EXECUTION COPY
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CREDIT AGREEMENT
among
KIMCO REALTY CORPORATION
The Several Lenders
from Time to Time Parties Hereto
THE CHASE MANHATTAN BANK,
as Administrative Agent
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Syndication Agent
Dated as of August 21, 1998
CHASE SECURITIES INC.,
as Arranger and Book Manager
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS......................................................................................... 1
1.1 Defined Terms..................................................................................... 1
1.2 Other Definitional Provisions..................................................................... 23
SECTION 2. AMOUNT AND TERMS OF CREDIT FACILITIES............................................................... 24
2.1 Facility A Commitments............................................................................ 24
2.2 Facility B Commitments............................................................................ 26
2.3 Optional Prepayments.............................................................................. 29
2.4 Conversion and Continuation Options............................................................... 29
2.5 Fees.............................................................................................. 30
2.6 Interest Rates and Payment Dates.................................................................. 31
2.7 Computation of Interest and Fees.................................................................. 31
2.8 Inability to Determine Interest Rate; Unavailability of C/D Rate Option........................... 32
2.9 Pro Rata Treatment and Payments................................................................... 32
2.10 Illegality....................................................................................... 33
2.11 Requirements of Law.............................................................................. 34
2.12 Taxes............................................................................................ 36
2.13 Indemnity........................................................................................ 38
2.14 Change of Lending Office......................................................................... 38
2.15 Replacement of Lenders under Certain Circumstances............................................... 38
2.16 Facility B Extension Procedure................................................................... 39
SECTION 3. LETTERS OF CREDIT................................................................................... 39
3.1. L/C Commitment................................................................................... 39
3.2. Procedure for Issuance of Letters of Credit...................................................... 40
3.3. Fees and Other Charges........................................................................... 40
3.4. L/C Participations............................................................................... 40
3.5. Reimbursement Obligation of the Borrower......................................................... 41
3.6. Obligations Absolute............................................................................. 42
3.7. Letter of Credit Payments........................................................................ 42
3.8. Applications..................................................................................... 43
3.9. Subsidiary Account Party......................................................................... 43
SECTION 4. REPRESENTATIONS AND WARRANTIES...................................................................... 43
4.1 Financial Condition............................................................................... 43
4.2 No Change......................................................................................... 44
4.3 Corporate Existence; Compliance with Law.......................................................... 44
4.4 Corporate Power; Authorization; Enforceable Obligations........................................... 44
4.5 No Legal Bar...................................................................................... 45
4.6 No Material Litigation............................................................................ 45
4.7 No Default........................................................................................ 45
4.8 Ownership of Property............................................................................. 45
4.9 Intellectual Property............................................................................. 45
4.10 No Burdensome Restrictions....................................................................... 45
4.11 Taxes............................................................................................ 46
4.12 Federal Regulations.............................................................................. 46
4.13 ERISA............................................................................................ 46
4.14 Investment Company Act; Other Regulations........................................................ 46
4.15 Subsidiaries..................................................................................... 47
4.16 Purpose of Loans................................................................................. 47
4.17 Environmental Matters............................................................................ 47
4.18 Year 2000 Matters................................................................................ 48
4.19 Insurance........................................................................................ 48
4.20 Condition of Properties.......................................................................... 48
4.21 Benefit of Loans................................................................................. 49
4.22 REIT............................................................................................. 49
SECTION 5. CONDITIONS PRECEDENT................................................................................ 49
5.1 Conditions to Initial Extension of Credit......................................................... 49
5.2 Conditions to Each Extension of Credit............................................................ 50
SECTION 6. AFFIRMATIVE COVENANTS............................................................................... 51
6.1 Financial Statements.............................................................................. 51
6.2 Certificates; Other Information................................................................... 52
6.3 Payment of Obligations............................................................................ 52
6.4 Maintenance of Existence, etc..................................................................... 52
6.5 Maintenance of Property; Insurance................................................................ 53
6.6 Inspection of Property; Books and Records; Discussions............................................ 53
6.7 Notices........................................................................................... 53
6.8 Environmental Laws................................................................................ 54
SECTION 7. NEGATIVE COVENANTS.................................................................................. 54
7.1 Financial Covenants............................................................................... 55
7.2 Limitation on Fundamental Changes................................................................. 55
7.3 Limitation on Restricted Payments................................................................. 56
7.4 Limitation on Investments, Loans and Advances..................................................... 56
7.5 Limitation on Transactions with Affiliates........................................................ 57
7.6 Limitation on Changes in Fiscal Year.............................................................. 57
7.7 Limitation on Lines of Business, Issuance of Commercial Paper, Creation of Subsidiaries,
Negative Pledges.............................................................................. 57
SECTION 8. EVENTS OF DEFAULT................................................................................... 58
SECTION 9. THE ADMINISTRATIVE AGENT............................................................................ 61
9.1 Appointment....................................................................................... 61
9.2 Delegation of Duties.............................................................................. 62
9.3 Exculpatory Provisions............................................................................ 62
9.4 Reliance by Administrative Agent.................................................................. 62
9.5 Notice of Default................................................................................. 63
9.6 Non-Reliance on Administrative Agent and Other Lenders............................................ 63
9.7 Indemnification................................................................................... 63
9.8 Administrative Agent in Its Individual Capacity................................................... 64
9.9 Successor Administrative Agent.................................................................... 64
9.10 The Syndication Agent, the Arranger and the Book Manager......................................... 64
SECTION 10. MISCELLANEOUS...................................................................................... 65
10.1 Amendments and Waivers........................................................................... 65
10.2 Notices.......................................................................................... 65
10.3 No Waiver; Cumulative Remedies................................................................... 66
10.4 Survival of Representations and Warranties....................................................... 66
10.5 Payment of Expenses and Taxes.................................................................... 66
10.6 Successors and Assigns........................................................................... 67
10.7 Participations................................................................................... 67
10.8 Assignments...................................................................................... 68
10.9 The Register; Disclosure; Pledges to Federal Reserve Banks....................................... 69
10.10 Commitment Increases............................................................................ 70
10.11 Adjustments; Set-off............................................................................ 71
10.12 Counterparts.................................................................................... 71
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10.13 Severability.................................................................................... 72
10.14 Integration..................................................................................... 72
10.15 GOVERNING LAW................................................................................... 72
10.16 Submission To Jurisdiction; Waivers............................................................. 72
10.17 Acknowledgements................................................................................ 73
10.18 WAIVERS OF JURY TRIAL........................................................................... 73
10.19 Confidentiality................................................................................. 73
SCHEDULES
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SCHEDULE 1.1A Names and Commitments of Lenders
SCHEDULE 1.1B Income REIT
SCHEDULE 3.9 Existing Letter of Credit
SCHEDULE 4.1 Certain Financial Disclosure
SCHEDULE 4.15 Subsidiaries
SCHEDULE 4.19 Condemnation Proceedings
EXHIBITS
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EXHIBIT A-1 Form of Facility A Revolving Credit Note
EXHIBIT A-2 Form of Facility B Revolving Credit Note
EXHIBIT B Form of Assignment and Acceptance
EXHIBIT C Form of Subsidiary Guarantee
EXHIBIT D Form of Closing Certificate
EXHIBIT E Form of Opinion of Robert P. Schulman, Esq.
EXHIBIT F Form of Compliance Certificate
EXHIBIT G-1 Form of New Lender Supplement
EXHIBIT G-2 Form of Commitment Increase Supplement
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CREDIT AGREEMENT, dated as of August 21, 1998, among KIMCO REALTY CORPORATION,
a Maryland corporation (the "Borrower"), the several banks, financial
institutions and other entities from time to time parties to this Agreement
(the "Lenders"), THE CHASE MANHATTAN BANK, a New York banking corporation, as
administrative agent for the Lenders hereunder (in such capacity, the
"Administrative Agent"), and THE FIRST NATIONAL BANK OF CHICAGO, as syndication
agent (in such capacity, the "Syndication Agent").
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Base CD Rate in effect on
such day plus 1% and (c) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall mean
the rate of interest per annum publicly announced from time to time by
the Administrative Agent as its prime rate in effect at its principal
office in New York City (the Prime Rate not being intended to be the
lowest rate of interest charged by Chase in connection with extensions
of credit to debtors); "Base CD Rate" shall mean the sum of (a) the
product of (i) the Three-Month Secondary CD Rate and (ii) a fraction,
the numerator of which is one and the denominator of which is one
minus the C/D Reserve Percentage and (b) the C/D Assessment Rate;
"Three-Month Secondary CD Rate" shall mean, for any day, the secondary
market rate for three-month certificates of deposit reported as being
in effect on such day (or, if such day shall not be a Business Day,
the next preceding Business Day) by the Board through the public
information telephone line of the Federal Reserve Bank of New York
(which rate will, under the current practices of the Board, be
published in Federal Reserve Statistical Release H.15(519) during the
week following such day), or, if such rate shall not be so reported on
such day or such next preceding Business Day, the average of the
secondary market quotations for three-month certificates of deposit of
major money center banks in New York City received at approximately
10:00 A.M., New York City time, on such day (or, if such day shall not
be a Business Day, on the next preceding Business Day) by the
Administrative Agent from three New York City negotiable certificate
of deposit dealers of recognized standing selected by it; and "Federal
Funds Effective Rate" shall mean, for any day, the weighted average of
the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published
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 which is a
Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three federal
funds brokers of recognized standing selected by it. If for any reason
the Administrative Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable to
ascertain the Base CD Rate or the Federal Funds Effective Rate, or
both, for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance
with the terms thereof, the ABR shall be determined without regard to
clause (b) or (c), or both, of the first sentence of this definition,
as appropriate, until the circumstances giving rise to such inability
no longer exist. Any change in the ABR due to a change in the Prime
Rate, the Three-Month Secondary CD Rate or the Federal Funds Effective
Rate shall be effective as of the opening of business on the effective
day of such change in the Prime Rate, the Three-Month Secondary CD
Rate or the Federal Funds Effective Rate, respectively.
"ABR Loans": Revolving Credit Loans the rate of interest
applicable to which is based upon the ABR.
"Adjusted Net Income": for any period, Consolidated Net
Income; provided that there shall be excluded (a) the income (or
deficit) of any other Person accrued prior to the date it becomes a
Subsidiary of the Borrower or is merged into or consolidated with the
Borrower or any of its Subsidiaries and (b) unless otherwise expressly
provided herein, the earnings of any Unconsolidated Subsidiary or
Joint Venture.
"Administrative Agent": as defined in the preamble hereto.
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"Affiliate": as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is
under common control with, such Person. For purposes of this
definition, "control" of a Person means the power, directly or
indirectly, either to (a) vote 10% or more of the securities having
ordinary voting power for the election of directors of such Person or
(b) direct or cause the direction of the management and policies of
such Person, whether by contract or otherwise.
"Affiliated Entities": the collective reference to
Subsidiaries of the Borrower and Joint Ventures.
"Aggregate Outstanding Facility B Extentions of Credit": as to
any Facility B Lender at any time, an amount equal to the sum of
(a) the aggregate principal amount of all Facility B Revolving Credit
Loans made by such Lender then outstanding and (b) such Lender's
Facility B Commitment Percentage of the L/C Obligations then
outstanding.
"Agreement": this Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"Applicable Margin": with respect to each Revolving Credit
Loan at any date, the applicable percentage per annum set forth below
based upon the Status on such date:
Level I Level II Level III Level IV Level V
Status Status Status Status Status
Eurodollar Loans,
C/D Rate Loans and 0.45% 0.50% 0.80% 1.00% 1.50%
Money Market Loans
ABR Loans 0% 0% 0% 0% 0.50%
"Application": an application, in such form as the Issuing
Lender may specify from time to time, requesting the Issuing Lender to
open a Letter of Credit.
"Available Facility A Commitment": as to any Facility A
Lender, at any time of determination, an amount equal to such Lender's
Facility A Commitment at such time minus the aggregate principal
amount of the Facility A Revolving Credit Loans made by such Lender
then outstanding.
"Available Facility B Commitment": as to any Facility B
Lender, at any time of determination, an amount equal to such Lender's
Facility B Commitment at such time minus such Lender's Aggregate
Outstanding Facility B Extensions of Credit at such time.
"Board": the Board of Governors of the Federal Reserve System
(or any successor).
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified in a notice
pursuant to Section 2.1(d) or 2.2(d) as a date on which the Borrower
requests the Lenders to make Revolving Credit Loans hereunder.
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or
required by law to close, except that, when used in connection with a
Eurodollar Loan with respect to which the Eurodollar Rate is
determined based upon the Telerate screen in accordance with the
definition of Eurodollar Rate, "Business Day" shall mean any Business
Day on which dealings in foreign currencies and exchange between banks
may be carried on in London, England and New York, New York.
"Capital Stock": any and all shares, interests,
participations or other equivalents (however designated) of capital
stock of a corporation, any and all equivalent ownership interests in
a Person (other than a corporation) and any and all warrants or
options to purchase any of the foregoing.
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"Cash Equivalents": (i) securities issued or directly and
fully guaranteed or insured by the United States Government or any
agency or instrumentality thereof having maturities of not more than
one year from the date of acquisition, (ii) time deposits and
certificates of deposit having maturities of not more than one year
from the date of acquisition of any Lender or of any domestic
commercial bank the senior long-term unsecured debt of which is rated
at least A or the equivalent thereof by S&P or A2 or the equivalent
thereof by Moody's and having capital and surplus in excess of
$500,000,000, (iii) repurchase obligations with a term of not more
than seven days for underlying securities of the types described in
clauses (i) and (ii) entered into with any bank meeting the
qualifications specified in clause (ii) above, (iv) commercial paper
rated at least A-1 or the equivalent thereof by S&P or P-1 or the
equivalent thereof by Moody's and in either case maturing within 90
days after the date of acquisition and (v) investments in money market
funds that have assets in excess of $2,000,000,000, are managed by
recognized and responsible institutions and invest all of their assets
in (x) obligations of the types referred to in clauses (i), (ii),
(iii) and (iv) above and (y) commercial paper having at least the
rating described in clause (iv) above and maturing within 270 days
after the date of acquisition.
"C/D Assessment Rate": for any day as applied to any C/D Rate
Loan or any ABR Loan, the annual assessment rate in effect on such day
which is payable by a member of the Bank Insurance Fund classified as
adequately capitalized and within supervisory subgroup "B" (or a
comparable successor assessment risk classification) within the
meaning of 12 C.F.R. ss. 327.3(d) (or any successor provision) to the
Federal Deposit Insurance Corporation (or any successor) for such
Corporation's (or such successor's) insuring time deposits at offices
of such institution in the United States.
"C/D Base Rate": with respect to each day during each
Interest Period pertaining to a C/D Rate Loan, the rate of interest
per annum notified to the Administrative Agent by Chase as the average
rate bid at 9:00 A.M., New York City time, or as soon thereafter as
practicable, on the first day of such Interest Period by a total of
three certificate of deposit dealers of recognized standing selected
by Chase for the purchase at face value from Chase of its certificates
of deposit in an amount comparable to the C/D Rate Loan of Chase to
which such Interest Period applies and having a maturity comparable to
such Interest Period.
"C/D Rate": with respect to each day during each Interest
Period pertaining to a C/D Rate Loan, a rate per annum determined for
such day (rounded upward to the nearest 1/100th of 1%) equal to the
C/D Base Rate plus the C/D Assessment Rate.
"C/D Rate Loans": Revolving Credit Loans the rate of interest
applicable to which is based upon the C/D Rate.
"C/D Reserve Percentage": for any day as applied to any ABR
Loan, that percentage (expressed as a decimal) which is in effect on
such day, as prescribed by the Board, for determining the maximum
reserve requirement for a Depositary Institution (as defined in
Regulation D of the Board) in respect of new non-personal time
deposits in Dollars having a maturity of 30 days or more.
"C/D Tranche": the collective reference to C/D Rate Loans the
then current Interest Periods with respect to all of which begin on
the same date and end on the same later date (whether or not such
Loans shall originally have been made on the same day).
"Chase": The Chase Manhattan Bank.
"Closing Date": August 21, 1998.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment Percentage": as to any Lender at any time, the
percentage which such Lender's aggregate Commitments then constitutes
of the aggregate Commitments of all Lenders (or, at any time after the
Commitments shall have expired or terminated, the percentage which the
aggregate principal amount of such Lender's Revolving Credit Loans
then outstanding constitutes of the aggregate principal amount of the
Revolving Credit Loans of all Lenders then outstanding).
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"Commitments": the collective reference to the Facility A
Commitments and the Facility B Commitments.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single employer under
Section 414 of the Code.
"Confidential Memorandum": the Confidential Memorandum, dated
July 1998, with respect to the Borrower and the credit facilities
contained herein.
"Consolidated Net Income": for any period, consolidated net
income (or loss) of the Borrower and its Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or
any of its property is bound.
"Default": any of the events specified in Section 8, whether
or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Distributable": with respect to any Unconsolidated
Subsidiary or Joint Venture, the circumstance that earnings or other
comparable amounts with respect thereto may be paid without
restriction (whether pursuant to a Contractual Obligation,
restrictions in any relevant organizational documents, applicable
Requirements of Law or otherwise) to the Borrower or any of its
consolidated Subsidiaries to the extent of the Borrower's Pro Rata
Interest therein.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Environmental Laws": any and all foreign, Federal, state,
local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority
or other Requirements of Law (including common law) regulating,
relating to or imposing liability or standards of conduct concerning
protection of human health or the environment, as now or may at any
time hereafter be in effect, in each case to the extent the foregoing
are applicable to the Borrower, any Subsidiary or any Joint Venture or
any of their respective assets or properties.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurodollar Loans": Revolving Credit Loans the rate of
interest applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate of interest
determined on the basis of the rate for deposits in Dollars for a
period equal to such Interest Period commencing on the first day of
such Interest Period appearing on Page 3750 of the Telerate screen as
of 11:00 A.M., London time, two Business Days prior to the beginning
of such Interest Period. In the event that such rate does not appear
on Page 3750 of the Telerate Service (or otherwise on such service),
the "Eurodollar Rate" shall be determined by reference to such other
publicly available service for displaying eurodollar rates as may be
agreed upon by the Administrative Agent and the Borrower or, in the
absence of such agreement, the "Eurodollar Rate" shall instead be the
rate per annum notified to the Administrative Agent by Chase as the
rate at which Chase is offered Dollar deposits at or about 10:00 A.M.,
New York City time, two Business Days prior to the beginning of such
Interest Period, in the interbank eurodollar market where the
eurodollar and foreign currency and exchange operations in respect of
its Eurodollar Loans are then being conducted for delivery on the
first day of such Interest Period for the number of days comprised
therein and in an amount comparable to the amount of its Eurodollar
Loan to be outstanding during such Interest Period.
"Eurodollar Tranche": the collective reference to Eurodollar
Loans the then current Interest Periods with respect to all of which
begin on the same date and end on the same later date (whether or not
such Loans shall originally have been made on the same day).
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"Event of Default": any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Existing Credit Agreement": the Credit Agreement, dated as
of June 30, 1994, as amended and restated as of June 26, 1997, as
amended, among the Borrower, the several banks and financial
institutions from time to time a party thereto, The Chase Manhattan
Bank and The First National Bank of Chicago, as Co-Managers, and the
Administrative Agent.
"Facility A Commitment": as to any Lender, the obligation of
such Lender (if any) to make Facility A Revolving Credit Loans to the
Borrower hereunder in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such Lender's
name on Schedule 1.1A, as such amount may be changed from time to time
in accordance with the provisions of this Agreement. It is understood
and agreed that, on the Closing Date, the "Facility A Commitment" of
each "Lender" under the Existing Credit Agreement shall automatically
terminate pursuant to Section 2.1(f) of the Existing Credit Agreement
(with the Lenders parties hereto that are "Lenders" under the Existing
Credit Agreement waiving, pursuant to a Required Lender vote in
accordance with Section 10.1 of the Existing Credit Agreement, any
advance notice required to be delivered by the Borrower in connection
with such termination) and be concurrently replaced by the Facility A
Commitment of each Lender as described above.
"Facility A Commitment Fee": as defined in Section 2.5(a).
"Facility A Commitment Fee Rate": the applicable percentage
per annum set forth below based upon Status on the date of the
relevant Facility A Commitment Fee payment:
Level I Level II Level III Level IV Level V
Status Status Status Status Status
0.20% 0.20% 0.20% 0.25% 0.30%
"Facility A Commitment Percentage": as to any Facility A
Lender at any time, the percentage which such Lender's Facility A
Commitment then constitutes of the aggregate Facility A Commitments
(or, at any time after the Facility A Commitments shall have expired
or terminated, the percentage which the aggregate principal amount of
such Lender's Facility A Revolving Credit Loans then outstanding
constitutes of the aggregate principal amount of the Facility A
Revolving Credit Loans then outstanding).
