i) the aggregate
amount of such investments does not exceed ten percent (10%) of Total Asset
Value, and (ii) the aggregate amount of such investments in Persons in which the
Borrower or its Subsidiaries do not have an ownership interest does not exceed
five percent (5%) of Total Asset Value, in each case after giving effect to such
investments;
(e) undeveloped land, so long as the aggregate Historical Value of such land
does not exceed ten percent (10%) of Total Asset Value, after giving effect to
such investments;
(f) Retail Property;
(g) Real Property that is being constructed or developed to be Retail
Property or Industrial Property, but is not yet completed (including such assets
that such Person has contracted to purchase for development with no option to
terminate the purchase agreement), so long as the aggregate Historical Value
thereof does not exceed twenty percent (20%) of the Total Asset Value after
giving effect to such investments;
(h) Real Property not constituting Retail Property or undeveloped land so
long as the aggregate amount of such investments does not exceed twenty-five
percent (25%) of Total Asset Value after giving effect to such investments;
(i) capital stock, obligations or securities received in settlement of debts
(created in the ordinary course of business) owing to the Borrower or any
Subsidiary, so long as the aggregate market value thereof does not exceed five
percent (5%) of Total Asset Value after giving effect to such investments; and
(j) mergers, consolidations and other transactions permitted under Section
-------
6.03, so long as same do not cause the Borrower to be in violation of any
---
provision of this Section 6.04.
---
In addition to the foregoing, the aggregate value of the investments described
- ------------------------------
in clauses (c), (d), (e), (g) and (i) above shall not exceed forty percent (40%)
- - --------------------- --- ---
of Total Asset Value after giving effect to such investments. The loans and
investments described above may be purchased or acquired, directly or
indirectly, through partnerships, joint ventures, or otherwise. The
calculations in this Section will be made without duplication if a loan or
investment is within more than one category described in this Section.
SECTION 6.05 Hedging Agreements. The Borrower will not, and will not
-----------------
permit any of its Subsidiaries to, enter into any Hedging Agreement, other than
Hedging Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which the Borrower or any Subsidiary is exposed in the conduct
of its business or the management of its liabilities.
SECTION 6.06 Restricted Payments. The Borrower will not, and will
-------------------
not permit any of its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, during any calendar quarter, any Restricted Payment,
except (a) Restricted Payments which, when added to all Restricted Payments made
during the three immediately preceding calendar quarters, do not exceed
ninety-five percent (95%) of the sum of Funds From Operations plus capital gains
recognized during such calendar quarter and the immediately preceding three
calendar quarters, (b) Subsidiaries may declare and pay dividends ratably with
respect to their capital stock, and (c) the Borrower may make Restricted
Payments required to comply with Section 5.08(b).
SECTION 6.07 Transactions with Affiliates. The Borrower will not, and
---------------------------
will not permit any of its Subsidiaries to, sell, lease or otherwise transfer
any property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) in the ordinary course of business at prices and on terms
and conditions not less favorable to the Borrower or such Subsidiary than could
be obtained on an arm's-length basis from unrelated third parties, (b)
transactions between or among the Borrower and its wholly owned Subsidiaries not
involving any other Affiliate and (c) any Restricted Payment permitted by
Section 6.06.
SECTION 6.08 Restrictive Agreements. The Borrower will not, and
----------------------
will not permit any Guarantor to, directly or indirectly, enter into, incur or
permit to exist any agreement or other arrangement (including the organizational
documents of such Person) that prohibits or restricts (a) the ability of the
Borrower or any Guarantor to create, incur or permit to exist any Lien upon, or
sell, transfer or otherwise convey all or any part of, any of its property or
assets, or (b) the ability of any Guarantor to pay dividends or other
distributions with respect to any shares of its capital stock or to make or
repay loans or advances to the Borrower or any other Subsidiary or to Guarantee
Indebtedness of the Borrower or any other Subsidiary; provided that (i) the
foregoing shall not apply to restrictions and conditions imposed by law or by
this Agreement, (ii) the foregoing shall not apply to restrictions and
conditions existing on the date hereof, which are to the best of Borrower's
knowledge, identified on Schedule 6.08 (but shall apply to any extension or
renewal of, or any amendment or modification expanding the scope of, any such
restriction or condition), (iii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale or
other disposition of a Subsidiary pending such sale, provided such restrictions
and conditions apply only to the Subsidiary that is to be sold and such sale is
permitted hereunder, (iv) clause (a) of the foregoing shall not apply to
restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness, (v) clause (a)
of the foregoing shall not apply to customary provisions in leases restricting
the assignment thereof, and (vi) clause (a) of the foregoing shall not apply to
customary provisions in joint venture and partnership agreements with Persons
other than Borrower or its Affiliates restricting Liens on property owned
thereby or on venture or partnership interests.
ARTICLE VII
Events of Default
- -------------------
If any of the following events ("Events of Default") shall occur:
-------------------
(a) the Borrower shall fail to pay any principal of any Loan when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;
(b) any Credit Party shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
----------
Article) payable under any Loan Documents, when and as the same shall become due
and payable, and such failure shall continue unremedied for a period of over
three Business Days;
(c) any representation or warranty made or deemed made by or on behalf of
any Credit Party in or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, or in any report, certificate,
financial statement or other document furnished pursuant to or in connection
with this Agreement or any amendment or modification hereof or waiver hereunder,
shall prove to have been incorrect in any material respect when made or deemed
made;
(d) the Borrower shall fail to observe or perform any covenant, condition or
agreement contained in Article V or VI other than Sections 5.05, 5.06, 5.07(a),
--------------- ------------- ---- -------
5.08, and 5.11;
- ---- ----
(e) any Credit Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than those
specified in clause (a), (b), (d) or (m) of this Article), and such failure
----------------------- ---
shall continue unremedied for a period of over 30 days after notice thereof from
the Administrative Agent to the Borrower (which notice will be given at the
request of any Lender);
(f) any event or condition occurs that results in any Material Indebtedness
becoming due prior to its scheduled maturity or that enables or permits (with or
without the giving of notice, the lapse of time or both) the holder or holders
of any Material Indebtedness or any trustee or agent on its or their behalf to
cause any Material Indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled maturity;
provided that this clause (f) shall not apply to secured Indebtedness that
------- -----------
becomes due as a result of the voluntary sale or transfer of the property or
----
assets securing such Indebtedness;
--
(g) an involuntary proceeding shall be commenced or an involuntary petition
shall be filed seeking (i) liquidation, reorganization or other relief in
respect of any Credit Party or any other Subsidiary, other than a Minority
Subsidiary, of the Borrower or its debts, or of a substantial part of its
assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar official
for any Credit Party or any other Subsidiary, other than a Minority Subsidiary,
of the Borrower or for a substantial part of its assets, and, in any such case,
such proceeding or petition shall continue undismissed for 60 days or an order
or decree approving or ordering any of the foregoing shall be entered;
(h) any Credit Party or any other Subsidiary, other than a Minority
Subsidiary, of the Borrower shall (i) voluntarily commence any proceeding or
file any petition seeking liquidation, reorganization or other relief under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar law
now or hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition described
in clause (h) of this Article, (iii) apply for or consent to the appointment of
a receiver, trustee, custodian, sequestrator, conservator or similar official
for such Person or for a substantial part of its assets, (iv) file an answer
admit-ting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors or (vi)
take any action for the purpose of effecting any of the fore-going;
(i) any Credit Party or any other Subsidiary, other than a Minority
Subsidiary, of the Borrower shall become unable, admit in writing its inability
or fail generally to pay its debts as they become due;
(j) one or more judgments for the payment of money in an aggregate amount in
excess of $10,000,000 shall be rendered against any Credit Party, any other
Subsidiary, other than a Minority Subsidiary, of the Borrower or any combination
thereof and the same shall remain undischarged for a period of 30 consecutive
days during which execution shall not be effectively stayed, or any action shall
be legally taken by a judgment creditor to attach or levy upon any assets of
such Person to enforce any such judgment;
(k) an ERISA Event shall have occurred that, in the opinion of the Required
Lenders, when taken together with all other ERISA Events that have occurred,
could reasonably be expected to result in liability of the Borrower and its
Subsidiaries in an aggregate amount exceeding (i) $5,000,000 in any year or (ii)
$10,000,000 for all periods;
(l) a Change in Control shall occur; or
(m) any Event of Default (as defined in the Revolving Credit Facility) under
the Revolving Credit Facility (subject to Section 9.02(c) hereof);
----------------
then, and in every such event (other than an event described in clause (g) or
----------
(h) of this Article), and at any time thereafter during the continuance of such
-
event, the Administrative Agent may, and at the request of the Required Lenders
shall, by notice to the Borrower, take some or all of the following actions, at
the same or different times: (i) declare the Loans then out-standing to be due
and payable in whole (or in part, in which case any principal not so declared to
be due and payable may thereafter be declared to be due and payable), and
thereupon the principal of the Loans so declared to be due and payable, together
with accrued interest thereon and all fees and other obligations of the Borrower
accrued hereunder, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower, and (ii) exercise any other rights or remedies
provided under this Agreement or any other Loan Document, or any other right or
remedy available by law or equity; and in case of any event described in clause
------
(g) or (h) of this Article, the principal of the Loans then outstanding,
- --- ---
together with accrued interest thereon and all fees and other obligations of the
- ---
Borrower accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
ARTICLE VIII
The Administrative Agent
- --------------------------
Each of the Lenders hereby irrevocably appoints the Administrative Agent as
its agent and authorizes the Administrative Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent
by the terms hereof, together with such actions and powers as are reasonably
incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the same
rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except those
expressly set forth herein. Without limiting the generality of the foregoing,
(a) the Administrative Agent shall not be subject to any fiduciary or other
implied duties, regardless of whether a Default has occurred and is continuing,
(b) the Administrative Agent shall not have any duty to take any discretionary
action or exercise any discretionary powers, except discretionary rights and
powers expressly contemplated hereby that the Administrative Agent is required
to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02), and (c) except as expressly set forth herein, the
-------------
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to any Credit Party
that is communicated to or obtained by the bank serving as Administrative Agent
or any of its Affiliates in any capacity. The Administrative Agent shall not be
liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
-------
9.02) or in the absence of its own gross negligence or willful misconduct. The
-
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until written notice thereof is given to the Administrative Agent by the
Borrower or a Lender, and the Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement, (ii) the contents
of any certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than to confirm
----------
receipt of items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and exercise its
rights and powers by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative Agent as
provided in this paragraph, the Administrative Agent may resign at any time by
notifying the Lenders and the Borrower. Upon any such resignation, the Required
Lenders shall have the right, with the approval of Borrower (provided no Default
has occurred and is continuing), which approval shall not be unreasonably
withheld, to appoint a successor. If no successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent which shall be a bank with an office in New York,
New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Borrower to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Borrower
and such successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the
------------
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without reliance upon
the Administrative Agent or any other Lender and based on such documents and
information 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 Administrative Agent or any
other Lender and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any related agreement or any
document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
- -------------
SECTION 9.01 Notices. Except in the case of notices and other
------
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at 2600 Citadel Plaza Drive, P. O. Box
924111, Houston, Texas 77292, Attention: Steve Richter (Telecopy No.