"Facility A Commitment Period": the period from and including
the Closing Date to but not including the Facility A Termination Date
or such earlier date on which the Facility A Commitments shall
terminate as provided herein.
"Facility A Lender": any Lender having a Facility A
Commitment.
"Facility A Revolving Credit Loans": as defined in Section
2.1(a)(i).
"Facility A Revolving Credit Note": as defined in Section
2.1(b).
"Facility A Termination Date": the date which is 364 days
after the Closing Date, i.e., August 20, 1999 (or, if such date is not
a Business Day, the Business Day next preceding such date).
"Facility A Tranche": any C/D Tranche, Eurodollar Tranche or
Money Market Tranche in respect of Facility A Revolving Credit Loans.
"Facility B Commitment": as to any Lender, the obligation of
such Lender (if any) to make Facility B Revolving Credit Loans to
and/or issue or participate in Letters of Credit issued on behalf of
the Borrower hereunder in an aggregate principal and/or face amount at
any one time outstanding not to exceed the amount set forth opposite
such Lender's name on Schedule 1.1A, as such amount may be changed
from time to time in accordance with the provisions of this Agreement.
It is understood and agreed that, on the Closing Date, the "Facility B
Commitment" of each "Lender" under the Existing Credit Agreement shall
8
automatically terminate pursuant to Section 2.2(f) of the
Existing Credit Agreement (with the Lenders parties hereto that
are "Lenders" under the Existing Credit Agreement waiving, pursuant to
a Required Lender vote in accordance with Section 10.1 of the Existing
Credit Agreement, any advance notice required to be delivered by the
Borrower in connection with such termination) and be concurrently
replaced by the Facility B Commitment of each Lender as described
above.
"Facility B Commitment Fee": as defined in Section 2.5(b).
"Facility B Commitment Fee Rate": the applicable percentage
per annum set forth below based upon Status on the date of the
relevant Facility B Commitment Fee payment:
Level I Level II Level III Level IV Level V
Status Status Status Status Status
0.20% 0.20% 0.20% 0.25% 0.30%
"Facility B Commitment Percentage": as to any Facility B
Lender at any time, the percentage which such Lender's Facility B
Commitment then constitutes of the aggregate Facility B Commitments
(or, at any time after the Facility B Commitments shall have expired
or terminated, the percentage which the aggregate principal amount of
such Lender's Facility B Revolving Credit Loans then outstanding
constitutes of the aggregate principal amount of the Facility B
Revolving Credit Loans then outstanding).
"Facility B Commitment Period": the period from and including
the Closing Date to but not including the Facility B Termination Date
or such earlier date on which the Facility B Commitments shall
terminate as provided herein.
"Facility B Lender": any Lender having a Facility B
Commitment.
"Facility B Revolving Credit Loans": as defined in Section
2.2(a)(i).
"Facility B Revolving Credit Note": as defined in Section
2.2(b).
"Facility B Termination Date": August 21, 2001.
"Facility B Tranche": any C/D Tranche, Eurodollar Tranche or
Money Market Tranche in respect of Facility B Revolving Credit Loans.
"FAD": FFO less adjustments for straight line rents and
capital expenditures for recurring, non-revenue enhancing capital
improvements.
"Federal Funds Effective Rate": as defined in the definition
of "ABR".
"FFO": funds from operations, as calculated based upon the
NAREIT definition in effect on the date of said calculation.
"Final Date": as defined in Section 2.11(e).
"Financing Lease": any lease of property, real or personal,
the obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on a balance sheet of the
lessee.
"GAAP": generally accepted accounting principles in the
United States of America consistent with those utilized in preparing
the audited financial statements referred to in Section 4.1.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Gross Asset Value": as of the last day of any period of two
consecutive fiscal quarters of the Borrower, an amount equal to the
sum of (a) 2 multiplied by an amount equal to (i) Total Adjusted
9
EBITDA (determined for the purpose of this definition without regard
to the Income REIT or the Identified Properties) for such period
divided by (ii) 0.10, (b) Unrestricted Cash and Cash Equivalents as of
such day, (c) in the case of Income REIT, an amount equal to 2
multiplied by (x) the Borrower's Pro Rata Interest in the Income REIT
multiplied by (y)(1) the Total Adjusted EBITDA (determined in a manner
comparable to that set forth in clause (a) above) of the Income REIT
divided by 0.10, minus (2) Indebtedness of the Income REIT on the last
day of such period (provided that in no event shall the amount
described in this clause (c) exceed 15% of Gross Asset Value) and (d)
an amount equal to 75% of the aggregate purchase price paid by the
Borrower and its Subsidiaries to acquire each Identified Property with
respect to such period (provided that in no event shall the amount
described in this clause (d) exceed 20% of Gross Asset Value).
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation (determined without duplication) of (a) the
guaranteeing person or (b) another Person (including, without
limitation, any bank under any letter of credit) to induce the
creation of which the guaranteeing person has issued a reimbursement,
counter-indemnity or similar obligation, in either case guaranteeing
or in effect guaranteeing any Indebtedness, leases, dividends or other
obligations (the "primary obligations") of any other third Person (the
"primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of the guaranteeing
person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (1) for the purchase or
payment of any such primary obligation or (2) to maintain working
capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that
the term Guarantee Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing
person shall be deemed to be the maximum stated amount of the primary
obligation relating to such Guarantee Obligation (or, if less, the
maximum stated liability set forth in the instrument embodying such
Guarantee Obligation), provided, that, in the absence of any such
stated amount or stated liability, the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Borrower
in good faith.
"Identified Property": with respect to any period of two
consecutive fiscal quarters of the Borrower, any Property acquired by
the Borrower or any of its Subsidiaries during such period and
designated as an "Identified Property" for such period by the Borrower
by written notice to the Administrative Agent concurrently with the
delivery of any compliance certificate pursuant to Section 6.2(b);
provided, that, after giving effect to such designation (and the
calculation of Gross Asset Value as a result thereof), the amount
described in clause (d) of the definition of Gross Asset Value for
such period shall not exceed 20% of such Gross Asset Value.
"Income REIT": the stabilized income REIT to be formed by the
Borrower in exchange for a less than majority initial equity interest
therein, including any of its Subsidiaries, as more specifically
described on Schedule 1.1B.
"Indebtedness": of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money,
(b) all obligations of such Person for the deferred purchase price of
property or services (other than current trade liabilities incurred in
the ordinary course of business and payable in accordance with
customary practices), to the extent such obligations constitute
indebtedness for the purposes of GAAP, (c) any other indebtedness of
such Person which is evidenced by a note, bond, debenture or similar
instrument, (d) all obligations of such Person under Financing Leases,
(e) all obligations of such Person in respect of acceptances issued or
created for the account of such Person, (f) all Guarantee Obligations
of such Person (excluding, in the case of the Borrower, Guarantee
Obligations of the Borrower in respect of primary obligations of any
Subsidiary), and (g) all liabilities secured by any Lien on any
property owned by such Person even though such Person has not assumed
or otherwise become liable for the payment thereof.
10
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any ABR Loan, the last day
of each calendar month to occur while such Loan is outstanding and the
Facility A Termination Date (in the case of Facility A Revolving
Credit Loans) or the Facility B Termination Date (in the case of
Facility B Revolving Credit Loans), (b) as to any Eurodollar Loan or
C/D Rate Loan, the last day of each calendar month to occur while such
Loan is outstanding and the last day of the Interest Period with
respect thereto and (c) as to any Money Market Loans, the Money Market
Loan Maturity Date applicable thereto.
"Interest Period": (a) with respect to any Eurodollar Loan:
(i) initially, the period commencing on the
borrowing or conversion date, as the case may be, with
respect to such Eurodollar Loan and ending one, two, three or
six months thereafter, as selected by the Borrower in its
notice of borrowing or notice of conversion, as the case may
be, given with respect thereto; and
(ii) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such
Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower by irrevocable notice
to the Administrative Agent not less than three Business Days
prior to the last day of the then current Interest Period
with respect thereto;
and (b) with respect to any C/D Rate Loan:
(i) initially, the period commencing on the
borrowing or conversion date, as the case may be, with
respect to such C/D Rate Loan and ending 30, 60, 90 or 180
days thereafter, as selected by the Borrower in its notice of
borrowing or notice of conversion, as the case may be, given
with respect thereto; and
(ii) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such
C/D Rate Loan and ending 30, 60, 90 or 180 days thereafter,
as selected by the Borrower by irrevocable notice to the
Administrative Agent not less than two Business Days prior to
the last day of the then current Interest Period with respect
thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period pertaining to a
Eurodollar Loan would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end
on the immediately preceding Business Day;
(2) if any Interest Period pertaining to a C/D Rate
Loan would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding
Business Day; and
(3) any Interest Period pertaining to a Eurodollar
Loan that begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of a calendar month.
"Issuing Lender": Chase, in its capacity as issuer of any
Letter of Credit.
"Joint Venture": any joint venture, partnership or other
minority-owned entity (other than a Subsidiary) in which the Borrower
or any of its Subsidiaries owns an interest.
11
L/C Commitment": $25,000,000.
"L/C Commitment": with respect to each Letter of Credit, the
last day of each March, June, September and December to occur while
such Letter of Credit is outstanding and the date on which such Letter
of Credit shall expire or be cancelled or fully drawn.
"L/C Fee Rate": with respect to each Letter of Credit at any
date, the applicable percentage per annum set forth below based upon
the Status on such date:
Level I Level II Level III Level IV Level V
Status Status Status Status Status
0.45% 0.50% 0.80% 1.00% 1.50%
"L/C Obligations": at any time, an amount equal to the sum of (a) the
aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters
of Credit which have not then been reimbursed pursuant to Section 0.
"L/C Participants": the collective reference to all the Facility B
Lenders other than the Issuing Lender.
"Lenders": as defined in the preamble hereto.
"Letters of Credit": as defined in Section 0.
"Lien": any mortgage, pledge, hypothecation, assignment (including
any collateral assignment but excluding any assignment of an asset made in
lieu of a sale thereof where the assignor is paid the fair market value of
such asset by the assignee and the assignee assumes all of the rights and
obligations attributable to ownership of such asset), deposit arrangement,
encumbrance, lien (statutory or other), charge or other security interest
or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement and
any Financing Lease having substantially the same economic effect as any
of the foregoing).
"Loan Documents": this Agreement, any Notes, the Applications and
the Subsidiary Guarantee.
"Loan Parties": the Borrower and the Subsidiary Guarantors.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole, (b) the
ability of the Borrower to perform its obligations under any Loan Document
to which it is a party, (c) the ability of the Guarantors, taken as a
whole, to perform their respective obligations under the Subsidiary
Guarantee or (d) the validity or enforceability of this Agreement or any
of the other Loan Documents or the rights or remedies of the
Administrative Agent or the Lenders hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated
as such in or under any Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
"Money Market Loan Maturity Date": with respect to any Money Market
Loan, the maturity date requested by the Borrower in connection therewith
(which date shall in no event be later than the earlier of (a) 29 days
after the Borrowing Date thereof or (b) the Facility A Termination Date or
the Facility B Termination Date, as the case may be).
"Money Market Loans": Revolving Credit Loans the rate of interest
applicable to which is based upon the Money Market Rate.
12
"Money Market Rate": with respect to any proposed Money Market Loan,
the quoted rate per annum obtained by the Administrative Agent with
respect thereto, and accepted by each Facility A Lender or each Facility B
Lender, as the case may be, in its sole discretion, no later than 10:00
A.M., New York City time, two Business Days prior to the requested
Borrowing Date (or, in the case of Money Market Loans having a Money
Market Loan Maturity Date of six days or less from the relevant Borrowing
Date, the quoted rate per annum obtained by the Administrative Agent with
respect thereto, and accepted by each Facility A Lender or each Facility B
Lender, as the case may be, in its sole discretion, no later than one hour
after the quote is obtained by the Administrative Agent, which quote shall
in no event be obtained later than 12:00 Noon, New York City time, on the
relevant Borrowing Date).
"Money Market Tranche": the collective reference to Money Market
Loans having the same Borrowing Date and Money Market Loan Maturity Date.
"Moody's": Moody's Investors Service, Inc. and its successors.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"NAREIT": The National Association of Real Estate Investment Trusts.
"Non-Excluded Taxes": as defined in Section 2.12(a).
"Non-Recourse Indebtedness": Indebtedness the documentation with
respect to which expressly provides that (a) the lender(s) thereunder
(and any agent for such lender(s)) may not seek a money judgment against
the Borrower and/or any Subsidiary and (b) recourse for payment in
respect of such Indebtedness is limited to those assets or Capital Stock
of the Person issuing such Indebtedness which secure such Indebtedness
(except in the case of customary indemnities contained in such
documentation, provided that if a claim is made in connection with such
indemnities, such claim shall not constitute Non-Recourse Indebtedness
for the purposes of this Agreement).
"Non-U.S. Lender": as defined in Section 2.12(b).
"Notes": the collective reference to the Facility A Revolving Credit
Notes and the Facility B Revolving Credit Notes.
"Operations and Maintenance Plan": the Borrower's operations and
maintenance plan with respect to environmental matters attached hereto as
Exhibit G.
"Owned Property": (a) each Property wholly owned in fee by the
Borrower or any Subsidiary or Joint Venture and (b) each Property
("Groundlease Properties") as to which (i) the improvements are wholly
owned in fee by the Borrower or any Subsidiary or Joint Venture and (ii)
the land is subject to a valid Qualified Leasehold Interest in favor of
the Borrower or such Subsidiary or Joint Venture, provided, that the
aggregate Property Net Operating Income in respect of Groundlease
Properties included in any calculation of Value of Unencumbered
Properties for any period shall not exceed 15% of the aggregate Property
Net Operating Income with respect to all Unencumbered Properties for such
period.
As used in this definition:
"Qualified Leasehold Interest" means any leasehold
interest (i) which may be transferred and/or assigned without the
consent of the lessor (or as to which the lease expressly provides
that (x) such lease may be transferred and/or assigned with the
consent of the lessor and (y) such consent shall not be unreasonably
withheld or delayed), (ii) with respect to the lease term, either (x)
more than 25 years remains in such lease term or (y) such lease term
is renewable in the sole discretion of the Borrower for one or more
successive periods aggregating (together with the remaining current
lease term) more than 25 years so long as, in the case of this clause
(y), periodic rent increases shall be at levels comparable to those
that are customarily applicable to leases having initial terms in
excess of 25 years, (iii) in which a security interest may be granted
without the consent of the lessor and (iv) as to which the lease
governing such leasehold interest expressly
13
provides that (x) the lessor shall notify any holder of a security
interest in such leasehold interest of the occurrence of any default
by the lessee under such lease and shall afford such holder the right
to cure such default and (y) in the event that such lease is
terminated, such holder shall have the option to enter into a new
lease having terms substantially identical to those contained in the
terminated lease.
"Participant": as defined in Section 10.7.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA.
"Permitted Liens": (a) Liens for taxes not yet due or which are being
contested in good faith by appropriate proceedings, provided that adequate
reserves with respect thereto are maintained on the books of the Borrower
or its Subsidiaries, as the case may be, in conformity with GAAP; (b)
mechanics', materialmen's, repairmen's or other like Liens arising in the
ordinary course of business which are not overdue for a period of more
than 90 days or which are being contested in good faith by appropriate
proceedings; and (c) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business which, in
the aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Property": each parcel of real property (including the shopping
center thereon) owned or operated by the Borrower, any Subsidiary or any
Joint Venture.
"Property Gross Revenues": with respect to any Property, for any
period, all gross income, revenues and consideration, of whatever form or
nature, received by or paid to or for the account or benefit of the Person
owning such Property, in each instance during such period, in connection
with the ownership, operation, leasing and occupancy of such Property,
including, without limitation, the following: (a) amounts received under
the leases, including, without limitation base rent, escalation, overage,
additional, participation, percentage and similar rentals, late charges
and interest payments and amounts received on account of maintenance or
service charges, real estate taxes, assessments, utilities, air
conditioning and heating and other administrative, management, operating,
leasing and maintenance expenses for such property, but excluding until
earned security deposits, prepaid rents and other refundable receipts, (b)
rents and receipts from licenses, concessions, vending machines and
similar items, (c) parking fees and rentals, (d) other fees, charges or
payments not denominated as rental of office, retail, storage, parking or
other space in such property, and (e) payments received as consideration,
in whole or in part, for the cancellation, modification, extension or
renewal of leases; but in any event excluding the proceeds of any
financing or asset sales in respect of all or any portion of such
Property.
"Property Net Operating Income": with respect to any Property, for
any period, an amount equal to the excess, if any, of (a) Property Gross
Revenues in respect of such Property for such period over (b) Property
Operating Expenses in respect of such Property for such period; provided
that, in the case of Unconsolidated Subsidiaries and Joint Ventures, the
foregoing will be excluded to the extent not Distributable, and to the
extent Distributable will be included only to the extent of the Borrower's
Pro Rata Interest therein.
"Property Operating Expenses": with respect to any Property, for any
period, the sum of (I) all expenses incurred by the Borrower and its
Subsidiaries during such period with respect to the ownership, operation,
leasing and occupancy of such Property (including expenses payable by any
Joint Venture to the extent the Borrower or any of its Subsidiaries is
liable therefor), including, without limitation, the following: (a) real
estate taxes; (b) special assessments or similar charges paid during such
period; (c)
14
personal property taxes; (d) costs of utilities, air conditioning and
heating; (e) maintenance and repair costs of a non-capital nature; (f)
operating expenses and fees; (g) wages and salaries of on-site employees
engaged in the operation and management of such Property, including
employers' social security taxes and other taxes, insurance benefits and
the like, levied on or with respect to such wages or salaries; (h)
premiums payable for insurance carried on or with respect to such
Property; (i) advertising and promotion costs; (j) rental expense and (k)
in the case of any Property owned or operated by a Joint Venture, any
obligation of the Borrower or any of its Subsidiaries (contingent or
otherwise) to contribute funds to such Joint Venture, (II) a reserve in
respect of management fees and expenses equal to 5% of Property Gross
Revenues for such period with respect to such Property. The following
shall be excluded from Property Operating Expenses: (1) foreign, U.S.,
state and local income taxes, franchise taxes or other taxes based on
income, (2) depreciation, amortization and any other non-cash deduction
for income tax purposes, (3) interest expenses of the Person owning such
Property and (4) any expenditures made for capital improvements and the
cost of leasing commissions and (III) an amount equal to 0.25 times the
aggregate gross leasable area (measured in square feet) of the shopping
center located on such Property as of the last day of such period.
"Pro Rata Interest": the Borrower's percentage economic equity
interest in any Joint Venture or Unconsolidated Subsidiary.
"Purchasing Lender": as defined in Section 10.8(a).
"Rating Agencies": the collective reference to S&P and Moody's.
"Recourse Secured Indebtedness": all Indebtedness of the Borrower and
its Affiliated Entities other than Non- Recourse Indebtedness.
"Register": as defined in Section 10.9(a).
"Regulation U": Regulation U of the Board as in effect from time to
time.
"Reimbursement Obligation": the obligation of the Borrower to
reimburse the Issuing Lender pursuant to Section 0 for amounts drawn under
Letters of Credit.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b) of
ERISA, other than those events as to which the thirty day notice period is
waived under Sections .13, .14, .16, .18, .19 or .20 of PBGC Reg. 2615.
"Required Lenders": at any date, the holders of 66- 2/3% of the
aggregate Commitments, or, if the Commitments have been terminated, of the
aggregate unpaid principal amount of the Revolving Credit Loans and L/C
Obligations.
"Required Remedial Lenders": at any date, the holders of 51% of the
aggregate Commitments.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation or determination
of an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Responsible Officer": the chief executive officer and the president
of the Borrower or, with respect to financial matters, the chief financial
officer of the Borrower.
"Revolving Credit Loan": any loan made by any Lender pursuant to this
Agreement.
"S&P": Standard & Poor's Ratings Services and its
successors.
15
"Significant Subsidiary": at any date of determination, any
Subsidiary of the Borrower which at such date owns or operates one or more
Properties having an aggregate Equity Value in excess of $10,000,000. For
the purposes of this definition, "Equity Value" means:
(a) in the case of any Property owned or operated by the
Borrower or any of its Subsidiaries on January 1, 1998, (i) 2
multiplied by an amount equal to (x) Property Net Operating Income of
such Property for the period of two consecutive fiscal quarters of
the Borrower ending June 30, 1998 divided by (y) 0.10 minus (ii) the
aggregate outstanding principal amount of any Indebtedness secured by
such Property as of the last day of such period; and
(b) in the case of any other Property, the aggregate
purchase price paid by the Borrower or any of its Subsidiaries in
connection with the acquisition of such Property (excluding (i) the
principal amount of any Indebtedness secured by such Property and
assumed in connection with the acquisition thereof and (ii) if such
Property is acquired subject to Indebtedness, the principal amount of
such Indebtedness).
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Status": as to the Borrower, the existence of Level I Status, Level
II Status, Level III Status, Level IV Status or Level V Status, as the
case may be.
As used in this definition:
"Level I Status" exists at any date if, at such date, the
Borrower has a long-term senior unsecured debt rating of AA- or
better by S&P and Aa3 or better by Moody's;
"Level II Status" exists at any date if, at such date,
Level I Status does not exist and the Borrower has a long-term senior
unsecured debt rating of A-or better by S&P and A3 or better by
Moody's;
"Level III Status" exists at any date if, at such date,
neither Level I Status nor Level II Status exists and the Borrower
has a long-term senior unsecured debt rating of BBB or better by S&P
and Baa2 or better by Moody's;
"Level IV Status" exists at any date if, at such date,
neither Level I Status, Level II Status nor Level III Status exists
and the Borrower has a long-term senior unsecured debt rating of BBB-
or better by S&P and Baa3 or better by Moody's; and
"Level V Status" exists at any date if, at such date, none
of Level I Status, Level II Status, Level III Status or Level IV
Status exists;
provided that if S&P and/or Moody's shall cease to issue ratings of debt
securities of real estate investment trusts generally, then the
Administrative Agent and the Borrower shall negotiate in good faith to
agree upon a substitute rating agency or agencies (and to correlate the
system of ratings of each substitute rating agency with that of the rating
agency for which it is substituting) and (a) until such substitute rating
agency or agencies are agreed upon, Status shall be determined on the
basis of the rating assigned by the other rating agency (or, if both S&P
and Moody's shall have so ceased to issue such ratings, on the basis of
the Status in effect immediately prior thereto) and (b) after such
substitute rating agency or agencies are agreed upon, Status shall be
determined on the basis of the rating assigned by the other rating agency
and such substitute rating agency or the two substitute rating agencies,
as the case may be.
"Subsidiary": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly
through one or more
16
intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall
refer to a Subsidiary or Subsidiaries of the Borrower.
"Subsidiary Guarantee": the Guarantee to be executed and delivered by
each Subsidiary of the Borrower, substantially in the form of Exhibit C,
as the same may be amended, supplemented or otherwise modified from time
to time.
"Subsidiary Guarantor": each Subsidiary of the Borrower party to the
Subsidiary Guarantee.
"Total Adjusted EBITDA": for any period of two consecutive fiscal
quarters (a "Cash Flow Test Period"), an amount equal to (a) an amount
equal to (A) Total EBITDA for such period minus (B) the amount (if any) by
which (i) the sum of (x) management fee income of the Borrower and its
Affiliated Entities included in Total EBITDA for such period and (y) other
income of the Borrower and its Affiliated Entities included in Total
EBITDA for such period not attributable to the Properties exceeds (ii)
115% of the sum of (x) management fee income of the Borrower and its
Affiliated Entities included in Total EBITDA for the corresponding period
of two consecutive fiscal quarters of the Borrower ending on the date
which is one year prior to the last day of such Cash Flow Test Period and
(y) other income of the Borrower and its Affiliated Entities included in
Total EBITDA for such corresponding period not attributable to the
Properties for such period minus (b) an amount equal to 0.25 times the
aggregate gross leasable area (measured in square feet) of the shopping
centers located on the Properties as of the last day of such period,
adjusted for any non-cash revenue attributable to straight-lining of
rents.
"Total Debt Service": for any period of two consecutive fiscal
quarters (a "Debt Service Test Period"), (a) Total Interest Expense for
such period plus (b) the aggregate amount of scheduled principal payments
on Indebtedness (excluding optional prepayments and scheduled principal
payments in respect of any Indebtedness which is payable in a single
installment at final maturity) required to be made during such period by
the Borrower or any of its Affiliated Entities; provided, that, in the
case of any Indebtedness which amortizes in annual installments, (i) only
50% of the principal amount of any such annual installment which is
payable during any Debt Service Test Period shall be included in Total
Debt Service for such Debt Service Test Period and (ii) in the event that
no annual installment is payable in respect of a particular item of such
Indebtedness during a Debt Service Test Period, but an annual installment
in respect of such Indebtedness is payable during the period of two
consecutive fiscal quarters commencing immediately after such Debt Service
Test Period, 50% of the amount of such annual installment shall
nevertheless be included in Total Debt Service for such Debt Service Test
Period plus (c) the aggregate amount accrued for such period in respect of
cash dividends on preferred stock of the Borrower or any of its
Subsidiaries.
"Total EBITDA": for any period, (a) Adjusted Net Income for such
period without giving effect to Total Interest Expense, depreciation and
amortization, gains or losses from extraordinary items, gains or losses on
sales of real estate, gains or losses on investments in marketable
securities and any provisions/benefits for income taxes for such period
plus (b) the EBITDA (determined in a manner comparable to that set forth
in clause (a) above) of Unconsolidated Subsidiaries and Joint Ventures for
such period that is Distributable, all determined on a consistent basis
for such period; provided in the case of the Income REIT such EBITDA will
be included only to the extent of actual cash distributions to the
Borrower or any of its consolidated Subsidiaries.
"Total Indebtedness": as of any date of determination, all
Indebtedness of the Borrower and its Affiliated Entities outstanding at
such date.
"Total Interest Expense": for any period, the amount of interest
expense of the Borrower and its Affiliated Entities for such period on the
aggregate principal amount of their Indebtedness.
"Total Net Worth": at any date of determination, an amount equal to
(a) Gross Asset Value as of such date minus (b) Total Indebtedness as of
such date.
"Total Secured Indebtedness": as of any date of determination, the
sum of (a) the aggregate principal amount of all Indebtedness of the
Borrower and its Affiliated Entities outstanding at such date
17
which does not constitute Unsecured Indebtedness and (b) the excess, if
any, of (i) the aggregate principal amount of all Unsecured Indebtedness
of the Affiliated Entities of the Borrower over (ii) $10,000,000.
"Total Senior Recourse Indebtedness": as of any date of
determination, the aggregate principal amount of all Indebtedness of the
Borrower and its Affiliated Entities outstanding at such date other than
Non-Recourse Indebtedness (excluding Indebtedness which is contractually
subordinated to the Indebtedness of the Borrower and its Affiliated
Entities under the Loan Documents on customary terms acceptable to the
Administrative Agent.
"Total Unsecured Interest Expense": for any period, the amount of
interest expense (whether accrued, paid or capitalized) of the Borrower
and its Affiliated Entities for such period on the aggregate principal
amount of their Unsecured Indebtedness.
"Tranches": the collective reference to Facility A Tranches and
Facility B Tranches.
"Transferee": as defined in Section 10.9(b).
"Type": as to any Revolving Credit Loan, its nature as an ABR Loan, a
Eurodollar Loan, a C/D Rate Loan or a Money Market Loan.
"Unconsolidated Subsidiary": any Subsidiary of the Borrower which is
not a consolidated Subsidiary of the Borrower under GAAP.
"Unencumbered": with respect to any asset, at any date of
determination, the circumstance that such asset on such date (a) is not
subject to any Liens or claims (including restrictions on transferability
or assignability) of any kind (including any such Lien, claim or
restriction imposed by the organizational documents of any Subsidiary or
Joint Venture, but excluding Permitted Liens and, in the case of any
Qualified Leasehold Interest (to the extent permitted by the definition
thereof), restrictions on transferability or assignability in respect of
such leasehold interest), (b) is not subject to any agreement (including
(i) any agreement governing Indebtedness incurred in order to finance or
refinance the acquisition of such asset and (ii) if applicable, the
organizational documents of any Subsidiary or Joint Venture) which
prohibits or limits the ability of the Borrower or any of its Subsidiaries
to create, incur, assume or suffer to exist any Lien upon, or convey,
sell, lease, transfer or otherwise dispose of, any assets or Capital Stock
of the Borrower or any of its Subsidiaries (excluding any agreement which
limits generally the amount of secured Indebtedness which may be incurred
by the Borrower and its Subsidiaries) and (c) is not subject to any
agreement (including any agreement governing Indebtedness incurred in
order to finance or refinance the acquisition of such asset) which
entitles any Person to the benefit of any Lien (other than Permitted
Liens) on any assets or Capital Stock of the Borrower or any of its
Subsidiaries, or would entitle any Person to the benefit of any Lien
(other than Permitted Liens) on such assets or Capital Stock upon the
occurrence of any contingency (including, without limitation, pursuant to
an "equal and ratable" clause). For the purposes of this Agreement, any
Owned Property of a Subsidiary which is not a Wholly Owned Subsidiary or
of a Joint Venture shall not be deemed to be Unencumbered unless both (i)
such Property and (ii) all Capital Stock of such Subsidiary or Joint
Venture owned by the Borrower or any of its Subsidiaries is Unencumbered.
"Uniform Customs": the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No.
500, as the same may be amended from time to time.
"Unrestricted Cash and Cash Equivalents": at any date of
determination, the sum of (a) the aggregate amount of Unrestricted cash
then held by the Borrower or any of its consolidated Subsidiaries and (b)
the aggregate amount of Unrestricted Cash Equivalents (valued at the lower
of cost and fair market value) then held by the Borrower or any of its
consolidated Subsidiaries. As used in this definition, "Unrestricted"
means, with respect to any asset, the circumstance that such asset is not
subject to any Liens or claims of any kind in favor of any Person. It is
understood that, for the purposes of this definition, any asset held by
the Borrower or any of its Subsidiaries as security for any obligations
owing to the Borrower or any of its Subsidiaries by any other Person shall
not be deemed to be Unrestricted.
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"Unsecured Indebtedness": all Indebtedness of the Borrower and its
Affiliated Entities which is not secured by a Lien on any income, Capital
Stock, property or asset of the Borrower or any of its Affiliated
Entities.
"Value of Unencumbered Assets": for any period of two consecutive
fiscal quarters, Value of Unencumbered Properties for such period plus
Unrestricted Cash and Cash Equivalents as of the last day of such period in
excess of $15,000,000.
"Value of Unencumbered Properties": for any period of two
consecutive fiscal quarters, an amount equal to 2 multiplied by (a) the
aggregate Property Net Operating Income with respect to the Unencumbered
Owned Properties for such period divided by (b) 0.10.
"Wholly Owned Subsidiary": as to any Person, any other Person all of
the Capital Stock of which (other than directors' qualifying shares
required by law) is owned by such Person directly and/or through other
Wholly Owned Subsidiaries.
"Wholly Owned Subsidiary Guarantor": any Subsidiary Guarantor which
is a Wholly Owned Subsidiary of the Borrower.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any other Loan Document or any certificate or other document made
or delivered pursuant hereto or thereto.
(b) As used herein and in any other Loan Document, and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Borrower and its Subsidiaries not defined in
Section 1.1 and accounting terms partly defined in Section 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, Schedule and
Exhibit references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF CREDIT FACILITIES
2.1 Facility A Commitments. (a) Facility A Revolving Credit Loans.
(i) Subject to the terms and conditions hereof, each Facility A Lender
severally agrees to make revolving credit loans ("Facility A Revolving Credit
Loans") to the Borrower from time to time during the Facility A Commitment
Period in an aggregate principal amount at any one time outstanding which does
not exceed the amount of such Lender's Facility A Commitment. During the
Facility A Commitment Period the Borrower may use the Facility A Commitments by
borrowing, prepaying the Facility A Revolving Credit Loans in whole or in part,
and reborrowing, all in accordance with the terms and conditions hereof.
Notwithstanding anything to the contrary contained in this Agreement, in no
event shall, at any time, the aggregate outstanding principal amount of
Facility A Revolving Credit Loans exceed the aggregate Facility A Commitments
then in effect. No borrowing may be made under the Facility A Commitments to
the extent there are any Available Facility B Commitments.
(ii) The Facility A Revolving Credit Loans may from time to time be
(v) Eurodollar Loans, (w) ABR Loans, (x) C/D Rate Loans, (y) Money Market Loans
or (z) a combination thereof, as determined by the Borrower and notified to the
Administrative Agent in accordance with Sections 2.1(d) and 2.4, provided that
no Revolving Credit Loan shall be made as a Eurodollar Loan or a C/D Rate Loan
after the day that is one month or 30 days, respectively, prior to the Facility
A Termination Date.
(b) Facility A Revolving Credit Notes. The Facility A Revolving
Credit Loans made by each Facility A Lender shall be evidenced by a promissory
note of the Borrower at the request of such Facility A Lender, substantially in
the form of Exhibit A-1, with appropriate insertions as to payee, date and
principal amount (a
19
"Facility A Revolving Credit Note"), payable to the order of such Lender and in
a principal amount equal to the lesser of (i) the amount of the initial
Facility A Commitment of such Lender and (ii) the aggregate unpaid principal
amount of all Facility A Revolving Credit Loans made by such Lender. Each
Facility A Lender is hereby authorized to record the date, Type and amount of
each Facility A Revolving Credit Loan made by such Lender, each continuation
thereof, each conversion of all or a portion thereof to another Type, the date
and amount of each payment or prepayment of principal thereof and, in the case
of Eurodollar Loans and C/D Rate Loans, the length of each Interest Period with
respect thereto and, in the case of Money Market Loans, the Money Market Loan
Maturity Date with respect thereto, on the schedule annexed to and constituting
a part of its Facility A Revolving Credit Note, and any such recordation shall
constitute prima facie evidence of the accuracy of the information so recorded;
provided that the failure by any Lender to make any such recordation or any
error in such recordation shall not affect the obligations of the Borrower
under this Agreement or the Facility A Revolving Credit Notes. Each Facility A
Revolving Credit Note so requested shall (x) be dated the Closing Date, (y) be
stated to have a final maturity on the Facility A Termination Date and (z)
provide for the payment of interest in accordance with Section 2.6.
(c) Repayment of Facility A Revolving Credit Loans. The Borrower
shall repay all then outstanding Facility A Revolving Credit Loans on the
Facility A Termination Date or such earlier date as the Facility A Commitments
shall terminate as provided herein; provided, that each Money Market Loan
shall, in any event, be repaid on the Money Market Loan Maturity Date in
respect thereof.
(d) Procedure for Borrowing Facility A Revolving Credit Loans. The
Borrower may borrow under the Facility A Commitments during the Facility A
Commitment Period on any Business Day, provided that the Borrower shall give
the Administrative Agent irrevocable notice (which notice must be received by
the Administrative Agent prior to 10:00 A.M., New York City time, (i) three
Business Days prior to the requested Borrowing Date, if all or any part of the
requested Facility A Revolving Credit Loans are to be initially Eurodollar
Loans or Money Market Loans having a Money Market Loan Maturity Date of more
than six days from the relevant Borrowing Date, (ii) two Business Days prior to
the requested Borrowing Date, if all or any part of the requested Revolving
Credit Loans are to be initially C/D Rate Loans or Money Market Loans having a
Money Market Loan Maturity Date of six days or less from the relevant Borrowing
Date, or (iii) one Business Day prior to the requested Borrowing Date,
otherwise), specifying (w) the amount to be borrowed, (x) the requested
Borrowing Date and, in the case of each Money Market Loan, the requested Money
Market Loan Maturity Date, (y) whether the borrowing is to be of Eurodollar
Loans, ABR Loans, C/D Rate Loans, Money Market Loans or a combination thereof
and (z) if the borrowing is to be entirely or partly of Eurodollar Loans or C/D
Rate Loans, the respective amounts of each such Type of Revolving Credit Loan
and the respective lengths of the initial Interest Periods therefor. Each
borrowing under the Facility A Commitments shall be in an amount equal to (i)
in the case of ABR Loans, $500,000 or a whole multiple of $100,000 in excess
thereof (or, if the then aggregate Available Facility A Commitments are less
than $500,000, such lesser amount) and (ii) in the case of Eurodollar Loans,
C/D Rate Loans or Money Market Loans, $3,000,000 or a whole multiple of
$100,000 in excess thereof. Upon receipt of any such notice from the Borrower,
the Administrative Agent shall promptly notify each Lender thereof. Each Lender
will make the amount of its pro rata share of each such borrowing available to
the Administrative Agent for the account of the Borrower at the office of the
Administrative Agent specified in Section 10.2 prior to 11:00 A.M., New York
City time (or in the case of Money Market Loans having a Money Market Loan
Maturity Date of six days or less from the relevant Borrowing Date, 3:00 P.M.,
New York City time), on the Borrowing Date requested by the Borrower in funds
immediately available to the Administrative Agent. Such borrowing will then be
made available to the Borrower by the Administrative Agent crediting the
account of the Borrower on the books of such office with the aggregate of the
amounts made available to the Administrative Agent by the Lenders and in like
funds as received by the Administrative Agent. In no event may the number of
Money Market Loans requested in any calendar month pursuant to this Section
2.1(d), when added to the number of Money Market Loans requested in such
calendar month pursuant to Section 2.2(d), exceed four. Excepting any Money
Market Loans requested in connection with the first funding on the Closing
Date, in no event may the number of Money Market Loans requested in any
consecutive twelve months pursuant to this Section 2.1(d), when added to the
number of Money Market Loans requested in such calendar month pursuant to
Section 2.2(d), exceed twelve.
(e) Facility A Tranches. Notwithstanding anything to the contrary in
this Agreement, all borrowings, prepayments, conversions and continuations of
Facility A Revolving Credit Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, (i) the aggregate principal
amount of the Facility A Revolving Credit Loans comprising each Facility A
Tranche shall be equal to $3,000,000 or a whole multiple of $100,000 in excess
thereof, (ii) no
20
Lender's share of any Facility A Tranche shall be less than $500,000 and (iii)
there shall be no more than five Tranches outstanding at any one time.
(f) Termination or Reduction of Facility A Commitments. The Borrower
shall have the right, upon not less than three Business Days' irrevocable
notice to the Administrative Agent, to terminate the Facility A Commitments or,
from time to time, to reduce the amount of the Facility A Commitments; provided
that no such termination or reduction shall be permitted if, after giving
effect thereto and to any payments of the Facility A Revolving Credit Loans
made on the effective date thereof, (i) the aggregate principal amount of the
Facility A Revolving Credit Loans then outstanding would exceed the Facility A
Commitments then in effect or (ii) the Available Facility A Commitment of any
Lender would be less than zero. Any such reduction shall be in an amount equal
to $1,000,000 or a whole multiple thereof and shall reduce permanently the
Facility A Commitments then in effect.
(g) Renewal of Facility A Commitments. If the Borrower desires to
extend the Facility A Termination Date, then the Borrower shall notify the
Administrative Agent 60 days prior to the Facility A Termination Date then in
effect of its desire to extend the Facility A Termination Date for a period of
not more than 364 days from the Facility A Termination Date then in effect,
whereupon the Administrative Agent shall notify each Facility A Lender of the
Borrower's desire to so extend the Facility A Termination Date. The date
specified for response by each Facility A Lender to such request for an
extension of the Facility A Termination Date shall be no earlier than 30 days
prior to the Facility A Termination Date then in effect; provided, however,
that failure by a Facility A Lender to respond to such request shall not be
construed as a consent by such Facility A Lender to such extension. The
decision to extend or not extend shall be made by each Facility A Lender in its
sole discretion. Each consent by a Facility A Lender to an extension shall be
in writing signed by such Facility A Lender. If each of the Facility A Lenders
agrees to an extension, the Facility A Termination Date shall be so extended
and, on the Facility A Termination Date in effect prior to giving effect to
such extension, the Borrower shall pay to each Facility A Lender an extension
fee equal to 0.05% of its Facility A Commitment.
2.2 Facility B Commitments. (a) Facility B Revolving Credit Loans (i)
Subject to the terms and conditions hereof, each Facility B Lender severally
agrees to make revolving credit loans ("Facility B Revolving Credit Loans") to
the Borrower from time to time during the Facility B Commitment Period in an
aggregate principal amount at any one time outstanding which, when added to
such Lender's Facility B Commitment Percentage of the then outstanding L/C
Obligations, does not exceed the amount of such Lender's Facility B Commitment.
During the Facility B Commitment Period the Borrower may use the Facility B
Commitments by borrowing, prepaying the Facility B Revolving Credit Loans in
whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. Notwithstanding anything to the contrary contained in this
Agreement, in no event shall, at any time, the sum of the Aggregate Outstanding
Facility B Revolving Extensions of Credit of all of the Lenders exceed the
aggregate Facility B Commitments then in effect.
(ii) The Facility B Revolving Credit Loans may from time to time be
(v) Eurodollar Loans, (w) ABR Loans, (x) C/D Rate Loans, (y) Money Market Loans
or (z) a combination thereof, as determined by the Borrower and notified to the
Administrative Agent in accordance with Sections 2.2(d) and 2.4, provided that
no Revolving Credit Loan shall be made as a Eurodollar Loan or a C/D Rate Loan
after the day that is one month or 30 days, respectively, prior to the Facility
B Termination Date.