713/868-6981); with a copy to Weingarten Realty Investors, 2600 Citadel Plaza
Drive, P. O. Box 924111, Houston, Texas 77292, Attention: Linda Kubena (Telecopy
No. 713/868-6981); with a copy to Dow, Cogburn & Friedman, P.C., 9 Greenway
Plaza, Suite 2300, Houston, Texas 77046, Attention: Melvin A. Dow (Telecopy No.
713/940-6099);
(b) if to the Administrative Agent, to Commerzbank AG, New York Branch, 2
World Financial Center, New York, New York 10281-1050, Attention: David Schwarz
(Telephone No. 212/266-7583 and Telecopy No. 212/266-7565);
(c) if to any other Lender, to it at its address (or telecopy number) set
forth on the signature pages of this Agreement, or as provided to Borrower in
writing by the Administrative Agent or the Lender.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given (i) if given by telecopy,
when such telecopy is transmitted to the telecopy number specified in this
Section and the appropriate confirmation is received (or if such day is not a
Business Day, on the next Business Day); (ii) if given by mail (return receipt
requested), on the earlier of receipt or three (3) Business Days after such
communication is deposited in the mail with first class postage prepaid,
addressed as aforesaid; or (iii) if given by any other means, when delivered at
the address specified in this Section; provided that notices to the
--------
Administrative Agent under Article II shall not be effective until received.
-----------
SECTION 9.02 Waivers; Amendments.
-------------------
(a) No failure or delay by the Administrative Agent or any Lender in
exercising any right or power hereunder or under any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent and the Lenders hereunder and under any other Loan Document
are cumulative and are not exclusive of any rights or remedies that they
would otherwise have. No waiver of any provision of this Agreement or consent
to any departure by the Borrower therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) of this Section, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Borrower and the Required Lenders or by the Borrower and the
Administrative Agent with the consent of the Required Lenders; provided that no
--------
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse
any such payment, without the written consent of each Lender affected thereby,
(iv) change Section 2.14(b) or (c) in a manner that would alter the pro rata
---------------- ---
sharing of payments required thereby, without the written consent of each
Lender, (v) change any of the provisions of this Section or the definition of
"Required Lenders" or any other provision hereof specifying the number
or percentage of Lenders required to waive, amend or modify any rights hereunder
or make any determination or grant any consent hereunder, without the written
consent of each Lender, (vi) except for a release by the Administrative Agent of
a Guarantor whose Guaranty is no longer required pursuant to the terms of this
Agreement, release any Credit Party from its obligations under the Loan
Documents, without the written consent of each Lender, or (vii) extend the
Maturity Date, except as provided in Section 2.16 without the written consent of
------------
each Lender, or (viii) increase the maximum percentage in Section 5.02(f) above
---------------
fifty-five percent (55%), without the written consent of each Lender; provided
--------
further that no such agreement shall amend, modify or otherwise affect the
------
rights or duties of the Administrative Agent hereunder without the prior written
----
consent of the Administrative Agent.
(c) Any waiver of a Default or an Event of Default (as each is defined in
the Revolving Credit Facility) other than the payment of money and any
amendments to Articles V or VI of the Revolving Credit Facility, will require a
like waiver or amendment to conform this Agreement to the Revolving Credit
Facility (a "Conforming Amendment") if the Administrative Agent and the Required
Lenders agree to same. If the Administrative Agent and the Required Lenders do
not agree to a Conforming Amendment, then, upon written notice from the
Administrative Agent to the Borrower that the Administrative Agent and the
Required Lenders do not agree to the Conforming Amendment, the Borrower shall
have the right to pay the Loans and all other obligations it has under this
Agreement or under the other Loan Documents within one hundred eighty (180) days
after such notice from the Administrative Agent, and such default, waiver or
amendment under the Revolving Credit Facility will not be a Default under this
Agreement during such time period.
SECTION 9.03 Expenses; Indemnity; Damage Waiver.
------------------------------------
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent, in connection with the syndication of the credit facilities provided for
herein, the preparation and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), and (ii) all
out-of-pocket expenses incurred by the Administrative Agent or any Lender,
including the fees, charges and disbursements of any counsel for the
Administrative Agent or any Lender, in connection with the enforcement or
protection of its rights in connection with this Agreement, including its rights
under this Section, or in connection with the Loans made hereunder,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans.
(b) The Borrower shall indemnify the Administrative Agent and each Lender,
and each Related Party of any of the foregoing Persons (each such Person being
called an "Indemnitee") against, and hold each Indemnitee harmless from, any and
----------
all losses, claims, damages, liabilities and related expenses, including the
fees, charges and disbursements of any counsel for any Indemnitee, incurred by
or asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the Transactions or any
other transactions contemplated hereby, (ii) any Loan or the use of the proceeds
therefrom, (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Borrower or any of
its Subsidiaries, or any Environmental Liability related in any way to the
Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as to
--------
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses resulted from the gross negligence or willful
misconduct of such Indemnitee. THE FOREGOING INDEMNITY INDEMNIFIES EACH
INDEMNITEE FROM ITS OWN NEGLIGENCE.
(c) To the extent that the Borrower fails to pay any amount required to be
paid by it to the Administrative Agent under paragraph (a) or (b) of this
------------- ---
Section, each Lender severally agrees to pay to the Administrative Agent such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
----
liability or related expense, as the case may be, was incurred by or asserted
-
against the Administrative Agent in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later than ten
days after written demand therefor.
SECTION 9.04 Successors and Assigns.
-----------------------
(a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by the Borrower without
such consent shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby and, to the
extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more Eligible Assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of the Loan at the time owing to it); provided that (i) except in the case of
--------
an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with
respect to a Lender, each of the Borrower (so long as no Default has occurred
and is continuing) and the Administrative Agent must give their prior written
consent to such assignment (which consent shall not be unreasonably withheld),
(ii) except in the case of an assignment to a Lender, an Affiliate of a Lender
or to an Approved Fund with respect to a Lender, or an assignment of the unpaid
balance of the Loan held by the assigning Lender, the amount of the Loan of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each of the
Borrower (so long as no Default has occurred and is continuing) and the
Administrative Agent otherwise consent, (iii) each partial assignment shall be
made as an assignment of a proportionate part of all the assigning Lender's
rights and obligations under this Agreement, (iv) the parties to each assignment
shall execute and deliver to the Administrative Agent an Assignment and
Acceptance, together with a processing and recordation fee of $3,500, and (v)
the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire. Subject to acceptance and recording
thereof pursuant to paragraph (d) of this Section, from and after the effective
-------------
date specified in each Assignment and Acceptance, the assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such Assignment
and Acceptance, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.11, 2.12, 2.13 and 9.03). Any
------------- ---- ---- ----
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section.
--------------
(c) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices in New York, New York a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and principal amount of
the Loan owing to, each Lender pursuant to the terms hereof from time to time
(the "Register"). The entries in the Register shall be conclusive, and the
--------
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower and
any Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee, the assignee's completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and
-------------
any written consent to such assignment required by paragraph (b) of this
-------------
Section, the Administrative Agent shall accept such Assignment and Acceptance
and record the information contained therein in the Register. No assignment
shall be effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
-----------
under this Agreement (including all or a portion of the Loan owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
---
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
--------
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such Participant.
---------------
Subject to paragraph (f) of this Section, the Borrower agrees that each
--------------
Participant shall be entitled to the benefits of Sections 2.11, 2.12 and 2.13 to
------------- ---- ----
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent permitted
-------------
by law, each Participant also shall be entitled to the benefits of Section 9.08
------------
as though it were a Lender, provided such Participant agrees to be subject to
Section 2.14(c) as though it were a Lender.
--------------
(f) A Participant shall not be entitled to receive any greater payment under
Section 2.11 or 2.13 than the applicable Lender would have been entitled to
- ------------- ----
receive with respect to the participation sold to such Participant, unless the
- ----
sale of the participation to such Participant is made with the Borrower's prior
written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.13 unless the Borrower
------------
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 2.13(e) as
---------------
though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest; provided that no such pledge or assignment of a security
--------
interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05 Survival. All covenants, agreements, representations
--------
and warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force
and effect as long as the principal of or any accrued interest on any Loan or
any fee or any other amount payable under this Agreement is outstanding and
unpaid. The provisions of Sections 2.11, 2.12, 2.13 and 9.03 and Article VIII
shall survive and remain in full force and effect regardless of the consummation
of the transactions contemplated hereby, the repayment of the Loans or the
termination of this Agreement or any provision hereof.