(b) Facility B Revolving Credit Notes. The Facility B Revolving
Credit Loans made by each Facility B Lender shall be evidenced by a promissory
note of the Borrower at the request of such Facility B Lender, substantially in
the form of Exhibit A-2, with appropriate insertions as to payee, date and
principal amount (a "Facility B Revolving Credit Note"), payable to the order
of such Lender and in a principal amount equal to the lesser of (i) the amount
of the initial Facility B Commitment of such Lender and (ii) the aggregate
unpaid principal amount of all Facility B Revolving Credit Loans made by such
Lender. Each Facility B Lender is hereby authorized to record the date, Type
and amount of each Facility B Revolving Credit Loan made by such Lender, each
continuation thereof, each conversion of all or a portion thereof to another
Type, the date and amount of each payment or prepayment of principal thereof
and, in the case of Eurodollar Loans and C/D Rate Loans, the length of each
Interest Period with respect thereto and, in the case of Money Market Loans,
the Money Market Loan Maturity Date with respect thereto, on the schedule
annexed to and constituting a part of its Facility B Revolving Credit Note, and
any such recordation shall constitute prima facie evidence of the accuracy of
the information so recorded; provided that the failure by any Lender to make
any such recordation or any error in such recordation shall not affect the
obligations of the Borrower under this Agreement or the Facility B Revolving
Credit Notes. Each Facility B
21
Revolving Credit Note so requested shall (x) be dated the Closing Date, (y) be
stated to have a final maturity on the Facility B Termination Date and (z)
provide for the payment of interest in accordance with Section 2.6.
(c) Repayment of Facility B Revolving Credit Loans. The Borrower
shall repay all then outstanding Facility B Revolving Credit Loans on the
Facility B Termination Date or such earlier date as the Facility B Commitments
shall terminate as provided herein; provided, that each Money Market Loan
shall, in any event, be repaid on the Money Market Loan Maturity Date in
respect thereof.
(d) Procedure for Borrowing Facility B Revolving Credit Loans. The
Borrower may borrow under the Facility B Commitments during the Facility B
Commitment Period on any Business Day, provided that the Borrower shall give
the Administrative Agent irrevocable notice (which notice must be received by
the Administrative Agent prior to 10:00 A.M., New York City time, (i) three
Business Days prior to the requested Borrowing Date, if all or any part of the
requested Facility B Revolving Credit Loans are to be initially Eurodollar
Loans or Money Market Loans having a Money Market Loan Maturity Date of more
than six days from the relevant Borrowing Date, (ii) two Business Days prior to
the requested Borrowing Date, if all or any part of the requested Revolving
Credit Loans are to be initially C/D Rate Loans or Money Market Loans having a
Money Market Loan Maturity Date of six days or less from the relevant Borrowing
Date, or (iii) one Business Day prior to the requested Borrowing Date,
otherwise), specifying (w) the amount to be borrowed, (x) the requested
Borrowing Date and, in the case of each Money Market Loan, the requested Money
Market Loan Maturity Date, (y) whether the borrowing is to be of Eurodollar
Loans, ABR Loans, C/D Rate Loans, Money Market Loans or a combination thereof
and (z) if the borrowing is to be entirely or partly of Eurodollar Loans or C/D
Rate Loans, the respective amounts of each such Type of Revolving Credit Loan
and the respective lengths of the initial Interest Periods therefor. Each
borrowing under the Facility B Commitments shall be in an amount equal to (i)
in the case of ABR Loans, $500,000 or a whole multiple of $100,000 in excess
thereof (or, if the then aggregate Available Facility B Commitments are less
than $500,000, such lesser amount) and (ii) in the case of Eurodollar Loans,
C/D Rate Loans or Money Market Loans, $3,000,000 or a whole multiple of
$100,000 in excess thereof. Upon receipt of any such notice from the Borrower,
the Administrative Agent shall promptly notify each Lender thereof. Each Lender
will make the amount of its pro rata share of each such borrowing available to
the Administrative Agent for the account of the Borrower at the office of the
Administrative Agent specified in Section 10.2 prior to 11:00 A.M., New York
City time (or in the case of Money Market Loans having a Money Market Loan
Maturity Date of six days or less from the relevant Borrowing Date, 3:00 P.M.,
New York City time), on the Borrowing Date requested by the Borrower in funds
immediately available to the Administrative Agent. Such borrowing will then be
made available to the Borrower by the Administrative Agent crediting the
account of the Borrower on the books of such office with the aggregate of the
amounts made available to the Administrative Agent by the Lenders and in like
funds as received by the Administrative Agent. In no event may the number of
Money Market Loans requested in any calendar month pursuant to this Section
2.2(d), when added to the number of Money Market Loans requested in such
calendar month pursuant to Section 2.1(d), exceed four. In no event may the
number of Money Market Loans requested in any consecutive twelve months
pursuant to this Section 2.2(d), when added to the number of Money Market Loans
requested in such calendar month pursuant to Section 2.1(d), exceed twelve.
(e) Facility B Tranches. Notwithstanding anything to the contrary in
this Agreement, all borrowings, prepayments, conversions and continuations of
Facility B Revolving Credit Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, (i) the aggregate principal
amount of the Facility B Revolving Credit Loans comprising each Facility B
Tranche shall be equal to $3,000,000 or a whole multiple of $100,000 in excess
thereof, (ii) no Lender's share of any Facility B Tranche shall be less than
$500,000 and (iii) there shall be no more than five Tranches outstanding at any
one time.
(f) Termination or Reduction of Facility B Commitments. The Borrower
shall have the right, upon not less than three Business Days' irrevocable
notice to the Administrative Agent, to terminate the Facility B Commitments or,
from time to time, to reduce the amount of the Facility B Commitments; provided
that no such termination or reduction shall be permitted if, after giving
effect thereto and to any payments of the Facility B Revolving Credit Loans
made on the effective date thereof, (i) the aggregate principal amount of the
Facility B Revolving Credit Loans then outstanding, when added to the aggregate
L/C Obligations then outstanding, would exceed the Facility B Commitments then
in effect or (ii) the Available Facility B Commitment of any Lender would be
less than zero. Any such reduction shall be in an amount equal to $1,000,000 or
a whole multiple thereof and shall reduce permanently the Facility B
Commitments then in effect.
22
2.3 Optional Prepayments. The Borrower may at any time and from time
to time prepay the Revolving Credit Loans (subject, in the case of Eurodollar
Loans, C/D Rate Loans and Money Market Loans, to compliance with the terms of
Sections 2.1(e), 2.2(e) and 2.13), in whole or in part, without premium or
penalty, upon at least three Business Days' irrevocable notice to the
Administrative Agent, specifying the date and amount of prepayment and whether
the prepayment is of Eurodollar Loans, C/D Rate Loans, ABR Loans, Money Market
Loans or a combination thereof, and, if of a combination thereof, the amount
allocable to each, provided that such prepayments shall be applied, first, to
the Facility A Revolving Credit Loans and, second, to the Facility B Revolving
Credit Loans. Upon receipt of any such notice the Administrative Agent shall
promptly notify each Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified
therein, together with any amounts payable pursuant to Section 2.13. Partial
prepayments shall be in an aggregate principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof (or, if less, the aggregate outstanding
principal amount of Facility A Revolving Credit Loans or Facility B Revolving
Credit Loans, as the case may be).
2.4 Conversion and Continuation Options. (a) The Borrower may elect
from time to time to convert Eurodollar Loans or C/D Rate Loans to ABR Loans,
and/or to convert Eurodollar Loans or ABR Loans to C/D Rate Loans, by giving
the Administrative Agent at least two Business Days' prior irrevocable notice
of such election, provided that any such conversion of Eurodollar Loans or C/D
Rate Loans may only be made on the last day of an Interest Period with respect
thereto. The Borrower may elect from time to time to convert ABR Loans or C/D
Rate Loans to Eurodollar Loans by giving the Administrative Agent at least
three Business Days' prior irrevocable notice of such election, provided that
any such conversion of C/D Rate Loans may, subject to the third succeeding
sentence, only be made on the last day of an Interest Period with respect
thereto. Any such notice of conversion to Eurodollar Loans or C/D Rate Loans
shall specify the length of the initial Interest Period or Interest Periods
therefor. Upon receipt of any such notice the Administrative Agent shall
promptly notify each affected Lender thereof. If the last day of the then
current Interest Period with respect to C/D Rate Loans that are to be converted
to Eurodollar Loans is not a Business Day, such conversion shall be made on the
next succeeding Business Day, and during the period from such last day to such
succeeding Business Day such Loans shall bear interest as if they were ABR
Loans. All or any part of outstanding Eurodollar Loans, ABR Loans and C/D Rate
Loans may be converted as provided herein, provided that (i) no Loan may be
converted into a Eurodollar Loan or a C/D Rate Loan when any Event of Default
has occurred and is continuing and the Administrative Agent has or the Required
Lenders have determined in its or their sole discretion that such a conversion
is not appropriate, (ii) any such conversion may only be made if, after giving
effect thereto, Sections 2.1(e) and 2.2(e) would not be contravened and (iii)
no Revolving Credit Loan may be converted into a Eurodollar Loan or a C/D Rate
Loan after the date that is one month or 30 days, respectively, prior to the
Facility A Termination Date (in the case of Facility A Revolving Credit Loans)
or the Facility B Termination Date (in the case of Facility B Revolving Credit
Loans).
(b) Any Eurodollar Loans or C/D Rate Loans may be continued as such
upon the expiration of the then current Interest Period with respect thereto by
the Borrower giving irrevocable notice to the Administrative Agent, in
accordance with the applicable provisions of the term "Interest Period" set
forth in Section 1.1, of the length of the next Interest Period to be
applicable to such Loans, provided that no Eurodollar Loan or C/D Rate Loan may
be continued as such (i) when any Event of Default has occurred and is
continuing and the Administrative Agent has or the Required Lenders have
determined in its or their sole discretion that such a continuation is not
appropriate, (ii) if, after giving effect thereto, Sections 2.1(e) and 2.2(e)
would be contravened or (iii) after the date that is one month or 30 days,
respectively, prior to the Facility A Termination Date (in the case of Facility
A Revolving Credit Loans) or the Facility B Termination Date (in the case of
Facility B Revolving Credit Loans), and provided, further, that if the Borrower
shall fail to give any required notice as described above in this paragraph or
if such continuation is not permitted pursuant to the preceding proviso such
Loans shall be automatically converted to ABR Loans on the last day of such
then expiring Interest Period.
2.5 Fees. (a) The Borrower agrees to pay to the Administrative Agent
for the account of each Facility A Lender a commitment fee (the "Facility A
Commitment Fee") for the period from and including the first day of the
Facility A Commitment Period to the Facility A Termination Date, computed at
the Facility A Commitment Fee Rate on the average daily amount of the Available
Facility A Commitment of such Lender during the period for which payment is
made (taking into consideration any reductions in the Facility A Commitment of
such Lender pursuant to Section 2.1(f) occurring during such period), payable
monthly in arrears and on the Facility A Termination Date or such earlier date
as the Facility A Commitments shall terminate as provided herein, commencing on
the first of such dates to occur after the Closing Date.
23
(b) The Borrower agrees to pay to the Administrative Agent for the
account of each Facility B Lender a commitment fee (the "Facility B Commitment
Fee") for the period from and including the first day of the Facility B
Commitment Period to the Facility B Termination Date, computed at the Facility
B Commitment Fee Rate on the average daily amount of the Available Facility B
Commitment of such Lender during the period for which payment is made (taking
into consideration any reductions in the Facility B Commitment of such Lender
pursuant to Section 2.2(f) occurring during such period), payable monthly in
arrears and on the Facility B Termination Date or such earlier date as the
Facility B Commitments shall terminate as provided herein, commencing on the
first of such dates to occur after the Closing Date.
(c) The Borrower shall pay to the Administrative Agent, for its own
account, and, to the extent mutually agreed upon by the Administrative Agent
and the Lenders, for the account of the Lenders, the fees in the amounts and on
the dates previously agreed to in writing by the Borrower.
2.6 Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall
bear interest for each day during each Interest Period with respect thereto at
a rate per annum equal to the Eurodollar Rate determined for such day plus the
Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to
the ABR plus the Applicable Margin.
(c) Each C/D Rate Loan shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal to the C/D Rate
determined for such day plus the Applicable Margin.
(d) Each Money Market Loan shall bear interest at a rate per annum
equal to the Money Market Rate applicable thereto plus the Applicable Margin.
(e) If all or a portion of (i) the principal amount of any Revolving
Credit Loan, (ii) any interest payable thereon or (iii) any commitment fee or
other amount payable hereunder shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum which is (x) in the case of overdue principal
(except as otherwise specified in clause (y) below), the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
Section 2.6 plus 3% or (y) in the case of any overdue principal with respect to
Money Market Loans or any overdue interest, commitment fee or other amount, the
rate described in Section 2.6(b) plus 3%, in each case from the date of such
non-payment to the date on which such amount is paid in full (as well after as
before judgment).
(f) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to Section 2.6(e) shall be
payable from time to time on demand.
2.7 Computation of Interest and Fees. (a) Commitment fees and
interest (other than interest calculated on the basis of the Prime Rate) shall
be calculated on the basis of a 360-day year for the actual days elapsed.
Interest calculated on the basis of the Prime Rate shall be calculated on the
basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed. The Administrative Agent shall as soon as practicable notify the
Borrower and the Lenders of each determination of a Eurodollar Rate, C/D Rate
or Money Market Rate. Any change in the interest rate on a Revolving Credit
Loan resulting from a change in the ABR or the C/D Assessment Rate shall become
effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify the
Borrower and the Lenders of the effective date and the amount of each such
change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate with respect to any Eurodollar Loan or C/D Rate
Loan.
2.8 Inability to Determine Interest Rate; Unavailability of C/D Rate
Option. If prior to the first day of any Interest Period:
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(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate or the
C/D Rate for such Interest Period,
(b) the Administrative Agent shall have received notice from the
Required Lenders that the Eurodollar Rate or the C/D Rate determined or to
be determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Revolving Credit Loans
during such Interest Period, or
(c) the Administrative Agent shall have received notice from any
Lender that it is unable to fund Revolving Credit Loans hereunder on the
basis of the C/D Rate,
the Administrative Agent shall give telecopy or telephonic notice thereof to
the Borrower and the Lenders as soon as practicable thereafter. If such notice
is given (x) any Eurodollar Loans or C/D Rate Loans, as the case may be,
requested to be made on the first day of such Interest Period shall be made as
ABR Loans, (y) any Revolving Credit Loans that were to have been converted on
the first day of such Interest Period to Eurodollar Loans or C/D Rate Loans, as
the case may be, shall be converted to or continued as ABR Loans and (z) any
outstanding Eurodollar Loans or C/D Rate Loans, as the case may be, shall be
converted, on the first day of such Interest Period, to ABR Loans. Until such
notice has been withdrawn by the Administrative Agent, no further Eurodollar
Loans or C/D Rate Loans, as the case may be, shall be made or continued as
such, nor shall the Borrower have the right to convert Revolving Credit Loans
to Eurodollar Loans or C/D Rate Loans, as the case may be.
2.9 Pro Rata Treatment and Payments. (a) Each borrowing by the
Borrower from the Facility A Lenders hereunder, each payment by the Borrower on
account of any Facility A Commitment Fee hereunder and any reduction of the
Facility A Commitments of the Facility A Lenders shall be made pro rata
according to the respective Facility A Commitment Percentages of the Facility A
Lenders. Each payment (including each prepayment) by the Borrower on account of
principal of and interest on the Facility A Revolving Credit Loans shall be
made pro rata according to the respective outstanding principal amounts of the
Facility A Revolving Credit Loans then held by the Facility A Lenders. Each
borrowing by the Borrower from the Facility B Lenders hereunder, each payment
by the Borrower on account of any Facility B Commitment Fee hereunder and any
reduction of the Facility B Commitments of the Facility B Lenders shall be made
pro rata according to the respective Facility B Commitment Percentages of the
Facility B Lenders. Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Facility B Revolving Credit Loans
shall be made pro rata according to the respective outstanding principal
amounts of the Facility B Revolving Credit Loans then held by the Facility B
Lenders. All payments (including prepayments) to be made by the Borrower
hereunder and under the Notes, whether on account of principal, interest, fees
or otherwise, shall be made without setoff or counterclaim and shall be made
prior to 12:00 Noon, New York City time, on the due date thereof to the
Administrative Agent, for the account of the Lenders, at the Administrative
Agent's office specified in Section 10.2, in Dollars and in immediately
available funds. It is understood that, if any payment of principal is made on
any day in accordance with the preceding sentence, no interest shall accrue on
such day in respect of such principal. The Administrative Agent shall
distribute such payments to the Lenders promptly upon receipt in like funds as
received. If any payment hereunder (other than payments on Eurodollar Loans)
becomes due and payable on a day other than a Business Day, such payment shall
be extended to the next succeeding Business Day, and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate
during such extension. If any payment on a Eurodollar Loan becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day (and, with respect to any such
payments of principal, interest thereon shall be payable at the then applicable
rate during such extension) unless the result of such extension would be to
extend such payment into another calendar month, in which event such payment
shall be made on the immediately preceding Business Day.
(b) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If such amount is not made available to
the Administrative Agent by the required time on the Borrowing Date therefor,
such Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Effective
Rate for the period until such Lender makes such amount immediately available
to the Administrative Agent. A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts owing under this Section
2.9(b) shall be
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conclusive in the absence of manifest error. If such Lender's share of such
borrowing is not made available to the Administrative Agent by such Lender
within three Business Days of such Borrowing Date, the Administrative Agent
shall also be entitled to recover such amount with interest thereon at the rate
per annum applicable to ABR Loans hereunder, on demand, from the Borrower.
2.10 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such
Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such
and convert C/D Rate Loans or ABR Loans to Eurodollar Loans shall forthwith be
cancelled and (b) such Lender's Revolving Credit Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to ABR Loans on the
respective last days of the then current Interest Periods with respect to such
Loans or within such earlier period as required by law. If any such conversion
of a Eurodollar Loan occurs on a day which is not the last day of the then
current Interest Period with respect thereto, the Borrower shall pay to such
Lender such amounts, if any, as may be required pursuant to Section 2.13.
2.11 Requirements of Law. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the Closing Date:
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement, any Note, any Letter of Credit or any
Application or any Eurodollar Loan, C/D Rate Loan or Money Market Loan
made by it, or change the basis of taxation of payments to such Lender in
respect thereof (except in each case for Non-Excluded Taxes covered by
Section 2.12 and changes in the rate of tax on the overall net income of
such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
relevant office of such Lender which is not otherwise included in the
determination of the Eurodollar Rate, the C/D Rate or the Money Market
Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting
into, continuing or maintaining Eurodollar Loans, C/D Rate Loans or Money
Market Loans or issuing or participating in Letters of Credit or to reduce any
amount receivable hereunder in respect thereof, then, in any such case, the
Borrower shall promptly pay such Lender, upon its demand, any additional
amounts necessary to compensate such Lender for such increased cost or reduced
amount receivable. If any Lender becomes entitled to claim any additional
amounts pursuant to this Section 2.11(a), it shall promptly notify the
Borrower, through the Administrative Agent, of the event by reason of which it
has become so entitled.
(b) If any Lender shall have determined that the application of any
Requirement of Law regarding capital adequacy or compliance by such Lender or
any corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority does or shall have the effect of reducing the rate of return on such
Lender's or such corporation's capital as a consequence of its obligations
hereunder or under any Letter of Credit to a level below that which such Lender
or such corporation could have achieved but for such application or compliance
(taking into consideration such Lender's or such corporation's policies with
respect to capital adequacy and such Lender's treatment of its Commitments for
internal purposes as of the date on which it became a party hereto) by an
amount deemed by such Lender to be material, then from time to time, after
submission by such Lender to the Borrower (with a copy to the Administrative
Agent) of a written request therefor (setting forth in reasonable detail the
basis for such request), the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender for such reduction.
(c) The Borrower agrees to pay to each Lender which requests
compensation under this Section 2.11(c) (by notice to the Borrower), on the
last day of each Interest Period with respect to any Eurodollar Loan made
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by such Lender, so long as such Lender shall be required to maintain reserves
against "Eurocurrency liabilities" under Regulation D of the Board (or, so long
as such Lender may be required by the Board or by any other Governmental
Authority to maintain reserves against any other category of liabilities which
includes deposits by reference to which the interest rate on Eurodollar Loans
is determined as provided in this Agreement or against any category of
extensions of credit or other assets of such Lender which includes any
Eurodollar Loans), an additional amount (determined by such Lender and notified
to the Borrower) representing such Lender's calculation or, if an accurate
calculation is impracticable, reasonable estimate (using such reasonable means
of allocation as such Lender shall determine) of the actual costs, if any,
incurred by such Lender during such Interest Period, as a result of the
applicability of the foregoing reserves to such Eurodollar Loans, which amount
in any event shall not exceed the product of the following for each day of such
Interest Period:
(i) the principal amount of the Eurodollar Loans made by
such Lender to which such Interest Period relates and outstanding on
such day; and
(ii) the difference between (x) a fraction the numerator of
which is the Eurodollar Rate (expressed as a decimal) applicable to
such Eurodollar Loan, and the denominator of which is one minus the
maximum rate (expressed as a decimal) at which such reserve
requirements are imposed by the Board or other Governmental Authority
on such date minus (y) such numerator; and
(iii) a fraction the numerator of which is one and the
denominator of which is 360.