SECTION 9.06 Counterparts; Integration; Effectiveness. This Agreement
---------------------------------------
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 9.07 Severability. Any provision of this Agreement held to
-----------
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08 Right of Setoff. If an Event of Default shall have
----------------
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. Each Lender agrees promptly to notify the
Borrower after any such setoff and application made by such Lender, provided
that the failure to give such notice shall not affect the validity of such
setoff and application. The rights of each Lender under this Section are in
addition to other rights and remedies (including other rights of setoff) which
such Lender may have.
SECTION 9.09 Governing Law; Jurisdiction Consent to Service of Process.
------------------------------------------------------------
(a) This Agreement shall be construed in accordance with and governed by the
law of the State of Texas.
(b) The Borrower hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of the district courts of
Harris County, Texas and of the United States District Court for the Southern
District of Texas (Houston Division), and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such State or, to the
extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Administrative Agent or any Lender may otherwise have to bring
any action or proceeding relating to this Agreement against the Borrower or its
proper-ties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or here-after have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any court referred to in
paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process
in the manner provided for notices in Section 9.01. Nothing in this Agreement
------------
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
SECTION 9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
-------------------
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREE-MENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11 Headings. Article and Section headings and the Table of
-------
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12 Confidentiality. Each of the Administrative Agent and the
--------------
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party
to this Agreement, (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of the Borrower
or (h) to the extent such Information (i) becomes publicly available other than
as a result of a breach of this Section or (ii) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Borrower. For the purposes of this Section, "Information" means
all information received from any Credit Party relating to the Credit Party or
its business, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by any Credit Party; provided that, in the case of information
received from any Credit Party after the date hereof, such information is
clearly identified at the time of delivery as confidential. Any Person required
to maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
SECTION 9.13 Interest Rate Limitation. Notwithstanding anything
------------------------
herein to the contrary, if at any time the interest applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively, the "Charges"), shall exceed
the maximum which may be contracted for, charged, taken, received or reserved by
the Lender holding such Loan in accordance with applicable law (the "Maximum
Rate"), the rate of interest payable in respect of such Loan hereunder, together
with all Charges payable in respect thereof, shall be limited to the Maximum
Rate and, to the extent lawful, the interest and Charges that would have been
paid in respect of such Loan but were not payable as result of the operation of
this Section shall be cumulated and the interest and Charges payable to such
Lender in respect of other Loans or periods shall be increased (but not above
the Maximum Rate therefor) until such cumulated amount, together with interest
thereon at the Federal Funds Effective Rate to the date of repayment, shall have
been received by such Lender. If, for any reason whatsoever, the Charges paid or
received on the Loans produces a rate which exceeds the Maximum Rate, the
Lenders shall credit against the principal of the Loans (or, if such
indebtedness shall have been paid in full, shall refund to the payor of such
Charges) such portion of said Charges as shall be necessary to cause the
interest paid on the Loans to produce a rate equal to the Maximum Rate. All sums
paid or agreed to be paid to the holders of the Loans for the use, forbearance
or detention of the Loans shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread in equal parts throughout the full
term of this Agreement, so that the interest rate is uniform throughout the full
term of this Agreement. The provisions of this Section shall control all
agreements, whether now or hereafter existing and whether written or oral,
between the parties hereto. On each day, if any, that Texas law establishes the
Maximum Rate, the Maximum Rate shall be the "weekly ceiling" (as defined
in Chapter 303 of the Texas Finance Code (the "Texas Finance Code") as
--------------------
amended) for that day. The Administrative Agent may from time to time, as to
current and future balances, implement any other ceiling under the Texas Finance
Code by notice to the Borrower, if and to the extent permitted by the Texas
Finance Code. Without notice to the Borrower or any other person or entity, the
Maximum Rate shall automatically fluctuate upward and downward as and in the
amount by which such maximum nonusurious rate of interest permitted by
applicable law fluctuates.
SECTION 9.14 Liability of Holders. With respect to the incurrence
---------------------
of certain liabilities hereunder and the making of certain agreements by the
Borrower as herein stated, such incurrence of liabilities and such agreements
shall be binding upon the Borrower only as a trust formed under the Texas Real
Estate Investment Trust Act pursuant to that certain Restated Declaration of
Trust dated March 23, 1988 (as amended from time to time), and only upon the
assets of such Borrower. No Trust Manager or officer or holder of any beneficial
interest in the Borrower shall have any personal liability for the payment of
any indebtedness or other liabilities incurred by the Borrower hereunder or for
the performance of any agreements made by the Borrower hereunder, nor for any
other act, omission or obligation incurred by the Borrower or the Trust Managers
except, in the case of a Trust Manager, any liability arising from his own
willful misfeasance or malfeasance or gross negligence.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
WEINGARTEN REALTY INVESTORS
By:
Name:
Title:
- ------
Signature page to Credit Agreement with Weingarten Realty Investors.
COMMERZBANK AG, NEW YORK BRANCH, individually and as Administrative Agent,
By:
Name:
Title:
- ------
Signature page to Credit Agreement with Weingarten Realty Investors.
WELLS FARGO BANK, NATIONAL ASSOCIATON, individually and as Syndication Agent
By:
Name:
Title:
Address:
1000 Louisiana Street, 4th Floor
Houston, Texas 77002
Attention: Steve May
Telephone No.: (713) 319-1424
Telecopy No.: (713) 739-1077
SCHEDULE 2.01
LENDER LOAN COMMITMENT
(Percentage)
Commerzbank AG, New York $30,000,000.00
(60.0%)
Wells Fargo Bank, National Association $20,000,000.00
(40.0%)
SCHEDULE 3.05(F)
Earthquake or Seismic Area
Properties of Borrower and its Subsidiaries located in the State of California
SCHEDULE 3.07
DISCLOSED MATTERS
Below is a list of major outstanding lawsuits, none of which we believe will
have a Material Adverse Effect:
Location 0038 (Lake Charles) Aletta McFatter incident 11/9/97 this is an
assault case where an elderly lady allegedly had her purse snatched and held on
to the purse and fell down. She had swelling of the brain, which required
surgery. We have adequate Insurance Coverage and are aggressively defending. We
expect success in court.
Location 0035 (Lake Charles) Mary Jessica Savoy incident 3/8/99 this is an
alleged rape, which happened to one of our tenants. She was leaving work and
assaulted and stabbed in the parking lot, she drove herself to the hospital. We
are being sued and we have adequate Insurance Coverage and are aggressively
defending and expect success in court.
SCHEDULE 3.15
LIST OF SUBSIDIARIES
Alabama-Shepherd Shopping Center
- ----------------------------------
AN/WRI Partnership, Ltd.
- --------------------------
ATDNL, Inc.
- ------------
East Town, Lake Charles Co.
- -------------------------------
Eastex Venture
- ---------------
GJR/Weingarten Little York Venture
- -------------------------------------
GJR/Weingarten River Point Venture
- -------------------------------------
Jacinto City, Ltd.
- --------------------
Lisbon Street Shopping Trust
- -------------------------------
Main/O.S.T., Ltd.
- ------------------
Markham West Shopping Center, L.P.
- --------------------------------------
Miller Weingarten Realty, LLC
- --------------------------------
Nanocorp, Inc.
- ---------------
NEC Dalrock and SH 66, Ltd.
- --------------------------------
Northwest Hollister Venture
- -----------------------------
Phelan Boulevard Venture
- --------------------------
Rosenberg, Ltd.
- ----------------
S/W Albuquerque, L.P.
- -----------------------
Sheldon Center, Ltd.
- ----------------------
South Loop - Long Wayside Company
- --------------------------------------
SPM/WRI College Station, L.P.
- --------------------------------
SPM/WRI Rockwall, L.P.
- ------------------------
Weingarten Properties Trust
- -----------------------------
Weingarten/Bridges at Smoky Hills
- ------------------------------------
Weingarten/Colorado, Inc.
- --------------------------
Weingarten/Finger Venture
- --------------------------
Weingarten/Investments, Inc.
- -----------------------------
Weingarten/Miller Elizabeth
- ----------------------------
Weingarten/Miller/Englewood
- ---------------------------
Weingarten/Miller/Fiest Joint Venture
- ---------------------------------------
Weingarten/Miller/ThornCreek Joint Venture
- --------------------------------------------
Weingarten-Murphy, Ltd.
- ------------------------
WRI Interests, Inc.
- ---------------------
WRI/Bell Plaza, Inc.
- ----------------------
WRI/Central Plaza, Inc.
- -------------------------
WRI/Crosby Venture
- -------------------
WRI/Custer Park, Inc.
- -----------------------
WRI/Dickinson Venture
- ----------------------
WRI/Lone Star, Inc.
- ---------------------
WRI/Pavilion, Inc.
- -------------------
WRI/Regency Park, Inc.
- ------------------------
WRI/Rockwall, Inc.
- -------------------
WRI/Shopping Centers I, Inc.
- -------------------------------
SPM/WRI Overland Park, L.P.
- ------------------------------
Weingarten Nostat, Inc.
- -------------------------
Weingarten Realty Management Company
- ---------------------------------------
WRI/Post Oak, Inc.
- --------------------
WRI/7080 Express Lane, Inc.
- ------------------------------
Weingarten/Lufkin, Inc.
- ------------------------
WRI/Pembroke, Ltd.
- -------------------
Market at Town Center-Sugar Land Partnership
- -------------------------------------------------
South Padre Drive, L.P.
- --------------------------
Weingarten GS Inc.
- --------------------
Weignarten Golden State Inc.
- -------------------------------
WRI Parkway Plaza, Inc.
- --------------------------
Weingarten Golden State LLC
- ------------------------------
WRI GS Partnership LP
- ------------------------
Weingarten GS Delaware Inc.
- ------------------------------
SCHEDULE 5.12 (C)
POOL PROPERTIES WITHOUT ENVIRONMENTAL ASSESSMENT
LOC. # DESCRIPTION CITY ST
0004-700 Village Shopping Center Port Arthur TX
- -------- ------------------------- ------------ --
0008-001 Heights Plaza Shopping Center Houston TX
- -------- -------------------------------- ------- --
0011-001 Sheldon Forest Shopping Center Channelview TX
- -------- --------------------------------- ----------- --
0012-001 Westwood Village Shopping Ctr. Lafayette LA
- -------- --------------------------------- --------- --
0014-001 Fiesta Market Place Houston TX
- -------- --------------------- ------- --
0016-001 Harrisburg Plaza Houston TX
- -------- ----------------- ------- --
0017-001 Stella Link Shopping Center Houston TX
- -------- ------------------------------ ------- --
0018-700 Long Point Shopping Center Houston TX
- -------- ----------------------------- ------- --
0023-001 Lyons Avenue Shopping Center Houston TX
- -------- ------------------------------- ------- --
0024-001 Gillham Circle Port Arthur TX
- -------- --------------- ------------ --
0029-269 Market Street Shopping Center Jacinto City TX
- -------- -------------------------------- ------------- --
0030-001 Southgate Shopping Center Beaumont TX
- -------- --------------------------- -------- --
0032-001 Texas City Plaza Texas City TX
- -------- ------------------ ----------- --
0033-001 Miracle Corners Shopping Ctr. Pasadena TX
- -------- -------------------------------- -------- --
0034-001 Bryan Center Bryan TX
- -------- ------------- ----- --
0035-001 Southgate Shopping Center Lake Charles LA
- -------- --------------------------- ------------- --
0036-001 University Plaza Houston TX
- -------- ----------------- ------- --
0038-251 East Town Shopping Center Lake Charles LA
- -------- ---------------------------- ------------- --
0040-001 Westwood Shopping Center Shreveport LA
- -------- -------------------------- ---------- --
0041-001 New Boston Rd. Shopping Center Texarkana TX
- -------- ---------------------------------- --------- --
0042-001 Bellfort Shopping Center Houston TX
- -------- -------------------------- ------- --
0043-001 Bellaire Blvd Shopping Center Bellaire TX
- -------- -------------------------------- -------- --
0044-001 Southgate Shopping Center Shreveport LA
- -------- --------------------------- ---------- --
0050-001 Westbury Triangle Houston TX
- -------- ------------------ ------- --
0055-001 Lawndale Shopping Center Houston TX
- -------- -------------------------- ------- --
0056-001 Southgate Shopping Center Houston TX
- -------- --------------------------- ------- --
0057-001 Eastpark Shopping Center Houston TX
- -------- -------------------------- ------- --
0059-120 Broadway Plaza Shopping Ctr. Little Rock AR
- -------- ------------------------------- ------------ --
0061-001 Bellwood Shopping Center Houston TX
- -------- -------------------------- ------- --
0062-001 Spring Plaza Shopping Center Houston TX
- -------- ------------------------------- ------- --
0064-001 Edgebrook Shopping Center Houston TX
- -------- --------------------------- ------- --
0065-001 Westchase Mall Houston TX
- -------- --------------- ------- --
0066-001 Fondren Southwest Village Houston TX
- -------- --------------------------- ------- --
0069-001 Calder Shopping Center Beaumont TX
- -------- ------------------------ -------- --
0070-001 Westhill Village Shopping Ctr. Houston TX
- -------- --------------------------------- ------- --
0071-001 Park Plaza Shopping Center Lake Charles LA
- -------- ----------------------------- ------------- --
0073-001 Food King Place Galveston TX
- -------- ----------------- --------- --
0081-001 Northbrook Shopping Center Houston TX
- -------- ---------------------------- ------- --
0082-120 Geyer Springs Shopping Center Little Rock AR
- -------- -------------------------------- ------------ --
0083-001 Crossroads Shopping Center Vidor TX
- -------- ---------------------------- ----- --
0085-001 Mainland Mall Texas City TX
- -------- -------------- ----------- --
0086-276 Plaza Shopping Ctr. Rosenberg Rosenberg TX
- -------- -------------------------------- --------- --
0087-001 Park Terrace Shopping Center DeRidder LA
- -------- ------------------------------- -------- --
0088-001 Cullen Plaza Shopping Center Houston TX
- -------- ------------------------------- ------- --
0089-001 Little York Plaza Shopping Ctr Houston TX
- -------- ---------------------------------- ------- --
0095-001 45 York Plaza Shopping Center Houston TX
- -------- --------------------------------- ------- --
0099-001 Braeswood Square Shopping Ctr. Houston TX
- -------- --------------------------------- ------- --
0101-001 Inwood Village Shopping Center Houston TX
- -------- --------------------------------- ------- --
0103-001 Studemont Shopping Center Houston TX
- -------- --------------------------- ------- --
0104-001 Westmont Shopping Center Beaumont TX
- -------- -------------------------- -------- --
0105-001 North Oaks Shopping Center Houston TX
- -------- ----------------------------- ------- --
0106-001 Humblewood Shopping Center Houston TX
- -------- ---------------------------- ------- --
0107-120 Markham Square Shopping Center Little Rock AR
- -------- --------------------------------- ------------ --
0108-001 Orchard Green Shopping Center Houston TX
- -------- -------------------------------- ------- --
0110-001 10-Federal Shopping Center Houston TX
- -------- ---------------------------- ------- --
0120-001 Randall's/Norchester Village Houston TX
- -------- ----------------------------- ------- --
0121-001 Randall's/El Dorado Webster TX
- -------- -------------------- ------- --
0123-001 Kroger/Fondren Square Houston TX
- -------- ---------------------- ------- --
0125-001 De Vargas Shopping Center Sante Fe NM
- -------- ---------------------------- --------- --
0126-001 Town & Country Shopping Center Lubbock TX
- -------- ---------------------------------- ------- --
0127-001 Fiesta Center Houston TX
- -------- -------------- ------- --
0128-001 Portairs Shopping Center Corpus Christi TX
- -------- -------------------------- --------------- --
0130-001 Rose-Rich Shopping Center Rosenberg TX
- -------- --------------------------- --------- --
0131-001 Northway Shopping Center Houston TX
- -------- -------------------------- ------- --
0132-120 Town & Country Shopping Center Midwest City OK
- -------- ---------------------------------- ------------- --
0133-001 North Towne Plaza Albuquerque NM
- -------- ------------------- ----------- --
0135-120 Boulevard Market Place Midwest City OK
- -------- ------------------------ ------------- --
0136-001 Parkway Square Shopping Center College Station TX
- -------- --------------------------------- ---------------- --
0138-120 Evelyn Hills Shopping Center Fayetteville AR
- -------- ------------------------------- ------------ --
0139-001 Market at Westchase SC Houston TX
- -------- ------------------------- ------- --
0148-001 Randalls Center/Kings Crossing Kingwood TX
- -------- -------------------------------- -------- --
0162-240 Northwest Crossing Centre Houston TX
- -------- --------------------------- ------- --
0172-120 Pueblo Anozira Shopping Center Tempe AZ
- -------- --------------------------------- ----- --
0180-001 Valle del Sol Shopping Center Albuquerque NM
- -------- --------------------------------- ----------- --
0460-001 610 and 11th Street Warehouses Houston TX
- -------- ---------------------------------- ------- --
0466-001 Bayshore Plaza Pasadena TX
- -------- --------------- -------- --
0471-001 Southwest Park III Houston TX
- -------- -------------------- ------- --
0472-001 Central Park North Houston TX
- -------- -------------------- ------- --
0473-001 Cedar Bayou Shopping Center La Marque TX
- -------- ------------------------------ ---------- --
0480-001 North West Park Plaza Houston TX
- -------- ------------------------ ------- --
0513-001 Bingle Shopping Center Houston TX
- -------- ------------------------ ------- --
0520-001 Cullen Place Houston TX
- -------- ------------- ------- --
0523-001 Crestview Houston TX
- -------- --------- ------- --
0529-001 North Triangle Shops Houston TX
- -------- ---------------------- ------- --
0531-001 Cypress Station Square Houston TX
- -------- ------------------------ ------- --
0537-001 San Pedro Building San Antonio TX
- -------- -------------------- ------------ --
0538-001 Bandera Village San Antonio TX
- -------- ---------------- ------------ --
0543-001 Steeplechase Houston TX
- -------- ------------ ------- --
0582-001 Bellfort SW Shopping Center Houston TX
- -------- ------------------------------ ------- --
0583-001 Landmark Shopping Center Houston TX
- -------- -------------------------- ------- --
0584-001 Wilcrest SW Shopping Center Houston TX
- -------- ------------------------------ ------- --
0591-001 River Oaks Shopping Center Houston TX
- -------- ----------------------------- ------- --
0605-277 North Park Plaza Beaumont TX
- -------- ------------------ -------- --
0608-001 Baywood Shopping Center Bay City TX
- -------- ------------------------- --------- --
0618-001 River Pointe Conroe TX
- -------- ------------- ------ --
0632-001 Porterwood Shopping Center Porter TX
- -------- ---------------------------- ------ --
0634-001 Palmer Plaza Texas City TX
- -------- ------------- ----------- --
0697-001 Highland Square Memphis TN
- -------- ---------------- ------- --
0703-700 Broadway Shopping Center Galveston TX
- -------- -------------------------- --------- --
0711-001 North Main Place Houston TX
- -------- ------------------ ------- --
0738-700 Tyler Shopping Center Tyler TX
- -------- ----------------------- ----- --
0742-001 Danville Plaza Shopping Center Monroe LA
- -------- --------------------------------- ------ --
0767-120 Westgate Shopping Center Little Rock AR
- -------- -------------------------- ------------ --
SCHEDULE 6.02
Existing Liens
Holder Description
- ------ -----------
Mortgages and IRB's and AG:
American General Life Texas WRI
Variable Annuity Life Ins. WRI
Industrial Revenue Bonds Westwood Village Shopping Center
Industrial Revenue Bonds - Phase 2 Westwood Village Shopping Center
City of Houston Harrisburg Plaza
Hawn, William R. South Gate Shopping Center
Industrial Revenue Bonds Park Plaza Shopping Center
Industrial Revenue Bonds Galveston Place
Industrial Revenue Bonds Shawnee Village
American Family Ins. Group Kohl's Shopping Center
Southern Farm Bureau Northaven
Southern Farm Bureau Walnut Hills
Windsor Hills Center Ltd Partnership Windsor Hills
Calpers Rainbow Plaza
La Salle Nat'l Bank (GMAC) Rainbow Plaza
John Hancock Ballwin Plaza
AMRESCO Central Plaza
AMRESCO Bell Plaza
Lehman Bros. Holding Custer Park
Chase San Mateo
Chase College Station
New York Life Insurance Co. ANICO
Bangor Savings Bank Lisbon Street
John Hancock Rainbow Plaza I
Prudential Life Insurance Co. Bartlette Towne Center Shopping Center
LaSalle Bank California -Burnham Portfolio
Bear, Stearns Funding, Inc. Rockwall Market Place
Capital Leases:
Francisco Center Included in Secured in Q
College Park Shopping Center Included in Secured in Q
SCHEDULE 6.04
CERTAIN INVESTMENTS
WEINGARTEN REALTY INVESTORS 50/50
JOINT VENTURES
Project Name % O/S
Admin.Proj.-Alabama-Shepherd 50
Admin.Proj.-Wein/Finger Ventur 50
Admin.Proj.-Eastex Venture 50
Sheldon Forest Shopping Center 50
Market Street Shopping Center 50
East Town Shopping Center 50
Plaza Shopping Ctr. Rosenberg 50
K-Mart Plaza 50
River Pointe Mini-Storage 50
Little York Mini-Storage 50
South Loop Business Park 50
Alabama Shepherd Shopping Ctr. 50
North Park Plaza 50
The Promenade Shopping Center 50
Bridges at Smoky Hills 50
Elizabeth Marketplace 50
City Center englewood 50
Thorncreek 50
Existing 50/50 JV's
SCHEDULE 6.08
Existing Restrictions
Covenants and restrictions as contained in Weingarten Realty Investors shelf
registration of securities for future issuances and all previously issued Medium
Term Notes.