Any Lender which gives notice under this Section 2.11(c) shall promptly
withdraw such notice (by written notice of withdrawal given to the
Administrative Agent and the Borrower) in the event such Lender is no longer
required to maintain such reserves or the circumstances giving rise to such
notice shall otherwise cease to exist.
(d) The Borrower agrees to pay to each Lender which requests
compensation under this Section 2.11(d) (by notice to the Borrower), on the
last day of each Interest Period with respect to any C/D Rate Loan made by such
Lender, so long as such Lender shall be required to maintain reserves against
"non-personal time deposits" under Regulation D of the Board (or, so long as
such Lender may be required by the Board or by any other Governmental Authority
to maintain reserves against any other category of liabilities which includes
deposits by reference to which the interest rate on C/D Rate Loans is
determined as provided in this Agreement or against any category of extensions
of credit or other assets of such Lender which includes any C/D Rate Loans), an
additional amount (determined by such Lender and notified to the Borrower)
representing such Lender's calculation or, if an accurate calculation is
impracticable, reasonable estimate (using such reasonable means of allocation
as such Lender shall determine) of the actual costs, if any, incurred by such
Lender during such Interest Period, as a result of the applicability of the
foregoing reserves to such C/D Rate Loans, which amount in any event shall not
exceed the product of the following for each day of such Interest Period:
(i) the principal amount of the C/D Rate Loans made by such
Lender to which such Interest Period relates and outstanding on such
day; and
(ii) the difference between (x) a fraction the numerator of
which is the C/D Rate (expressed as a decimal) applicable to such C/D
Rate Loan, and the denominator of which is one minus the maximum rate
(expressed as a decimal) at which such reserve requirements are
imposed by the Board or other Governmental Authority on such date
minus (y) such numerator; and
(iii) a fraction the numerator of which is one and the
denominator of which is 360.
Any Lender which gives notice under this Section 2.11(d) shall promptly
withdraw such notice (by written notice of withdrawal given to the
Administrative Agent and the Borrower) in the event such Lender is no longer
required to maintain such reserves or the circumstances giving rise to such
notice shall otherwise cease to exist.
(e) A certificate as to any additional amounts payable pursuant to
this Section 2.11 submitted by any Lender, through the Administrative Agent, to
the Borrower shall be conclusive in the absence of manifest error.
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The agreements in this Section 2.11 shall survive the termination of this
Agreement and the payment of the Revolving Credit Loans and all other amounts
payable hereunder (the date on which all of the foregoing shall have occurred,
the "Final Date") until the first anniversary of the Final Date.
2.12 Taxes. (a) All payments made by the Borrower under this
Agreement and the Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, excluding net income taxes and franchise taxes
(imposed in lieu of net income taxes) imposed on the Administrative Agent or
any Lender as a result of a present or former connection between the
Administrative Agent or such Lender and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from the
Administrative Agent or such Lender having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or the
Notes). If any such non-excluded taxes, levies, imposts, duties, charges, fees
deductions or withholdings ("Non-Excluded Taxes") are required to be withheld
from any amounts payable to the Administrative Agent or any Lender hereunder or
under the Notes, the amounts so payable to the Administrative Agent or such
Lender shall be increased to the extent necessary to yield to the
Administrative Agent or such Lender (after payment of all Non- Excluded Taxes)
interest or any such other amounts payable hereunder at the rates or in the
amounts specified in this Agreement and the Notes, provided, however, that the
Borrower shall not be required to increase any such amounts payable to any
Non-U.S. Lender if such Lender fails to comply with the requirements of Section
2.12(b). Whenever any Non-Excluded Taxes are payable by the Borrower, as
promptly as possible thereafter the Borrower shall send to the Administrative
Agent for its own account or for the account of such Lender, as the case may
be, a certified copy of an original official receipt received by the Borrower
showing payment thereof. If the Borrower fails to pay any Non-Excluded Taxes
when due to the appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required documentary
evidence, the Borrower shall indemnify the Administrative Agent and the Lenders
for any incremental taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure. The
agreements in this Section 2.12(a) shall survive the termination of this
Agreement and the payment of the Revolving Credit Loans and all other amounts
payable hereunder.
(b) Each Lender (or Transferee) that is not a citizen or resident of
the United States of America, a corporation, partnership or other entity
created or organized in or under the laws of the United States of America, or
any estate or trust that is subject to federal income taxation regardless of
the source of its income (a "Non-U.S. Lender") shall deliver to the Borrower
and the Administrative Agent (or, in the case of a Participant, to the Lender
from which the related participation shall have been purchased) two copies of
either U.S. Internal Revenue Service Form 1001 or Form 4224, or, in the case of
a Non-U.S. Lender claiming exemption from U.S. federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of "portfolio
interest", a Form W-8, or any subsequent versions thereof or successors thereto
(and, if such Non-U.S. Lender delivers a Form W-8, an annual certificate
representing under penalty of perjury that such Non-U.S. Lender is not a "bank"
for purposes of Section 881(c) of the Code, is not a 10-percent shareholder
(within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is
not a controlled foreign corporation related to the Borrower (within the
meaning of Section 864(d)(4) of the Code)), properly completed and duly
executed by such Non-U.S. Lender claiming complete exemption from, or a reduced
rate of, U.S. federal withholding tax on all payments by the Borrower under
this Agreement and the other Loan Documents. Such forms shall be delivered by
each Non-U.S. Lender on or before the date it becomes a party to this Agreement
(or, in the case of any Participant, on or before the date such Participant
purchases the related participation). In addition, each Non-U.S. Lender shall
deliver such forms promptly upon the obsolescence or invalidity of any form
previously delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall
promptly notify the Borrower at any time it determines that it is no longer in
a position to provide any previously delivered certificate to the Borrower (or
any other form of certification adopted by the U.S. taxing authorities for such
purpose). Notwithstanding any other provision of this Section 2.12(b), a
Non-U.S. Lender shall not be required to deliver any form pursuant to this
Section 2.12(b) that such Non-U.S. Lender is not legally able to deliver.
2.13 Indemnity. The Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of Eurodollar Loans, C/D Rate Loans or Money Market Loans, or in the
conversion into or continuation of Eurodollar Loans or C/D Rate Loans, after
the Borrower has given a notice requesting or accepting the same in accordance
with the provisions of this Agreement, (b) default by the Borrower in making
any prepayment after the Borrower has given a notice thereof in accordance with
the provisions of this Agreement, or (c) the making of a prepayment of
Eurodollar Loans, C/D Rate Loans or Money Market Loans on a
28
day which is not the last day of an Interest Period, or the Money Market Loan
Maturity Date, as the case may be, with respect thereto. Such indemnification
may, at the option of any Lender, include an amount equal to the excess, if
any, of (i) the amount of interest which would have accrued on the amount so
prepaid, or not so borrowed, converted or continued, for the period from the
date of such prepayment or of such failure to borrow, convert or continue to
the last day of the relevant Interest Period or the relevant Money Market Loan
Maturity Date, as the case may be (or proposed Interest Period or proposed
Money Market Loan Maturity Date, as the case may be), in each case at the
applicable rate of interest for such Loans provided for herein (excluding,
however, the Applicable Margin) over (ii) the amount of interest (as reasonably
determined by such Lender) which would have accrued to such Lender on such
amount by placing such amount on deposit for a comparable period with leading
banks in the interbank eurodollar market or other relevant market. This
covenant shall survive the termination of this Agreement and the payment of the
Revolving Credit Loans and all other amounts payable hereunder until the first
anniversary of the Final Date.
2.14 Change of Lending Office. Each Lender and each Transferee agrees
that, upon the occurrence of any event giving rise to the operation of Section
2.10, 2.11 or 2.12 with respect to such Lender or Transferee, it will, if
requested by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Lender or Transferee) to designate another lending
office for any Loans affected by such event with the object of avoiding the
consequences of such event; provided, that such designation is made on terms
that, in the sole judgment of such Lender or Transferee, cause such Lender or
Transferee and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section 2.14 shall
affect or postpone any of the obligations of any Borrower or the rights of any
Lender or Transferee pursuant to Sections 2.10, 2.11 and 2.12.
2.15 Replacement of Lenders under Certain Circumstances. The Borrower
shall be permitted to replace any Lender which (a) requests reimbursement for
amounts owing pursuant to Section 2.11 or 2.12, (b) is affected in the manner
described in Section 2.10 and as a result thereof any of the actions described
in Section 2.10 is required to be taken or (c) defaults in its obligation to
make Revolving Credit Loans hereunder, with a replacement bank or other
financial institution; provided that (i) such replacement does not conflict
with any Requirement of Law, (ii) no Event of Default shall have occurred and
be continuing at the time of such replacement, (iii) the Borrower shall repay
(or the replacement bank or institution shall purchase, at par) all Revolving
Credit Loans and other amounts owing to such replaced Lender prior to the date
of replacement, (iv) the Borrower shall be liable to such replaced Lender under
Section 2.13 if any Eurodollar Loan, C/D Rate Loan or Money Market Loan owing
to such replaced Lender shall be prepaid (or purchased) other than on the last
day of the Interest Period or the Money Market Loan Maturity Date, as the case
may be, relating thereto, (v) the replacement bank or institution, if not
already a Lender, and the terms and conditions of such replacement, shall be
satisfactory to the Administrative Agent and the Issuing Lender, (vi) the
replaced Lender shall be obligated to make such replacement in accordance with
the provisions of Section 10.8 (provided that the Borrower shall be obligated
to pay the registration and processing fee referred to therein), (vii) until
such time as such replacement shall be consummated, the Borrower shall pay all
additional amounts (if any) required pursuant to Section 2.11 or 2.12, as the
case may be, and (viii) any such replacement shall not be deemed to be a waiver
of any rights which the Borrower, the Administrative Agent or any other Lender
shall have against the replaced Lender.
2.16 Facility B Extension Procedure. On any Business Day which is at
least 90 days (but no more than 150 days) prior to the date (the "Renewal
Date") which is two years prior to the then current Facility B Termination
Date, the Borrower may notify the Administrative Agent in writing of the
Borrower's desire to extend the Facility B Termination Date to a date which is
the anniversary of such then current Facility B Termination Date, and upon (a)
consent in writing given to the Administrative Agent and the Borrower by each
Lender on or prior to a date which is thirty days before the applicable Renewal
Date and (b) receipt by each Lender of an extension fee to be agreed upon by
each Lender, the Facility B Termination Date shall be extended to such
requested date. If any Lender does not consent to the extension of the Facility
B Termination Date pursuant to this Section 2.16 (which determination shall be
made by each Lender in its sole discretion), all of the Facility B Commitments
shall terminate on the Facility B Termination Date in effect prior to the
request for extension.
SECTION 3. LETTERS OF CREDIT
3.1. L/C Commitment. (a) Subject to the terms and conditions hereof,
the Issuing Lender, in reliance on the agreements of the other Facility B
Lenders set forth in Section 0, agrees to issue letters of credit
29
("Letters of Credit") for the account of the Borrower on any Business Day
during the Facility B Commitment Period in such form as may be approved from
time to time by the Issuing Lender; provided that the Issuing Lender shall have
no obligation to issue any Letter of Credit if, after giving effect to such
issuance, (i) the L/C Obligations would exceed the L/C Commitment or (ii) the
Available Facility B Commitment of any Facility B Lender would be less than
zero.
(b) Each Letter of Credit (i) shall be denominated in Dollars, (ii)
shall be a standby letter of credit issued to support obligations of the
Borrower and its Subsidiaries, contingent or otherwise, incurred in the
ordinary course of business and (iii) shall expire no later than the earlier of
the first anniversary of the date of issuance thereof or five Business Days
prior to the Facility B Termination Date (or, in the case of any Letter of
Credit with automatic renewal or evergreen provisions, shall have a final
expiration date no later than five Business Days prior to the Facility B
Termination Date).
(c) Each Letter of Credit shall be subject to the Uniform Customs
and, to the extent not inconsistent therewith, the laws of the State of New
York.
(d) The Issuing Lender shall not at any time be obligated to issue
any Letter of Credit hereunder if such issuance would conflict with, or cause
the Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
3.2. Procedure for Issuance of Letters of Credit. The Borrower may
from time to time request that the Issuing Lender issue a Letter of Credit by
delivering to the Issuing Lender at its address for notices specified herein an
Application therefor, completed to the satisfaction of the Issuing Lender, and
such other certificates, documents and other papers and information as the
Issuing Lender may request. Upon receipt of any Application, the Issuing Lender
will process such Application and the certificates, documents and other papers
and information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby (but in no event shall the Issuing Lender be required to issue any
Letter of Credit earlier than three Business Days after its receipt of the
Application therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the original of such Letter
of Credit to the beneficiary thereof or as otherwise may be agreed by the
Issuing Lender and the Borrower. The Issuing Lender shall furnish a copy of
such Letter of Credit to the Borrower promptly following the issuance thereof.
3.3. Fees and Other Charges. (a) The Borrower shall pay to the
Administrative Agent, for the account of the Issuing Lender and the L/C
Participants, a letter of credit fee with respect to each Letter of Credit at a
per annum rate, for each day during the period from the date of issuance of
such Letter of Credit to the first date thereafter on which such Letter of
Credit shall expire or be cancelled or fully drawn (the "L/C Termination
Date"), equal to the L/C Fee Rate in effect on such day, calculated on the
basis of a 360-day year, of the aggregate amount available to be drawn under
such Letter of Credit on such day. In addition, the Borrower shall pay to the
Issuing Lender for its own account a fronting fee of 0.10% per annum on the
undrawn and unexpired amount of each Letter of Credit. Letter of credit fees
and fronting fees pursuant to this paragraph shall be payable quarterly in
arrears on each L/C Fee Payment Date to occur while the relevant Letter of
Credit is outstanding and shall be nonrefundable.
(b) In addition to the foregoing fees, the Borrower shall pay or
reimburse the Issuing Lender for such normal and customary costs and expenses
as are incurred or charged by the Issuing Lender in issuing, effecting payment
under, amending or otherwise administering any Letter of Credit.
(c) The Administrative Agent shall, promptly following its receipt
thereof, distribute to the Issuing Lender and the L/C Participants all fees
received by the Administrative Agent for their respective accounts pursuant to
this Section 3.3.
3.4. L/C Participations. (a) The Issuing Lender irrevocably agrees to
grant and hereby grants to each L/C Participant, and, to induce the Issuing
Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from the Issuing
Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Commitment Percentage in the Issuing Lender's obligations and
rights under each Letter of Credit issued hereunder and the amount of each
draft paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if a draft
is paid under any Letter of Credit for which the Issuing Lender is not
reimbursed in full by the Borrower in accordance with the terms of this
Agreement,
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such L/C Participant shall pay to the Issuing Lender upon demand at the Issuing
Lender's address for notices specified herein an amount equal to such L/C
Participant's Facility B Commitment Percentage of the amount of such draft, or
any part thereof, which is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to the
Issuing Lender pursuant to Section 0 in respect of any unreimbursed portion of
any payment made by the Issuing Lender under any Letter of Credit is paid to
the Issuing Lender within three Business Days after the date such payment is
due, such L/C Participant shall pay to the Issuing Lender on demand an amount
equal to the product of (i) such amount, times (ii) the daily average Federal
funds rate, as quoted by the Issuing Lender, during the period from and
including the date such payment is required to the date on which such payment
is immediately available to the Issuing Lender, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. If any such amount required to be paid by any L/C
Participant pursuant to Section 0 is not in fact made available to the Issuing
Lender by such L/C Participant within three Business Days after the date such
payment is due, the Issuing Lender shall be entitled to recover from such L/C
Participant, on demand, such amount with interest thereon calculated from such
due date at the rate per annum applicable to ABR Loans hereunder. A certificate
of the Issuing Lender submitted to any L/C Participant with respect to any
amounts owing under this Section shall be conclusive in the absence of manifest
error.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its pro
rata share of such payment in accordance with this Section 3.4, the Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise, including proceeds of collateral applied
thereto by the Issuing Lender), or any payment of interest on account thereof,
the Issuing Lender will promptly distribute to such L/C Participant its pro
rata share thereof; provided, however, that in the event that any such payment
received by the Issuing Lender shall be required to be returned by the Issuing
Lender, such L/C Participant shall return to the Issuing Lender the portion
thereof previously distributed by the Issuing Lender to it.
3.5. Reimbursement Obligation of the Borrower. (a) The Borrower
agrees to reimburse the Issuing Lender on each date on which the Issuing Lender
notifies the Borrower of the date and amount of a draft presented under any
Letter of Credit and paid by the Issuing Lender for the amount of (i) such
draft so paid (which reimbursement may be effected through the procedure
described in Section 3.5(c)) and (ii) any taxes, fees, charges or other costs
or expenses incurred by the Issuing Lender in connection with such payment.
Each such payment shall be made to the Issuing Lender at its address for
notices specified herein in lawful money of the United States of America and in
immediately available funds.
(b) Interest shall be payable on any and all amounts remaining unpaid
by the Borrower under this Section 3 from the date such amounts become payable
(whether at stated maturity, by acceleration or otherwise) until payment in
full at the rate which would be payable on any outstanding ABR Loans which were
then overdue.
(c) Each drawing under any Letter of Credit shall constitute a
request by the Borrower to the Administrative Agent for a borrowing pursuant to
Section 2.2(d) of ABR Loans in the amount of such drawing. The Borrowing Date
with respect to such borrowing shall be the date of such drawing.
3.6. Obligations Absolute. (a) The Borrower's obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against the Issuing Lender or any beneficiary of
a Letter of Credit.
(b) The Borrower also agrees with the Issuing Lender that the Issuing
Lender shall not be responsible for, and the Borrower's Reimbursement
Obligations under Section 0 shall not be affected by, among other things, (i)
the validity or genuineness of documents or of any endorsements thereon, even
though such documents shall in fact prove to be invalid, fraudulent or forged,
or (ii) any dispute between or among the Borrower and any beneficiary of any
Letter of Credit or any other party to which such Letter of Credit may be
transferred or (iii) any claims whatsoever of the Borrower against any
beneficiary of such Letter of Credit or any such transferee.
(c) The Issuing Lender shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit, except
for errors or omissions caused by the Issuing Lender's gross negligence or
willful misconduct.
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(d) The Borrower agrees that any action taken or omitted by the
Issuing Lender under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence of willful
misconduct and in accordance with the standards of care specified in the
Uniform Commercial Code of the State of New York, shall be binding on the
Borrower and shall not result in any liability of the Issuing Lender to the
Borrower.
3.7. Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the Issuing Lender shall promptly notify
the Borrower of the date and amount thereof. The responsibility of the Issuing
Lender to the Borrower in connection with any draft presented for payment under
any Letter of Credit shall, in addition to any payment obligation expressly
provided for in such Letter of Credit, be limited to determining that the
documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are in conformity with such Letter of Credit.
3.8. Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
3.9. Subsidiary Account Party. Notwithstanding anything to the
contrary in this Agreement, it is understood that (a) Kimco Development of
Kettering, Inc., a Wholly Owned Subsidiary Guarantor, rather than the Borrower,
shall be the account party with respect to the Letter of Credit identified on
Schedule 3.9, (b) all of the provisions of this Agreement relating to the
Letters of Credit shall apply, mutatis mutandis, to such Subsidiary Guarantor
in respect of such Letter of Credit and (c) the Borrower shall be jointly and
severally liable, unconditionally, for all of the obligations of such
Subsidiary Guarantor arising in respect of such Letter of Credit.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement, to make or maintain the Revolving Credit Loans, and to issue or
participate in the Letters of Credit, the Borrower hereby represents and
warrants to the Administrative Agent and each Lender that:
4.1 Financial Condition. The consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at December 31, 1997 and the
related consolidated statements of income and of cash flows for the fiscal year
ended on such date, reported on by Pricewaterhouse Coopers, LLP, copies of
which have heretofore been furnished to the Lenders, are complete and correct
and present fairly the consolidated financial condition of the Borrower and its
consolidated Subsidiaries as at such dates, and the consolidated results of
their operations and their consolidated cash flows for the fiscal year then
ended. The unaudited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at June 30, 1998 and the related unaudited
consolidated statements of income and of cash flows for the six-month period
ended on such date, certified by a Responsible Officer, copies of which have
heretofore been furnished to the Lenders, are complete and correct and present
fairly the consolidated financial condition of the Borrower and its
consolidated Subsidiaries as at such date, and the consolidated results of
their operations and their consolidated cash flows for the six-month period
then ended (subject to normal year-end audit adjustments). All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved (except as approved by such accountants or Responsible Officer, as the
case may be, and as disclosed therein). Except as set forth on Schedule 4.1,
neither the Borrower nor any of its consolidated Subsidiaries has, at the
Closing Date, any material Indebtedness, Guarantee Obligation, contingent
liability or liability for taxes, or any unusual forward or long-term
commitment, including, without limitation, any interest rate or foreign
currency swap or exchange transaction, which is not reflected in the foregoing
statements or in the notes thereto. Except as set forth on Schedule 4.1, during
the period from December 31, 1997 to and including the Closing Date there has
been no sale, transfer or other disposition by the Borrower or any of its
consolidated Subsidiaries of any material part of its business or property and
no purchase or other acquisition of any business or property (including any
capital stock of any other Person) material in relation to the consolidated
financial condition of the Borrower and its consolidated Subsidiaries at
December 31, 1997.