A-3
HOUSTON:019643/00001:642992v6
CREDIT AGREEMENT
EXHIBIT A
---------
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of __________, 2001 (as
amended and in effect on the date hereof, the "Credit Agreement"), among
Weingarten Realty Investors, the Lenders named therein and Commerzbank AG, New
York Branch, as Administrative Agent for the Lenders. Terms defined in the
Credit Agreement are used herein with the same meanings.
The Assignor named on the reverse hereof hereby sells and assigns, without
recourse, to the Assignee named on the reverse hereof, and the Assignee hereby
purchases and assumes, without recourse, from the Assignor, effective as of the
Assignment Date set forth on the reverse hereof, the interests set forth on the
reverse hereof (the "Assigned Interest") in the Assignor's rights and
obligations under the Credit Agreement, including, without limitation, the
interests set forth on the reverse hereof in the Loans owing to the Assignor
which are outstanding on the Assignment Date, but excluding accrued interest and
fees to and excluding the Assignment Date. The Assignee hereby acknowledges
receipt of a copy of the Credit Agreement. From and after the Assignment Date
(i) the Assignee shall be a party to and be bound by the provisions of the
Credit Agreement and the other Loan Documents and, to the extent of the Assigned
Interest, have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent of the Assigned Interest, relinquish its rights
and be released from its obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the Administrative Agent
together with (i) if the Assignee is a Foreign Lender, any documentation
required to be delivered by the Assignee pursuant to Section 2.13(e) of the
---------------
Credit Agreement, duly completed and executed by the Assignee, and (ii) if the
Assignee is not already a Lender under the Credit Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed
by the Assignee. The [Assignee/Assignor] shall pay the fee payable to the
Administrative Agent pursuant to Section 9.04(b) of the Credit Agreement.
----------------
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of Texas.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date"):
Principal Amount Assigned Percentage Assigned of Facility (set forth, to at
least 8 decimals, as a percentage of the Facility and the aggregate unpaid Loans
of all Lenders thereunder)
-----------
$ %
The terms set forth above and on the reverse side hereof are hereby agreed to:
[Name of Assignor], as Assignor
- --------------------
By:______________________________
Name:
Title:
[Name of Assignee], as Assignee
- --------------------
By: ______________________________
Name:
Title:
The undersigned hereby consent to the within assignment: 1/
-
[Name of Borrower], Commerzbank AG, New York Branch,
as Administrative Agent,
By: ______________________ By: __________________________
Name: Name:
Title: Title:
B-6
HOUSTON:019643/00001:642992v6
CREDIT AGREEMENT
EXHIBIT B
---------
FORM OF COMPLIANCE CERTIFICATE
------------------------------
[Date]
Commerzbank AG, New York Branch,
as Administrative Agent
2 World Financial Center
New York, New York 10281-1050
Attn: ________________________
Re: Weingarten Realty Investors
Compliance Certificate for _______ through __________
Dear Ladies and Gentlemen:
This Compliance Certificate is made with reference to that certain Credit
Agreement dated as of ________________, 2001 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among Weingarten
Realty Investors (the "Borrower"), the financial institutions party thereto, as
lenders, and Commerzbank AG, New York Branch, as Administrative Agent. All
capitalized terms used in this Compliance Certificate (including any attachments
hereto) and not otherwise defined in this Compliance Certificate shall have the
meanings set forth for such terms in the Credit Agreement. All Section
references herein shall refer to the Credit Agreement.
I hereby certify that I am the [Vice President of Capital Markets] [chief
financial officer] [principal accounting officer] [treasurer] [controller] of
Weingarten Realty Investors, and that I make this Certificate on behalf of the
Borrower. I further represent and certify on behalf of the Borrower as follows
as of the date of this Compliance Certificate:
I have reviewed the terms of the Loan Documents and have made, or have caused to
be made under my supervision, a review in reasonable detail of the transactions
and consolidated and consolidating financial condition of the Borrower and its
Subsidiaries, during the accounting period (the "Reporting Period") covered by
the financial reports delivered simultaneous herewith pursuant to Section
5.01[(a)][(b)], and that such review has not disclosed the existence during or
at the end of such Reporting Period (and that I do not have knowledge of the
existence as at the date hereof) of any condition or event which constitutes a
Default or Event of Default.
Attached hereto as (x) Schedule A-1 is a list of the Real Property that
comprises the Pool as of the last day of the Reporting Period, including
identification of Partial Subsidiary Real Property, Value and Occupancy Level
and (y) Schedule A-2 is a list of the Real Property assests that were identified
as being in the Pool in the last Compliance Certificate and that are no longer
qualified to be in the Pool as of the last day of the Reporting Period.
Attached hereto as Schedule B is a schedule of the amount, maturity, interest
rate and amortization requirements for the outstanding Indebtedness of Borrower
and its Subsidiaries. As of the last day of the Reporting Period, the amount of
Indebtedness was $_____________, the amount of Secured Debt was $_____________,
and the amount of Indebtedness other than Secured Debt was $_____________.
Attached hereto as (x) Schedule C-1 is a detailed calculation of Interest
Expense for the Reporting Period, which amount was $__________, (y) Schedule C-2
is a detailed calculation of Interest Expense on Indebtedness other than Secured
Debt for the Reporting Period, which amount was $__________, and (z) Schedule
C-3 is a detailed calculation of the Interest Expense, principal paid and due
and payable on Indebtedness, and cash dividends payable on the Borrower's
preferred stock for the Reporting Period, which aggregated $__________.
Attached hereto as Schedule D is a detailed calculation of EBITDA for the
Reporting Period, which amount was $___________.
As of the last day of the Reporting Period:
1. Secured Debt to Total Asset Value Ratio
(a) Indebtedness secured by a Lien,
Subsidiary Indebtedness owed to non-Affiliate and any
Indebtedness of any non-Guarantor Subsidiary $___________
(b) Net Operating Income for properties that have reached
the Stabilization Date and owned during the most recent
6 months full period $___________
(c) Capital Expenditure Reserve $___________
(d) (b) - (c) .0975 $___________
(e) Historical Value of properties acquired during the most
recent 6 months period or that are completed but
have not reached the Stabilization Date $___________
(f) Historical Value of properties under construction or
development (limited to 20% of Total Asset Value) $___________
(g) Historical Value of undeveloped land $___________
(limited to 10% of Total Asset Value)
(h) Value ((d) + (e) + (f) + (g)) $___________
(i) Cash and cash equivalents excluding tenant
security and other restricted deposits $___________
(j) Investments in real estate related Unconsolidated
Affiliates (limited to 10% of Total Asset Value) $___________
(k) Investments in mortgages and notes receivable
(limited to 10% of Total Asset Value and 5% of Total
Asset Value if Borrower has no ownership interest) $___________
(l) Total Asset Value ((h) + (i) + (j) + (k)) $___________
(m) Secured Debt to Total Asset Value Ratio _________%
(as a percentage, (a) (l))
2. Interest Coverage Ratio
(a) Borrower's EBITDA $___________
(b) Interest Expense $___________
(c) Interest Coverage Ratio ______ : 1.00
3. Fixed Charge Coverage Ratio Calculation:
(a) Borrower's EBITDA $___________
(b) Capital Expenditure Reserve $___________
(attach quarterly average calculation)
(c) (a) - (b) $___________
(d) Principal paid and due and payable plus Interest Expense
$___________
plus cash dividends on preferred stock
(e) Fixed Charge Coverage Ratio ((c) to (d)) _______ : 1.00
4. Net Worth Calculation:
(a) Total Asset Value $___________
(b) Indebtedness $___________
(c) Net Worth $___________
5. Unencumbered Interest Coverage Ratio
(a) Net Operating Income for property in the Pool,
less Capital Expenditure Reserve for each such property $___________
(b) Interest Expense on unsecured debt
$___________
(c) Unencumbered Interest Coverage Ratio ((a) to (b)) ______ : 1.00
6. Debt to Total Asset Value Ratio Calculation:
(a) Indebtedness $___________
(b) Total Asset Value $___________
(c) Debt to Total Asset Value Ratio _______%
7. Asset Maintenance Calculation
(a) (i) Value of Pool
(attach list of each Property) $___________
(ii) Outstanding unsecured Indebtedness $___________
x 1.85
--------
(iii) Minimum Value of Pool $___________
(b) Occupancy Level of the Pool ________%
(c) (i) Value of Pool $__________
(ii) Value of the Pool consisting of ground leases $__________
(iii) (ii) (i), expressed as a percentage ________%
(d) (i) Value of Pool $__________
(ii) Value of Partial Subsidiary Real Property $__________
(iii) (ii) (i), expressed as a percentage ________%
8. Debt Limitation
Secured Debt, not including Non-recourse Debt $___________
9. Investment Limitations
(a) (i) Investments in Unconsolidated Affiliates
and other REITS $___________
(ii) Total Asset Value $___________
(iii) (i) (ii), expressed as a percentage ________%
(b) (i) Investments in mortgages and notes receivable
$__________
(ii) Total Asset Value $__________
(iii) (i) (ii), expressed as a percentage ________%
(c) (i) Investments in mortgages and notes receivable
if Borrower has no ownership interest $__________
(ii) Total Asset Value $__________
(iii) (i) (ii), expressed as a percentage ________%
(d) (i) Investments in undeveloped land $__________
(ii) Total Asset Value $__________
(iii) (i) (ii), expressed as a percentage ________%
(e) (i) Investments in property under construction or
development $__________
(ii) Total Asset Value $__________
(iii) (i) (ii), expressed as a percentage ________%
(f) (i) Investments in Real Property not constituting
Retail Property or undeveloped land $__________
(ii) Total Asset Value $__________
(iii) (i) (ii), expressed as a percentage ________%
(g) (i) Investments in undeveloped land, Unconsolidated
Affiliates and other REITS, property under construction
or development, mortgages and notes receivable
and certain securities $__________
(ii) Total Asset Value $__________
(iii) (i) (ii), expressed as a percentage ________%
10. Restricted Payments
(a) Restricted Payments for Reporting Period and preceding
$__________
3 quarters (cannot exceed 95% of (b))
(b) Funds from Operations plus capital gains $__________
This Compliance Certificate has been executed and delivered as of the date
set forth above.
WEINGARTEN REALTY INVESTORS
By:
Name:
Title:
Footnotes to Exhibit B:
1 Alternatively, if a Default or Event of Default existed or exists,
specify the nature and period of existence thereof and what action the Borrower
or any of its Subsidiaries has taken, is taking and proposes to take with
respect thereto.
2 Pursuant to Section 5.02(a), cannot exceed thirty-five percent (35%)
3 Pursuant to Section 5.02(b), must not be less than 2.25 to 1.00.
4 Pursuant to Section 5.02(c), must not be less than 1.75 to 1.00.
5 Pursuant to Section 5.02(d), must not be less than $950,000,000, plus 50%
of the net proceeds of equity offerings after the date of the Credit Agreement.
6 Pursuant to Section 5.02(e), must not be less than 2.25 to 1.00.
7 Pursuant to Section 5.02(f), cannot exceed fifty-five percent (55%).
8 Pursuant to Section 5.12.A(e), must not be less than eighty-five percent
(85%).
9 Pursuant to Section 5.12.B, must not exceed ten percent (10%).
10 Pursuant to Section 5.12.C(a), must not exceed ten percent (10%).
11 Pursuant to Section 6.01, must not exceed $125,000,000.
12 Pursuant to Section 6.04(c), cannot exceed ten percent (10%) of the
Total Asset Value.
13 Pursuant to Section 6.04(d) (i), cannot exceed ten percent (10%) of
Total Asset Value.
14 Pursuant to Section 6.04(d)(ii), cannot exceed five percent (5%) of
Total Asset Value.
15 Pursuant to Section 6.04(e), cannot exceed ten percent (10%) of Total
Asset Value.
16 Pursuant to Section 6.04(g), cannot exceed twenty percent (20%) of Total
Asset Value.
17 Pursuant to Section 6.04(h), cannot exceed twenty-five percent (25%) of
Total Asset Value.
18 Pursuant to Section 6.04, cannot exceed forty percent (40%) of Total
Asset Value.
C-8
CREDIT AGREEMENT
EXHIBIT C
---------
FORM OF GUARANTY
----------------
THIS GUARANTY dated as of _______________, 2001 executed and delivered by
each of the undersigned, whether one or more, (all each a "Guarantor" and,
collectively, the "Guarantors"), in favor of (a) COMMERZBANK AG, NEW YORK
BRANCH, in its capacity as Administrative Agent (the "Agent") for the Lenders
under that certain Credit Agreement dated as of _______________, 2001, by and
among WEINGARTEN REALTY INVESTORS (the "Borrower"), the financial institutions
party thereto and their assignees in accordance therewith (the "Lenders"), and
the Agent (as the same may be amended, restated, supplemented or otherwise
modified from time to time in accordance with its terms, the "Credit Agreement")
and (b) the Lenders.
WHEREAS, pursuant to the Credit Agreement, the Lenders have made available to
the Borrower certain financial accommodations on the terms and conditions set
forth in the Credit Agreement;
WHEREAS, each Guarantor is a [wholly owned Subsidiary] of the Borrower;
-------------------------
WHEREAS, the Borrower, each Guarantor and the other Subsidiaries of the
Borrower, though separate legal entities, are mutually dependent on each other
in the conduct of their respective businesses as an integrated operation and
have determined it to be in their mutual best interests to obtain financing from
the Agent and the Lenders through their collective efforts;
WHEREAS, each Guarantor acknowledges that it will receive direct and indirect
benefits from the Agent and the Lenders making such financial accommodations
available to the Borrower under the Credit Agreement and, accordingly, each
Guarantor is willing to guarantee the Borrower's obligations to the Agent and
the Lenders on the terms and conditions contained herein; and
WHEREAS, each Guarantor's execution and delivery of this Guaranty is one of the
conditions precedent to the Agent and the Lenders making, or continuing to make,
such financial accommodations to the Borrower.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by each Guarantor, each Guarantor agrees as
follows:
Section 1. Guaranty. Each Guarantor hereby absolutely and unconditionally
--------
guaranties the due and punctual payment and performance of all of the following
when due (collectively referred to as the "Obligations"): (a) all indebtedness
and obligations owing by the Borrower to any of the Lenders or the Agent under
or in connection with the Credit Agreement and any other Loan Document,
including without limitation, the repayment of all principal of the Loans made
by the Lenders to the Borrower under the Credit Agreement and the payment of all
interest, fees, charges, reasonable attorneys fees and other amounts payable to
any Lender or the Agent thereunder or in connection therewith; (b) any and all
extensions, renewals, modifications, amendments or substitutions of the
foregoing; and (c) all expenses, including, without limitation, reasonable
attorneys' fees and disbursements, that are incurred by the Lenders or the Agent
in the enforcement of any of the foregoing or any obligation of such Guarantor
hereunder.
Section 2. Guaranty of Payment and Not of Collection. This Guaranty is a
----------------------------------------------
guaranty of payment, and not of collection, and a debt of each Guarantor for its
own account. Accordingly, the Lenders and the Agent shall not be obligated or
required before enforcing this Guaranty against any Guarantor: (a) to pursue any
right or remedy the Lenders or the Agent may have against the Borrower, any
other Guarantor or any other Person or commence any suit or other proceeding
against the Borrower, any other Guarantor or any other Person in any court or
other tribunal; (b) to make any claim in a liquidation or bankruptcy of the
Borrower, any other Guarantor or any other Person; or (c) to make demand of the
Borrower, any other Guarantor or any other Person or to enforce or seek to
enforce or realize upon any collateral security held by the Lenders or the Agent
which may secure any of the Obligations. In this connection, each Guarantor
hereby waives the right of such Guarantor to require any holder of the
Obligations to take action against the Borrower as provided by any legal
requirement of any Governmental Authority.
Section 3. Guaranty Absolute. Each Guarantor guarantees that the Obligations
------------------
will be paid strictly in accordance with the terms of the documents evidencing
the same, regardless of any legal requirement now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the Agent or the
Lenders with respect thereto. The liability of each Guarantor under this
Guaranty shall be absolute and unconditional in accordance with its terms and
shall remain in full force and effect without regard to, and shall not be
released, suspended, discharged, terminated or otherwise affected by, any
circumstance or occurrence whatsoever (other than the full and final payment and
performance of the Obligations), including, without limitation, the following
(whether or not such Guarantor consents thereto or has notice thereof):
(a) (i) any change in the amount, interest rate or due date or other term of
any of the Obligations; (ii) any change in the time, place or manner of payment
of all or any portion of the Obligations; (iii) any amendment or waiver of, or
consent to the departure from or other indulgence with respect to, the Credit
Agreement, any other Loan Document, or any other document or instrument
evidencing or relating to any Obligations; or (iv) any waiver, renewal,
extension, addition, or supplement to, or deletion from, or any other action or
inaction under or in respect of, the Credit Agreement, any of the other Loan
Documents, or any other documents, instruments or agreements relating to the
Obligations or any other instrument or agreement referred to therein or
evidencing any Obligations or any assignment or transfer of any of the
foregoing;
(b) any lack of validity or enforceability of the Credit Agreement, any of
the other Loan Documents, or any other document, instrument or agreement
referred to therein or evidencing any Obligations or any assignment or transfer
of any of the foregoing;
(c) any furnishing to the Agent or the Lenders of any security for the
Obligations, or any sale, exchange, release or surrender of, or realization on,
any collateral security for the Obligations;
(d) any settlement or compromise of any of the Obligations, any security
therefor, or any liability of any other party with respect to the Obligations,
or any subordination of the payment of the Obligations to the payment of any
other liability of the Borrower;
(e) any bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceeding relating to any other
Guarantor, the Borrower or any other Person, or any action taken with respect to
this Guaranty by any trustee or receiver, or by any court, in any such
proceeding;
(f) any nonperfection of any security interest or other Lien on any of the
collateral securing any of the Obligations;
(g) any act or failure to act by the Borrower or any other Person which may
adversely affect such Guarantor's subrogation rights, if any, against the
Borrower to recover payments made under this Guaranty;
(h) any application of sums paid by the Borrower or any other Person with
respect to the liabilities of the Borrower to the Agent or the Lenders,
regardless of what liabilities of the Borrower remain unpaid;
(i) any defect, limitation or insufficiency in the borrowing powers of the
Borrower or in the exercise thereof; or
(j) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, any Guarantor hereunder.