4.2 No Change. Since December 31, 1997 (a) there has been no
development or event nor any prospective development or event, which has had or
could reasonably be expected to have a Material Adverse Effect and (b) except
for regular quarterly dividends, no dividends or other distributions have been
declared, paid or made
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upon the Capital Stock of the Borrower nor has any of the Capital Stock of the
Borrower been redeemed, retired, purchased or otherwise acquired for value by
the Borrower or any of its Subsidiaries.
4.3 Corporate Existence; Compliance with Law. (a) The Borrower (i) is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has the corporate power and authority,
and the legal right, to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently
engaged, (iii) is duly qualified as a foreign corporation and in good standing
under the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification, except to
the extent the failure to be so qualified and in good standing could not, in
the aggregate, reasonably be expected to have a Material Adverse Effect, and
(iv) is in compliance with all Requirements of Law except to the extent that
the failure to comply therewith could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(b) Each Subsidiary of the Borrower (i) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (ii) has the corporate power and authority, and the legal right,
to own and operate its property, to lease the property it operates as lessee
and to conduct the business in which it is currently engaged, (iii) is duly
qualified as a foreign corporation and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification, and (iv) is in compliance with all
Requirements of Law except, in the case of clauses (i), (ii), (iii) or (iv)
above, as could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations. Each
Loan Party has the corporate power and authority, and the legal right, to make,
deliver and perform each Loan Document to which it is a party and, in the case
of the Borrower, to borrow hereunder and each Loan Party has taken all
necessary corporate action to authorize the execution, delivery and performance
of each Loan Document to which it is a party and, in the case of the Borrower,
the borrowings on the terms and conditions of this Agreement. No consent or
authorization of, filing with or other act by or in respect of, any
Governmental Authority or any other Person is required in connection with the
borrowings hereunder or with the execution, delivery, performance, validity or
enforceability of any Loan Document. Each Loan Document has been duly executed
and delivered on behalf of each Loan Party party thereto. Each Loan Document
constitutes a legal, valid and binding obligation of each Loan Party party
thereto enforceable against each such Loan Party in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
4.5 No Legal Bar. The execution, delivery and performance of the Loan
Documents and the borrowings hereunder and the use of the proceeds thereof will
not violate any Requirement of Law or any Contractual Obligation of the
Borrower or of any of its Subsidiaries and will not result in, or require, the
creation or imposition of any Lien on any of its or their respective properties
or revenues pursuant to any such Requirement of Law or Contractual Obligation.
4.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, threatened by or against the Borrower or any
of its Subsidiaries or against any of its or their respective properties or
revenues (a) with respect to this Agreement, the other Loan Documents or any of
the transactions contemplated hereby, or (b) which could reasonably be expected
to have a Material Adverse Effect.
4.7 No Default. Neither the Borrower nor any of its Subsidiaries is
in default under or with respect to any of its Contractual Obligations in any
respect which could reasonably be expected to have a Material Adverse Effect.
No Default or Event of Default has occurred and is continuing.
4.8 Ownership of Property. Each of the Borrower and its Subsidiaries
has good record title in fee simple to, or a valid leasehold interest in, all
its material real property, and good title to all its other material property.
4.9 Intellectual Property. The Borrower and each of its Subsidiaries
owns, or is licensed to use, all trademarks, tradenames, copyrights,
technology, know-how and processes ("Intellectual Property") necessary for the
conduct of its business as currently conducted except for those the failure to
own or license which could not reasonably be expected to have a Material
Adverse Effect. No claim has been asserted and is pending by any Person
33
challenging or questioning the use of any Intellectual Property or the validity
or effectiveness of any Intellectual Property, nor does the Borrower know of
any valid basis for any such claim. The use of such Intellectual Property by
the Borrower and its Subsidiaries does not infringe on the rights of any
Person, except for such claims and infringements that, in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.
4.10 No Burdensome Restrictions. No Requirement of Law or Contractual
Obligation of the Borrower or any of its Subsidiaries could reasonably be
expected to have a Material Adverse Effect.
4.11 Taxes. Each of the Borrower and its Subsidiaries has filed or
caused to be filed all tax returns which, to the knowledge of the Borrower, are
required to be filed and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower or its Subsidiaries, as the case may be); no tax Lien has
been filed, and, to the knowledge of the Borrower, no claim is being asserted,
with respect to any such tax, fee or other charge.
4.12 Federal Regulations. No part of the proceeds of any Revolving
Credit Loans will be used for "purchasing" or "carrying" any "margin stock"
within the respective meanings of each of the quoted terms under Regulation U
of the Board as now and from time to time hereafter in effect or for any
purpose which violates the provisions of the Regulations of the Board. If
requested by the Administrative Agent, the Borrower will furnish to the
Administrative Agent a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in said Regulation U.
4.13 ERISA. No Reportable Event has occurred during the five-year
period prior to the date on which this representation is made or deemed made
with respect to any Plan, and each Plan has complied in all material respects
with the applicable provisions of ERISA and the Code. The present value of all
accrued benefits under each Single Employer Plan maintained by the Borrower or
any Commonly Controlled Entity (based on those assumptions used to fund the
Plans) did not, as of the last annual valuation date prior to the date on which
this representation is made or deemed made, exceed the value of the assets of
such Plan allocable to such accrued benefits. Neither the Borrower nor any
Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan, and neither the Borrower nor any Commonly Controlled Entity
would become subject to any liability under ERISA if the Borrower or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made. No such Multiemployer Plan is in
Reorganization or Insolvent. The present value (determined using actuarial and
other assumptions which are reasonable in respect of the benefits provided and
the employees participating) of the liability of the Borrower and each Commonly
Controlled Entity for post retirement benefits to be provided to their current
and former employees under Plans which are welfare benefit plans (as defined in
Section 3(1) of ERISA) equals or exceeds the assets under all such Plans
allocable to such benefits.
4.14 Investment Company Act; Other Regulations. The Borrower is not
an "investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. The
Borrower is not subject to regulation under any Federal or State statute or
regulation which limits its ability to incur Indebtedness.
4.15 Subsidiaries. The corporations listed on Schedule 4.15
constitute all the Subsidiaries of the Borrower at the Closing Date.
4.16 Purpose of Loans. The proceeds of the Revolving Credit Loans
shall be used by the Borrower for general corporate purposes (excluding
commercial paper back-up).
4.17 Environmental Matters. Each of the following representations and
warranties is true and correct on and as of the Closing Date except to the
extent that the facts and circumstances giving rise to any such failure to be
so true and correct, in the aggregate, could not reasonably be expected to have
a Material Adverse Effect:
34
(a) To the best knowledge of the Borrower, the Properties do not
contain, and have not previously contained, any Materials of Environmental
Concern in amounts or concentrations which constitute or constituted a
violation of, or could reasonably give rise to liability under,
Environmental Laws.
(b) To the best knowledge of the Borrower, the Properties and all
operations at the Properties are in compliance, and have in the last two
years been in compliance, with all applicable Environmental Laws, and
there is no contamination at, under or about the Properties, or violation
of any Environmental Law with respect to the Properties.
(c) Neither the Borrower nor any of its Subsidiaries has received any
notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties, nor does the
Borrower have knowledge or reason to believe that any such notice will be
received or is being threatened.
(d) To the best knowledge of the Borrower, Materials of Environmental
Concern have not been transported or disposed of from the Properties in
violation of, or in a manner or to a location which could reasonably give
rise to liability under, Environmental Laws, nor have any Materials of
Environmental Concern been generated, treated, stored or disposed of at,
on or under any of the Properties in violation of, or in a manner that
could give rise to liability under, any applicable Environmental Laws.
(e) No judicial proceedings or governmental or administrative action
is pending, or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower is or, to the knowledge of the
Borrower, will be named as a party with respect to the Properties, nor are
there any consent decrees or other decrees, consent orders, administrative
order or other orders, or other administrative of judicial requirements
outstanding under any Environmental Law with respect to the Properties.
(f) To the best knowledge of the Borrower, there has been no release
or threat of release of Materials of Environmental Concern at or from the
Properties, or arising from or related to the operations of the Borrower
and its Subsidiaries in connection with the Properties in violation of or
in amounts or in a manner that could give rise to liability under
Environmental Laws.
4.18 Year 2000 Matters. Any reprogramming required to permit the
proper functioning (but only to the extent that such proper functioning would
otherwise be impaired by the occurrence of the year 2000) in and following the
year 2000 of computer systems and other equipment containing embedded
microchips, in either case owned or operated by the Borrower or any of its
Subsidiaries or used or relied upon in the conduct of their business (including
any such systems and other equipment supplied by others or with which the
computer systems of the Borrower or any of its Subsidiaries interface), and the
testing of all such systems and other equipment as so reprogrammed, will be
completed by June 1, 1999. The costs to the Borrower and its Subsidiaries that
have not been incurred as of the date hereof for such reprogramming and testing
and for the other reasonably foreseeable consequences to them of any improper
functioning of other computer systems and equipment containing embedded
microchips due to the occurrence of the year 2000 could not reasonably be
expected to result in a Default or Event of Default or to have a Material
Adverse Effect. Except for such reprogramming and testing and other reasonably
foreseeable consequences above, the computer systems of the Borrower and its
Subsidiaries are and, with ordinary course upgrading and maintenance, will
continue for the term of this Agreement to be, sufficient for the conduct of
their business as currently conducted.
4.19 Insurance. The Borrower and each Subsidiary maintains with
insurance companies rated at least A- by A.M. Best & Co., with premiums at all
times currently paid, insurance upon fixed assets and inventories, including
public liability insurance, fire and all other risks insured against by
extended coverage, fidelity bond coverage, business interruption insurance, and
all insurance required by law, all in form and amounts required by law and
customary to the respective natures of their businesses and properties, except
in cases where failure to maintain such insurance will not have or potentially
have a Material Adverse Effect.
4.20 Condition of Properties. Each of the following representations
and warranties is true and correct except to the extent that the facts and
circumstances giving rise to any such failure to be so true and correct, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect:
35
(a) All of the improvements located on the Properties and the use of
said improvements shall comply and shall continue to comply in all
respects with all applicable zoning resolutions, building codes,
subdivision and other similar applicable laws, rules and regulations and
are covered by existing valid certificates of occupancy and all other
certificates and permits required by applicable laws, rules, regulations
and ordinances or in connection with the use, occupancy and operation
thereof.
(b) No material portion of any of the Properties, nor any
improvements located on said Properties that are material to the
operation, use or value thereof have been damaged in any respect as a
result of any fire, explosion, accident, flood or other casualty.
(c) No condemnation or eminent domain proceeding has been commenced
or to the knowledge of the Borrower is about to be commenced against any
portion of any of the Properties, or any improvements located thereon that
are material to the operation, use or value of said Properties except as
set forth and described in Schedule 4.19 attached hereto.
(d) No notices of violation of any federal, state or local law or
ordinance or order or requirement have been issued with respect to any
Properties.
4.21 Benefit of Loans. The Borrower and each Subsidiary are engaged
as an integrated corporate group in the business of acquiring, owning,
developing and operating shopping centers and of providing the required
services and other facilities for those integrated operations. The Borrower and
each Subsidiary require financing on such a basis that funds can be made
available to the Borrower and each Subsidiary to the extent required for the
continued operation of their integrated activities and each of them expect to
derive benefit, directly or indirectly, in return for undertaking their
respective obligations under this Agreement and the other Loan Documents, both
individually and as members of the integrated group.
4.22 REIT. The Borrower is an equity-oriented real estate investment
trust under Sections 856 through 860 of the Code.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Extension of Credit. The agreement of each
Lender to make the initial extension of credit requested to be made by it is
subject to the satisfaction, on or prior to the Closing Date, of the following
conditions precedent:
(a) Agreement; Notes. The Administrative Agent shall have received
(i) this Agreement, executed and delivered by a duly authorized officer of
the Borrower, with a counterpart for each Lender and (ii) for the account
of each Lender who requests one, a Facility A Revolving Credit Note and a
Facility B Revolving Credit Note in each case conforming to the
requirements hereof and executed by a duly authorized officer of the
Borrower.
(b) Closing Certificate. The Administrative Agent shall have
received, with a copy for each Lender, a certificate of each Loan Party,
dated the Closing Date, substantially in the form of Exhibit D, with
appropriate insertions and attachments, satisfactory in form and substance
to the Administrative Agent, executed by the President or any Vice
President and the Secretary or any Assistant Secretary of such Loan Party,
and attaching the documents referred to in Sections 5.1(c) and (d).
(c) Corporate Proceedings of the Loan Parties. The Administrative
Agent shall have received, with a copy for each Lender, a copy of the
resolutions, in form and substance satisfactory to the Administrative
Agent, of the Board of Directors of each Loan Party authorizing (i) the
execution, delivery and performance of each Loan Document to which it is a
party and (ii) in the case of the Borrower, the borrowings contemplated
hereunder.
(d) Corporate Documents. The Administrative Agent shall have
received, with a copy for each Lender, true and complete copies of the
certificate of incorporation and by-laws of the Borrower.
(e) Fees. The Administrative Agent shall have received an extension
fee payable for the ratable benefit of the Lenders in the amount
previously disclosed to each Lender.
36
(f) Approvals. Any governmental and third party approvals necessary
in connection with the transactions contemplated hereby shall have been
obtained and be in full force and effect.
(g) Legal Opinions. The Administrative Agent shall have received,
with a counterpart for each Lender, the executed legal opinion of Robert
P. Schulman, Esq., counsel to the Borrower, substantially in the form of
Exhibit E.
(h) Subsidiary Guarantee. The Administrative Agent shall have
received the Subsidiary Guarantee, executed and delivered by a duly
authorized officer of each Subsidiary of the Borrower, with a counterpart
for each Lender.
(i) Termination of Existing Credit Agreement. The Administrative
Agent shall have received satisfactory evidence that the Existing Credit
Agreement shall have been terminated and that any amounts owing thereunder
by the Borrower shall have been (or shall upon the occurrence of the
Closing Date be) paid in full.
5.2 Conditions to Each Extension of Credit. The agreement of each
Lender to make any extension of credit requested to be made by it on any date
(including, without limitation, its initial extension of credit) is subject to
the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by any Loan Party in or pursuant to the Loan Documents
shall be true and correct in all material respects on and as of such date
as if made on and as of such date.
(b) No Default. (i) No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extension of credit requested to be made on such date and (ii) the
Borrower would be in compliance with each financial covenant set forth in
paragraphs (a) through (d) of Section 7.1 if the ratio or amount referred
to therein were to be calculated as of such date (provided, that for the
purposes of determining such compliance, Gross Asset Value and Value of
Unencumbered Properties shall be determined for the most recent period of
two consecutive fiscal quarters of the Borrower as to which a compliance
certificate has been delivered pursuant to Section 6.2(b)).
(c) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents
shall be satisfactory in form and substance to the Administrative Agent,
and the Administrative Agent shall have received such other documents and
legal opinions in respect of any aspect or consequence of the transactions
contemplated hereby or thereby as it shall reasonably request.
Each borrowing by, or issuance of a Letter of Credit on behalf of, the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the conditions contained in this
Section 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect, any Revolving Credit Loan or any Letter of Credit remains outstanding
and unpaid or any other amount is owing to any Lender or the Administrative
Agent hereunder, the Borrower shall and (except in the case of delivery of
financial information, reports and notices) shall cause each of its
Subsidiaries to:
37
6.1 Financial Statements. Furnish to the Administrative Agent (with
sufficient copies for each Lender):
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrower, a copy of the consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at the
end of such year and the related consolidated statements of income and
retained earnings and of cash flows for such year, setting forth in each
case in comparative form the figures for the previous year, reported on
without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by Pricewaterhouse
Coopers, LLP or other independent certified public accountants of
nationally recognized standing; and
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, the unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such quarter
and the related unaudited consolidated statements of income and retained
earnings and of cash flows of the Borrower and its consolidated
Subsidiaries for such quarter and the portion of the fiscal year through
the end of such quarter, setting forth in each case in comparative form
the figures for the previous year, certified by a Responsible Officer as
being fairly stated in all material respects (subject to normal year-end
audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
6.2 Certificates; Other Information. Furnish to the Administrative
Agent (with sufficient copies for each Lender (in the case of clauses (a)-(c)
below) or each relevant Lender (in the case of clauses (d)-(e) below)):
(a) concurrently with the delivery of the financial statements
referred to in Section 6.1(a), a certificate of the independent certified
public accountants reporting on such financial statements stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in Sections 6.1(a) and 6.1(b), a compliance certificate of a
Responsible Officer of the Borrower substantially in the form of Exhibit
F;
(c) within ten days after the same are sent, copies of all financial
statements and reports which the Borrower sends to its stockholders, and
within ten days after the same are filed, copies of all financial
statements, reports or other documents which the Borrower may make to, or
file with, the Securities and Exchange Commission or any successor or
analogous Governmental Authority;
(d) promptly upon request of any Lender (through the Administrative
Agent), copies of any environmental report prepared pursuant to Section
6.8(d); and
(e) promptly, such additional financial information, information with
respect to any Property and other information as any Lender may from time
to time reasonably request (through the Administrative Agent).
6.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, except (a) where the amount or validity thereof
is currently being contested in good faith by appropriate proceedings and
reserves in conformity with GAAP with respect thereto have been provided on the
books of the Borrower or its Subsidiaries, as the case may be or (b) (i)
Non-Recourse Indebtedness and (ii) other obligations which aggregate not more
than $5,000,000, in each case to the extent the Borrower or the relevant
Subsidiary has determined in good faith that it is in its best interests not to
pay or contest such Non-Recourse Indebtedness or such other obligations, as the
case may be.
6.4 Maintenance of Existence, etc. (a) Preserve, renew and keep in
full force and effect its corporate existence and take all reasonable action to
maintain all rights, privileges and franchises necessary or desirable in the
normal conduct of its business except as otherwise permitted pursuant to
Section 7.2.
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(b) Comply with all Contractual Obligations and Requirements of Law
except to the extent that failure to comply therewith could not, in the
aggregate, be reasonably expected to have a Material Adverse Effect.
6.5 Maintenance of Property; Insurance. Keep all property useful and
necessary in its business in good working order and condition; maintain
insurance with financially sound and reputable insurance companies rated at
least A- by A.M. Best & Co. on all its property in at least such amounts and
against at least such risks (but including in any event public liability,
product liability and business interruption) as are usually insured against in
the same general area by companies engaged in the same or a similar business;
and furnish to each Lender, upon written request, full information as to the
insurance carried.
6.6 Inspection of Property; Books and Records; Discussions. Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and as often as may reasonably be desired and to discuss the business,
operations, properties and financial and other condition of the Borrower and
its Subsidiaries with officers and employees of the Borrower and its
Subsidiaries and with its independent certified public accountants.
6.7 Notices. Promptly give notice to the Administrative Agent and
each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the
Borrower or any of its Subsidiaries and any Governmental Authority, which
in either case, if not cured or if adversely determined, as the case may
be, could reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any of its
Subsidiaries in which the amount involved is $5,000,000 or more and not
covered by insurance or in which material injunctive or similar relief is
sought;
(d) the following events, as soon as possible and in any event within
30 days after the Borrower knows or has reason to know thereof: (i) the
occurrence or expected occurrence of any Reportable Event with respect to
any Plan, a failure to make any required contribution to a Plan, the
creation of any Lien in favor of the PBGC or a Plan or any withdrawal
from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or the taking of
any other action by the PBGC or the Borrower or any Commonly Controlled
Entity or any Multiemployer Plan with respect to the withdrawal from, or
the terminating, Reorganization or Insolvency of, any Plan; and
(e) any development or event which has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section 6.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower proposes to take with respect
thereto.
6.8 Environmental Laws. (a) Comply with, and use its best efforts to
ensure compliance by all tenants and subtenants, if any, with, all applicable
Environmental Laws and obtain and comply with and maintain, and use its best
efforts to ensure that all tenants and subtenants obtain and comply with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws, except to the extent that
failure to do so could not be reasonably expected to have a Material Adverse
Effect.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws, except to the extent that (i) the same are being contested in good faith
by appropriate proceedings and the pendency of such proceedings could not be
reasonably expected to have a Material Adverse Effect or (ii) the Borrower has
determined in good
39
faith that contesting the same is not in the best interests of the Borrower and
its Subsidiaries and the failure to contest the same could not be reasonably
expected to have a Material Adverse Effect.
(c) Defend, indemnify and hold harmless the Administrative Agent and
each Lender, and their respective employees, agents, officers and directors,
from and against any claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature known or
unknown, contingent or otherwise, arising out of, or in any way relating to the
violation of, noncompliance with or liability under any Environmental Laws
applicable to the operations of the Borrower, its Subsidiaries or the
Properties, or any orders, requirements or demands of Governmental Authorities
related thereto, including, without limitation, attorney's and consultant's
fees, investigation and laboratory fees, response costs, court costs and
litigation expenses, except to the extent that any of the foregoing arise out
of the gross negligence or willful misconduct of the party seeking
indemnification therefor. This indemnity shall continue in full force and
effect regardless of the termination of this Agreement.
(d) Comply in all material respects with the Operations and
Maintenance Plan.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect, any Revolving Credit Loan or any Letter of Credit remains outstanding
and unpaid or any other amount is owing to any Lender or the Administrative
Agent hereunder, the Borrower shall not, and, in the case of Sections 7.2
through 7.7, shall not permit any of its Subsidiaries to, directly or
indirectly:
7.1 Financial Covenants.
(a) Total Indebtedness. Permit, at the last day of any period of two
consecutive fiscal quarters of the Borrower, Total Indebtedness as of such
day to exceed an amount equal to 55% of Gross Asset Value as of such day.
(b) Total Secured Indebtedness. Permit, at the last day of any period
of two consecutive fiscal quarters of the Borrower, Total Secured
Indebtedness as of such day to exceed an amount equal to 25% of Gross
Asset Value as of such day.
(c) Total Net Worth. Permit, at the last day of any fiscal quarter of
the Borrower, Total Net Worth as of such day to be less than an amount
equal to the sum of (i) $900,000,000 and (ii) 50% of the aggregate
proceeds received by the Borrower (net of customary related fees and
expenses) in connection with any offering of Capital Stock of the Borrower
consummated after the Closing Date.
(d) Value of Unencumbered Properties. Permit, for any period of two
consecutive fiscal quarters of the Borrower, the ratio of (i) Total Senior
Recourse Indebtedness as of the last day of such period to (ii) the Value
of Unencumbered Assets for such period to exceed 0.55 to 1.0.
(e) Minimum Unsecured Interest Coverage Ratio. Permit, for any period
of two consecutive fiscal quarters of the Borrower, the ratio of Property
Net Operating Income for such period to Total Unsecured Interest Expense
for such period to be less than 2.5 to 1.0.
(f) Minimum Total Adjusted EBITDA. Permit, for any period of two
consecutive fiscal quarters of the Borrower, the ratio of Total Adjusted
EBITDA for such period to Total Debt Service for such period to be less
than 2.0 to 1.0.
(g) Limitation on Recourse Secured Indebtedness. Permit, at any time,
the aggregate outstanding principal amount of Recourse Secured
Indebtedness to exceed $100,000,000.
For the purposes of this Section 7.1, amounts associated solely with
Unconsolidated Subsidiaries and Joint Ventures shall be included only to the
extent of the Borrower's Pro Rata Interest in the relevant Unconsolidated
Subsidiary or Joint Venture.
40
7.2 Limitation on Fundamental Changes. Excepting the transactions
contemplated in the Confidential Memorandum in connection with the Income REIT,
(a) Enter into any merger, consolidation or amalgamation, or liquidate, wind up
or dissolve itself (or suffer any liquidation or dissolution), or (b) in the
case of the Borrower, convey, sell, lease, assign, transfer or otherwise
dispose of, all or a substantial portion (determined on a consolidated basis
with respect to the Borrower and its Subsidiaries taken as a whole) of the
property, business or assets owned or leased by the Borrower (directly or
through a Subsidiary or Joint Venture), except that any Subsidiary of the
Borrower may be merged or consolidated with or into the Borrower (provided that
the Borrower shall be the continuing or surviving corporation) or with or into
any one or more Wholly Owned Subsidiary Guarantors (provided that the Wholly
Owned Subsidiary Guarantor(s) shall be the continuing or surviving
corporation).
7.3 Limitation on Restricted Payments. Unless otherwise required in
order to maintain the Borrower's status as a real estate investment trust,
declare or pay any dividend (other than dividends payable solely in the same
class of Capital Stock) on, or make any payment on account of, or set apart
assets for a sinking or other analogous fund for, the purchase, redemption,
defeasance, retirement or other acquisition of, any shares of any class of
Capital Stock of the Borrower or any warrants or options to purchase any such
Capital Stock, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property or in obligations of the Borrower or any Subsidiary (collectively,
"Restricted Payments"); provided that, notwithstanding the foregoing, during
any period of four consecutive fiscal quarters of the Borrower, the Borrower
may pay dividends on its Capital Stock in an aggregate amount not to exceed the
greater of (a) an amount equal to the lesser of 90% of FFO for such period and
100% of FAD for such period, and (b) the amount of dividends required to be
paid by the Borrower in order to maintain its status as a REIT.
7.4 Limitation on Investments, Loans and Advances. Make any advance,
loan, extension of credit or capital contribution to any Person, or purchase
any stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or otherwise make any investment in, any
Person, or acquire or otherwise make any investment in any real property
(collectively, "Investments"), except:
(a) Investments in Cash Equivalents;
(b) Investments in (i) any Property now or hereafter owned or leased
by the Borrower or any Subsidiary or (ii) any present or future
consolidated Subsidiary of the Borrower engaged principally in the
ownership, operation and management of shopping centers;
(c) (i) Investments by the Borrower in any present or future Wholly
Owned Subsidiary Guarantor and (ii) Investments by any Subsidiary in the
Borrower or any present or future Wholly Owned Subsidiary Guarantor;
(d) Investments in the Income REIT, so long as, after giving effect
thereto, the Borrower is in pro forma compliance with Section 7.1, as
demonstrated by an officer's certificate furnished to the Administrative
Agent concurrently with the making of such Investment;
(e) Investments made pursuant to Section 7.3; and
(f) Investments not otherwise permitted by this Section 7.4 so long
as, on the date any such Investment is made and after giving effect
thereto, the aggregate amount of Investments made pursuant to this clause
(f) since the Closing Date (valued at cost) shall not exceed 10% of Gross
Asset Value as of the last day of the most recently ended period of two
consecutive fiscal quarters of the Borrower;
provided, that in no event shall the aggregate amount of Investments made
pursuant to this Section 7.4 in any single Property (including Investments in
any Subsidiary or Joint Venture owning or operating such Property) exceed
$75,000,000.
7.5 Limitation on Transactions with Affiliates. Excepting the
transactions contemplated in the Confidential Memorandum in connection with the
Income REIT, enter into any transaction, including, without limitation, any
purchase, sale, lease or exchange of property or the rendering of any service,
with any Affiliate (other than any Wholly Owned Subsidiary Guarantor) unless
(a) no Default or Event of Default would occur as a result thereof and (b) such
transaction is (i) in the ordinary course of the Borrower's or such
Subsidiary's business and
41
(ii) upon fair and reasonable terms no less favorable to the Borrower or such
Subsidiary, as the case may be, than it would obtain in a comparable arm's
length transaction with a Person which is not an Affiliate.
7.6 Limitation on Changes in Fiscal Year. Permit the fiscal year of
the Borrower to end on a day other than December 31, unless otherwise required
by any applicable law, rule or regulation.
7.7 Limitation on Lines of Business, Issuance of Commercial Paper,
Creation of Subsidiaries, Negative Pledges. (a) Fail to continue to engage
principally in business of the same general type as now conducted by it (which
is the ownership, operation and management of shopping centers and related
services).
(b) Issue any commercial paper in an aggregate principal amount
exceeding the aggregate unused and available commitments under any revolving
credit facility (other than the Commitments hereunder) entered into by the
Borrower and not prohibited by this Agreement. For the purposes of this
paragraph, commitments shall be deemed to be available to the extent that, on
any date of determination, assuming timely delivery of a borrowing notice by
the Borrower, the lender(s) thereunder would be obligated to fund loans
pursuant thereto.
(c) Create or acquire any Subsidiary after the Closing Date unless,
no later than the date of the first delivery of financial statements pursuant
to Section 6.1(a) or 6.1(b) occurring after such creation or acquisition, such
Subsidiary executes a supplement to the Subsidiary Guarantee in form and
substance satisfactory to the Administrative Agent pursuant to which such
Subsidiary shall become a party to the Subsidiary Guarantee.
(d) Enter into with any Person, or suffer to exist, any agreement,
other than (i) this Agreement and the other Loan Documents or (ii) any
agreements governing any purchase money Liens, Financing Leases or mortgage
financings not prohibited by this Agreement (in which cases, any prohibition or
limitation referred to below shall only be effective against the assets
financed thereby) which prohibits or limits the ability of the Borrower or any
of its Subsidiaries to create, incur, assume or suffer to exist any Lien upon
any of its property, assets or revenues, whether now owned or hereafter
acquired.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Note or any
Reimbursement Obligation when due in accordance with the terms thereof or
hereof; or the Borrower shall fail to pay any interest on any Note, or any
other amount payable hereunder, within five Business Days after any such
interest or other amount becomes due in accordance with the terms thereof
or hereof; or
(b) Any representation or warranty made or deemed made by the
Borrower or any other Loan Party herein or in any other Loan Document or
which is contained in any certificate, document or financial or other
statement furnished by it at any time under or in connection with this
Agreement or any other Loan Document shall prove to have been incorrect in
any material respect on or as of the date made or deemed made; or
(c) The Borrower shall default in the observance or performance of
any agreement contained in Section 6.7(a) or Section 7; or
(d) The Borrower or any other Loan Party shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Loan Document (other than as provided in paragraphs
(a) through (c) of this Section 8), and such default shall continue
unremedied for a period of 30 days after notice from the Administrative
Agent or the Required Lenders; or
(e) The Borrower or any of its Subsidiaries shall (i) default in
making any payment of any principal of any Indebtedness (including,
without limitation, any Guarantee Obligation, but excluding the Notes and
any Non-Recourse Indebtedness) on the scheduled or original due date with
respect thereto; or (ii) default in making any payment of any interest on
any such Indebtedness beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created; or
(iii) default in the observance or performance of any other agreement or
condition relating to any such Indebtedness or
42
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect of
which default or other event or condition is to cause, or to permit the
holder or beneficiary of such Indebtedness (or a trustee or agent on
behalf of such holder or beneficiary) to cause, with the giving of notice
if required, such Indebtedness to become due prior to its stated maturity
or (in the case of any such Indebtedness constituting a Guarantee
Obligation) to become payable; provided, that a default, event or
condition described in clause (i), (ii) or (iii) of this paragraph (e)
shall not at any time constitute an Event of Default under this Agreement
unless, at such time, one or more defaults, events or conditions of the
type described in clauses (i), (ii) and (iii) of this paragraph (e) shall
have occurred and be continuing with respect to Indebtedness the
outstanding principal amount of which exceeds in the aggregate $5,000,000;
or
(f) (i) The Borrower or any of its Significant Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial part of its assets,
or the Borrower or any of its Significant Subsidiaries shall make a
general assignment for the benefit of its creditors; or (ii) there shall
be commenced against the Borrower or any of its Significant Subsidiaries
any case, proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced
against the Borrower or any of its Significant Subsidiaries any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial
part of its assets which results in the entry of an order for any such
relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) the Borrower
or any of its Significant Subsidiaries shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence
in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v)
the Borrower or any of its Significant Subsidiaries shall generally not,
or shall be unable to, or shall admit in writing its inability to, pay its
debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan shall arise on the assets of the
Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate,
any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of
the Required Remedial Lenders, likely to result in the termination of such
Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan
shall terminate for purposes of Title IV of ERISA, (v) the Borrower or any
Commonly Controlled Entity shall, or in the reasonable opinion of the
Required Remedial Lenders is likely to, incur any liability in connection
with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through (vi)
above, such event or condition, together with all other such events or
conditions, if any, could reasonably be expected to have a Material
Adverse Effect; or
(h) One or more judgments or decrees shall be entered against the
Borrower or any of its Subsidiaries involving in the aggregate a liability
(not paid or fully covered by insurance) of $5,000,000 or more, and all
such judgments or decrees shall not have been vacated, discharged, stayed
or bonded pending appeal within 60 days from the entry thereof; or
(i) The Subsidiary Guarantee shall cease, for any reason, to be in
full force and effect or any Loan Party or any Affiliate of any Loan Party
shall so assert; or
(j) The Borrower shall cease, for any reason, to maintain its status
as an equity-oriented real estate investment trust under Sections 856
through 860 of the Code; or
43
(k) At any time the Borrower and its Subsidiaries shall be required
to take any actions in respect of environmental remediation and/or
environmental compliance, the aggregate expenses, fines, penalties or
other charges with respect to which, in the judgment of the Required
Remedial Lenders, could reasonably be expected to exceed $20,000,000;
provided, that any such remediation or compliance shall not be taken into
consideration for the purposes of determining whether an Event of Default
has occurred pursuant to this paragraph (k) if (i) such remediation or
compliance is being contested by the Borrower or the applicable Subsidiary
in good faith by appropriate proceedings or (ii) such remediation or
compliance is satisfactorily completed within 90 days from the date on
which the Borrower or the applicable Subsidiary receives notice that such
remediation or compliance is required, unless such remediation or
compliance cannot reasonably be completed within such 90 day period in
which case such time period shall be extended for a period of time
reasonably necessary to perform such compliance or remediation using
diligent efforts (not to exceed 180 days if the continuance of such
remediation or compliance beyond such 180 day period, in the judgment of
the Required Remedial Lenders, could reasonably be expected to have a
Material Adverse Effect;
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (f) above with respect to the Borrower, automatically the
Commitments shall immediately terminate and the Revolving Credit Loans
hereunder (with accrued interest thereon) and all other amounts owing under
this Agreement (including, without limitation, all amounts of L/C Obligations,
whether or not the beneficiaries of the then outstanding Letters of Credit
shall have presented the documents required thereunder) and the Notes shall
immediately become due and payable, and (B) if such event is any other Event of
Default, either or both of the following actions may be taken: (i) with the
consent of the Required Remedial Lenders, the Administrative Agent may, or upon
the request of the Required Remedial Lenders, the Administrative Agent shall,
by notice to the Borrower declare the Commitments to be terminated forthwith,
whereupon the Commitments shall immediately terminate; and (ii) with the
consent of the Required Remedial Lenders, the Administrative Agent may, or upon
the request of the Required Remedial Lenders, the Administrative Agent shall,
by notice to the Borrower, declare the Revolving Credit Loans hereunder (with
accrued interest thereon) and all other amounts owing under this Agreement
(including, without limitation, all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have
presented the documents required thereunder) and the Notes to be due and
payable forthwith, whereupon the same shall immediately become due and payable.
With respect to all Letters of Credit with respect to which presentment
for honor shall not have occurred at the time of an acceleration pursuant to
the preceding paragraph, the Borrower shall at such time deposit in a cash
collateral account opened by the Administrative Agent an amount equal to the
aggregate then undrawn and unexpired amount of such Letters of Credit. The
Borrower hereby grants to the Administrative Agent, for the benefit of the
Issuing Lender and the L/C Participants, a security interest in such cash
collateral to secure all obligations of the Borrower under this Agreement and
the other Loan Documents. Amounts held in such cash collateral account shall be
applied by the Administrative Agent to the payment of drafts drawn under such
Letters of Credit, and the unused portion thereof after all such Letters of
Credit shall have expired or been fully drawn upon, if any, shall be applied to
repay other obligations of the Borrower hereunder and under the other Loan
Documents. After all such Letters of Credit shall have expired or been fully
drawn upon, all Reimbursement Obligations shall have been satisfied and all
other obligations of the Borrower hereunder and under the other Loan Documents
shall have been paid in full, the balance, if any, in such cash collateral
account shall be returned to the Borrower. The Borrower shall execute and
deliver to the Administrative Agent, for the account of the Issuing Lender and
the L/C Participants, such further documents and instruments as the
Administrative Agent may request to evidence the creation and perfection of the
within security interest in such cash collateral account.
Except as expressly provided above in this Section 8, presentment, demand,
protest and all other notices of any kind are hereby expressly waived.
44
SECTION 9. THE ADMINISTRATIVE AGENT
9.1 Appointment. Each Lender hereby irrevocably designates and
appoints The Chase Manhattan Bank as the Administrative Agent for such Lender
under this Agreement and the other Loan Documents, and each such Lender
irrevocably authorizes The Chase Manhattan Bank, as the Administrative Agent
for such Lender, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the Administrative Agent by the terms
of this Agreement and the other Loan Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Administrative Agent shall not have
any duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations, liabilities or standard of care shall be
read into this Agreement or any other Loan Document or otherwise exist against
the Administrative Agent.
9.2 Delegation of Duties. The Administrative Agent may execute any of
its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to rely upon advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents
or attorneys in-fact selected by it with reasonable care.
9.3 Exculpatory Provisions. Neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or Affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or any other Loan
Document (except for its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by any Loan Party or
any officer thereof contained in this Agreement or any other Loan Document or
in any certificate, report, statement or other document referred to or provided
for in, or received by the Administrative Agent under or in connection with,
this Agreement or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or for any failure of any Loan Party to perform its
obligations hereunder or thereunder. The Administrative Agent shall not be
under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of any Loan Party.
9.4 Reliance by Administrative Agent. The Administrative Agent shall
be entitled to rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrower), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take
any action under this Agreement or any other Loan Document unless it shall
first receive such advice or concurrence of the Required Lenders or the
Required Remedial Lenders, as the case may be, as it deems appropriate or it
shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this
Agreement and the Notes and the other Loan Documents in accordance with a
request of the Required Lenders or the Required Remedial Lenders, as the case
may be, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
Notes.
9.5 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Lenders. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders or the Required Remedial Lenders,
as the case may be; provided that unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
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9.6 Non-Reliance on Administrative Agent and Other Lenders. Each
Lender expressly acknowledges that neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
any Loan Party, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent 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 appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Loan Parties and made its own decision to
make its Revolving Credit Loans hereunder and enter into this Agreement. Each
Lender also represents 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 deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties. Except
for notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent hereunder, the Administrative Agent
shall not have any duty or responsibility to provide any Lender with any credit
or other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of the Loan Parties
which may come into the possession of the Administrative Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
9.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Commitment Percentages in effect on the
date on which indemnification is sought under this Section 9.7 (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Revolving Credit Loans shall have been paid in full, ratably
in accordance with their Commitment Percentages immediately prior to such
date), from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Commitments and the Notes) be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of this Agreement, any of the other Loan Documents or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting solely from the
Administrative Agent's gross negligence or willful misconduct. The agreements
in this Section 9.7 shall survive the termination of this Agreement and the
payment of the Revolving Credit Loans and all other amounts payable hereunder.
9.8 Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower as though the
Administrative Agent were not the Administrative Agent hereunder and under the
other Loan Documents. With respect to its Revolving Credit Loans made or
renewed by it and any Note issued to it, and with respect to any Letter of
Credit issued or participated in by it, the Administrative Agent shall have the
same rights and powers under this Agreement and the other Loan Documents as any
Lender and may exercise the same as though it were not the Administrative
Agent, and the terms "Lender" and "Lenders" shall include the Administrative
Agent in its individual capacity.
9.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 10 days' notice to the Lenders, in which
case the Required Lenders shall appoint from among the Lenders a successor
agent for the Lenders. In addition, in the event that the Administrative Agent,
in its capacity as a Lender, shall have assigned all of its outstanding
Commitments and Loans to another bank, financial institution or other entity
pursuant to Section 10.8, then the Required Lenders may, upon 10 days' notice
to the Administrative Agent, replace the Administrative Agent with a successor
agent appointed from among the remaining Lenders. Upon approval of any such
successor agent by the Borrower, such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Notes. After any
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Administrative Agent's resignation or replacement as Administrative Agent, the
provisions of this Section 9 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent under this
Agreement and the other Loan Documents.
9.10 The Syndication Agent, the Arranger and the Book Manager. Each
of the Syndication Agent, the Arranger and the Book Manager in its capacity as
such shall have no rights, duties or responsibilities hereunder, nor any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Syndication Agent, the Arranger and
the Book Manager in their respective capacities as such.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement nor any other
Loan Document, nor any terms hereof or thereof, may be amended, supplemented or
modified except in accordance with the provisions of this Section 10.1. The
Required Lenders may, or, with the written consent of the Required Lenders, the
Administrative Agent may, from time to time, (a) enter into with the relevant
Loan Parties written amendments, supplements or modifications hereto and to the
other Loan Documents for the purpose of adding any provisions to this Agreement
or the other Loan Documents or changing in any manner the rights of the Lenders
or of the Loan Parties hereunder or thereunder or (b) waive, on such terms and
conditions as the Required Lenders or the Administrative Agent, as the case may
be, may specify in such instrument, any of the requirements of this Agreement
or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) reduce the amount or extend the scheduled
date of maturity of any Revolving Credit Loan or Note, or reduce the stated
rate of any interest or fee payable hereunder or extend the scheduled date of
any payment thereof or increase the amount or extend the expiration date of any
Lender's Commitment, in each case without the consent of each Lender directly
affected thereby, or (ii) amend, modify or waive any provision of this Section
10.1, reduce the percentage specified in the definition of Required Lenders or
Required Remedial Lenders, consent to the assignment or transfer by the
Borrower of any of its rights and obligations under this Agreement and the
other Loan Documents, or release all or substantially all of the Subsidiaries
from the Subsidiary Guarantee, in each case without the written consent of all
the Lenders, or (iii) amend, modify or waive any provision of Section 3 without
the written consent of the Issuing Lender, or (iv) amend, modify or waive any
provision of Section 9 without the written consent of the then Administrative
Agent. Any such waiver and any such amendment, supplement or modification shall
apply equally to each of the Lenders and shall be binding upon the Borrower,
the other Loan Parties, the Lenders, the Administrative Agent and all future
holders of the Notes. In the case of any waiver, the Borrower, the other Loan
Parties, the Lenders and the Administrative Agent shall be restored to their
former position and rights hereunder and under any outstanding Notes and any
other Loan Documents, and any Default or Event of Default waived shall be
deemed to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any right consequent
thereon.
10.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or three Business Days
after being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, addressed as follows in the case of the Borrower and the
Administrative Agent, and as notified to the Administrative Agent pursuant to
an administrative questionnaire in the case of the other parties hereto, or to
such other address as may be hereafter notified by the respective parties
hereto and any future holders of the Notes:
The Borrower: Kimco Realty Corporation
3333 New Hyde Park Road, Suite 100
New Hyde Park, New York 11042
Attention: Michael V. Pappagallo
Telecopy: 516-869-9001
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The Administrative Agent: The Chase Manhattan Bank
380 Madison Avenue, 10th Floor
New York, New York 10017
Attention: Charles Hoagland
Telecopy: 212-622-3395
with a copy to: The Chase Manhattan Bank
380 Madison Avenue, 10th Floor
New York, New York 10017
Attention: Investor Relations Group
Telecopy: 212-622-3553
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to Section 2.1, 2.2, 2.3 or 2.4 shall not be effective
until received.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Loan Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
10.4 Survival of Representations and Warranties. All representations
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the other Loan
Documents and the making of the extensions of credit hereunder.
10.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse the Administrative Agent for all its out-of-pocket costs and expenses
incurred in connection with the development, preparation and execution of, and
any amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, including, without limitation, the fees and disbursements of
counsel to the Administrative Agent; (b) to pay or reimburse each Lender and
the Administrative Agent for all its costs and expenses incurred in connection
with the enforcement or preservation of any rights under this Agreement, the
other Loan Documents and any such other documents, including, without
limitation, the fees and disbursements of counsel to the Administrative Agent
and to the several Lenders; (c) to pay, indemnify, and hold each Lender and the
Administrative Agent harmless from, any and all recording and filing fees and
any and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other documents; and (d)
to pay, indemnify, and hold each Lender and the Administrative Agent harmless
from and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the other Loan Documents and
any such other documents, including, without limitation, any of the foregoing
relating to the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower, any of its
Subsidiaries or any of the Properties (all the foregoing in this clause (d),
collectively, the "indemnified liabilities"), provided, that the Borrower shall
have no obligation hereunder to the Administrative Agent or any Lender with
respect to indemnified liabilities arising from the gross negligence or willful
misconduct of the Administrative Agent or such Lender, as the case may be. The
agreements in this Section 10.5 shall survive repayment of the Revolving Credit
Loans and all other amounts payable hereunder.
10.6 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Borrower, the Lenders, the Administrative Agent,
all future holders of the Notes and their respective successors and assigns,
except that the Borrower may not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender.
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10.7 Participations. Any Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time sell to one or more
banks or other entities (each, a "Participant") participating interests in any
Revolving Credit Loan owing to such Lender, any Note held by such Lender, any
Commitment of such Lender or any other interest of such Lender hereunder and
under the other Loan Documents. In the event of any such sale by a Lender of a
participating interest to a Participant, such Lender's obligations under this
Agreement to the other parties to this Agreement shall remain unchanged, such
Lender shall remain solely responsible for the performance thereof, such Lender
shall remain the holder of any such Note for all purposes under this Agreement
and such Notes, and the Borrower and the Administrative Agent shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and the Notes. In no event shall
any Participant under any such participation have any right to approve any
amendment or waiver of any provision of this Agreement or any other Loan
Document, or any consent to any departure by any Loan Party therefrom, except
to the extent that such amendment, waiver or consent would reduce the principal
of, or interest on, any Revolving Credit Loan or Note or any fees payable
hereunder, or postpone the date of the final maturity of any Revolving Credit
Loan or Note, in each case to the extent subject to such participation. The
Borrower agrees that, while an Event of Default shall have occurred and be
continuing, if amounts outstanding under this Agreement and the Notes are due
or unpaid, or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant shall be deemed to
have the right of setoff in respect of its participating interest in amounts
owing under this Agreement and any Note to the same extent as if the amount of
its participating interest were owing directly to it as a Lender under this
Agreement or any Note, provided that, in purchasing such participating
interest, such Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in Section 10.10(a) as fully as if it
were a Lender hereunder. The Borrower also agrees that each Participant shall
be entitled to the benefits of Sections 2.10, 2.11, 2.12 and 2.13 with respect
to its participation in the Commitments and the Revolving Credit Loans
outstanding from time to time as if it was a Lender; provided that, in the case
of Section 2.12, such Participant shall have complied with the requirements of
said Section and provided, further, that no Participant shall be entitled to
receive any greater amount pursuant to any such Section than the transferor
Lender would have been entitled to receive in respect of the amount of the
participation transferred by such transferor Lender to such Participant had no
such transfer occurred. Promptly after selling any participation pursuant to
this Section 10.7, each Lender shall notify the Administrative Agent in writing
of the identity of the Participant and the amount of such participation.
10.8 Assignments. (a) Any Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time and from time to
time assign to any Lender or any affiliate of any Lender or, with the consent
of the Borrower (unless an Event of Default has occurred and is continuing) and
the Administrative Agent, which consents in each case shall not be unreasonably
withheld, to an additional bank, financial institution or other entity (each, a
"Purchasing Lender") all or any part of its rights and obligations under this
Agreement and the other Loan Documents pursuant to an Assignment and
Acceptance, substantially in the form of Exhibit B, executed by such Purchasing
Lender, such assigning Lender (and, in the case of a Purchasing Lender that is
not a Lender or an affiliate thereof, by the Issuing Lender and the
Administrative Agent) and delivered to the Administrative Agent for its
acceptance and recording in the Register, provided, that (i) except in the case
of an assignment of all of a Lender's rights and obligations under this
Agreement, the aggregate amount of the Commitments of the assigning Lender
being assigned pursuant to each such assignment (determined as of the date of
the Assignment and Acceptance with respect to such assignment) shall in no
event be less than $5,000,000 or such lesser amount as may be consented to by
the Administrative Agent (which consent shall not be unreasonably withheld) and
(ii) each such assignment shall be of a uniform, and not a varying, percentage
of the assigning Lender's Facility A Commitment and Facility B Commitment. Upon
such execution, delivery, acceptance and recording, from and after the
effective date determined pursuant to such Assignment and Acceptance, (x) the
Purchasing Lender thereunder shall be a party hereto and, to the extent
provided in such Assignment and Acceptance, have the rights and obligations of
a Lender hereunder with a Facility A Commitment and a Facility B Commitment as
set forth therein, and (y) the assigning Lender thereunder shall, to the extent
provided in such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Lender's rights and obligations
under this Agreement, such assigning Lender shall cease to be a party hereto).
(b) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and a Purchasing Lender (and, in the case of a Purchasing
Lender that is not a Lender or an affiliate thereof, by the Issuing Lender and
the Administrative Agent) together with payment to the Administrative Agent of
a registration and processing fee of $4,000 (which shall not be payable by the
Borrower), the Administrative Agent shall (i) promptly accept such Assignment
and Acceptance and (ii) promptly after the effective date determined pursuant
thereto,
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record the information contained therein in the Register and give
notice of such acceptance and recordation to the Lenders and the Borrower. On
or prior to such effective date, the Borrower, at its own expense, upon the
request of the relevant Lenders shall execute and deliver to the Administrative
Agent a new Facility A Revolving Credit Note and Facility B Revolving Credit
Note (in exchange for the Facility A Revolving Credit Note and Facility B
Revolving Credit Note, if any, of the assigning Lender) in respective amounts
equal to the Facility A Commitment and the Facility B Commitment assumed by the
relevant Purchasing Lender pursuant to such Assignment and Acceptance, and, if
the assigning Lender has retained a Facility A Commitment and a Facility B
Commitment hereunder, a new Facility A Revolving Credit Note and Facility B
Revolving Credit Note to the order of the assigning Lender upon such Lender's
request in respective amounts equal to the Facility A Commitment and the
Facility B Commitment retained by it hereunder. Any such new Notes shall be
dated the Closing Date and shall otherwise be in the form of the Notes replaced
thereby.
10.9 The Register; Disclosure; Pledges to Federal Reserve Banks. (a)
The Administrative Agent shall maintain at its address referred to in Section
10.2 copy of each Assignment and Acceptance delivered to it and a register (the
"Register") for the recordation of the names and addresses of the Lenders, the
Commitments of the Lenders, and the principal amount of the Revolving Credit
Loans owing to each Lender from time to time. The entries in the Register shall
be conclusive, in the absence of clearly demonstrable error, and the Borrower,
the Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as the owner of the Revolving Credit Loans recorded
therein for all purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time
to time upon reasonable prior notice.
(b) Subject to Section 10.18, the Borrower authorizes each Lender to
disclose to any Participant or Purchasing Lender (each, a "Transferee") and any
prospective Transferee any and all financial information in such Lender's
possession concerning the Borrower and its Affiliates which has been delivered
to such Lender by or on behalf of the Borrower pursuant to this Agreement or
which has been delivered to such Lender by or on behalf of the Borrower in
connection with such Lender's credit evaluation of the Borrower and its
Affiliates prior to becoming a party to this Agreement.
(c) Nothing herein shall prohibit any Lender from pledging or
assigning any Note to any Federal Reserve Bank in accordance with applicable
law.
10.10 Commitment Increases. (a) In the event that the Borrower wishes
to increase the aggregate Commitments, it shall notify the Lenders (through the
Administrative Agent) of the amount of such proposed increase (such notice, a
"Commitment Increase Offer"). Each Commitment Increase Offer shall offer the
Lenders the opportunity to participate in the increased Commitments ratably in
accordance with their respective Facility A Commitment Percentages and Facility
B Commitment Percentages. In the event that any Lender (each, a "Declining
Lender") shall fail to accept in writing a Commitment Increase Offer within 10
Business Days after receiving notice thereof, all or any portion of the
proposed increase in the Commitments offered to the Declining Lenders (the
aggregate of such offered amounts, the "Declined Amount") may instead be
allocated to any one or more additional banks, financial institutions or other
entities, pursuant to paragraph (b) below and/or to any one or more existing
Lenders pursuant to paragraph (c)(ii) below.
(b) Any additional bank, financial institution or other entity which,
with the consent of the Borrower and the Administrative Agent (which consent,
in the case of the Administrative Agent, shall not be unreasonably withheld),
elects to become a party to this Agreement and obtain a Commitment in an amount
equal to all or any portion of a Declined Amount shall execute a New Lender
Supplement (each, a "New Lender Supplement") with the Borrower and the
Administrative Agent, substantially in the form of Exhibit G-1, whereupon such
bank, financial institution or other entity (herein called a "New Lender")
shall become a Lender for all purposes and to the same extent as if originally
a party hereto and shall be bound by and entitled to the benefits of this
Agreement, and Schedule 1.1A shall be deemed to be amended to add the name and
Commitment of such New Lender.
(c) Any Lender which (i) accepts a Commitment Increase Offer pursuant
to Section 10.10(a) or (ii) with the consent of the Borrower, elects to
increase its Commitment by an amount equal to all or any portion of a Declined
Amount shall, in each case, execute a Commitment Increase Supplement (each, a
"Commitment Increase Supplement") with the Borrower and the Administrative
Agent, substantially in the form of Exhibit G-2, whereupon such Lender shall be
bound by and entitled to the benefits of this Agreement with respect to the
full amount of its
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Commitment as so increased, and Schedule 1.1A shall be deemed to be amended to
so increase the Commitment of such Lender.
(d) If on the date upon which a bank, financial institution or other
entity becomes a New Lender pursuant to Section 10.10(b) or upon which a
Lender's Commitment is increased pursuant to Section 10.10(a) or (c) there is
an unpaid principal amount of Revolving Credit Loans, the Borrower shall borrow
Revolving Credit Loans from such Lender in an amount determined by reference to
the amount of each Type of Revolving Credit Loan (and, in the case of
Eurodollar Loans, of each Eurodollar Tranche) which would then have been
outstanding from such Lender if (i) each such Type or Eurodollar Tranche had
been borrowed on the date such bank, financial institution or other entity
became a Lender or such Lender's Commitment was increased, as the case may be,
in each case after giving effect to such transaction and (ii) the aggregate
amount of each such Type or Eurodollar Tranche requested to be so borrowed had
been increased to the extent necessary to give effect, with respect to such
Lender, to the borrowing allocation provisions of Section 2.1 or 2.2, as
applicable. Any Eurodollar Loan borrowed pursuant to the preceding sentence
shall bear interest at a rate equal to the respective interest rates then
applicable to the Revolving Credit Loans of the other Lenders in the same
Eurodollar Tranche or such other rate as shall be acceptable to the relevant
Lender.
(e) Notwithstanding anything to the contrary in this Section 10.10,
(i) in no event shall any transaction effected pursuant to this Section 10.10
cause the aggregate Facility A Commitments to exceed $116,279,070 or the
aggregate Facility B Commitments to exceed $133,720,930, (ii) the aggregate
amount of any increase in Commitments pursuant to Section 10.10(b) or (c)(ii)
shall be limited to the relevant Declined Amount and (iii) no Lender shall have
any obligation to increase its Commitment unless it agrees to do so in its sole
discretion.
10.11 Adjustments; Set-off. (a) If any Lender (a "benefitted Lender")
shall at any time receive any payment of all or part of its Revolving Credit
Loans or the Reimbursement Obligations owing to it, or interest thereon, or
receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 8(f), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of such other Lender's Revolving Credit Loans or the Reimbursement Obligations
owing to it, or interest thereon, such benefitted Lender shall purchase for
cash from the other Lenders a participating interest in such portion of each
such other Lender's Revolving Credit Loans or the Reimbursement Obligations
owing to it, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
benefitted Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; provided, however, that if all or
any portion of such excess payment or benefits is thereafter recovered from
such benefitted Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without
interest.
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to the Borrower,
any such notice being expressly waived by the Borrower to the extent permitted
by applicable law, upon any amount becoming due and payable by the Borrower
hereunder or under the Notes (whether at the stated maturity, by acceleration
or otherwise) to set off and appropriate and apply against such amount any and
all deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower. Each Lender agrees
promptly to notify the Borrower and the Administrative Agent 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.
10.12 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
10.13 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
51
10.14 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.
10.15 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
10.16 Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgement
in respect thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts from
any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in Section 10.2 or at such other address
of which the Administrative Agent shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this Section any special, exemplary, punitive or consequential damages.
10.17 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower arising out of or in connection
with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and Lenders, on one hand, and
the Borrower, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Borrower and the Lenders.
10.18 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT
AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR THE NOTES OR ANY
OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
10.19 Confidentiality. Each of the Administrative Agent and each
Lender agrees to keep confidential all non-public information provided to it by
any Loan Party pursuant to this Agreement that is designated by such Loan Party
as confidential; provided that nothing herein shall prevent the Administrative
Agent or any Lender from disclosing any such information (a) to the
Administrative Agent, any other Lender or any
52
affiliate of any Lender, (b) to any Transferee or prospective Transferee which
agrees to comply with the provisions of this Section 10.19, (c) to the
employees, directors, agents, attorneys, accountants and other professional
advisors of such Lender or its affiliates, (d) upon the request or demand of
any Governmental Authority having jurisdiction over the Administrative Agent or
such Lender, (e) in response to any order of any court or other Governmental
Authority or as may otherwise be required pursuant to any Requirement of Law,
(f) if requested or required to do so in connection with any litigation or
similar proceeding, (g) which has been publicly disclosed other than in breach
of this Section 10.19, or (h) in connection with the exercise of any remedy
hereunder or under any other Loan Document.
53
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
KIMCO REALTY CORPORATION
By: /s/ Michael
-------------------------------------------
Title: VP/CFO
THE CHASE MANHATTAN BANK,
as Administrative Agent
By: /s/ Robert V. Mathews
-------------------------------------------
Title:
By: Vice President
-------------------------------------------
Title:
The Lenders:
------------
THE CHASE MANHATTAN BANK
By: /s/ C.E.
-------------------------------------------
Title: Vice-President
54
THE FIRST NATIONAL BANK OF CHICAGO
By: illegible signature
-------------------------------------------
Title: Corporate banking office
55
FIRST UNION NATIONAL BANK
By: illegible signature
-------------------------------------------
Title: Vice-President
56
BAYERISCHE LANDESBANK GIROZENTRALE
(CAYMAN ISLANDS BRANCH)
By: illegible signature
-------------------------------------------
Title: Executive President/General Manager
By: illegible signature
-------------------------------------------
Title: First Vice-President
57
CIBC INC.
By: Michael S. Nadler
-------------------------------------------
Title: as agent
By:
-------------------------------------------
Title:
58
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN AG
By: /s/ Paul Judicke
-------------------------------------------
Title: Vice President Erste Bank, New York
By: /s/ John S. Runnion
-------------------------------------------
Title: First Vice President
59
FLEET NATIONAL BANK
By: /s/ Thomas T. Harold
-------------------------------------------
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Thomas Nastarouz
-------------------------------------------
Title: Vice President
61
Kimco Realty Corporation Credit Agreement,
dated as of August 21, 1998
$215,000,000 Credit Facility
BANKERS TRUST COMPANY
By: /s/ Alexander B.V. Johnson
-------------------------------------------
Title: Managing Director
Schedule 1.1A
NAMES AND COMMITMENTS OF LENDERS
I. FACILITY A
Facility A Commitment
---------------------
THE CHASE MANHATTAN BANK ................................. $ 13,953,488.37
THE FIRST NATIONAL BANK OF CHICAGO ....................... $ 13,953,488.37
FLEET NATIONAL BANK ...................................... $ 13,953,488.37
FIRST UNION NATIONAL BANK ................................ $ 11,627,906.98
PNC BANK, NATIONAL ASSOCIATION ........................... $ 11,627,906.98
BANKERS TRUST COMPANY .................................... $ 9,302,325.58
BAYERISCHE LANDESBANK GIROZENTRALE ....................... $ 9,302,325.58
CIBC OPPENHEIMER CORP .................................... $ 9,302,325.58
ERSTE BANK DER OESTERREICHISCHEN SPARKASSEN AG ........... $ 6,976,744.19
TOTAL: ............................... $ 100,000,000
-1-
II. FACILITY B
Facility B Commitment
---------------------
THE CHASE MANHATTAN BANK ................................. $ 16,046,511.63
THE FIRST NATIONAL BANK OF CHICAGO ....................... $ 16,046,511.63
FLEET NATIONAL BANK ...................................... $ 16,046,511.63
FIRST UNION NATIONAL BANK ................................ $ 13,372,093.02
PNC BANK, NATIONAL ASSOCIATION ........................... $ 13,372,093.02
BANKERS TRUST COMPANY .................................... $ 10,697674.42
BAYERISCHE LANDESBANK GIROZENTRALE ....................... $ 10,697674.42
CIBC OPPENHEIMER CORP .................................... $ 10,697674.42
ERSTE BANK DER OESTERREICHISCHEN SPARKASSEN AG ........... $ 8,023,255.81
TOTAL: ........................... $ 115,000,000
-2-