Section 4. Action with Respect to Obligations. The Lenders and the Agent may in
----------------------------------
accordance with the Credit Agreement, at any time and from time to time, without
the consent of, or notice to, any Guarantor, and without discharging any
Guarantor from its obligations hereunder take any and all actions described in
Section 3 and may otherwise: (a) amend, modify, alter or supplement the terms
---------
of any of the Obligations, including, but not limited to, extending or
shortening the time of payment of any of the Obligations or the interest rate
that may accrue on any of the Obligations; (b) amend, modify, alter or
supplement the Credit Agreement or any other Loan Document; (c) sell, exchange,
release or otherwise deal with all, or any part, of any collateral securing any
of the Obligations; (d) release any Person liable in any manner for the payment
or collection of the Obligations; (e) exercise, or refrain from exercising, any
rights against the Borrower or any other Person (including, without limitation,
any other Guarantor); and (f) apply any sum, by whomsoever paid or however
realized, to the Obligations in such order as the Lenders or the Agent shall
elect in accordance with the Credit Agreement.
Section 5. Representations and Warranties. Each Guarantor hereby makes to the
------------------------------
Agent and the Lenders all of the representations and warranties made by the
Borrower with respect to or in any way relating to such Guarantor in the Credit
Agreement and the other Loan Documents, as if the same were set forth herein in
full.
Section 6. Covenants. Each Guarantor will comply with all covenants which the
---------
Borrower is to cause such Guarantor to comply with under the terms of the Credit
Agreement or any other Loan Documents.
Section 7. Waiver. Each Guarantor, to the fullest extent permitted by
------
applicable law, hereby waives notice of acceptance hereof or any presentment,
demand, protest or notice of any kind, and any other act or thing, or omission
or delay to do any other act or thing, which in any manner or to any extent
might vary the risk of such Guarantor or which otherwise might operate to
discharge such Guarantor from its obligations hereunder.
Section 8. Inability to Accelerate Loan. If the Agent and/or the Lenders are
-----------------------------
prevented from demanding or accelerating payment thereof by reason of any
automatic stay or otherwise, the Agent and/or the Lenders shall be entitled to
receive from each Guarantor, upon demand therefor, the sums which otherwise
would have been due had such demand or acceleration occurred.
Section 9. Reinstatement of Obligations. Each Guarantor agrees that this
------------------------------
Guaranty shall continue to be effective or be reinstated, as the case may be,
with respect to any Obligations if at any time payment of any such Obligations
is rescinded or otherwise must be restored by the Agent and/or the Lenders upon
the bankruptcy or reorganization of the Borrower or any Guarantor or otherwise.
Section 10. Subrogation. Until all of the Obligations shall have been
-----------
indefeasibly paid in full, any right of subrogation a Guarantor may have shall
be subordinate to the rights of Agent and the Lenders and each Guarantor hereby
waives any right to enforce any remedy which the Agent and/or the Lenders now
have or may hereafter have against the Borrower, and each Guarantor hereby
waives any benefit of, and any right to participate in, any security or
collateral given to the Agent and the Lenders to secure payment or performance
of any of the Obligations.
Section 11. Payments Free and Clear. All sums payable by each Guarantor
--------------------------
hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes (as defined in the Credit Agreement) or Other Taxes (as
defined in the Credit Agreement); provided that if any Guarantor shall be
--------
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section), the Agent or Lender (as the case may be) receives an amount
equal to the sum it would have received had no such deductions been made; (ii)
such Guarantor shall make such deductions; and (iii) such Guarantor shall pay
the full amount deducted to the relevant Governmental Authority (as defined in
the Credit Agreement) in accordance with applicable law.
Section 12. Set-off. In addition to any rights now or hereafter granted under
-------
applicable law and not by way of limitation of any such rights, each Lender is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other obligations at
any time owing by such Lender to or for the credit or the account of any
Guarantor against any of and all the obligations of such Guarantor now or
hereafter existing under this Guaranty held by such Lender then due and payable.
Each Guarantor agrees, to the fullest extent it may effectively do so under
applicable law, that any holder of a participation in a Note, whether or not
acquired pursuant to the applicable provisions of the Credit Agreement, may
exercise rights of setoff or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of such Guarantor in the amount of such participation.
Section 13. Subordination. Each Guarantor hereby expressly covenants and
-------------
agrees for the benefit of the Agent and the Lenders that all obligations and
liabilities of the Borrower or any other Guarantor to such Guarantor of whatever
description, including without limitation, all intercompany receivables of such
Guarantor from the Borrower or any other Guarantor (collectively, the "Junior
Claims") shall be subordinate and junior in right of payment to all Obligations;
provided, however, that payment thereof may be made so long as no Event of
Default shall have occurred and be continuing. If an Event of Default shall have
occurred and be continuing, then no Guarantor shall accept any direct or
indirect payment (in cash, property, securities by setoff or otherwise) from the
Borrower or any other Guarantor on account of or in any manner in respect of any
Junior Claim until all of the Obligations have been indefeasibly paid in full.
Section 14. Avoidance Provisions. It is the intent of each Guarantor, the Agent
--------------------
and the Lenders that in any Proceeding, such Guarantor's maximum obligation
hereunder shall equal, but not exceed, the maximum amount which would not
otherwise cause the obligations of such Guarantor hereunder (or any other
obligations of such Guarantor to the Agent and the Lenders) to be avoidable or
unenforceable against such Guarantor in such Proceeding as a result of
applicable law, including without limitation, (a) Section 548 of the Bankruptcy
Code of 1978, as amended (the "Bankruptcy Code") and (b) any state fraudulent
transfer or fraudulent conveyance act or statute applied in such Proceeding,
whether by virtue of Section 544 of the Bankruptcy Code or otherwise. The
applicable laws under which the possible avoidance or unenforceability of the
obligations of such Guarantor hereunder (or any other obligations of such
Guarantor to the Agent and the Lenders) shall be determined in any such
Proceeding are referred to as the "Avoidance Provisions." Accordingly, to the
extent that the obligations of any Guarantor hereunder would otherwise be
subject to avoidance under the Avoidance Provisions, the maximum Obligations for
which such Guarantor shall be liable hereunder shall be reduced to that amount
which, as of the time any of the Obligations are deemed to have been incurred
under the Avoidance Provisions, would not cause the obligations of any Guarantor
hereunder (or any other obligations of such Guarantor to the Agent and the
Lenders), to be subject to avoidance under the Avoidance Provisions. This
Section is intended solely to preserve the rights of the Agent and the Lenders
hereunder to the maximum extent that would not cause the obligations of any
Guarantor hereunder to be subject to avoidance under the Avoidance Provisions,
and no Guarantor nor any other Person shall have any right or claim under this
Section as against the Agent and the Lenders that would not otherwise be
available to such Person under the Avoidance Provisions.
Section 15. Information. Each Guarantor assumes all responsibility for being
-----------
and keeping itself informed of the financial condition of the Borrower, of the
other Guarantors and of all other circumstances bearing upon the risk of
nonpayment of any of the Obligations and the nature, scope and extent of the
risks that such Guarantor assumes and incurs hereunder, and agrees that none of
the Agent or any Lender shall have any duty whatsoever to advise any Guarantor
of information regarding such circumstances or risks.
Section 16. Governing Law. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN
-------------
ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.
Section 17. JURISDICTION, VENUE.
--------------------
(a) EACH GUARANTOR AGREES THAT THE FEDERAL DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF TEXAS, HOUSTON DIVISION, OR, AT THE OPTION OF THE AGENT, ANY STATE
COURT LOCATED IN HARRIS COUNTY, TEXAS SHALL HAVE NONEXCLUSIVE JURISDICTION TO
HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG ANY GUARANTOR, THE
AGENT OR ANY OF THE LENDERS, PERTAINING DIRECTLY OR INDIRECTLY TO THIS GUARANTY
OR ANY OTHER LOAN DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM OR ANY
COLLATERAL. EACH GUARANTOR EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS. THE CHOICE OF
FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING OF
ANY ACTION BY THE AGENT OR ANY LENDER OR THE ENFORCEMENT BY THE AGENT OR ANY
LENDER IN ANY OTHER APPROPRIATE JURISDICTION. FURTHER, EACH GUARANTOR
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(b) THE FOREGOING WAIVERS HAVE BEEN MADE WITH THE ADVICE OF COUNSEL AND WITH
A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF, AND SHALL SURVIVE THE
PAYMENT OF THE OBLIGATIONS AND ALL OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER THE
OTHER LOAN DOCUMENTS AND THE TERMINATION OF THIS GUARANTY.
Section 18. Loan Accounts. The Agent may maintain books and accounts setting
--------------
forth the amounts of principal, interest and other sums paid and payable with
respect to the Obligations, and in the case of any dispute relating to any of
the outstanding amount, payment or receipt of Obligation or otherwise, the
entries in such account shall be binding upon each Guarantor as to the
outstanding amount of such Obligations and the amounts paid and payable with
respect thereto absent manifest error. The failure of the Agent to maintain such
books and accounts shall not in any way relieve or discharge any Guarantor of
any of its obligations hereunder.
Section 19. Waiver of Remedies. No delay or failure on the part of the Agent
-------------------
or the Lenders in the exercise of any right or remedy it may have against any
Guarantor hereunder or otherwise shall operate as a waiver thereof, and no
single or partial exercise by the Agent or the Lenders of any such right or
remedy shall preclude other or further exercise thereof or the exercise of any
other such right or remedy.
Section 20. Successors and Assigns. Each reference herein to the Agent or the
----------------------
Lenders shall be deemed to include such Person's respective successors and
assigns (including, but not limited to, any holder of the Obligations) in whose
favor the provisions of this Guaranty also shall inure, and each reference
herein to any Guarantor shall be deemed to include the Guarantor's successors
and assigns, upon whom this Guaranty also shall be binding. The Lenders and the
Agent may, in accordance with the applicable provisions of the Credit Agreement,
assign, transfer or sell any Obligation, or grant or sell participation in any
Obligations, to any Person or entity without the consent of, or notice to, any
Guarantor and without releasing, discharging or modifying such Guarantor's
obligations hereunder. Each Guarantor hereby consents to the delivery by the
Agent or any Lender to any assignee, transferee or participant of any financial
or other information regarding the Borrower or any Guarantor. Each Guarantor may
not assign or transfer its obligations hereunder to any Person.
Section 21. Amendments. This Guaranty may not be amended except as provided in
----------
the Credit Agreement.
Section 22. Payments. All payments made by any Guarantor pursuant to this
--------
Guaranty shall be made in Dollars, in immediately available funds to the Agent
at the place and time provided for in the Credit Agreement on the date one (1)
Business Day after written demand therefor to such Guarantor by the Agent.
SECTION 23. JOINT AND SEVERAL OBLIGATIONS. THE OBLIGATIONS OF THE
-----------------------------
GUARANTORS HEREUNDER AND UNDER OTHER LOAN DOCUMENTS SHALL BE JOINT AND SEVERAL,
AND ACCORDINGLY, EACH GUARANTOR (BUT NOT ITS LIMITED PARTNERS, SHAREHOLDERS OR
MEMBERS) CONFIRMS THAT IT (BUT NOT ITS LIMITED PARTNERS, SHAREHOLDERS OR
MEMBERS) IS LIABLE FOR THE FULL AMOUNT OF THE OBLIGATIONS AND ALL OF THE
OBLIGATIONS AND LIABILITIES OF EACH OF THE OTHER GUARANTORS HEREUNDER AND UNDER
OTHER LOAN DOCUMENTS.
Section 24. Notices. All notices, requests and other communications hereunder
-------
shall be in writing and shall be given as provided in the Loan Agreement. Each
Guarantor's address for notice is set forth below its signature hereto.
Section 25. Severability. In case any provision of this Guaranty shall be
------------
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 26. Headings. Section headings used in this Guaranty are for
--------
convenience only and shall not affect the construction of this Guaranty.
Section 27. Definitions. (a) For the purposes of this Guaranty:
-----------
"Proceeding" means any of the following: (i) a voluntary or involuntary case
- -----------
concerning any Guarantor shall be commenced under the Bankruptcy Code or any
- ---
other applicable bankruptcy laws; (ii) a custodian (as defined in the Bankruptcy
- ---
Code or any other applicable bankruptcy laws) is appointed for, or takes charge
of, all or any substantial part of the property of any Guarantor; (iii) any
other proceeding under any applicable law, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding-up or composition for adjustment
of debts, whether now or hereafter in effect, is commenced relating to any
Guarantor; (iv) any Guarantor is adjudicated insolvent or bankrupt; (v) any
order of relief or other order approving any such case or proceeding is entered
by a court of competent jurisdiction; (vi) any Guarantor makes a general
assignment for the benefit of creditors; (vii) any Guarantor shall fail to pay,
or shall state that it is unable to pay, or shall be unable to pay, its debts
generally as they become due; (viii) any Guarantor shall call a meeting of its
creditors with a view to arranging a composition or adjustment of its debts;
(ix) any Guarantor shall by any act or failure to act indicate its consent to,
approval of or acquiescence in any of the foregoing; or (x) any corporate action
shall be taken by any Guarantor for the purpose of effecting any of the
foregoing.
(b) Terms not otherwise defined herein are used herein with the respective
meanings given them in the Credit Agreement.
IN WITNESS WHEREOF, each Guarantor has duly executed and delivered this Guaranty
as of the date and year first written above.
(GUARANTOR)
By:
Name:
Title:
Address for Notices:
c/o Weingarten Realty Investors
Attention:
D-2
HOUSTON:019643/00001:642992v6
CREDIT AGREEMENT
EXHIBIT D
---------
FORM OF NOTE
------------
$_________________ __________, 2001
FOR VALUE RECEIVED, WEINGARTEN REALTY INVESTORS, a Texas real estate
investment trust ("Maker") promises to pay without offset or counterclaim to the
order of [insert name of Lender], ("Payee"), the principal amount equal to
__________________________ ($_____________)payable in accordance with the terms
of the Credit Agreement (as hereinafter defined).
Maker also promises to pay interest on the unpaid principal amount of this Note
(this "Note") at the rates and at the times which shall be determined in
accordance with the provisions of that certain Credit Agreement dated of even
date herewith, among Maker, the Lenders named therein, and Commerzbank AG, New
York Branch, as Administrative Agent for itself and the Lenders (as hereafter
amended, supplemented or otherwise modified from time to time, the "Credit
------
Agreement"). Capitalized terms used herein without definition shall have the
----
meanings set forth in the Credit Agreement.
This Note is subject to mandatory prepayment and prepayment at the option of the
Maker, as provided in the Credit Agreement.
This Note is issued pursuant to the Credit Agreement and is entitled to the
benefits of the Credit Agreement, reference to which is hereby made for a more
complete statement of the terms and conditions under which the Loan evidenced
hereby is made and is to be repaid.
THE CREDIT AGREEMENT AND THIS NOTE SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF TEXAS,
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the unpaid balance of the principal
amount of this Note may become, or may be declared to be, due and payable in the
manner, upon the conditions and with the effect provided in the Credit
Agreement.
Maker promises to pay all fees, costs and expenses incurred in the collection
and enforcement of this Note in accordance with the terms of the Credit
Agreement. Maker and any endorser of this Note hereby consents to renewals and
extensions of time at or after the maturity hereof, without notice, and hereby
waive diligence, presentment, protest, demand and notice of every kind (except
such notices as may be expressly required under the Credit Agreement or the
other Loan Documents) and, to the full extent permitted by law, the right to
plead any statute of limitations as a defense to any demand hereunder.
Whenever possible, each provision of this Note shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Note shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Note.
With respect to the incurrence of certain liabilities hereunder and the making
of certain agreements by Maker as herein stated, such incurrence of liabilities
and such agreements shall be binding upon Maker only as a trust formed under the
Texas Real Estate Investment Trust Act pursuant to that certain Restated
Declaration of Trust dated March 23, 1988 (as amended from time to time), and
only upon the assets of such Maker. No Trust Manager or officer or holder of
any beneficial interest in Maker shall have any personal liability for the
payment of any indebtedness or other liabilities incurred by Maker hereunder or
for the performance of any agreements made by Maker hereunder, nor for any other
act, omission or obligation incurred by Maker or the Trust Managers except, in
the case of a Trust Manager, any liability arising from his own willful
misfeasance or malfeasance or gross negligence.
IN WITNESS WHEREOF, Maker has caused this Note to be executed and delivered
by its duly authorized officer, as of the day and year first written above.
WEINGARTEN REALTY INVESTORS
By:
Name:
Title:
E-2
CREDIT AGREEMENT
EXHIBIT E
---------
[FORM OF] INTEREST ELECTION REQUEST
-----------------------------------
[Date]
Commerzbank AG, New York Branch,
as Administrative Agent
2 World Financial Center
New York, New York 10281-1050
Attn: _______________________
Re: Weingarten Realty Investors
Interest Election Request
Dear Ladies and Gentlemen:
This Interest Election Request is made with reference to that certain
Credit Agreement dated as of ________________, 2001 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among Weingarten
Realty Investors (the "Borrower"), the financial institutions party thereto, as
lenders, and Commerzbank AG, New York Branch, as Administrative Agent. All
capitalized terms used in this Interest Election Request (including any
attachments hereto) and not otherwise defined in this Interest Election Request
shall have the meanings set forth for such terms in the Credit Agreement. All
Section references herein shall refer to the Credit Agreement.
The Borrower hereby requests a conversion of an existing Loan as provided below,
in the amount of $____________ [minimum of $5,000,000.00 and in multiples of
$1,000,000.00].
The conversion is to be made as follows:
A. ABR Borrowing.
--------------
1. Amount of conversion of existing
Loan to ABR Borrowing: $_____________
2. Date of conversion _____________
B. Eurodollar Borrowing:
---------------------
1. Amount of conversion of existing
Loan to Eurodollar Borrowing: $_____________
2. Number of Eurodollar
Borrowing(s) now in effect: _____________
cannot exceed six (6)
3. Date of conversion: _____________
4. Interest Period: _____________
5. Expiration date of current Interest
Period as to this conversion: _____________
The Borrower hereby represents and warrants that the amounts set forth
above are true and correct, that the amount above requested has actually been
incurred, that the representations and warranties contained in the Credit
Agreement are true and correct as if made as of this date (except to the extent
relating to a specific date), and that the Borrower has kept, observed,
performed and fulfilled each and every one of its obligations under the Credit
Agreement as of the date hereof [except as follows: _______________]
Very truly yours,
WEINGARTEN REALTY INVESTORS
By:
Name:
Title: