EXHIBIT 10.1
EXECUTION COPY
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[JPMORGAN LOGO]
$1,200,000,000
CREDIT AGREEMENT
Dated as of October 31, 2006
Among
PK SALE LLC,
as Borrower
PRK HOLDINGS I LLC, PRK HOLDINGS II LLC, PRK HOLDINGS III LLC,
as Guarantors
KIMCO REALTY CORPORATION,
as Guarantor
THE LENDERS
from time to time party hereto,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
WACHOVIA BANK, NATIONAL ASSOCIATION,
BANK OF AMERICA, N.A.,
as Co-Syndication Agents
SCOTIABANC, INC.,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Co-Documentation Agents
THE ROYAL BANK OF SCOTLAND, PLC,
SUMITOMO MITSUI BANKING CORPORATION,
WEST LB AG, NEW YORK BRANCH,
as Co-Managing Agents
THE BANK OF NEW YORK,
MIZUHO CORPORATE BANK (USA),
ROYAL BANK OF CANADA,
U.S. BANK, NATIONAL ASSOCIATION,
as Co-Agents
---------------
JPMORGAN SECURITIES INC.,
WACHOVIA CAPITAL MARKETS, INC.
as Joint Bookrunners and Joint Lead Arrangers
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS...................................................1
SECTION 1.1 Defined Terms...........................................1
SECTION 1.2 Other Definitional Provisions; Interpretation..........21
SECTION 1.3 Accounting Terms; GAAP.................................21
ARTICLE II THE LOANS....................................................22
SECTION 2.1 Loans..................................................22
SECTION 2.2 Prepayments............................................24
SECTION 2.3 Conversion and Continuation Options....................24
SECTION 2.4 Interest Rates and Payment Dates.......................25
SECTION 2.5 Computation of Interest................................26
SECTION 2.6 Inability to Determine Interest Rate...................26
SECTION 2.7 Pro Rata Treatment and Payments........................27
SECTION 2.8 Illegality.............................................27
SECTION 2.9 Requirements of Law....................................28
SECTION 2.10 Taxes..................................................29
SECTION 2.11 Indemnity..............................................31
SECTION 2.12 Change of Lending Office...............................31
SECTION 2.13 Replacement of Lenders under Certain Circumstances.....32
SECTION 2.14 Obligations of Loan Parties Not Contractually
Subordinated...........................................32
ARTICLE III REPRESENTATIONS AND WARRANTIES OF HS LOAN PARTIES............32
SECTION 3.1 Existence, Compliance With Law, Power, Authorization,
Enforceability.........................................32
SECTION 3.2 No Legal Bar, Approvals, Material Litigation,
No Default.............................................33
SECTION 3.3 Ownership of Property, Intellectual Property...........33
SECTION 3.4 No Burdensome Restrictions.............................34
SECTION 3.5 Taxes, Federal Regulations.............................34
SECTION 3.6 ERISA..................................................35
SECTION 3.7 Investment Company Act; Other Regulations..............35
SECTION 3.8 Collateral, Guarantees.................................35
SECTION 3.9 Purpose................................................36
SECTION 3.10 Environmental Matters..................................36
SECTION 3.11 Insurance, Condition of Properties.....................36
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SECTION 3.12 Solvency...............................................37
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF KIMCO......................37
SECTION 4.1 Financial Condition....................................37
SECTION 4.2 No Change..............................................38
SECTION 4.3 Corporate Existence; Compliance with Law...............38
SECTION 4.4 Power; Authorization; Enforceable Obligations..........38
SECTION 4.5 No Legal Bar; Approvals................................38
SECTION 4.6 Kimco Guarantee........................................38
SECTION 4.7 Benefit of Loans.......................................39
SECTION 4.8 Solvency...............................................39
SECTION 4.9 Merger Agreement.......................................39
SECTION 4.10 Full Disclosure........................................39
ARTICLE V CONDITIONS...................................................40
SECTION 5.1 Conditions to Effectiveness, Effective Date............40
SECTION 5.2 Conditions to the Borrowing............................40
ARTICLE VI AFFIRMATIVE COVENANTS OF KIMCO...............................42
SECTION 6.1 Financial Statements...................................42
SECTION 6.2 Certificates; Other Information........................42
SECTION 6.3 Payment of Obligations.................................43
SECTION 6.4 Maintenance of Existence, etc..........................43
SECTION 6.5 Inspection of Property; Books and Records;
Discussions............................................43
SECTION 6.6 Notices................................................43
SECTION 6.7 Further Assurances.....................................44
ARTICLE VII AFFIRMATIVE COVENANTS OF THE HS LOAN PARTIES.................44
SECTION 7.1 Certificates; Other Information........................44
SECTION 7.2 Payment of Obligations.................................45
SECTION 7.3 Maintenance of Existence, etc..........................45
SECTION 7.4 Maintenance of Property; Insurance.....................45
SECTION 7.5 Inspection of Property; Books and Records; Discussions.46
SECTION 7.6 Notices................................................46
SECTION 7.7 Environmental Laws.....................................46
SECTION 7.8 Compliance with Laws...................................47
SECTION 7.9 ERISA-Related Update...................................47
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SECTION 7.10 Further Assurances.....................................47
ARTICLE VIII NEGATIVE COVENANTS OF KIMCO..................................48
SECTION 8.1 Financial Covenants....................................48
ARTICLE IX NEGATIVE COVENANTS OF THE HS LOAN PARTIES....................49
SECTION 9.1 Limitation on Transactions with Affiliates.............49
SECTION 9.2 Limitation on Changes in Fiscal Year...................49
SECTION 9.3 Limitation on Lines of Business; Issuance of
Commercial Paper; Creation of Subsidiaries;
Negative Pledges; Swap Agreements......................49
SECTION 9.4 Limitation on Indebtedness.............................49
SECTION 9.5 Limitation on Liens....................................50
SECTION 9.6 Plans..................................................50
SECTION 9.7 Margin Stock, Use of Facility..........................50
SECTION 9.8 Ownership of Property..................................50
SECTION 9.9 Limitation on Certain Fundamental Changes..............50
SECTION 9.10 Limitation on Restricted Payments......................51
ARTICLE X EVENTS OF DEFAULT............................................51
ARTICLE XI THE AGENTS...................................................53
SECTION 11.1 The Agents.............................................53
SECTION 11.2 Indemnification........................................56
SECTION 11.3 The Syndication Agents, Arrangers, and Bookrunners.....56
ARTICLE XII MISCELLANEOUS................................................56
SECTION 12.1 Amendments and Waivers.................................56
SECTION 12.2 Notices................................................57
SECTION 12.3 No Waiver; Cumulative Remedies.........................58
SECTION 12.4 Survival of Representations and Warranties.............58
SECTION 12.5 Payment of Expenses and Taxes..........................58
SECTION 12.6 Successors and Assigns.................................59
SECTION 12.7 Disclosure.............................................61
SECTION 12.8 [Reserved].............................................62
SECTION 12.9 FTC Guarantee..........................................62
SECTION 12.10 KIMCO Guarantee........................................65
SECTION 12.11 Reserved...............................................68
SECTION 12.12 Adjustments; Set-off...................................68
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SECTION 12.13 Counterparts...........................................68
SECTION 12.14 Severability...........................................68
SECTION 12.15 Integration............................................69
SECTION 12.16 GOVERNING LAW..........................................69
SECTION 12.17 Submission to Jurisdiction; Waivers....................69
SECTION 12.18 Acknowledgments........................................69
SECTION 12.19 WAIVERS OF JURY TRIAL..................................70
SECTION 12.20 Confidentiality........................................70
SECTION 12.21 USA Patriot Act........................................71
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EXHIBITS:
Exhibit A -- Form of Assignment and Assumption
Exhibit B-1 -- Form of Note
Exhibit C -- Form of HS Pledge and Security Agreement
Exhibit D-1 -- Form of Opinion of Loan Party Counsel
Exhibit D-2 -- Form of ERISA Opinion
Exhibit E -- Form of Compliance Certificate
SCHEDULES:
Schedule 1.1A -- Lenders and Commitments Immediately After Giving
Effect to Effective Date
Schedule 1.1B -- FFO Definition Variations
Schedule 3.3 -- Scheduled Properties
Schedule 3.11 -- Condemnation and Eminent Domain Proceedings
Schedule 4.1 -- Certain Financial Disclosure
Schedule 12.9 -- FTG Percentages
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CREDIT AGREEMENT, dated as of October 31, 2006, among PK Sale LLC, a Delaware
limited liability company (the "BORROWER" or "SALE LLC"), PRK Holdings I LLC, a
Delaware limited liability company ("PRK 1"), PRK Holdings II LLC, a Delaware
limited liability company ("PRK 2") and PRK Holdings III LLC, a Delaware limited
liability company ("PRK 3"), KIMCO REALTY CORPORATION, a Maryland corporation
("KIMCO"), the Lenders party hereto from time to time, WACHOVIA BANK, NATIONAL
ASSOCIATION and BANK OF AMERICA, N.A., as Co-Syndication Agents (in such
capacity, the "CO-SYNDICATION AGENTS"), JPMORGAN CHASE BANK, N.A., as
administrative agent for the Lenders hereunder (in such capacity, the
"ADMINISTRATIVE AGENT"), SCOTIABANC, INC. and WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Co-Documentation Agents (in such capacity, collectively, the
"CO-DOCUMENTATION AGENTS"), THE ROYAL BANK OF SCOTLAND, PLC, SUMITOMO MITSUI
BANKING CORPORATION, and WEST LB AG, NEW YORK BRANCH, as Co-Managing Agents
(collectively, the "CO-MANAGING AGENTS"), and THE BANK OF NEW YORK, MIZUHO
CORPORATE BANK (USA), ROYAL BANK OF CANADA, and U.S. BANK, NATIONAL ASSOCIATION,
as Co-Agents (collectively, the "CO-AGENTS").
WHEREAS, the Scheduled Properties shall have been (or substantially
simultaneously with the borrowing of the loans hereunder shall be) acquired
pursuant to the Merger (as such term is defined in the Merger Agreement) in a
manner such that after giving effect to the Merger and related transactions the
owner, directly or indirectly, of 62 Sale Properties is Sale LLC, a newly-formed
entity that is wholly owned directly or indirectly by (i) PRK1, which is 85%
owned by a limited liability company that is in turn 100% owned by the
Prudential Insurance Company of America ("PRUDENTIAL") on behalf of an insurance
company separate account known as PRISA ("ACCOUNT 1") and 15% by a subsidiary of
Kimco; (ii) PRK2, which is 85% owned by a limited liability company that is in
turn 100% owned by Prudential on behalf of an insurance company separate account
known as PRISA II ("ACCOUNT 2") and 15% by a subsidiary of Kimco; (iii) PRK3,
which is 85% owned by a limited liability company that is in turn 100% owned by
Prudential on behalf of an insurance company separate account known as Western
Conference of Teamsters ("ACCOUNT 3") and 15% by a subsidiary of Kimco. After
giving effect to the Merger and related transactions (i) an additional 3 Sale
Properties shall be owned directly or indirectly by PPRP, an entity that is
wholly owned directly or indirectly by PRK 1, PRK 2 and PRK 3 in the same
proportion as PRK 1, PRK 2 and PRK 3 own Sale LLC, and (ii) all the Hold
Properties shall be owned directly and indirectly by Sale LLC, PPRP, Holdco1,
Holdco2, and Holdco3. The Loans are to be used as part of the financing of the
acquisition through the Merger of the Scheduled Properties. Capitalized terms
used in this paragraph as defined terms and not defined in this paragraph shall
have the meanings given thereto below.
NOW THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 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 equal to the greater of (a) the
Prime Rate in effect on such day, and (b) the Federal Funds Effective Rate in
effect on such day PLUS 1/2 of 1%. For purposes hereof: "PRIME RATE" shall mean
the rate of interest per annuM publicly announced from time to time by JPMCB as
its prime rate in effect at its principal office in New York City, each change
in the Prime Rate being effective from and including the date such change is
publicly announced as being effective (the Prime Rate not being intended to be
the lowest rate of interest charged by JPMCB in connection with
extensions of credit to debtors); 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 Federal
Funds Effective Rate 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) 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 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 or the Federal Funds Effective Rate, respectively.
"ABR LOANS": Loans, the rate of interest applicable to which is
based upon the ABR.
"ACCEPTABLE JURISDICTION": a jurisdiction (other than the United
States) acceptable to the Administrative Agent in its sole discretion,
including, if requested by the Administrative Agent in its sole discretion,
based on satisfactory advice received by it from local counsel in such
jurisdiction with respect to the procedure for enforcement of a U.S. judgment in
such jurisdiction, and the collection of such judgment from assets located
there; provided that while the Existing Revolving Credit Facility is in effect
and JPMCB is serving as the Administrative Agent thereunder, any such
determinations made by such Administrative Agent under the Existing Revolving
Credit Facility shall be deemed to constitute a determination by the
Administrative Agent hereunder.
"ACCOUNT 1": as defined in the preamble to this Agreement.
"ACCOUNT 2": as defined in the preamble to this Agreement.
"ACCOUNT 3": as defined in the preamble to this Agreement.
"ACQUISITION": the acquisition of the Scheduled Properties through
the Merger and related transactions.
"ADJUSTED NET INCOME": for any period, as to Kimco and the
Consolidated Entities, Consolidated Net Income; PROVIDED that there shall be
excluded the income (or deficit) of any Person other than Kimco accrued prior to
the date it becomes a Subsidiary or is merged into or consolidated with Kimco or
any of its Subsidiaries.
"ADMINISTRATIVE AGENT": as defined in the introductory paragraph
hereof.
"ADMINISTRATIVE QUESTIONNAIRE": as defined in Section 12.6.
"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.
"AGREEMENT": this Credit Agreement.
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"APPLICABLE MARGIN": with respect to each (i) ABR Loan, 0%, (ii)
Eurocurrency Loan and Money Market Loan, (A) during the period ending one year
after the Borrowing Date, 37.5 basis points (0.375%) and (B) thereafter, 45
basis points (0.45%).
"APPLICABLE PERCENTAGE": as to any Lender at any time, a percentage
equal to a fraction the numerator of which is the aggregate outstanding
principal amount of the Loans (or, if no Loans are then outstanding, the
Commitment) of such Lender and the denominator of which is the aggregate
outstanding principal amount of the Loans (or, if no Loans are then outstanding,
the Commitments) of all Lenders.
"APPLICABLE PROPERTIES": as defined in Section 3.10.
"ASSIGNMENT AND ASSUMPTION": as defined in Section 12.6.
"ATTRIBUTED VALUE": the value attributed by Kimco to each of the
Scheduled Properties, as set forth on Schedule 3.3.
"AVP CERTIFICATE": as defined in Section 5.2(h).
"BOARD": the Board of Governors of the Federal Reserve System of
the United States of America (or any successor).
"BORROWER": as defined in the introductory paragraph hereof.
"BORROWING": Loans of the same Type, made, converted or continued on
the same date and, in the case of Eurocurrency Loans, as to which a single
Interest Period is in effect.
"BORROWING DATE": the Business Day specified in a notice pursuant
to Section 2.1(d) as the date on which the Loans shall be made hereunder.
"BORROWING OCCASION": as defined in Section 2.1.
"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; PROVIDED that, when used in connection with a Eurocurrency Loan, the term
"Business Day" shall also exclude any day on which commercial banks are not open
for dealings in dollar deposits in the London interbank market.
"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.
"CASH EQUIVALENTS": (i) securities denominated in Dollars or any
other currency of any Qualified Jurisdiction (any of the foregoing, "CURRENCY"),
in any event issued or directly and fully guaranteed or insured by the United
States Government or any other Qualified Jurisdiction, as applicable, or any
agency or instrumentality of any of them, having maturities of not more than one
year from the date of acquisition, (ii) time deposits and certificates of
deposit denominated in Currency 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 (or the equivalent in the applicable
Currency), (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
3
into with any bank meeting the qualifications specified in clause (ii) above,
(iv) commercial paper denominated in Currency 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
(or the equivalent in the applicable Currency), 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 denominated in Currency having at least the rating described in
clause (iv) above and maturing within 270 days after the date of acquisition.
"CO-AGENTS": as defined in the introductory paragraph hereof.
"CO-DOCUMENTATION AGENTS": as defined in the introductory paragraph
hereof.
"CO-MANAGING AGENTS": as defined in the introductory paragraph
hereof.
"CO-SYNDICATION AGENTS": as defined in the introductory paragraph
hereof.
"CODE": the Internal Revenue Code of 1986, as amended from time to
time.
"COLLATERAL": all property in which a security interest is granted
or purported to be granted pursuant to any Loan Document.
"COMMITMENT": as to any Lender, the obligation to make Loans
hereunder on the Borrowing Occasion 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. The initial aggregate amount of the
Lenders' Commitments is $1,200,000,000.
"COMMITMENT PERIOD": the period commencing with and including the
date of this Agreement through and terminating at 5:00 p.m., New York City time,
on December 28, 2006.
"COMMONLY CONTROLLED ENTITY": an entity, whether or not
incorporated, which is under common control with Kimco within the meaning of
Section 4001 of ERISA or is part of a group which includes Kimco and which is
treated as a single employer under Section 414 of the Code.
"CONSOLIDATED ENTITIES": as of any date of determination, any
entities whose financial results are consolidated with those of Kimco in
accordance with GAAP.
"CONSOLIDATED NET INCOME": for any period, net income (or loss) of
Kimco and the Consolidated Entities 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.
"CONTROL": the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"CONTROLLING" and "CONTROLLED" have meanings correlative thereto.
"CREDIT FACILITY": the term loan credit facility established
pursuant to this Agreement.
4
"CURRENCY": as defined in the definition of the term "Cash
Equivalents", provided that dollars shall not be treated as a Currency.
"DEFAULT": any of the events specified in Article X, whether or not
any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"DOLLAR EQUIVALENT": on any date of determination, for purposes of
the determination of Unrestricted Cash and Cash Equivalents, with respect to any
amount in any Currency (other than dollars), the equivalent in dollars of such
amount, determined by using the Exchange Rate with respect to such Currency.
"DOLLARS", "DOLLARS" and "$": lawful currency of the United States
of America.
"EBITDA": for any Person, the consolidated net income of such Person
and its Subsidiaries before income taxes, interest, depreciation, amortization,
gains or losses on sales of operating real estate and marketable securities, any
provisional benefit for income taxes, noncash impairment charges, and gains or
losses on extraordinary items in accordance with GAAP and gains or losses on
early extinguishment of debt.
"EFFECTIVE DATE": the date on which the conditions set forth in
Section 5.1 shall be satisfied (or waived in accordance with Section 12.1).
"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 Kimco, any Entity or any of their respective assets
or properties.
"ENTITY": as of any date of determination, any Consolidated Entity
or Unconsolidated Entity.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"EUROCURRENCY LOANS": Loans the rate of interest applicable to
which is based upon the Eurocurrency Rate.
"EUROCURRENCY RATE": with respect to any Eurocurrency Loan for any
interest period, the rate appearing on Page 3750 of the Dow Jones Market Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
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"EUROCURRENCY TRANCHE": the collective reference to Eurocurrency
Loans the then current Interest Periods with respect to all of which begin on
the same date and end on the same later date .
"EVENT OF DEFAULT": any of the events specified in Article X,
PROVIDED that any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"EXCHANGE RATE": on any day, with respect to any Currency, (i) if
the Existing Revolving Credit Facility is in effect and JPMCB is serving as the
Administrative Agent thereunder, the "Exchange Rate" as defined in the Existing
Revolving Credit Agreement then in effect for purposes of determining under the
Existing Revolving Credit Facility the "Unrestricted Cash and Cash Equivalents"
as defined in the Existing Revolving Credit Agreement, or, if the preceding
clause (i) is inapplicable, (ii) the rate at which such Currency may be
exchanged into dollars, as set forth at approximately 11:00 a.m., London time,
on such day on the Reuters World Currency Page for such Currency. For purposes
of clause (ii) of the preceding sentence, in the event that such rate does not
appear on any Reuters World Currency Page, the Exchange Rate shall be determined
by reference to such other publicly available service for displaying exchange
rates as may be agreed upon in writing by the Administrative Agent and Kimco,
or, in the absence of such agreement, such Exchange Rate shall instead be the
arithmetic average of the spot rates of exchange of the Administrative Agent in
the market where its Currency exchange operations in respect of such Currency
are then being conducted, at or about 11:00 a.m., local time, on such date for
the purchase of dollars for delivery two (2) Business Days later; PROVIDED that
if at the time of any such determination, for any reason, no such spot rate is
being quoted, the Administrative Agent, after consultation with Kimco, may use
any reasonable method it deems appropriate to determine such rate, and such
determination shall be conclusive absent manifest error.
"EXISTING REVOLVING CREDIT AGREEMENT": the Credit Agreement dated as
of July 26, 2005 among Kimco, the several banks, financial institutions and
other entities from time to time parties thereto, the Issuing Lender party
thereto, and JPMCB., as administrative agent for the lenders thereunder, as
modified, supplemented, amended or waived from time to time.
"EXISTING REVOLVING CREDIT FACILITY": the revolving credit facility
established and in effect pursuant to the Existing Revolving Credit Agreement.
"EXPOSURE": as to any Lender at any time, the outstanding aggregate
amount of such Lender's Loans at such time.
"FEDERAL FUNDS EFFECTIVE RATE": as defined in the definition of the
term "ABR".
"FEE LETTER": Fee Letter, dated October 16, 2006, to which Kimco,
JPMCB, J.P. Morgan, Wachovia Bank, National Association and Wachovia Capital
Markets, LLC are parties.
"FFO": funds from operations, as calculated based upon the NAREIT
definition in effect on the date of said calculation or in a manner consistent
with Kimco's prior reporting (with any variation from the NAREIT definition
being specified in Schedule 1.1B).
"FINAL DATE": as defined in Section 2.9(d).
"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 such lessee.
"FIRST TIER COMPANY": each of PRK1, PRK2 and PRK3.
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"FTC GUARANTEE": The Guarantee by a First Tier Company contained in
Section 12.9 hereof.
"FTC GUARANTORS": as defined in Section 12.9(a).
"FTG PERCENTAGE": as defined in Section 12.9(i).
"GAAP": generally accepted accounting principles in the United
States of America.
"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 any relevant date, an amount equal to the
sum, without duplication, of (a) Total Adjusted EBITDA, calculated with respect
to the most recent Test Period ended on or before such date annualized and
capitalized at 8.25%, PLUS (b) Unrestricted Cash and Cash Equivalents of Kimco
and the Consolidated Entities as of such date, PLUS (c) the sum of the following
items of Kimco and the Consolidated Entities: (i) land and development projects
as of such date valued at "cost", (ii) mezzanine and mortgage loan receivables
valued at the lower of cost or market at such date and marketable securities at
the value reflected in the consolidated financial statements of Kimco as of such
date, PLUS (d) Kimco's investments in and advances to the Noncontrolled Entities
valued at the lower of cost or market at such date, PROVIDED that the items
described in clauses (c) and (d) shall not be taken into account to the extent
that the amounts thereof exceed, in the aggregate, 35% of Gross Asset Value,
PLUS (e) 100% of the bona fide purchase price of Identified Properties as of
such date, and PROVIDED, FURTHER, that not more than 25% in the aggregate of
items comprising Gross Asset Value shall be attributable to assets located
outside of the United States or to assets owned by Entities not organized in and
having principal offices in the United States.
"GUARANTEE": the Kimco Guarantee and each FTC Guarantee.
"GUARANTEE OBLIGATION": as to any Person (the "GUARANTEEING
PERSON"), any obligation (determined without duplication) of (a) the
guaranteeing person or (b) another Person (including 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 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 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 all events (and regardless of the
existence of a stated liability amount), the amount of such Guarantee Obligation
shall be such guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by Kimco in good faith.
7
"GUARANTOR": (i) Kimco, and (ii) each First Tier Company.
"HOLDCO: each of Holdco1, Holdco2, and Holdco3.
"HOLDCO1": PK I Holdco LLC, a Delaware limited liability company,
all the equity interests in which are owned beneficially and of record by PRK1,
through which PRK1 owns all the Hold Properties owned directly or indirectly by
PRK1 (other than the Hold Properties owned directly or indirectly by PPRP or
Sale LLC as set forth on Schedule 3.3).
"HOLDCO2": PK II Holdco LLC, a Delaware limited liability company,
all the equity interests in which are owned beneficially and of record by PRK2,
through which PRK2 owns all the Hold Properties owned directly or indirectly by
PRK2 (other than the Hold Properties owned directly or indirectly by PPRP or
Sale LLC as set forth on Schedule 3.3).
"HOLDCO3": PK III Holdco LLC, a Delaware limited liability company,
all the equity interests in which are owned beneficially and of record by PRK3,
through which PRK3 owns all the Hold Properties owned directly or indirectly by
PRK3 (other than the Hold Properties owned directly or indirectly by PPRP or
Sale LLC as set forth on Schedule 3.3).
"HOLD PROPERTY": a property identified on Schedule 3.3 as a Hold
Property.
"HS LOAN PARTY": each Loan Party other than Kimco.
"HS PLEDGE AND SECURITY AGREEMENT": an agreement substantially in
the form of Exhibit C hereto, pursuant to which each First Tier Company shall
grant to the Administrative Agent for the benefit of the Secured Parties a Lien
in INTER ALIA, (i) the equity interests of the applicable Holdco of which such
First Tier Company holds 100% of the equity interests, (2) the equity interests
in Sale LLC held by such First Tier Company and (3) the equity interests in PPRP
held by such First Tier Company.
"IDENTIFIED PROPERTY": as of any time, Properties acquired by Kimco
during the most recent Test Period.
"INCOME REIT": Kimco Income Operating Partnership, L.P., a Delaware
limited partnership.
"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, (g) reimbursement
obligations for letters of credit and other contingent liabilities, (h) 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,
and (i) the net obligations (contingent or otherwise) of such Person at such
date under interest rate hedging agreements.
"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.
8
"INTELLECTUAL PROPERTY": as defined in Section 3.3.
"INTEREST PAYMENT DATE": (a) as to any ABR Loan, the last day of
each calendar month to occur while such ABR Loan is outstanding and the
Termination Date, (b) as to any Eurocurrency Loan, the last day of the Interest
Period with respect thereto and, in the case of a Eurocurrency Loan with an
Interest Period of more than three (3) months' duration, each day prior to the
last day of such Interest Period that occurs at intervals of three (3) months'
duration after the first day of such Interest Period, and (c) as to any Money
Market Loan, the last day of the Money Market Rate Period applicable thereto.
"INTEREST PERIOD": with respect to any Eurocurrency Loan:
(i) initially, the period commencing on the borrowing or conversion
date, as the case may be, with respect to such Eurocurrency Loan and ending one
(1), two (2), three (3) or six (6) months thereafter, as selected by the
Borrower in the 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 Eurocurrency Loan and ending one
(1), two (2), three (3) or six (6) 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;
PROVIDED that all of the foregoing provisions relating to Interest Periods are
subject to the following:
(1) if any Interest Period pertaining to a Eurocurrency 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) any Interest Period pertaining to a Eurocurrency 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; and
(3) in no event shall any Interest Period end on a day subsequent to the
Termination Date.
"INVESTMENT ENTITY": as to any Person, a corporation, limited
liability company, partnership or other entity in which Kimco has a direct or
indirect interest, but which is not a Subsidiary.
"JPMCB": JPMorgan Chase Bank, N.A.
"J.P. MORGAN": J.P. Morgan Securities Inc.
"JULY LETTER": Commitment Letter, dated July 9, 2006, to which Kimco
and JPMCB (among others) are parties.
"KIMCO": as defined in the introductory paragraph hereof.
"KIMCO GUARANTEE": the Guarantee by Kimco arising under Section
12.10 hereof.
"LENDERS": as defined in the introductory paragraph hereof.
"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
9
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 any
conditional sale or other title retention agreement and any Financing Lease
having substantially the same economic effect as any of the foregoing).
"LOAN": each loan made by a Lender on the Borrowing Date as the same
may be continued or converted pursuant to this Agreement (whether a Eurocurrency
Loan, an ABR Loan, or a Money Market Loan).
"LOAN DOCUMENTS": this Agreement, the Notes, each HS Pledge and
Security Agreement and any instrument or agreement waiving, amending, or
supplementing any Loan Document.
"LOAN PARTIES": The Borrower, Kimco and each First Tier Company.
"MAJORITY LENDERS": at any time (i) prior to the making of the Loans
on the Borrowing Date, Lenders holding more than 50% of the total Commitments,
and (ii) thereafter, Lenders holding more than 50% of the aggregate principal
amount of Loans outstanding at such time.
"MATERIAL ADVERSE EFFECT": a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or prospects
of Kimco and its Subsidiaries taken as a whole, (b) the ability of Kimco to
perform its obligations under the Loan Documents or (c) the validity or
enforceability of this Agreement or any of the other material Loan Documents or
the rights or remedies of the Administrative Agent or the Lenders hereunder or
under any other Loan Document.
"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 asbestos, polychlorinated biphenyls
and urea-formaldehyde insulation.
"MATURITY DATE": the date that is two years after the date of this
Agreement.
"MERGER": as defined in the Merger Agreement.
"MERGER AGREEMENT": the Agreement and Plan of Merger dated as of
July 9, 2006, among Kimco, KRC Acquisition Inc., a Maryland corporation and
indirect Subsidiary of Kimco, KRC CT Acquisition Limited Partnership, a Delaware
limited partnership, KRC PC Acquisition Limited Partnership, a Delaware limited
partnership, Pan Pacific Retail Properties, Inc., a Maryland corporation, CT
Operating Partnership, L.P., a California limited partnership, and
Western/Pinecreek L.P., a Delaware limited partnership, as in effect on such
date (or as it may be amended from time to time in a manner not materially
adverse to the Lenders, including an amendment to remove the requirement that
the "Partnership Mergers" (as such term is defined in such agreement on the date
hereof) be consummated).
"MONEY MARKET LOANS": Loans denominated in Dollars the rate of
interest applicable to which is based upon the Money Market Rate.
"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 Lender, in its sole discretion, no later than
10:00 A.M., New York City time, on the Borrowing Date (if borrowed on
10
such a basis on the Borrowing Occasion), or in the case of a conversion to a
Money Market Rate Loan, the date of such conversion.
"MONEY MARKET RATE PERIOD": with respect to any Money Market Loan,
the period requested by the Borrower in connection therewith (which period shall
in no event be longer than 29 days or end after the Termination Date).
"MONEY MARKET TRANCHE": the collective reference to Money Market
Loans having the same Borrowing Date (if borrowed on the Borrowing Occasion) or,
in the case of a conversion to or continuation of a Money Market Rate Loan, the
same date of conversion or continuation, and in either case the same Money
Market Rate Period.
"MOODY'S": Moody's Investors Service, Inc.
"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.
"NET CASH PROCEEDS": with respect to any Prepayment Event, (a) the
cash proceeds received by or for the account of any HS Loan Party or PPRP or any
Subsidiary of any thereof, in respect of such event, including (i) any cash
received in respect of any non-cash proceeds (including as a result of any
monetization of non-cash proceeds), but only as and when received, (ii) in the
case of a casualty constituting a Prepayment Event, insurance proceeds received,
and (iii) in the case of a condemnation or similar event constituting a
Prepayment Event, condemnation awards and similar payments received, NET OF (b)
the sum of (A) all reasonable fees, discounts, premiums, commissions or other
out-of-pocket expenses of the applicable HS Loan Party or PPRP or applicable
Subsidiary thereof (including any legal, title or recording tax expenses and
similar holdbacks or deductions customarily deducted in the determination of net
cash proceeds) paid or payable (if reserved for such purpose) to third parties
in connection with such Prepayment Event, (B) in the case of a disposition of
any Scheduled Property, the amount of all Indebtedness of any applicable HS Loan
Party or PPRP or the applicable Subsidiary thereof related to such Scheduled
Property (whether or not secured by such Scheduled Property or by any interest
therein) required to be paid in connection with such disposition by the
applicable HS Loan Party or PPRP or applicable Subsidiary thereof, (C) in the
case of a financing or refinancing of any Indebtedness secured by a Scheduled
Property or by any interest therein, the amount of all existing Indebtedness of
the Borrower, any Guarantor, PPRP or any Subsidiary of any thereof secured by
such Scheduled Property or by any interest therein that is paid in connection
with such financing or refinancing, together with any premiums, fees, or other
expenses incurred in connection therewith, (D) any amount paid or payable to the
holder of any direct or indirect minority interest in such Scheduled Property
(which shall be set forth on Schedule 3.3, in the case of minority interests
existing on the Borrowing Date), (E) the amount of all taxes paid (or reasonably
estimated to be payable) as a result of such Prepayment Event, (F) any amounts
taken as a reserve by the applicable HS Loan Party or PPRP or applicable
Subsidiary thereof in accordance with GAAP against any liabilities associated
with the Scheduled Property (or interest therein) disposed of in such
transaction and retained by the applicable HS Loan Party or PPRP or applicable
Subsidiary thereof after such disposition, including pension, employee benefit,
environmental or against contractual indemnification obligations, or (G) in the
case of financing ("NEW MORTGAGE FINANCING") with respect to a Hold Property for
which commercial mortgage backed security financing was not obtained in
connection with the Merger, the proceeds of such New Mortgage Financing to the
extent of equity capital that had been provided by Prudential and/or Kimco in
order to acquire such Hold Property, up to the "Loan Amount" for such Hold
Property as shown on Schedule 3.3.
11
"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.
"NONCONTROLLED ENTITY": any of the following Unconsolidated
Entities: (i) the Income REIT, Kimco Retail Opportunity Portfolio, LLC, or "Rio
Can/Canadian Ventures", (ii) any entity in which the only investment by Kimco or
any Affiliate thereof consists of preferred stock or securities of another
entity having characteristics analogous to those of preferred stock, or (iii)
any entity as to which Kimco (together with its Affiliates) does not have the
power to direct the acquisition, financing, disposition and other major
decisions regarding property owned by such entity.
"NON-EXCLUDED TAXES": as defined in Section 2.10(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 Person
issuing such Indebtedness or (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 or customary potential recourse carve-outs contained in
such documentation, PROVIDED that if a claim is made in connection with such
indemnities or potential recourse carve-outs, such claim shall not constitute
Non-Recourse Indebtedness for the purposes of this Agreement); provided that,
notwithstanding the foregoing, any Indebtedness which would otherwise constitute
Recourse Indebtedness (or which would not constitute Non-Recourse Indebtedness
hereunder), shall be included as Non-Recourse Indebtedness for all purposes
hereunder if and to the extent such Indebtedness is not recourse (either
contractually or by operation of law) to Kimco (except in the case of customary
indemnities or customary potential recourse carve-outs contained in the
applicable documentation, provided that if a claim is made in connection with
such indemnities or potential recourse carve-outs, such claim shall not
constitute Non-Recourse Indebtedness for the purposes of this Agreement).
"NON-U.S. LENDER": as defined in Section 2.10(b).
"NOTES": as defined in Section 2.1(b).
"OBLIGATED PROPERTY OWNER": as defined in the definition of the term
"Unencumbered Properties".
"OBLIGATIONS": all payment obligations of every nature of the
Borrower from time to time owing to any Lender or the Administrative Agent,
under or in connection with this Agreement or any other Loan Document, in each
case whether primary, secondary, direct, indirect, contingent, fixed or
otherwise, including interest accruing at the rate provided in the applicable
Loan Document on or after the commencement of any bankruptcy or insolvency
proceeding, whether or not allowed or allowable.
"OWNERSHIP PERCENTAGE": (i) in respect of a Wholly Owned Subsidiary,
100%, and (ii) in respect of (A) any other Consolidated Entity (other than a
Wholly Owned Subsidiary) or (B) an Unconsolidated Entity, Kimco's direct and
indirect percentage interest in such entity determined in accordance with GAAP.
"PARTICIPANT": as defined in Section 12.6.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
12
"PERMITTED ENCUMBRANCES": (a) Liens imposed by law for taxes (x)
that are not yet due and delinquent, or (y) where (A) the validity or amount
thereof is being contested in good faith by appropriate proceedings, (B) the
Person responsible for such taxes is Kimco or a Wholly Owned Subsidiary and has
set aside on its books adequate reserves with respect thereto in accordance with
GAAP, and (C) the failure to make payment pending such contest could not
reasonably be expected to have a Material Adverse Effect, (b) carriers',
warehousemen's, mechanics', materialmen's, repairmen's and other like Liens
imposed by law, arising in the ordinary course of business and securing
obligations that are not overdue by more than 30 days, except where (i) the
validity or amount thereof is being contested in good faith by appropriate
proceedings, (ii) the Person responsible for the charges so secured is Kimco or
a Wholly Owned Subsidiary and has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (iii) the failure to make payment
pending such contest could not reasonably be expected to have a Material Adverse
Effect, (c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other social
security laws or regulations, (d) deposits to secure the performance of bids,
trade contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case in the
ordinary course of business, and (e) easements, zoning restrictions,
rights-of-way and similar encumbrances on real property imposed by law or
arising in the ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the affected
property or interfere with the ordinary conduct of business of Kimco or of any
Wholly Owned Subsidiary that has any direct or indirect interest in any
Unencumbered Property; PROVIDED that the term "Permitted Encumbrances" shall not
include any Lien securing Indebtedness.
"PERMITTED LIENS": (a) Liens imposed by law for taxes (x) that are
not yet due and delinquent, or (y) where (A) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (B) the Person
responsible for such taxes and has set aside on its books adequate reserves with
respect thereto in accordance with GAAP, and (C) the failure to make payment
pending such contest could not reasonably be expected to have a material adverse
effect on any HS Loan Party, (b) carriers', warehousemen's, mechanics',
materialmen's, repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not overdue by
more than 30 days, except where (i) the validity or amount thereof is being
contested in good faith by appropriate proceedings, (ii) the Person responsible
for the charges so secured has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (iii) the failure to make payment
pending such contest could not reasonably be expected to have a material adverse
effect on any HS Loan Party, (c) pledges and deposits made in the ordinary
course of business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations, (d) deposits to secure
the performance of bids, trade contracts, leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like nature, in
each case in the ordinary course of business, and (e) easements, zoning
restrictions, rights-of-way and similar encumbrances on real property imposed by
law or arising in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the value of the
affected property or interfere with the ordinary conduct of business of any HS
Loan Party; PROVIDED that the term "Permitted Liens" shall not include any Lien
securing Indebtedness.
"PERSON": an individual, partnership, limited liability company,
corporation, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"PRK1": as defined in the introductory paragraph hereof.
"PRK2": as defined in the introductory paragraph hereof.
13
"PRK3": as defined in the introductory paragraph hereof.
"PLAN": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which Kimco 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.
"PLAN ASSETS": as defined in Section 3(42) of ERISA including under
regulations referred to therein.
"PLAN ASSET REGULATION": Department of Labor Regulation Section
2510.3-101, 29 C.F.R. ss. 2510.3-101, and any successor regulation or
regulations.
"PPRP": Pan Pacific Retail Properties, Inc., a Maryland corporation.
"PREPAYMENT EVENT": (i) any sale, transfer or other disposition
(including any other transaction however denominated having comparable effect)
of any Scheduled Property, (ii) the sale or other disposition (including any
other transaction however denominated having comparable effect), or issuance, to
a Person other than a Loan Party, PPRP, or a Wholly Owned Subsidiary of any
thereof, of any equity interests in the Borrower, the Holdcos, PPRP, or any
Subsidiary of any thereof, (iii) the incurrence of any Indebtedness secured by a
Lien (other than a Permitted Lien) on any Scheduled Property, (iv) any casualty
or taking under power of eminent domain or by condemnation or similar proceeding
of any Scheduled Property unless the owner of the affected Scheduled Property
shall be proceeding diligently and in good faith to repair, restore or replace
the affected property; PROVIDED, HOWEVER, that the total and complete casualty
or taking of a Sale Property shall in any event constitute a Prepayment Event.
"PRIME RATE": as defined in the definition of the term "ABR".
"PROPERTY": real property owned by Kimco or any of the Entities, or
in which Kimco, any of the Consolidated Entities, or any of the Unconsolidated
Entities has a leasehold interest.
"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 the
following: (a) amounts received under leases, including 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, insurance premiums 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 NOI": 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.
14
"PROPERTY OPERATING EXPENSES: with respect to any Property, for any
period, the sum of all expenses incurred during such period with respect to the
ownership, operation, leasing and occupancy of such Property, including the
following: (a) real estate taxes; (b) special assessments or similar charges
paid during such period; (c) 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
employer's 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 an Investment Entity, any obligation of Kimco or any of its
Subsidiaries (contingent or otherwise) to contribute funds to such Investment
Entity. 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, (4) property management fees payable to Kimco or its Affiliates, and
(5) any expenditures made for capital improvements and the cost of leasing
commissions.
"QUALIFIED JURISDICTION": at any time of determination, any
jurisdiction in which Kimco or any of its Subsidiaries is doing business at such
time the government of which jurisdiction is internationally recognized at such
time, including by the United States Government.
"RECOURSE INDEBTEDNESS": any Indebtedness of any Person, (A) to the
extent that Kimco is liable for direct claims for payment of such debt, or (B)
to the extent that the payment of such debt is guaranteed by Kimco or that Kimco
otherwise stands as a surety or accommodation party for such debt, or (C) as to
which a Lien securing such debt has been placed against any assets of Kimco
(excluding from this clause (C) Non-Recourse Indebtedness of Kimco). (Any such
Indebtedness shall not be treated as Recourse Indebtedness solely because of
customary potential recourse carveouts contained in documentation, PROVIDED that
if a claim is made in connection with such potential recourse carve-outs, such
claim shall constitute Recourse Indebtedness for the purposes of this
Agreement). For the avoidance of doubt, Guarantee Obligations shall not
constitute Recourse Indebtedness in an amount greater than the amount provided
in the last proviso to the definition of Guaranteed Obligations.
"REGISTER": as defined in Section 12.6.
"REGULATION U": Regulation U of the Board as in effect from time to
time.
"RELEVANT PROPERTIES": as defined in Section 3.11(b).
"REOC": a "real estate operating company" as defined in the Plan
Asset Regulation.
"REOC UPDATE CERTIFICATE": in respect of a First Tier Company, a
certificate of a Responsible Officer of such First Tier Company stating that
such First Tier Company has consulted with Mayer, Brown, Rowe & Maw LLP or other
recognized ERISA counsel reasonably acceptable to the Administrative Agent in
connection with the preparation of such certificate, which certificate shall
state that such First Tier Company (a) is a REOC as of the date of such
certificate, (b) has met the requirements of paragraph (e)(1), of the Plan Asset
Regulation within the Annual Valuation Period in which the date of such
certificate falls, (c) has complied with Section (e)(2) of the Plan Asset
Regulation through the date of such certificate, (d) will be a REOC (assuming
compliance with section (e)(2) of the Plan Asset Regulation), as the case may
be, at least until the end of its next Annual Valuation Period (assuming in
either case no change in applicable law after the date of such certificate), and
(e) making reference to the Annual Valuation Period of such First Tier Company;
provided that to the extent that compliance with
15
Section (e)(2) of the Plan Asset Regulation requires that any subsidiary of any
Person is itself an operating company (including a REOC), such certificate shall
state facts in sufficient detail to demonstrate satisfaction of such
requirement.
"REOC UPDATE OPINION": in respect of a First Tier Company, a written
opinion (addressed to the Administrative Agent and the Lenders) of Mayer, Brown,
Rowe & Maw LLP or other recognized ERISA counsel reasonably acceptable to the
Administrative Agent, in form, scope, and substance reasonably acceptable to the
Administrative Agent, to the effect that none of the assets of such First Tier
Company constitute Plan Assets because such First Tier Company is a REOC, and
that such First Tier Company will be a REOC (assuming compliance with Section
(e)(2) of the Plan Asset Regulation) at least until the end of its next Annual
Valuation Period (assuming in either case no change in applicable law after the
date of such opinion) and making reference to the Annual Valuation Period of
such First Tier Company.
"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. ss. 2615.
"REQUIRED LENDERS": at any time, (i) prior to the making of the
Loans on the Borrowing Occasion, Lenders holding at least 66-2/3% of the total
Commitments and (ii) thereafter, Lenders holding at least 66-2/3% of the
aggregate principal amount of Loans outstanding at such time.
"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": with respect to any Person, the chief
executive officer and the president of such Person or, with respect to financial
matters, the chief financial officer or the treasurer of such Person.
"SALE LLC": as defined in the introductory paragraph hereof.
"SALE PROPERTY" a property identified on Schedule 3.3 as a Sale
Property.
"SCHEDULED PROPERTY" each Sale Property and each Hold Property.
"S&P": Standard & Poor's Ratings Services.
"SECURED PARTY": each of Administrative Agent and the Lenders and
their successors and assigns.
"SINGLE EMPLOYER PLAN": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"SOLVENT": as to any Person, that, as of any date of determination,
(a) the amount of the present fair saleable value of the assets of such Person
will, as of such date, exceed the amount of all liabilities of such Person,
contingent or otherwise, as of such date, as determined in accordance with
16
applicable U.S. federal and state laws (or analogous applicable foreign laws)
governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater
than the amount that will be required to pay the liability of such Person on its
existing or anticipated debts as such debts become absolute and matured, and (c)
such Person will not have as of such date, an unreasonably small amount of
capital with which to conduct its business.
"SUBSIDIARY": as to any Person, a corporation, limited liability
company, 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, limited liability company, partnership or other entity are at the
time owned, or the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such Person. Unless
otherwise qualified, all references to a "Subsidiary" or to "Subsidiaries" in
this Agreement shall refer to a direct or indirect Subsidiary or Subsidiaries of
Kimco. Notwithstanding the foregoing, for all purposes hereunder, each of Sale
LLC, each Subsidiary of Sale LLC, PPRP, and each Subsidiary of PPRP, shall be
treated as a Subsidiary of each First Tier Company.
"SWAP AGREEMENT": any agreement with respect to any swap, forward,
future or derivative transaction or option or similar agreement involving, or
settled by reference to, one or more rates, currencies, commodities, equity or
debt instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions; PROVIDED that no phantom
stock or similar plan providing for payments only on account of services
provided by current or former directors, officers, employees or consultants of
Kimco or any Affiliate thereof shall be a Swap Agreement.
"TARGET COMPANIES": collectively, Pan Pacific Properties, Inc., a
Maryland corporation, CT Operating Partnership, L.P., a California limited
partnership, Western/Pinecreek, L.P., a Delaware limited partnership, and their
respective subsidiaries.
"TERMINATION DATE": the date that is the earliest to occur of (a)
the Maturity Date, or (b) the date on which the Loans shall become due and
payable hereunder by acceleration.
"TEST PERIOD": a period of two (2) consecutive fiscal quarters of
Kimco.
"TOTAL ADJUSTED EBITDA": for any Test Period, Total EBITDA for such
period minus (without duplication) (i) replacement reserves of $0.25 per square
foot of gross leasable area per annum, pro-rated for the applicable period, (ii)
non-cash revenue for such period attributable to straight-lining of rents, (iii)
EBITDA for such period attributable to Noncontrolled Entities, (iv) income for
such period from mezzanine and mortgage loan receivables, (v) dividend and
interest income from marketable securities, (vi) EBITDA for such period
attributable to Identified Properties, and (vii) Kimco's and its Affiliates'
management fee income and other income (excluding all items referred to in any
other clause of this definition) for such period not attributable to Properties,
provided that the items referred to in this clause (vii) shall be taken into
account only to the extent that the amounts of such items, in the aggregate,
exceed 10% of Total EBITDA.
"TOTAL DEBT SERVICE": in respect of any Test Period, interest
expense PLUS scheduled principal debt amortization for Kimco and the
Consolidated Entities on the aggregate principal amount of their respective
Indebtedness (PROVIDED that (i) there shall be excluded optional prepayments and
balloon payments due at maturity, and (ii) in the case of any Indebtedness that
amortizes in annual installments, there shall be included in the aggregate 50%
of the amount of such annual installments payable during
17
such Test Period and 50% of the amount of such annual installments payable
during the two immediately succeeding fiscal quarters), PLUS preferred stock
dividends paid during such Test Period.
"TOTAL EBITDA": for any period, Adjusted Net Income of Kimco and the
Consolidated Entities before income taxes, interest, depreciation, amortization,
gains or losses on sales of operating real estate and marketable securities, any
provision or benefit for income taxes, noncash impairment charges, and gains or
losses on extraordinary items in accordance with GAAP and gains or losses on
early extinguishment of debt, PLUS, without duplication, EBITDA of
Unconsolidated Entities.
"TOTAL INDEBTEDNESS": as of any date of determination, all
Indebtedness of Kimco, of its Wholly Owned Subsidiaries and any other
Consolidated Entities, outstanding at such date.
"TOTAL RECOURSE INDEBTEDNESS": as of any date of determination, the
aggregate principal amount of all Indebtedness of Kimco and of the Consolidated
Entities outstanding at such date (excluding Non-Recourse Indebtedness and
Indebtedness that is contractually subordinated to the indebtedness of Kimco and
its Affiliates under the Loan Documents).
"TOTAL SECURED INDEBTEDNESS": as of any date of determination, the
aggregate of (i) Indebtedness of Kimco or of any of the Consolidated Entities
outstanding as of such date, secured by any asset of Kimco or the Consolidated
Entities, and (ii) all unsecured third party Indebtedness of the Consolidated
Entities to Persons other than Kimco or any Consolidated Entity outstanding as
of such date.
"TOTAL UNSECURED INTEREST EXPENSE": actual interest expense
(accrued, paid, or capitalized) on all unsecured debt of Kimco and of the
Consolidated Entities.
"TRANSACTIONS": collectively, (a) the Acquisition, including the
execution, delivery and performance by the parties thereto of the Merger
Agreement and the consummation of the transactions contemplated thereby, and (b)
the execution, delivery and performance by the Loan Parties of the Loan
Documents to which they are a party and the borrowing hereunder.
"TRANSFEREE": as defined in Section 12.7.
"TYPE": as to any Loan, its nature as an ABR Loan, a Eurocurrency
Loan, or a Money Market Loan.
"UNCONSOLIDATED ENTITY": as of any date of determination, a
corporation, partnership, limited liability company, trust, joint venture, or
other business entity in which Kimco, directly or indirectly through ownership
of one or more intermediary entities, owns an equity interest but that is not
required in accordance with GAAP to be consolidated with Kimco for financial
reporting purposes.
"UNENCUMBERED": with respect to any asset, as of 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 (excluding Permitted Encumbrances), (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 Entity) which prohibits or
limits the ability of Kimco or any of the Entities 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 Kimco or any of the Entities
(excluding any agreement which limits generally the amount of secured
Indebtedness which may be incurred by Kimco and the Entities) and (c) is not
subject to any agreement (including any agreement governing Indebtedness
incurred in order to finance or refinance the acquisition
18
of such asset) which entitles any Person to the benefit of any Lien (other than
Permitted Encumbrances) on any assets or Capital Stock of Kimco or any of the
Entities, or would entitle any Person to the benefit of any Lien (other than
Permitted Encumbrances) on such assets or Capital Stock upon the occurrence of
any contingency (other than pursuant to an "equal and ratable" clause contained
in any agreement governing Indebtedness).
"UNENCUMBERED ASSET VALUE": as of any date of determination, an
amount calculated with respect to the most recent Test Period ended on or before
such date, equal to the sum of (a) the Value of Unencumbered Properties as of
such date PLUS (b) the sum of (i) unencumbered mezzanine and mortgage loan
receivables (valued at the lower of cost or market as of such date), (ii)
unencumbered marketable securities (at the value reflected in the consolidated
financial statements of Kimco as of such date), PROVIDED that the items
described in this clause (ii) and in the preceding clause (i) shall not be taken
into account to the extent that the amounts of such items exceed, in the
aggregate, 15% of Unencumbered Asset Value, and (iii) unencumbered land and
development projects (valued at the lower of cost or market as of such date),
PROVIDED that the amount described in this clause (iii) shall not be taken into
account to the extent that it exceeds 10% of Unencumbered Asset Value, PLUS (c)
Unrestricted Cash and Cash Equivalents of Kimco and the Consolidated Entities as
of the last day of such period (which items shall be taken into account only to
the extent that the amounts thereof, in the aggregate, exceed $15,000,000), and
PROVIDED, FURTHER, that (i) not more than 15% in the aggregate of items
comprising Unencumbered Asset Value shall be attributable to assets located
outside of the United States or to assets owned by Entities not organized in and
having principal offices in the United States, and (ii) assets located in or
owned by Entities organized in any place other than the United States or an
Acceptable Jurisdiction shall not be included to any extent.
"UNENCUMBERED ASSETS NOI": for any period, Unencumbered Property NOI
PLUS, to the extent not in excess of 10% of Unencumbered Assets NOI, the sum of
dividend and interest income from unencumbered marketable securities and
unencumbered mezzanine and mortgage loan receivables.
"UNENCUMBERED PROPERTIES": (i) Properties wholly owned by Kimco or
by a Wholly Owned Subsidiary (or in which Kimco or a Wholly Owned Subsidiary has
a leasehold interest to the extent eligible pursuant to clause (b) of the second
sentence of the definition of the term "Unencumbered Property NOI"), as to which
Kimco has control, which Properties are unencumbered (including freedom from
restrictions, whether on the Property itself or the entity holding such
Property, on pledging such Property or the stock, limited liability company
interests, partnership interests, or other ownership interests of any Person
having an ownership interest in such Property as collateral or selling such
Property), and (ii) other unencumbered Properties as to which Kimco or a Wholly
Owned Subsidiary owns (directly or through the ownership of an interest in a
Consolidated Entity) a majority of the equity interests or has a leasehold
interest, as above, and has the power to direct acquisition, disposition,
financing, and other major property decisions (which shall not include
Properties owned by or through Noncontrolled Entities); PROVIDED that no such
Property shall be treated as an Unencumbered Property at any time during which
any Person (other than Kimco) having any direct or indirect ownership interest
in such Property (a "PROPERTY OWNER") has any Indebtedness or has any obligation
or liability, whether primary, secondary, direct, indirect, fixed, contingent,
or otherwise (including as a guarantor or other surety or accommodation party,
as the general partner of a partnership that has Recourse Indebtedness, under
applicable law, or otherwise) in respect of any Indebtedness (an "OBLIGATED
PROPERTY OWNER"), unless at such time each such Obligated Property Owner is a
Wholly Owned Subsidiary of Kimco and an a Subsidiary Guarantor (as defined in
the Existing Revolving Credit Agreement) pursuant to an effective Subsidiary
Guarantee (as defined in the Existing Revolving Credit Agreement).
"UNENCUMBERED PROPERTY NOI": for any period, Property NOI for such
period of Unencumbered Properties owned by Kimco or a Wholly Owned Subsidiary
and the percentage equal to
19
Kimco's Ownership Percentage interest in the applicable Property of Property NOI
for such period of other Unencumbered Properties, in each case net of (i)
management fees of 3% of revenues and (ii) replacement reserves of $0.25 per
square foot per annum (pro-rated for the applicable Test Period) of gross
leasable area, from Unencumbered Properties. For the purpose of determining
Unencumbered Property NOI, (a) no property owned by any Noncontrolled Entity
shall be included, and (b) leasehold positions will be eligible if (i) 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 Kimco 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,
(ii) such leasehold position is mortgageable and the terms of the lease include
customary secured lender protections (including that (A) 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 (B) 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), and (iii)
the Unencumbered Property NOI in respect of such leasehold positions included in
any calculation of Value of Unencumbered Properties for any Test Period shall
not be taken into account to the extent that it exceeds, in the aggregate, 20%
of Unencumbered Property NOI for such Test Period.
"UNITED STATES" means the United States of America, including the
States and the District of Columbia, but excluding its territories and
possessions.
"UNRESTRICTED CASH AND CASH EQUIVALENTS": as of any date of
determination, the sum of (a) the Dollar Equivalent of the aggregate amount of
Unrestricted cash then held by Kimco or any of the Consolidated Entities and (b)
the Dollar Equivalent of the aggregate amount of Unrestricted Cash Equivalents
(valued at the lower of cost and fair market value) then held by Kimco or any of
the Consolidated Entities. 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.
"UNSECURED DEBT": all Indebtedness which is not secured by a Lien
on any income, Capital Stock, property or asset.
"VALUE OF UNENCUMBERED PROPERTIES": for any period, an amount equal
to Unencumbered Property NOI for such period (LESS Unencumbered Property NOI of
Unencumbered Properties that are Identified Properties) with respect to the most
recent Test Period annualized and capitalized at 8.25% (PROVIDED that such
annualized and capitalized Unencumbered Property NOI in respect of Unencumbered
Properties not wholly owned by Kimco or a Wholly Owned Subsidiary shall not be
taken into account to the extent that it exceeds, in the aggregate, 20% of the
total Value of Unencumbered Properties), PLUS 100% of the bona fide purchase
price of such Unencumbered Properties that are Identified Properties.
"WACHOVIA BANK" means Wachovia Bank, National Association.
"WHOLLY OWNED SUBSIDIARY": of any Person, any entity all of the
capital stock of which and any and all equivalent ownership interests of which
(other than directors' qualifying shares required by law) are owned by such
Person directly or indirectly through one or more Wholly Owned Subsidiaries;
provided that unless such Person is otherwise specified, such Person shall be
Kimco.
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SECTION 1.2 OTHER DEFINITIONAL PROVISIONS; INTERPRETATION.
(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) Without limiting Section 1.3, 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 Kimco
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 Article,
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.
(e) Whenever the context may require, any pronoun shall include
the corresponding masculine, feminine and neuter forms.
(f) The words "include", "includes" and "including" shall be
deemed to be followed by the phrase "without limitation".
(g) The word "will" shall be construed to have the same meaning
and effect as the word "shall".
(h) Unless the context requires otherwise (i) any definition of
or reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as
from time to time amended, waived, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or
modifications set forth herein), (ii) any reference herein to any Person
shall be construed to include such Person's successors and assigns, and
(iii) the words "asset" and "property" shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract
rights.
SECTION 1.3 ACCOUNTING TERMS; GAAP.
Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided that, if Kimco notifies the Administrative
Agent that Kimco requests an amendment to any provision hereof to eliminate the
effect of any change occurring after the date hereof in GAAP or in the
application thereof on the operation of such provision (or if the Administrative
Agent notifies Kimco that the Required Lenders request an amendment to any
provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith.
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ARTICLE II
THE LOANS
SECTION 2.1 LOANS.
(a) TERM LOAN COMMITMENTS.
(i) Subject to the terms and conditions hereof, each Lender
severally agrees to make a term loan to the Borrower, in dollars, on a single
occasion (the "BORROWING OCCASION") on the Borrowing Date, in an aggregate
principal amount not to exceed its Commitment; provided that no Loans shall be
made if the Commitments shall have terminated. Amounts prepaid or repaid in
respect of Loans may not be reborrowed.
(ii) Each Loan shall be made on the Borrowing Occasion as part
of a Borrowing consisting of Loans made by the Lenders in accordance with their
respective Applicable Percentages. The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its obligations
hereunder; PROVIDED that the Commitments are several and no Lender shall be
responsible under this Agreement for any other Lender's failure to make Loans as
required.
(iii) Subject to Section 2.7 and Section 2.9, the Borrowing made
on the Borrowing Occasion shall be comprised entirely of Eurocurrency Loans, ABR
Loans, or Money Market Loans or a combination thereof, as determined by the
Borrower and notified to the Administrative Agent in accordance with Section
2.1(d). No Loan, including any Loan into which another Loan shall have been
converted or continued under Section 2.3 shall be a Eurocurrency Loan after the
day that is one (1) month prior to the Termination Date. Each Lender at its
option may make (or convert into or continue) any Eurocurrency Loan by causing
any domestic or foreign branch or Affiliate of such Lender to make (or convert
into or continue) such Loan; PROVIDED that any exercise of such option shall not
affect the obligation of the Borrower to repay such Loan in accordance with the
terms of this Agreement; PROVIDED, FURTHER, that each applicable Lender shall at
all times comply with the requirements of this Agreement in respect thereto,
including Section 2.11, and no Lender shall make any such election if and to the
extent the same would cause the Borrower to increase its payment obligations
hereunder.
(b) NOTES. The Loans made by each Lender shall be evidenced by a
promissory note executed and delivered by the Borrower at the request of
such Lender, substantially in the form of Exhibit B-1, with appropriate
insertions as to payee and date (a "NOTE"), payable to the order of such
Lender in a principal amount equal to the aggregate unpaid principal amount
of all Loans made by such Lender. Each Lender is hereby authorized to
record, as applicable, the date, Type and amount of each 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 Eurocurrency Loans, the length of
each Interest Period with respect thereto, and, in the case of Money Market
Loans, the Money Market Rate Period with respect thereto, on the schedule
(including any continuation of such schedule) annexed to and constituting a
part of its 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 Notes.
(c) TERMINATION DATE. The Borrower shall repay all then
outstanding Loans on the Termination Date.
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(d) PROCEDURE FOR BORROWING LOANS ON THE BORROWING DATE. 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 (3) Business Days prior to the Borrowing
Date, as to any part of the requested Loans which are to be initially
Eurocurrency Loans, (ii) two (2) Business Days prior to the Borrowing Date,
as to any part of the requested Loans which are to be initially Money
Market Loans, or (iii) one (1) Business Day prior to the Borrowing Date,
otherwise), specifying (A) the aggregate amount to be borrowed, (B) the
Borrowing Date and, in the case of each Money Market Loan, the requested
Money Market Rate Period, (C) whether the Borrowing is to be of
Eurocurrency Loans, ABR Loans, Money Market Loans or a combination thereof,
and (D) if the Borrowing is to be entirely or partly of Eurocurrency Loans
the respective amounts of each such Eurocurrency Loan and the respective
lengths of the initial Interest Periods therefor. The Borrowings on the
Borrowing Occasion 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 and (ii)
in the case of Eurocurrency Loans or Money Market Loans, $1,000,000 or a
whole multiple of $100,000 in excess thereof, in each case subject to
Section 2.1(e). Upon receipt of 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 such Borrowing available to
the Administrative Agent for the account of the Borrower at the office of
the Administrative Agent specified in Section 12.2 prior to 1:00 P.M., New
York City time (or in the case of Money Market Loans having a Money Market
Rate Period of six (6) days or less from the Borrowing Date, 3:00 P.M., New
York City time), on the Borrowing Date 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 to be made on the Borrowing Occasion exceed two (2).
(e) PRINCIPAL AMOUNTS. Notwithstanding anything to the contrary
in this Agreement, (i) the borrowings, and all prepayments, conversions and
continuations of Eurocurrency 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, (A) the aggregate
principal amount of the Loans comprising each Eurocurrency Tranche shall be
equal to $1,000,000 or a whole multiple of $100,000 in excess thereof, and
(B) there shall be no more than ten (10) Eurocurrency Tranches outstanding
at any one time, and (ii) the borrowings, and all prepayments, conversions
and continuations of Money Market Rate Loans hereunder and all selections
of Money Market Rate Periods hereunder shall be in such amounts and be made
pursuant to such elections so that, after giving effect thereto, (A) the
aggregate principal amount of each Money Market Rate Loan shall be equal to
$1,000,000 or a whole multiple of $100,000 in excess thereof, and (B) there
shall be no more than ten (10) Money Market Rate Loans outstanding at any
one time; PROVIDED that at no time shall the sum of the number of
Eurocurrency Tranches outstanding at any one time and the number of Money
Market Rate Loans outstanding at any one time exceed fifteen (15) .
(f) TERMINATION OF COMMITMENTS. Unless earlier terminated
hereunder, the Commitments shall automatically and permanently terminate
upon the earliest to occur of (i) the making of the Loans on the Borrowing
Occasion (whether or not the Loans made on the Borrowing Occsasion total
the full amount of the Commitments), (ii) the termination of the Commitment
Period, (iii) the termination of the Merger Agreement, or (iv) the making
of any request to borrow under the July Letter or any documentation
relating to any credit facility contemplated by the July Letter in an
amount in excess of $1,800,000,000.
(g) ACQUISITION DEBT. The amounts borrowed (i) under this
Agreement, (ii) under the July Letter (or any credit facility contemplated
by the July Letter), and (iii) in connection
23
with the mortgage financing contemplated to be established upon (or
subsequent to) the Merger in the aggregate of the "Loan Amounts" for Hold
Properties as set forth in Schedule 3.3, shall not exceed, in the
aggregate, $3,000,000,000; provided that nothing contained in this
paragraph shall limit clause (iv) of Section 2.1(f). The amount borrowed
hereunder shall not, when aggregated with the amount borrowed pursuant to
the July Letter or any related documentation and amounts borrowed in the
nature of commercial mortgage backed security financing secured by any
Scheduled Properties, exceed $3,000,000,000.
SECTION 2.2 PREPAYMENTS.
(a) OPTIONAL. The Borrower may at any time and from time to time
prepay the Loans (subject, in the case of Eurocurrency Loans and Money
Market Loans to compliance with the terms of Section 2.1(e) and Section
2.11), in whole or in part, without premium or penalty, upon at least one
(1) Business Days' irrevocable notice to the Administrative Agent,
specifying the date and amount of prepayment and whether the prepayment is
of Eurocurrency Loans, ABR Loans, Money Market Loans or a combination
thereof, and, if of a combination thereof, the amount allocable to each.
Upon receipt of any notice of prepayment, 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
2.11. Subject to Section 2.1(e), partial prepayments shall be in an
aggregate principal amount of $500,000 or a whole multiple of $100,000 in
excess thereof.
(b) MANDATORY. (i) The Borrower shall, within three Business Days
after the occurrence of a Prepayment Event, prepay Loans in an aggregate
amount equal to the amount of the Net Cash Proceeds in respect of such
Prepayment Event. (ii) On the date that is one year after the Borrowing
Date, the Borrower shall repay Loans in an amount equal to the excess (if
any) of (x) 25% of the principal amount of the Loans made on the Borrowing
Date, over (y) the aggregate principal amount of prepayments (whether
voluntary or mandatory) theretofore made.
(c) Amounts prepaid pursuant to this Section 2.2 shall be applied
first to reduce outstanding ABR Loans. Any amounts remaining after
application in accordance with the preceding sentence shall be applied to
such Eurocurrency Loans or Money Market Loans as the Borrower shall direct,
such prepayments to be subject to Section 2.11.
(d) All prepayments shall be accompanied by all interest accrued
hereunder on the amount prepaid through the date of prepayment.
SECTION 2.3 CONVERSION AND CONTINUATION OPTIONS.
(a) The Borrower may elect from time to time to convert
Eurocurrency Loans and Money Market Loans to ABR Loans, by giving the
Administrative Agent at least two (2) Business Days' prior irrevocable
notice of such election, PROVIDED that any such conversion of Eurocurrency
Loans may only be made on the last day of an Interest Period with respect
thereto, and any such conversion of Money Market Loans may only be made on
the last date of the Money Market Rate Period with respect thereto. The
Borrower may elect from time to time to convert Eurocurrency Loans to Money
Market Loans by giving the Administrative Agent at least two (2) Business
Days' prior irrevocable notice of such election, or to convert Money Market
Loans to Eurodollar Loans, by giving the Administrative Agent at least
three (3) Business Days' prior irrevocable notice of such election,
PROVIDED that any such conversion of Eurocurrency Loans may only be made on
the last day of an Interest Period with respect thereto, and any such
conversion of Money Market Loans may only be made on the last date of the
Money Market Rate Period with respect thereto. The Borrower may
24
elect from time to time to convert ABR Loans to Eurocurrency Loans, by
giving the Administrative Agent at least (3) Business Days' prior
irrevocable notice of such election, or to convert ABR Loans to Money
Market Loans by giving the Administrative Agent at least two (2) Business
Days' prior irrevocable notice of such election. Any such notice of
conversion to Eurocurrency Loans shall specify the length of the initial
Interest Period or Interest Periods therefor. Any such notice of conversion
to Money Market Loans shall specify the initial Money Market Rate Period or
Money Market Rate Periods therefor. Upon receipt of any such notice the
Administrative Agent shall promptly notify each affected Lender thereof.
All or any part of the outstanding Eurocurrency Loans, Money Market Loans,
and ABR Loans may be converted as provided herein, PROVIDED that (i) no
Loan may be converted into a Eurocurrency Loan or a Money Market 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, Section 2.1(e)
and Section 2.3(c) would not be contravened, and (iii) no Loan may be
converted into a Eurocurrency Loan after the date that is one (1) month
prior to the Termination Date. If the Borrower shall fail to give any
required notice as described above in this paragraph or if such conversion
is not permitted pursuant to the preceding proviso, such Loans (other than
Eurocurrency Loans or Money Market Loans that are continued in accordance
with Section 2.3(b)) shall be automatically converted to ABR Loans on the
last day of such then expiring Interest Period or Money Market Rate Period,
as applicable.
(b) Any Eurocurrency Loans or Money Market Loans may be continued
as such upon the expiration of the then current Interest Period or Money
Market Rate 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 or Money Market Rate Period to be
applicable to such Loans, PROVIDED that no Eurocurrency Loan or Money
Market 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,
Section 2.1(e) would be contravened, or (iii) after the date that is one
month prior to the Termination Date, 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 or Money Market Rate
Period, as applicable. Upon receipt of any notice pursuant to this Section
2.3(b), the Administrative Agent shall promptly notify each Lender thereof.
SECTION 2.4 INTEREST RATES AND PAYMENT DATES.
(a) Each Eurocurrency Loan shall bear interest for each day
during each Interest Period with respect thereto at a rate per annum equal
to the Eurocurrency 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 Money Market Loan shall bear interest at a rate per
annum equal to the Money Market Rate applicable thereto PLUS the Applicable
Margin.
(d) If all or a portion of (i) the principal amount of any Loan,
(ii) any interest payable thereon or (iii) any 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
25
at a rate per annum which is (x) in the case of overdue principal, the rate
that would otherwise be applicable thereto pursuant to the foregoing
provisions of this Section 2.4 PLUS 2% or (y) in the case of any overdue
interest, fee or other amount, the rate described in Section 2.4(b) PLUS
2%, 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).
(e) Interest shall be payable in arrears on each Interest Payment
Date, PROVIDED that (i) interest accruing pursuant to Section 2.4(d) shall
be payable from time to time on demand, and (ii) in the event of any
repayment or prepayment of any Loan, accrued interest on the principal
amount repaid or prepaid shall be payable on the date of such repayment or
prepayment.
SECTION 2.5 COMPUTATION OF INTEREST.
(a) 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 ABR 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
Eurocurrency Rate or Money Market Rate. Any change in the interest rate on
a Loan resulting from a change in the ABR 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 Borrowers, deliver to
the Borrower a statement showing the quotations used by the Administrative
Agent in determining any interest rate with respect to any Eurocurrency
Loan.
SECTION 2.6 INABILITY TO DETERMINE INTEREST RATE.
If prior to the first day of any Interest Period:
(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 Eurocurrency Rate for
such Interest Period; or
(b) the Administrative Agent shall have received notice from the
Required Lenders that the Eurocurrency Rate determined or to be determined
for such Interest Period will not adequately and fairly reflect the cost to
such Lender(s) (as conclusively certified by such Lender(s) of making or
maintaining their affected Loans during such Interest Period;
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, (i) any Eurocurrency Loans requested to be made on the Borrowing Date
shall be made as ABR Loans (ii) any Loans that were to have been converted on
the first day of such Interest Period to Eurocurrency Loans shall be converted
to or continued as ABR Loans, and (iii) any outstanding Eurocurrency Loans shall
be converted, on the first day of such Interest Period, to ABR Loans. Until such
notice has been withdrawn by the Administrative Agent, Eurocurrency Loans shall
not be made, and no further Eurocurrency Loans shall be continued as such, nor
shall the Borrower have the right to convert any other Loans to Eurocurrency
Loans.
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SECTION 2.7 PRO RATA TREATMENT AND PAYMENTS.
(a) Each Borrowing shall be made (on the Borrowing Occasion),
continued, or converted pro rata according to the respective Applicable
Percentages of the Lenders. Each payment (including each prepayment) by the
Borrower on account of principal of and interest on the Loans shall be made
pro rata according to the respective outstanding principal amounts of the
Loans then held by the Lenders. If at any time insufficient funds are
received by and available to the Administrative Agent to pay fully all
amounts of principal, interest and fees then due hereunder, such funds
shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with
the amounts of interest and fees then due to such parties, and (ii) second,
towards payment of principal then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal then due to
such parties. 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 applicable
Lenders, at the Administrative Agent's office specified in Section 12.2 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 applicable
Lenders promptly upon receipt in like funds as received. If any payment
hereunder (other than payments on Eurocurrency 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 Eurocurrency 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 the Borrowing Date 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 of the Borrowing
Occasion, 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 2.7(b) shall be 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 (3)
Business Days of the 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.
SECTION 2.8 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 Eurocurrency
Loans as contemplated by this Agreement, (a) the commitment of such Lender
hereunder to make Eurocurrency Loans, to continue Eurocurrency Loans as such, or
to convert
27
ABR Loans to Eurocurrency Loans shall forthwith be cancelled, and (b) such
Lender's Loans then outstanding as Eurocurrency 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 Eurocurrency 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 2.11.
SECTION 2.9 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
Effective Date:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Note, or any Eurocurrency 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 2.10 and changes in the rate of tax on the overall net income of such
Lender);
(ii) shall impose, modify or hold applicable any reserve (except
to the extent that such reserve is specifically subject to Section 2.9(c)),
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 Eurocurrency Rate or the Money Market Rate; 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 Eurocurrency Loans or Money Market Loans, or to reduce
any amount receivable hereunder in respect thereof, then, in any such case, (x)
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, and (y) the Borrower agrees to pay such Lender, upon its
demand, any additional amounts necessary to compensate such Lender for such
increased cost or reduced amount receivable with respect to this Agreement or
the Commitments generally and not solely with respect to any particular
Borrower's Loans. If any Lender becomes entitled to claim any additional amounts
pursuant to this Section 2.9(a), it shall promptly notify the Borrower, through
the Administrative Agent, of the event by reason of which it has become so
entitled, provided that such amounts shall be no greater than amounts that such
Lender is generally charging other borrowers similarly situated to the Borrower.
(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 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
28
Agent) of a written request therefor (setting forth in reasonable detail
the basis for such request), (i) the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender, or such
corporation, for such reduction, and (ii) the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender or
such corporation, as the case may be, for such reduction with respect to
this Agreement or the Commitments.
(c) The Borrower agrees to pay to each Lender which requests
compensation under this Section 2.9(c) (by notice to the Borrower), on the
last day of each Interest Period with respect to any Eurocurrency Loan of
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 Eurocurrency 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 Eurocurrency 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 Eurocurrency 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 Eurocurrency 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 Eurocurrency Rate (expressed as a decimal) applicable to such
Eurocurrency Loan, and the denominator of which is one (1) 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 (1) and the denominator of
which is 360.
Any Lender which gives notice under this Section 2.9(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) A certificate as to any additional amounts payable pursuant
to this Section 2.9 submitted by any Lender, through the Administrative
Agent, to the Borrower shall be conclusive in the absence of manifest
error. The agreements in this Section 2.9 shall survive the termination of
this Agreement and the payment of the 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.
Notwithstanding anything contained in this Section 2.9, the Borrower shall
not be obligated to pay any greater amounts than such Lender(s) is (are)
generally charging other borrowers similarly situated to the Borrower.
SECTION 2.10 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
29
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 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 2.10(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 2.10(a)
shall survive the termination of this Agreement and the payment of the
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 state thereof, 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 (on or prior to the Borrowing Date in the case of
any such Person that is a Lender as of the Borrowing Date) 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 W-8BEN or Form W-8ECI,
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-8BEN, or any subsequent versions
thereof or successors thereto (and, if such Non-U.S. Lender delivers a Form
W-8BEN, 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, (i) 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 and
(ii) each Non-U.S. Lender shall deliver any and all other documentation
reasonably requested by the Borrower from time to time so as to provide a
complete (or the greatest extent possible) exemption from U.S federal
withholding tax and any other jurisdiction's withholding tax on any and all
payments under this Agreement and the other Loan Documents. Each Non-U.S.
Lender shall promptly notify the Borrower at any time it
30
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 2.10(b), a Non-U.S. Lender shall not be
required to deliver any form pursuant to this Section 2.10(b) that such
Non-U.S. Lender is not legally able to deliver.
(c) Each Lender (or Transferee) that is not a Non-U.S. Lender (a
"U.S. LENDER") shall deliver (on or prior to the Borrowing Date in the case
of any such Person that is a Lender as of the Borrowing Date) 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 U.S. Internal Revenue Service Form W-9 or any subsequent
versions thereof or successors thereto, properly completed and duly
executed by such U.S. Lender. Such form shall be delivered by each 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, (i) each U.S. Lender
shall deliver such form promptly upon the obsolescence or invalidity of any
form previously delivered by such U.S. Lender and (ii) each U.S. Lender
shall deliver any and all other documentation reasonably requested by the
Borrower from time to time so as to provide a complete (or the greatest
extent possible) exemption from U.S. federal withholding tax and any other
jurisdiction's withholding tax on any and all payments under this Agreement
and the other Loan Documents. Notwithstanding any other provision of this
Section 2.10(c), a U.S. Lender shall not be required to deliver any form
pursuant to this Section 2.10(c) that such U.S. Lender is not legally able
to deliver.
SECTION 2.11 INDEMNITY.
The Borrower agrees to indemnify each Lender and to hold each Lender
harmless from any loss or expense (including post-judgment expenses) which such
Lender may sustain or incur as a consequence of (a) default by the Borrower in
making the borrowing of any Eurocurrency Loans or Money Market Loans, or in the
conversion into or continuation of Eurocurrency Loans or Money Market 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 or conversion of Eurocurrency Loans or Money Market Loans on a day
which is not the last day of an Interest Period or a Money Market Rate Period,
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
converted, 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 Rate
Period (or proposed Interest Period or proposed Money Market Rate Period, 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 Eurocurrency market or
other relevant market. This covenant shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder,
until the first anniversary of the Final Date.
SECTION 2.12 CHANGE OF LENDING OFFICE.
Each Lender and each Transferee agrees that, upon the occurrence of
any event giving rise to the operation of Section 2.8, 2.9 or 2.10 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
31
or Transferee) to designate another lending office for 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 2.12 shall affect or postpone any of the obligations of
the Borrower or the rights of any Lender or Transferee pursuant to Sections 2.8,
2.9 and 2.10.
SECTION 2.13 REPLACEMENT OF LENDERS UNDER CERTAIN CIRCUMSTANCES.
The Borrower shall be permitted to replace any Lender that (a)
requests reimbursement for amounts owing pursuant to Section 2.9 or 2.10, (b) is
affected in the manner described in Section 2.8 and as a result thereof any of
the actions described in Section 2.8 is required to be taken, or (c) defaults in
its obligations to make a Loan 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 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 2.11 if any
Eurocurrency 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 Rate Period, 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, (vi) the replaced Lender shall be obligated to make such replacement in
accordance with the provisions of Section 12.6 (provided that the Borrower shall
be obligated to pay the registration and processing fee referred to therein),
(vii) the replaced Lender shall be released from its obligations under this
Agreement, (viii) until such time as such replacement shall be consummated, the
Borrower shall pay all additional amounts (if any) required pursuant to Section
2.9 or 2.10, as the case may be and (ix) 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 if it defaulted in
its obligation to make a Loan hereunder.
SECTION 2.14 OBLIGATIONS OF LOAN PARTIES NOT CONTRACTUALLY
SUBORDINATED.
The Loans and the obligations hereunder of each Guarantor shall not
be contractually subordinated to any other obligations of the Borrower or of
such Guarantor.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF HS LOAN PARTIES
To induce the Administrative Agent and the Lenders to enter into
this Agreement, and to make the Loans, it is hereby represented and warranted as
of the Borrowing Occasion by the specified HS Loan Party, with respect to itself
(and its Subsidiaries) only and not with respect to any other HS Loan Party (or
the Subsidiaries thereof), to the Administrative Agent and each Lender as
follows:
SECTION 3.1 EXISTENCE, COMPLIANCE WITH LAW, POWER, AUTHORIZATION,
ENFORCEABILITY.
(a) Such HS Loan Party (i) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (ii)
has the limited liability company (or corporate, limited partnership, or
other applicable entity) 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
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which it is currently engaged, (iii) is duly qualified as a foreign limited
liability company (or corporation, limited partnership, or other applicable
entity) 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) Such HS Loan Party has the corporate (or limited partnership or
limited liability company or other form of organization, as applicable)
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 has taken all necessary corporate (or limited
partnership or limited liability company or other form of organization, as
applicable) 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 borrowing of the Loans hereunder, 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
(except such as have been obtained and are in full force and effect) in
connection with any acts by such HS Loan Party relating to the Acquisition,
or in connection with the borrowing of the Loans hereunder or the
execution, delivery, performance, validity or enforceability of any Loan
Document. Each Loan Document to which such HS Loan Party is a party has
been duly executed and delivered on its behalf. Each Loan Document to which
such HS Loan Party is a party constitutes its legal, valid and binding
obligation enforceable against it 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).
SECTION 3.2 NO LEGAL BAR, APPROVALS, MATERIAL LITIGATION, NO DEFAULT.
(a) 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 such HS
Loan Party and will not result in, or require, the creation or imposition
of any Lien on any of its properties or revenues pursuant to any such
Requirement of Law or Contractual Obligation (other than Liens in favor of
the Secured Parties under the Loan Documents).
(b) No litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of
such HS Loan Party, threatened by or against it or any of its Subsidiaries
or against any of its or their respective properties or revenues (a) with
respect to this Agreement, any of the other Loan Documents or any of the
transactions contemplated hereby, or (b) which could reasonably be expected
to have a Material Adverse Effect.
(c) Neither such HS Loan Party 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.
SECTION 3.3 OWNERSHIP OF PROPERTY, INTELLECTUAL PROPERTY.
(a) Each of such HS Loan Party and its Subsidiaries has good record
title in fee simple to, or a valid leasehold interest in, all of its
material real property, and good title to all of its other material
property.
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(b) Without limiting the foregoing, after giving effect to the Merger
and the related Acquisition transactions, it is hereby represented and
warranted: (i) by Sale LLC, that Sale LLC owns, directly or indirectly, all
the Scheduled Properties indicated on Schedule 3.3 as owned by it, (ii) by
each First Tier Company, that PPRP owns, directly or indirectly, all the
Scheduled Properties indicated on Schedule 3.3 as owned by PPRP, (iii) by
PRK1, that (A) Prudential, acting on behalf of Account 1, owns directly or
indirectly 85% of the equity interests of PRK1, (B) that Kimco owns
directly or indirectly 15% of the equity interests of PRK1, (C) that PRK1
owns beneficially and of record 46.2921% of the equity interests in each of
Sale LLC and PPRP, (D) that PRK1 owns beneficially and of record all the
equity interests in Holdco1, and (E) that Holdco1 owns, directly and
indirectly, all of the Scheduled Properties indicated on Schedule 3.3 as
owned by Holdco1, (iv) by PRK2, that (A) Prudential, acting on behalf of
Account 2, owns directly or indirectly 85% of the equity interests of PRK2,
(B) that Kimco owns directly or indirectly 15% of the equity interests of
PRK2, (C) that PRK2 owns beneficially and of record 45.5763% of the equity
interests in each of Sale LLC and PPRP, (D) that PRK2 owns beneficially and
of record all the equity interests in Holdco2, and (E) that Holdco2 owns,
directly and indirectly, all of the Scheduled Properties indicated on
Schedule 3.3 as owned by Holdco2, (v) by PRK3, that (A) Prudential, acting
on behalf of Account 3, owns directly or indirectly 85% of the equity
interests of PRK3, (B) that Kimco owns directly or indirectly 15% of the
equity interests of PRK3, (C) that PRK3 owns beneficially and of record
8.1316% of the equity interests in each of Sale LLC and PPRP, (D) that PRK3
owns beneficially and of record all the equity interests in Holdco3, and
(E) that Holdco3 owns, directly and indirectly, all of the Scheduled
Properties indicated on Schedule 3.3 as owned by Holdco3, (vi) by each
First Tier Company, that the Hold Properties owned directly and indirectly
by Holdco1, Holdco2, Holdco3, Sale LLC and PPRP represent approximately
34.8254%, 32.7123%, 8.1316%, 10.7331% and 13.5977%, respectively (and 100%
in the aggregate), of the Attributed Value of all the Hold Properties, and
(vii) by each HS Loan Party, that the Sale Properties owned directly and
indirectly by Sale LLC and by PPRP represent approximately 94.92%, and
5.08%, respectively (and 100% in the aggregate), of the Attributed Value of
all the Sale Properties. The percentages set forth in Section
3.3(b)(iii)(C), Section 3.3(b)(iv)(C) and Section 3.3(b)(v)(C) above do not
reflect any interests of the First Tier Companies in any Hold Properties
held by Sale LLC through CTOP (as defined in the Merger Agreement), which
are allocated to such First Tier Companies as set forth on Schedule 3.3.
(c) Such HS Loan Party 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
challenging or questioning the use of any Intellectual Property or the
validity or effectiveness of any Intellectual Property, nor does such HS
Loan Party know of any valid basis for any such claim. The use of such
Intellectual Property by such HS Loan Party 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.
SECTION 3.4 NO BURDENSOME RESTRICTIONS.
No Requirement of Law or Contractual Obligation applicable to or
binding on such HS Loan Party or any of its Subsidiaries could reasonably be
expected to have a Material Adverse Effect.
SECTION 3.5 TAXES, FEDERAL REGULATIONS.
(a) Each of such HS Loan Party and its Subsidiaries has filed or
caused to be filed all tax returns which, to its knowledge, are required to
be filed after the Borrowing Date and has
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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 taxes, fees, or other charges 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 such HS Loan Party or the
books of its Subsidiaries, as the case may be); no tax Lien has been filed,
and, to the knowledge of such HS Loan Party, no claim is being asserted,
with respect to any such tax, fee or other charge.
(b) The Borrower represents and warrants that no part of the proceeds
of any Loan 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.
SECTION 3.6 ERISA.
(a) Such HS Loan Party does not maintain or contribute to any
Plan.
(b) Each First Tier Company hereby represents and warrants that
it is a REOC.
SECTION 3.7 INVESTMENT COMPANY ACT; OTHER REGULATIONS.
(a) The Borrower represents and warrants that it 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.
(b) The Borrower represents and warrants that it is not subject to
regulation under any Federal or State statute or regulation which limits its
ability to incur Indebtedness.
SECTION 3.8 COLLATERAL, GUARANTEES.
(a) Each First Tier Company represents and warrants that the HS
Pledge and Security Agreement executed and delivered by such First Tier Company,
and the financing statements filed (or, in the case of financing statements
delivered to the Administrative Agent for filing, upon the filing thereof)
create, as security for the obligations of such First Tier Company under its FTC
Guarantee, valid and enforceable, perfected first priority security interests in
and Liens, in favor of the Administrative Agent as agent for the benefit of the
Secured Parties, on (i) all the equity interests held by such First Tier Company
in Holdco1, Holdco2, and Holdco3, as the case may be , (ii) all the equity
interests held by such First Tier Company in Sale LLC, (iii) all the equity
interests held by such First Tier Company in PPRP, and (iv) all other property
in which a security interest is purported to be granted in such HS Pledge and
Security Agreement or other agreements in which a Lien can be granted and
perfected under the Uniform Commercial Code, subject to no other Liens, except
as enforceability may be limited by applicable insolvency, bankruptcy or other
laws affecting creditors' rights generally, or general principles of equity,
whether such enforceability is considered in a proceeding in equity or at law.
Such security interests in and Liens upon such property are the sole and
exclusive Liens on the property subject thereto and shall be superior to and
prior to the rights of all third parties in such property.
(b) Each First Tier Company represents and warrants that the FTC
Guarantee of such First Tier Company is in full force and effect and has not
been repudiated or disaffirmed by such First Tier Company.
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SECTION 3.9 PURPOSE.
The Borrower represents and warrants that the proceeds of the Loans
will be used solely for the acquisition by of the Scheduled Properties pursuant
to the consummation of the Merger, including the payment of the related merger
consideration and fees and expenses, and the other transactions related thereto.
SECTION 3.10 ENVIRONMENTAL MATTERS.
Such HS Loan Party represents and warrants that the following
statements are true and correct as to any Scheduled Properties in which it has
any direct or indirect ownership interest (as to each HS Loan Party, for such
purpose, the "Applicable Properties"): 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:
(a) to its best knowledge, the Applicable 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 its best
knowledge, the Applicable Properties and all operations at the Applicable
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 Applicable Properties, or violation of any Environmental Law with
respect to the Applicable Properties, (c) neither it 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 Applicable Properties, nor
does it have knowledge or reason to believe that any such notice will be
received or is being threatened, (d) to its best knowledge, Materials of
Environmental Concern have not been transported or disposed of from the
Applicable 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 Applicable Properties in violation of, or in a
manner that could give rise to liability under, any applicable Environmental
Laws, (e) no judicial proceeding or governmental or administrative action is
pending, or, to its knowledge, threatened, under any Environmental Law to which
it or any of its Subsidiaries is or, to its knowledge, will be named as a party
with respect to the Applicable Properties, nor are there any consent decrees or
other decrees, consent orders, administrative orders or other orders, or other
administrative of judicial requirements outstanding under any Environmental Law
with respect to the Applicable Properties, (f) to its best knowledge, there has
been no release or threat of release of Materials of Environmental Concern at or
from the Applicable Properties, or arising from or related to the operations of
such HS Loan Party and its Subsidiaries in connection with the Applicable
Properties in violation of or in amounts or in a manner that could give rise to
liability under Environmental Laws.
SECTION 3.11 INSURANCE, CONDITION OF PROPERTIES.
(a) Such HS Loan Party or its Subsidiaries 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.
(b) Such HS Loan Party represents and warrants that the following
statements are true and correct, except to the extent that the facts and
circumstances giving rise to any such
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failure to be so true and correct, in the aggregate, could not reasonably
be expected to have a Material Adverse Effect, as to any Scheduled
Properties in which it has any direct or indirect ownership interest (as to
such HS Loan Party, for such purpose, the "Relevant Properties"): (i) all
of the improvements located on the Relevant Properties and the use of said
improvements 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, (ii) no material
portion of any of the Relevant Properties, nor any improvements located on
said Relevant 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, (iii) no condemnation or
eminent domain proceeding has been commenced or to its knowledge is about
to be commenced against any portion of any of the Relevant Properties, or
any improvements located thereon that are material to the operation, use or
value of said Relevant Properties except as set forth and described in
Schedule 3.11, (iv) no notices of violation of any federal, state or local
law or ordinance or order or requirement have been issued with respect to
any Relevant Properties.
SECTION 3.12 SOLVENCY.
Such HS Loan Party is Solvent after giving effect the borrowings of
Sale LLC, to the FTC Guarantee of each First Tier Company, and to each HS Pledge
and Security Agreement. No event described in paragraph (f) of Article X has
occurred in respect of any HS Loan Party.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF KIMCO
To induce the Administrative Agent and the Lenders to enter into
this Agreement, and to make the Loans, Kimco, hereby represents and warrants as
of the Borrowing Occasion to the Administrative Agent and each Lender as
follows:
SECTION 4.1 FINANCIAL CONDITION.
(a) The consolidated balance sheet of Kimco and its subsidiaries as at
December 31, 2005 and the related consolidated statements of income and of cash
flows for the respective fiscal years ended on such dates, reported on by
PricewaterhouseCoopers, LLP, copies of which have heretofore been furnished to
the Lenders, are complete and correct and present fairly the consolidated
financial condition of Kimco and its subsidiaries as at such dates, as
applicable and the consolidated results of their operations and their
consolidated cash flows for the applicable fiscal year then ended. The unaudited
consolidated balance sheet of Kimco and its subsidiaries as at June 30, 2006 and
the related unaudited consolidated statements of income and of cash flows for
the three-month period ended on such date, certified by a Responsible Officer of
Kimco, copies of which have heretofore been furnished to the Lenders, are
complete and correct and present fairly the consolidated financial condition of
Kimco and its subsidiaries as at such date, and the consolidated results of
their operations and their consolidated cash flows for the three-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 set forth on Schedule 4.1, neither Kimco nor any of the
Consolidated Entities has, at the Effective Date, any material Indebtedness,
Guarantee Obligation, contingent liability or liability for taxes, or any
unusual forward or long-term commitment, including any interest rate or foreign
currency swap or exchange transaction, which is not
37
reflected in the foregoing statements or in the notes thereto, other than
Indebtedness and Guarantee Obligations incurred in connection with the
Transactions.
(b) The credit rating of Kimco's unsecured debt is not less than
BBB-/Baa3.
SECTION 4.2 NO CHANGE.
Since December 31, 2005, 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.
SECTION 4.3 CORPORATE EXISTENCE; COMPLIANCE WITH LAW.
Kimco (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.
SECTION 4.4 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
Kimco 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 has
taken all necessary corporate action to authorize the execution, delivery and
performance of each Loan Document to which it is a party 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 respect of Kimco (except such as have been obtained and are in full
force and effect) in connection with the Acquisition or the borrowing of the
Loans hereunder or with the execution, delivery, performance, validity or
enforceability of any Loan Document. Each Loan Document to which Kimco is a
party has been duly executed and delivered by Kimco and constitutes a legal,
valid and binding obligation of Kimco enforceable against Kimco 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).
SECTION 4.5 NO LEGAL BAR; APPROVALS.
(a) The execution, delivery and performance by Kimco of the Loan
Documents to which it is a party and the Borrowings hereunder and the use
of the proceeds thereof will not violate any Requirement of Law applicable
to Kimco or any Contractual Obligation of Kimco and will not result in, or
require, the creation or imposition of any Lien on any of Kimco's
properties or revenues pursuant to any such Requirement of Law or
Contractual Obligation (other than Liens in favor of the Secured Parties
under the Loan Documents).
SECTION 4.6 KIMCO GUARANTEE.
The Kimco Guarantee is in full force and effect and has not been
repudiated or disaffirmed by Kimco.
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SECTION 4.7 BENEFIT OF LOANS.
Kimco is in the business of acquiring, owning, developing and
operating shopping centers and of providing the required services and other
facilities for those integrated operations, and expects to derive benefits,
directly or indirectly, in return for undertaking its obligations under this
Agreement and the other Loan Documents.
SECTION 4.8 SOLVENCY.
Before and after giving effect to the Acquisition and related
transactions, including the Kimco Guarantee, Kimco is Solvent. No event
described in paragraph (f) of Article X has occurred in respect of Kimco.
SECTION 4.9 MERGER AGREEMENT.
Kimco has delivered to the Agent a complete and correct copy of the
Merger Agreement (including all schedules, exhibits, amendments, supplements and
modifications thereto).
SECTION 4.10 FULL DISCLOSURE.
Each of the following representations and warranties is true and
correct (in respect of the Target Companies, the Scheduled Properties and
information furnished by or on behalf of the Target Companies, such
representations and warranties being to the best of Kimco's knowledge):
(a) all written information of a factual nature (other than
projections and information of a general economic nature) (the "INFORMATION")
concerning Kimco, the Target Companies, the Transactions and any other
transactions contemplated hereby prepared by or on behalf of Kimco or any of its
representatives or by or on behalf of the Target Companies or any of its
representatives made available to any of the Lenders by Kimco or any of its
representatives or by the Target Companies or any of its representatives in
connection with the Transactions or the other transactions contemplated hereby,
when taken as a whole, was true and correct in all material respects when so
made available, and did not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
contained therein not materially misleading in light of the circumstances under
which such statements are made.
(b) the projections prepared by or on behalf of Kimco or any of its
representatives or by or on behalf of the Target Companies or any of its
representatives made available to any of the Lenders by or on behalf of Kimco or
any of its representatives or the Target Companies or its representatives in
connection with the Transactions or the other transactions contemplated hereby
(the "PROJECTIONS") were prepared in good faith based upon assumptions believed
by Kimco to be reasonable at the time when made and at the time when such
Projections were furnished to such Lender (it being understood that any such
Projections are subject to significant uncertainties and contingencies, many of
which are beyond the control of Kimco or the Target Companies, and that no
assurance can be given that such Projections will be realized).
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ARTICLE V
CONDITIONS
SECTION 5.1 CONDITIONS TO EFFECTIVENESS, EFFECTIVE DATE.
The effectiveness of this Agreement and the availability of the
loans hereunder, is subject to the satisfaction on or before December 28, 2006
of the following conditions (or the waiver of such conditions in accordance with
Section 12.1):
(a) LOAN DOCUMENTS. The Administrative Agent shall have received
(i) from each party hereto, either a counterpart of this Agreement signed
on behalf of such party, or written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart
of this Agreement and (ii) from each First Tier Company, either a
counterpart of the HS Pledge and Security Agreement signed on behalf of
such party, or written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed signature page
thereof) that such party has signed a counterpart of the HS Pledge and
Security Agreement.
(b) ORGANIZATIONAL DOCUMENTS, ETC. The Administrative Agent shall
have received such documents and certificates as the Administrative Agent
or its counsel may reasonably request relating to the organization,
existence and good standing of the Borrower and the Guarantors and the
authorization of the Borrower and the Guarantors in respect of the
transactions contemplated by this Agreement or the other Loan Documents,
all in form and substance reasonably satisfactory to the Administrative
Agent, certified to be true, correct and complete by a Responsible Officer
as of the Effective Date.
(c) NOTES. The Administrative Agent shall have received from the
Borrower a signed Note for the account of each Lender that notified the
Administrative Agent of its request for Notes.
(d) CLOSING CERTIFICATES. The Administrative Agent shall have
received a certificate from a Responsible Officer of Kimco dated the
Effective Date, confirming compliance with the conditions specified in this
Section 5.1.
The Administrative Agent shall notify Kimco and the Borrower of the Effective
Date, and such notice shall be conclusive and binding.
SECTION 5.2 CONDITIONS TO THE BORROWING.
The agreement of each Lender to make any Loan is subject to the
satisfaction of the following conditions precedent:
(a) ACQUISITION. The Acquisition shall have been consummated, or
shall be consummated substantially simultaneously with the funding of the
Loans, in accordance with the terms of the Merger Agreement, without giving
effect to any amendments or waivers by Kimco that are materially adverse to
the Lenders without the consent of the Administrative Agent.
(b) GOVERNMENTAL APPROVALS. All governmental approvals necessary
to effect the Acquisition shall have been obtained.
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(c) NO ADVERSE CHANGE. Since December 31, 2005 there has been no
material adverse change in the financial condition of Kimco and its
Subsidiaries taken as a whole.
(d) LEGAL OPINIONS. The Administrative Agent shall have received,
with a counterpart for the Administrative Agent, and each Lender, (i) the
executed legal opinion of Wachtell, Lipton, Rosen & Katz, special counsel
to the Loan Parties, substantially in the form of Exhibit D-1, and (ii) the
executed legal opinion of Mayer, Brown, Rowe & Maw LLP, special ERISA
counsel, substantially in the form of Exhibit D-2. Each Loan Party hereby
requests such counsel to deliver such opinion.
(e) NO DEFAULT. On the Borrowing Date: (i) no Event of Default
shall have occurred and be continuing under and as defined in (A) the
Existing Revolving Credit Agreement, (B) Kimco's September 1, 1993 bond
indenture, (C) Kimco's existing C$250,000,000 Canadian revolving credit
facility, or (D) Kimco North Trust III's existing Canadian indenture (each
such credit facility or indenture as from time to time modified, waived or
supplemented) which in any such case relates to payments of amounts due or
compliance with the financial covenants under such credit facility or under
such indenture and (b) there shall not have been any acceleration of, or
payment default under, recourse indebtedness of Kimco for borrowed money in
an aggregate amount exceeding $100,000,000.
(f) SPECIFIED REPRESENTATIONS AND WARRANTIES. On the Borrowing Date,
each of the representations and warranties made in Sections 3.1(a)(i) and
(ii), 3.1(b), 3.3(b), 3.5(b), 3.7(a), 3.7(b), 3.8, 4.1(b), 4.2, 4.3(i) and
(ii), 4.4, 4.6 and 4.8 shall be true and correct in all material respects
on and as of such date as if made on and as of such date except for
representations and warranties expressly stated to relate to a specific
earlier date, in which case such representations and warranties were true
and correct in all material respects as of such earlier date.
(g) COSTS AND EXPENSES. The Administrative Agent shall have received
payment (which may be proceeds of the Loans under this Agreement) for the
account of the applicable payee of all fees and other amounts due and
payable under or in connection with this Agreement or the Fee Letter, and,
to the extent invoiced, reimbursement or payment of all out-of-pocket
expenses required to be reimbursed or paid under the Loan Documents or
under the Fee Letter (including the reasonable fees and disbursements
invoiced through such date of JPMCB's special counsel), on or prior to the
Borrowing Date.
(h) CLOSING CERTIFICATES. The Administrative Agent shall have received
(i) a certificate from a Responsible Officer of Kimco dated the Borrowing
Date, confirming compliance with the conditions specified in this Section
5.2, and (ii) a certificate (each, an "AVP CERTIFICATE") from a Responsible
Officer of each First Tier Company dated October 31, 2006 and certifying
that for purposes of paragraph (d)(5) of the Plan Asset Regulation (A) the
"initial valuation date" of such First Tier Company was October 30, 2006,
and (B) the "annual valuation period" of such First Tier Company is
established as the 90-day period beginning on each anniversary date of the
foregoing initial valuation date.
The Borrowing hereunder on the Borrowing Occasion shall constitute a
representation and warranty, as of the date of such Borrowing, by each Loan
Party, that the conditions contained in Section 5.2 have been satisfied.
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ARTICLE VI
AFFIRMATIVE COVENANTS OF KIMCO
So long as the Commitments remain in effect or any Loan remains
outstanding and unpaid, or any other amount is owing to any Lender or the
Administrative Agent hereunder, it is hereby agreed as follows:
SECTION 6.1 FINANCIAL STATEMENTS.
(a) Kimco shall furnish to the Administrative Agent (with sufficient
copies for each Lender): (i) as soon as available, but in any event within 90
days after the end of each fiscal year of Kimco, a copy of the consolidated
balance sheet of Kimco and its subsidiaries as at the end of such year and the
related consolidated statements of income and retained earnings and of cash
flows of Kimco and its subsidiaries for such year, setting forth in each case in
comparative form the figures as of the end of and 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 PricewaterhouseCoopers,
LLP or other independent certified public accountants of nationally recognized
standing; and (ii) as soon as available, but in any event not later than 45 days
after the end of each of the first three (3) quarterly periods of each fiscal
year of Kimco, the unaudited consolidated balance sheet of Kimco and its
subsidiaries as at the end of such quarter and the related unaudited
consolidated statements of income and retained earnings and of cash flows of
Kimco and its 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 corresponding date or period, as the case may be, in the
previous year, certified by a Responsible Officer of Kimco as being fairly
stated in all material respects (subject to normal year-end audit adjustments).
(b) Kimco shall furnish or cause to be furnished to the
Administrative Agent (with sufficient copies for each Lender), in the form
delivered to Prudential, copies of the quarterly and annual balance sheets and
consolidated statements of operations for the Borrower and its Subsidiaries and
for each First Tier Company and its Subsidiaries. Delivery of (i) such quarterly
balance sheets and consolidated statements of operations shall be made not later
than 45 days after the end of each of the first three (3) quarterly periods of
each fiscal year of each of the Borrower or each First Tier Company, as
applicable, and (ii) such annual balance sheets and consolidated statements of
operations shall be made not later than 90 days after the end of the fiscal year
of each of the Borrower or each First Tier Company, as applicable.
(c) 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, if applicable, and in any event disclosed therein).
The Administrative Agent shall make available to the Lenders (which the
Administrative Agent may effect by electronic posting) the materials furnished
to it pursuant to this Section.
SECTION 6.2 CERTIFICATES; OTHER INFORMATION.
There shall be furnished to the Administrative Agent (with
sufficient copies for each Lender (in the case of clauses (a) and (b) below) or
each relevant Lender (in the case of clause (c) below)):
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(a) 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 Kimco substantially in the form of Exhibit E;
(b) within ten (10) days after the same are sent, copies of all
financial statements and reports which Kimco sends to its stockholders, and
within ten (10) days after the same are filed, copies of all financial
statements, reports or other documents which Kimco may make to, or file with,
the Securities and Exchange Commission or any successor or analogous
Governmental Authority; and
(c) promptly, upon request of the Administrative Agent, a list of all
Entities, and 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).
The Administrative Agent shall make available to the Lenders (which the
Administrative Agent may effect by electronic posting) the materials furnished
to it pursuant to this Section.
SECTION 6.3 PAYMENT OF OBLIGATIONS.
Kimco shall 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 Kimco or (b) (i) Non-Recourse Indebtedness and (ii) other obligations
which aggregate not more than $100,000,000, in each case to the extent that
Kimco 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.
SECTION 6.4 MAINTENANCE OF EXISTENCE, ETC.
(a) Kimco shall 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.
(b) Kimco shall 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.
SECTION 6.5 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS.
Kimco shall 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 Kimco
and its Subsidiaries with officers and employees of Kimco and its Subsidiaries
and with its independent certified public accountants.
SECTION 6.6 NOTICES.
Kimco shall promptly give notice to the Administrative Agent and
each Lender of:
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(a) the occurrence of any Default or Event of Default related to
Kimco of which it has knowledge;
(b) any (i) default or event of default under any Contractual
Obligation of Kimco or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between Kimco 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 administrative or other proceeding
affecting Kimco or any of its Subsidiaries in which the amount involved is
$100,000,000 or more and not covered by insurance or in which material
injunctive or similar relief is sought, or the occurrence in respect of any
material Subsidiary of any case, proceeding, event, or circumstance of the
nature set forth in paragraph (f) of Article VIII;
(d) any development or event which has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section 6.6 shall be accompanied by a statement of
a Responsible Officer of Kimco setting forth details of the occurrence referred
to therein and stating what action Kimco proposes to take with respect thereto.
The Administrative Agent shall promptly forward to the Lenders (which the
Administrative Agent may effect by electronic posting) any written notice
hereunder furnished to it pursuant to this Section.
SECTION 6.7 FURTHER ASSURANCES.
Kimco will execute any and all further documents, financing
statements, agreements and instruments, and take all further action (including,
without limitation, filing Uniform Commercial Code and other financing
statements and the establishment of and deposit of Collateral into custody
accounts) that may be required under applicable law, or that the Required
Lenders, the Administrative Agent, or Wachovia Bank may reasonably request, in
order to effectuate the transactions contemplated by the Loan Documents and in
order to grant, preserve, protect and perfect the validity and first priority of
the security interests created or intended to be created by the Loan Documents.
Kimco shall deliver or cause to be delivered to the Lenders all such instruments
and documents (including legal opinions and lien searches) as the Required
Lenders shall reasonably request to evidence compliance with this Section 6.7
and the perfection and priority status of each such security interest and Lien.
ARTICLE VII
AFFIRMATIVE COVENANTS OF THE HS LOAN PARTIES
So long as the Commitments remain in effect or any Loan remains
outstanding and unpaid, or any other amount is owing to any Lender or the
Administrative Agent hereunder, it is hereby agreed as follows:
SECTION 7.1 CERTIFICATES; OTHER INFORMATION.
The HS Loan Parties shall furnish or cause to be furnished to the
Administrative Agent (with sufficient copies for each Lender):
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(a) promptly, upon request of the Administrative Agent, 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);
(b) together with (i) the occurrence of each Prepayment Event, a
notice of such occurrence, identifying the relevant Scheduled Property or
Person and the nature of such Prepayment Event, (ii) each prepayment of Net
Cash Proceeds, or the determination in respect of any Prepayment Event that
there are no Net Cash Proceeds or no current Net Cash Proceeds, a
certificate of a Responsible Officer of the Borrower or of the applicable
First Tier Company or Companies setting forth the details of the relevant
Prepayment Event in reasonable detail and showing the calculation of the
amount of Net Cash Proceeds to be prepaid in respect thereof or an
explanation for the absence of Net Cash Proceeds or current Net Cash
Proceeds.
The Administrative Agent shall make available to the Lenders (which the
Administrative Agent may effect by electronic posting) the materials furnished
to it pursuant to this Section.
SECTION 7.2 PAYMENT OF OBLIGATIONS.
Each HS Loan Party shall 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 such HS Loan Party or (b) (i) Non-Recourse Indebtedness and (ii) other
obligations which aggregate not more than $25,000,000, in each case to the
extent that such HS Loan Party 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.
SECTION 7.3 MAINTENANCE OF EXISTENCE, ETC.
(a) Each HS Loan Party shall 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 9.9.
(b) Each HS Loan Party shall 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.
SECTION 7.4 MAINTENANCE OF PROPERTY; INSURANCE.
Each HS Loan Party shall 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 of 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 the
Administrative Agent, upon written request, full information as to the insurance
carried.
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SECTION 7.5 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS.
Each HS Loan Party shall 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 (upon
reasonable notice and during normal business hours) 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 such
HS Loan Party and its Subsidiaries with officers and employees of such HS Loan
Party and its Subsidiaries and with its independent certified public
accountants.
SECTION 7.6 NOTICES.
The HS Loan Parties shall promptly furnish or cause to be furnished
to the Administrative Agent and each Lender notice of:
(a) the occurrence of any Default or Event of Default of which
any HS Loan Party has knowledge;
(b) any (i) default or event of default under any Contractual
Obligation of any HS Loan Party or any of their Subsidiaries or (ii)
litigation, investigation or proceeding which may exist at any time between
any HS Loan Party or any of their 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 administrative or other proceeding
affecting any HS Loan Party or any of their Subsidiaries, in which the
amount involved is $25,000,000 or more and not covered by insurance or in
which material injunctive or similar relief is sought, or the occurrence in
respect of any HS Loan Party or any of its Subsidiaries of any case,
proceeding, event, or circumstance of the nature set forth in paragraph (f)
of Article X;
(d) any development or event which has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section 7.6 shall be accompanied by a statement of
a Responsible Officer of the HS Loan Party giving such notice, setting forth
details of the occurrence referred to therein and stating what action such HS
Loan Party proposes to take with respect thereto.
The Administrative Agent shall promptly forward to the Lenders (which the
Administrative Agent may effect by electronic posting) any written notice
hereunder furnished to it pursuant to this Section.
SECTION 7.7 ENVIRONMENTAL LAWS.
Each HS Loan Party shall:
(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.
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(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) such HS Loan Party has determined in good faith that
contesting the same is not in the best interests of such HS Loan Party 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 (whether arising
pre-judgment or post-judgment) 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 such HS Loan Party, its Subsidiaries or the
Properties, or the real estate properties owned directly or indirectly by
such HS Loan Party, or any orders, requirements or demands of Governmental
Authorities related thereto, including 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. Notwithstanding anything to the contrary in this
Agreement, this indemnity shall continue in full force and effect
regardless of the termination of this Agreement.
SECTION 7.8 COMPLIANCE WITH LAWS.
Each HS Loan Party will, and will cause each of its subsidiaries to,
comply with all applicable laws, ordinances, rules, regulations, and
requirements of Governmental Authorities (including ERISA, Environmental Laws,
and all zoning and building codes with respect to Real Estate Assets) except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 7.9 ERISA-RELATED UPDATE.
At least thirty (30) days prior to the last day of the then current
Annual Valuation Period (as such term is defined in the Plan Asset Regulation)
for each First Tier Company, such First Tier Company shall deliver to the
Administrative Agent a REOC Update Opinion, or a REOC Update Certificate, in
either case dated as of a date at least thirty (30) days prior to the last day
of such Annual Valuation Period but not earlier than the first day thereof.
SECTION 7.10 FURTHER ASSURANCES.
The HS Loan Parties will, and will cause their Subsidiaries to,
execute any and all further documents, financing statements, agreements and
instruments, and take all further action (including, without limitation, filing
Uniform Commercial Code and other financing statements and the establishment of
and deposit of Collateral into custody accounts) that may be required under
applicable law, or that the Required Lenders, the Administrative Agent, or
Wachovia Bank, may reasonably request, in order to effectuate the transactions
contemplated by the Loan Documents and in order to grant, preserve, protect and
perfect the validity and first priority of the security interests created or
intended to be created by the Loan Documents and the HS Loan Parties shall
deliver or cause to be delivered to the Lenders all such instruments and
documents (including legal opinions, and lien searches) as the Required Lenders
shall
47
reasonably request to evidence compliance in accordance with this Section 7.10
and the perfection and priority status of each Lien in the Collateral.
ARTICLE VIII
NEGATIVE COVENANTS OF KIMCO
So long as the Commitments remain in effect or any Loan remains
outstanding and unpaid, or any other amount is owing to any Lender or the
Administrative Agent hereunder, Kimco hereby agrees that:
SECTION 8.1 FINANCIAL COVENANTS.
Kimco shall not directly or indirectly:
(a) TOTAL INDEBTEDNESS RATIO. Permit, at the last day of any Test
Period, the ratio of (i) Total Indebtedness as of such day to (ii) Gross
Asset Value as of such day to exceed 0.60 to 1.00.
(b) TOTAL SECURED INDEBTEDNESS RATIO. Permit, at the last day of
any Test Period, the ratio of (i) Total Secured Indebtedness as of such day
to (ii) Gross Asset Value as of such day to exceed 0.25 to 1.00.
(c) MINIMUM NET WORTH. Permit, at the last day of any fiscal
quarter of Kimco, Net Worth to be less than an amount equal to the sum of
(i) $1,750,000,000 PLUS (ii) 75% of the aggregate proceeds received by
Kimco (net of customary related fees and expenses) in connection with any
offering of Capital Stock of Kimco consummated after the Effective Date.
(d) UNENCUMBERED ASSET VALUE RATIO. Permit, at the last day of
any Test Period, the ratio of (i) Total Recourse Indebtedness as of such
day to (ii) Unencumbered Asset Value as of such day, to exceed 0.60 to 1.0.
(e) UNSECURED INTEREST EXPENSE RATIO. Permit, for any Test
Period, the ratio of (i) Unencumbered Assets NOI for such period to (ii)
Total Unsecured Interest Expense for such period to be less than 2.0 to
1.0.
(f) FIXED CHARGE COVERAGE RATIO. Permit, for any Test Period, the
ratio of Total Adjusted EBITDA for such period to Total Debt Service for
such period to be less than 1.75 to 1.0. Solely for the purpose of
calculating the ratio in this clause (f), Total Adjusted EBITDA (i) shall
include cash flow distributions (other than distributions in respect of
capital transactions) from Noncontrolled Entities ("NONCONTROLLED ENTITY
OPERATING CASH FLOW"), provided that Noncontrolled Entity Operating Cash
Flow distributed during the most recent twelve-month period in respect of
any Noncontrolled Entity shall be included, without duplication, only to
the extent of 50% of the amount of such distributions made in such
twelve-month period, and (ii) shall be increased by the amounts excluded
pursuant to clauses (iv), (v) and (vi) of the definition of the term "Total
Adjusted EBITDA".
Solely for the purposes of this Section 8.1: direct or indirect reference to
EBITDA, NOI, Indebtedness and debt service (and items thereof, when applicable)
with respect to the Entities, when included, shall be included only to the
extent of the Ownership Percentage therein, except as otherwise specifically
provided.
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ARTICLE IX
NEGATIVE COVENANTS OF THE HS LOAN PARTIES
So long as the Commitments remain in effect or any Loan remains
outstanding and unpaid, or any other amount is owing to any Lender or the
Administrative Agent hereunder, it is hereby agreed that:
SECTION 9.1 LIMITATION ON TRANSACTIONS WITH AFFILIATES.
Neither any HS Loan Party nor any of its Subsidiaries shall,
directly or indirectly, enter into any transaction, including any purchase,
sale, lease or exchange of property or the rendering of any service, with any
Affiliate other than a Property Management Agreement and a Leasing Agreement,
each dated on or about October 31, 2006 with Kimco or its Affiliates 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 business of the HS Loan Party
that is a party thereto and (ii) upon fair and reasonable terms no less
favorable to the HS Loan Party that is a party thereto or is affected thereby
than would be obtained in a comparable arm's length transaction with a Person
that is not an Affiliate.
SECTION 9.2 LIMITATION ON CHANGES IN FISCAL YEAR.
No HS Loan Party shall cause or permit its fiscal year to end on a
day other than December 31, unless otherwise required by any applicable law,
rule or regulation.
SECTION 9.3 LIMITATION ON LINES OF BUSINESS; ISSUANCE OF COMMERCIAL
PAPER; CREATION OF SUBSIDIARIES; NEGATIVE PLEDGES; SWAP AGREEMENTS.
No HS Loan Party nor any of its Subsidiaries shall, directly or
indirectly:
(a) Engage in activities other than real estate business and real
estate related business activities;
(b) Issue any commercial paper; or.
(c) Enter into any Swap Agreement, except Swap Agreements
entered into in the ordinary course of business (not for purposes of
speculation) to hedge or mitigate risks, including those related to
interest rates or currency exchange rates, to which such HS Loan Party or
such Subsidiary is exposed in the conduct of its business or the management
of its liabilities.
Nothing contained in this paragraph shall be construed to permit any transaction
that is prohibited under Section 9.4 or Section 9.5.
SECTION 9.4 LIMITATION ON INDEBTEDNESS.
No HS Loan Party, nor any entity through which any HS Loan Party
holds (directly or indirectly) any interest in any Scheduled Property, shall
have any Indebtedness for borrowed money other than (a) obligations under the
Loan Documents, (b) Indebtedness in existence on the Effective Date, as set
forth in Schedule 3.3, (c) Indebtedness incurred after the Effective Date that
refinances, refunds or replaces Indebtedness described in the preceding clauses
(a) or (b) (including Indebtedness for any related premiums, fees or other
expenses incurred in connection with such refinancing, refunding or replacement
Indebtedness), provided that all prepayments required under Section 2.2 in
connection therewith shall
49
have been made, (d) Indebtedness under commercial mortgage backed securities
("CMBS") programs and short-term unsecured "warehouse facility" loans bridging
to the funding of contemplated CMBS loans, not exceeding (together with
Indebtedness pursuant to clause (e) below) in the aggregate approximately
$1,300,000,000, (e) Indebtedness that refinances equity capital provided by
Prudential and/or Kimco with respect to a Hold Property for which CMBS financing
was not obtained in connection with the Merger, (f) up to $120,000,000 in
aggregate principal amount of additional financing, provided that if such
financing is secured, the Liens granted in respect thereof shall comply with
Section 9.5 hereof; provided further, that the Indebtedness permitted under this
Section 9.4 shall be subject to Section 2.1(g).
SECTION 9.5 LIMITATION ON LIENS.
(a) EQUITY INTERESTS. No HS Loan Party shall grant or create (or
permit any Subsidiary of such HS Loan Party to grant or create), or suffer
the existence of (i) any Liens on any Collateral other than the Liens
arising under the Loan Documents, whether junior, equal or superior in
priority to the Liens created by the Loan Documents, or (ii) any Liens on
any equity interest held directly or indirectly by any HS Loan Party, which
equity interest represents a direct or indirect ownership interest in any
Scheduled Property.
(b) SCHEDULED PROPERTY. No HS Loan Party shall grant or create
(or permit any Subsidiary of such HS Loan Party to grant or create), or
suffer the existence of, any Liens on any Scheduled Property, except for
Permitted Liens and mortgage Liens securing Indebtedness permitted under
Section 9.4; PROVIDED that in the case of Liens securing the Indebtedness
described in Section 9.4(f) the loan to value ratio applicable to each Sale
Property subject to such any Lien securing any such Indebtedness shall be
at least 50%, and PROVIDED FURTHER, that all prepayments required under
Section 2.2 in connection with any transaction referred to in this clause
(b) shall have been made.
SECTION 9.6 PLANS.
(a) No HS Loan Party shall maintain or contribute to any Plan at
any time.
(b) No First Tier Company shall change the annual valuation
period referred to in its AVP Certificate without the prior written consent
of the Administrative Agent.
SECTION 9.7 MARGIN STOCK, USE OF FACILITY.
The Borrower will not, directly or indirectly, use the proceeds of
any Loan or use any Letter of Credit in a manner that will violate or be
inconsistent with Regulation T, U, or X of the Board.
SECTION 9.8 OWNERSHIP OF PROPERTY.
The HS Loan Parties shall not permit at any time the facts as
represented in Section 3.3(b) to change in any material respect without the
consent of the Administrative Agent, which shall not be unreasonably withheld,
delayed or conditioned in the event of any proposed change which does not
adversely affect the interests of the Lenders.
SECTION 9.9 LIMITATION ON CERTAIN FUNDAMENTAL CHANGES.
Neither any HS Loan Party nor any of its Subsidiaries shall,
directly or indirectly: enter into any merger, consolidation or amalgamation
unless such transaction does not involve all or a substantial portion of the
property, business or assets owned or leased by such HS Loan Party and its
50
Subsidiaries determined on a consolidated basis with respect to such HS Loan
Party and its Subsidiaries taken as a whole.
SECTION 9.10 LIMITATION ON RESTRICTED PAYMENTS.
If there has occurred and is continuing or if there would thereby
occur any Default or Event of Default, neither any HS Loan Party nor any of its
Subsidiaries shall, directly or indirectly, declare or pay any dividend 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 such HS Loan Party
or Subsidiary or any warrants or options to purchase any such Capital Stock,
whether now or hereafter outstanding, or make any other distribution in respect
thereof, or enter into any transaction that has a substantially similar effect
to any of the foregoing, either directly or indirectly, whether in cash or
property or in obligations of such HS Loan Party or any Subsidiary; PROVIDED
that at no time may there be any dividend or distribution by any HS Loan Party
of any asset constituting non-cash proceeds of a Prepayment Event.
ARTICLE X
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 Loan
when due in accordance with the terms thereof or hereof; or the Borrower
shall fail to pay any interest on any Loan or any other amount payable
hereunder within five (5) 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 any
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 furnished; or
(c) There shall be any default in the observance or performance
of any agreement contained in Section 7.6(a), Section 7.9, Section 8.1 or
Article IX; or
(d) Any 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
Article), and such default shall continue unremedied for a period of 30
days after notice from the Administrative Agent or the Required Lenders; or
(e) Any HS Loan Party or any Subsidiary of any HS Loan Party
shall (i) default in making any payment of any principal of any
Indebtedness (including any Guarantee Obligation, but excluding (x) any
obligations of such HS Loan Party hereunder (which shall be governed by
clause (a) above) and (y) 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
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
51
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 $25,000,000; or
(f) (i) Any Loan Party 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 such Loan Party shall make a general assignment for the benefit
of its creditors; or (ii) there shall be commenced against any Loan Party
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
any Loan Party 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) any Loan Party 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) any Loan Party 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) One or more judgments or decrees shall be entered against
any HS Loan Party or any Subsidiary of any HS Loan Party involving in the
aggregate a liability (not paid or fully covered by insurance) of
$25,000,000 or more (excluding Non-Recourse Indebtedness), 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
(h) There shall be a material adverse change in the financial
condition of Kimco and its Subsidiaries taken as a whole; or
(i) At any time any HS Loan Party or any Subsidiary of any HS
Loan Party 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 are
recourse to such Loan Party and, in the judgment of the Required Lenders,
could reasonably be expected to exceed $50,000,000 over the amount of
available insurance; 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 such HS Loan Party 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 such HS Loan Party 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,
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in the judgment of the Required Lenders, could reasonably be expected to
have a Material Adverse Effect); or
(j) Kimco shall default in making any payment under the Kimco
Guarantee, or shall repudiate or disaffirm the Kimco Guarantee, or the
Kimco Guarantee shall for any reason not be in full force and effect; or
(k) Kimco shall be in payment default under, or there shall
otherwise have been an acceleration of any Recourse Indebtedness of Kimco
and/or any Subsidiaries thereof in an aggregate amount exceeding
$100,000,000; or
(l) Any Loan Document shall for any reason not be in full force
and effect in any material respect as to any HS Loan Party, or shall not
provide to the Administrative Agent the Liens and the material rights,
priorities, powers and privileges purported to be created thereby or the
legality, validity or enforceability of any thereof shall be contested or
repudiated by any Loan Party; or
(m) Any First Tier Company shall default in making any payment
under the FTC Guarantee, or shall repudiate or disaffirm the FTC Guarantee,
or the FTC Guarantee shall for any reason not be in full force and effect
as to any First Tier Company; or
(n) Within five (5) Business Days after the Borrowing Date, the
Scheduled Properties shall not be owned by the HS Loan Parties and their
Subsidiaries in accordance with Section 3.3;
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (f) above, automatically the Commitments shall immediately
terminate and the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement 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) the Administrative Agent may, or upon
the request of the Majority Lenders the Administrative Agent shall, by notice to
Kimco, declare the Commitments to be terminated forthwith, whereupon the
Commitments shall immediately terminate; and (ii) the Administrative Agent may,
or upon the request of the Majority Lenders the Administrative Agent shall, by
notice to Kimco, declare the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement and the Notes to be due and payable
forthwith, whereupon the same shall immediately become due and payable;
PROVIDED, however, that with respect to each of the immediately preceding
clauses (A) and (B) if the Event of Default relates to or is attributable to
only a particular First Tier Company, then the amount that shall or may be due
and payable shall be limited to an amount equal to the product of (i) the total
amount that would be due and payable in the absence of this proviso, multiplied
by (ii) the FTG Percentage of such First Tier Company at such time as determined
under Section 12.9(i).
Except as expressly provided above in this Article, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
53
ARTICLE XI
THE AGENTS
SECTION 11.1 THE AGENTS.
For purposes of this Section 11.1 and Section 12.6, the term
"RELATED PARTIES" shall mean, with respect to any specified Person, (i) any
Person that directly, or indirectly through one or more intermediaries,
Controls, is Controlled by, or is under common Control with such specified
Person, and (ii) the respective directors, officers, employees, agents and
advisors of such specified Person and of any other Person referred to in the
preceding clause (i).
(a) Each of the Lenders hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent
to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms of this Agreement and
the other Loan Documents, together with such actions and powers as are
reasonably incidental thereto.
(b) The bank serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other
Lender and may exercise the same as though it were not the Administrative
Agent, and such bank and each Person that directly, or indirectly through
one or more intermediaries, Controls or is Controlled by or is under common
Control with such bank (an "ADMINISTRATIVE AGENT AFFILIATE") may accept
deposits from, lend money to and generally engage in any kind of business
with any Loan Party or any Subsidiary or other Affiliate thereof as if it
were not the Administrative Agent hereunder.
(c) The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without limiting the
generality of the foregoing, (i) the Administrative Agent shall not be
subject to any fiduciary or other implied duties, regardless of whether a
Default or Event of Default has occurred and is continuing, (ii) the
Administrative Agent shall not have any duty to take any discretionary
action or exercise any discretionary powers, except discretionary rights
and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing as directed by the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided herein), and (iii) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose,
and shall not be liable for the failure to disclose, any information
relating to Kimco or any of its Subsidiaries that is communicated to or
obtained by the bank serving as Administrative Agent or any of its
Administrative Agent Affiliates in any capacity. The Administrative Agent
shall not be liable for any action taken or not taken by it with the
consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided herein) or in the absence of its own gross negligence or willful
misconduct. The Administrative Agent shall be deemed not to have knowledge
of any Default or Event of Default other than nonpayment of principal or
interest unless and until written notice thereof is given to the
Administrative Agent by Kimco or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into
(i) any statement, warranty or representation made in or in connection with
this Agreement or any other Loan Document, (ii) the contents of any
certificate, report or other document delivered hereunder or under any
other Loan Document or in connection herewith or therewith, (iii) the
performance or observance of any of the covenants, agreements or other
terms or conditions set forth herein or in any other Loan Document, (iv)
the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document, or any other agreement, instrument or
document, or (v) the satisfaction of any condition set forth in
54
Article V or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent.
(d) The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing
believed by it to be genuine and to have been signed or sent by the proper
Person. The Administrative Agent also may rely upon any statement made to
it orally or by telephone and believed by it to be made by the proper
Person, and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel (who may be counsel for
the Borrower), independent accountants and other experts selected by it,
and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.
(e) The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any
such sub-agent may perform any and all its duties and exercise its rights
and powers through their respective Related Parties. The exculpatory
provisions of the preceding paragraphs shall apply to any such sub-agent
and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection
with the syndication of the credit facilities provided for herein as well
as activities as Administrative Agent.
(f) Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative
Agent may resign at any time by notifying the Lenders and Kimco. By the
Required Lenders' giving at least thirty (30) Business Days prior written
notice to the Administrative Agent and Kimco, the Administrative Agent may
be removed, by action of the Required Lenders (excluding the bank serving
as Administrative Agent (the "AGENT BANK")), (i) at any time for gross
negligence or willful misconduct, as determined by the Required Lenders
(excluding for such determination the Agent Bank), or (ii) in the event
that the Agent Bank, in its capacity as a Lender, shall have assigned all
of its outstanding Commitments or Loans to another bank, financial
institution or other entity pursuant to Section 12.6, and at the end of
such thirty (30) Business Day period the Agent Bank shall be deemed
discharged from its duties and obligations as Administrative Agent
hereunder and under any other Loan Documents Upon any such resignation or
removal, the Required Lenders shall have the right, in consultation with
Kimco, to appoint a successor. In the case of resignation by the
Administrative Agent, if no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation,
then the retiring Administrative Agent may, on behalf of the Lenders,
appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York, or a Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is
under common Control with any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor to a retired
Administrative Agent, such successor shall succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under any other
Loan Documents. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation or removal hereunder, the provisions of
this Article, including Section 11.2, shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.
55
(g) Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and
based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance
upon the Administrative Agent or any other Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or
based upon this Agreement, any other Loan Document, any related agreement
or any document furnished hereunder or thereunder.
SECTION 11.2 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 Applicable Percentages of the Commitments in effect on the date on
which indemnification is sought under this Section 11.2 (or, if indemnification
is sought after the date upon which the Commitments shall have terminated and
the Loans shall have been paid in full, ratably in accordance with their
Applicable 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 at any time following the payment of the Loans and regardless of
whether pre-judgment or post-judgment) 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
to the extent resulting solely from the Administrative Agent's gross negligence
or willful misconduct. The agreements in this Section 11.2 shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
SECTION 11.3 CERTAIN AGENTS, ARRANGERS, AND BOOKRUNNERS.
Each of the Co-Syndication Agents, Co-Documentation Agents,
Co-Agents, Co-Managing Agents, Bookrunners and Joint Lead Arrangers referred to
on the cover of this Agreement in its capacity as such shall have no rights,
duties or responsibilities hereunder, nor any fiduciary relationship with any
party hereto, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against the Co-Syndication Agents, Co-Documentation Agents, Co-Agents,
Co-Managing Agents, Bookrunners, or Joint Lead Arrangers in their respective
capacities as such.
ARTICLE XII
MISCELLANEOUS
SECTION 12.1 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 12.1. The Majority Lenders may, or, with the
written consent of the Majority 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
56
Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such
terms and conditions as the Majority 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 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 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 or reduce (except for reductions in accordance with Section 2.1(f)) 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 12.1 or change Section 2.7(a) in a
manner that would alter the pro rata sharing of payments required thereby,
reduce the percentage specified in the definitions of Required Lenders or
Majority 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,
amend the proviso to the definition of the term "Unencumbered Properties",
release any Guarantee, amend, modify or waive any Guarantee in any material
respect, release any Collateral (provided that in connection with a disposition
of Scheduled Properties permitted hereunder that is structured in a manner
involving the transfer of equity interests constituting Collateral, as to which
there shall have been prepaid all amounts required to be prepaid under Section
2.2(b)(i), the Administrative Agent may release Collateral to the extent that
the Collateral so released relates solely to the Scheduled Properties so
disposed of), or amend, modify, or waive any provision of any Loan Document
which, by its terms, requires the consent, approval or satisfaction of all
Lenders, in each case without the written consent of all the Lenders, or (iii)
amend, modify or waive any provision of Article X or otherwise affect the rights
or duties of the Administrative Agent 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 to the extent therein specified;
but no such waiver shall extend to any subsequent or other Default or Event of
Default, or impair any right consequent thereon.
SECTION 12.2 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 Loan Parties 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:
Any Loan Party: Kimco Realty Corporation
3333 New Hyde Park Road, Suite 100
New Hyde Park, New York 11042
Attention: Glenn G. Cohen
Telecopy: (516) 869-2572
57
The Administrative Agent: JPMorgan Chase Bank, N.A.
277 Park Avenue, 3rd Floor
New York, New York 10072
Attention: Charles E. Hoagland
Telecopy: (646) 534-0574
with a copy to: JPMorgan Chase Bank, N.A.
270 Park Avenue, 15th Floor
New York, New York 10017-2070
Attention: Elena Gillcrist
Telecopy: (212) 270-3513
and (except for
borrowing requests,
interest elections, and
requests pursuant to
Sections 12.8 or 12.9) to: JPMorgan Chase Bank, N.A.
270 Park Avenue
New York, NY 10017
Attention: Jacqueline F. Stein, Esq.
Vice President & Senior Associate Counsel
Telecopy: (212) 270-2873
PROVIDED that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to Section 2.1, 2.2, or 2.3 shall not be effective until
received.
SECTION 12.3 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.
SECTION 12.4 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 thereto or in connection herewith or therewith shall survive the
execution and delivery of this Agreement and the other Loan Documents and the
making of the Loans hereunder, except as may be expressly stated therein.
SECTION 12.5 PAYMENT OF EXPENSES AND TAXES.
The Borrower agrees (a) to pay or reimburse the Administrative Agent
for all its reasonable 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 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 (including post-judgment costs and expenses) incurred
58
in connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents, and any such other documents, including the
fees and disbursements of counsel to the Administrative Agent, and the several
Lenders; (c) to pay, and indemnify and hold harmless each Lender and the
Administrative Agent (and their respective affiliates, officers, directors,
employees, advisors and agents) from and against, 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, and indemnify and hold harmless each Lender and the
Administrative Agent (and their respective affiliates, officers, directors,
employees, advisors and agents) 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 (and regardless of
whether pre-judgment or post-judgment) with respect to the execution, delivery,
enforcement, performance and administration of this Agreement, the other Loan
Documents, and any such other documents, including any of the foregoing relating
to the violation of, noncompliance with or liability under, any Environmental
Law applicable to the operations of any Loan Party, any of its Subsidiaries or
any of the Scheduled Properties (all the foregoing in this clause (d),
collectively, the "INDEMNIFIED LIABILITIES"), PROVIDED that such Loan Party
shall have no obligation hereunder to any indemnitee with respect to indemnified
liabilities arising from the gross negligence or willful misconduct of such
Indemnitee or its Affiliates. The agreements in this Section 12.5 shall survive
the termination of this Agreement, and the payment of the Loans and all other
amounts payable hereunder.
SECTION 12.6 SUCCESSORS AND ASSIGNS.
For purposes of this Section 12.6 the term "Related Parties" shall
have the meaning given thereto in Section 11.1 hereof.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and assigns permitted hereby, except that (i) none of the Loan Parties may
assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted
assignment or transfer by any Loan Party without such consent shall be null
and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants (to the extent provided in paragraph
(c) of this Section) and, to the extent expressly contemplated hereby, the
Related Parties of each of the Administrative Agent and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this
Agreement or any other Loan Document.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees all or a portion of
its rights and obligations under this Agreement and under the other Loan
Documents (including all or a portion of its Commitment, or the Loans at
the time owing to it) with the prior written consent (such consent not to
be unreasonably withheld or delayed) of:
(A) the Borrower, PROVIDED that no consent of the Borrower
shall be required for an assignment to a Lender, an Affiliate of a
Lender, an Approved Fund (as defined below), or, if an Event of
Default has occurred and is continuing, any other assignee; and
59
(B) the Administrative Agent, PROVIDED that no consent of
the Administrative Agent shall be required for an assignment of any
Commitment to an assignee that is a Lender or an Affiliate of a Lender
with a Commitment immediately prior to giving effect to such
assignment.
(ii) Assignments shall be subject to the following
additional conditions:
(A) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire
remaining amount of the assigning Lender's Commitment or
Loans, the amount of the Commitment of the assigning Lender
subject to each such assignment (determined as of the date
the Assignment and Assumption (as defined below) with
respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000
unless the Borrower and the Administrative Agent otherwise
consent, PROVIDED that no such consent of the Borrower shall
be required if an Event of Default has occurred and is
continuing;
(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and
obligations under this Agreement and the other Loan
Documents;
(C) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption
substantially in the form of Exhibit A or in any other form
approved by the Administrative Agent (an "ASSIGNMENT AND
ASSUMPTION"), together with a processing and recordation fee
of $4,000 (which, except as provided in Section 2.13, shall
not be payable by the Borrower); and
(D) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire in
the form approved by the Administrative Agent (an
"ADMINISTRATIVE QUESTIONNAIRE").
For the purposes of this Section 12.6, the term "APPROVED FUND" has
the following meaning:
"APPROVED FUND" means any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course of its business and
that is administered or managed by (a) a Lender, (b) an Affiliate of a
Lender or (c) an entity or an Affiliate of an entity that administers or
manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date specified
in each Assignment and Assumption the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.9, 2.10, 2.11 and 12.5). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this Section 12.6 shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with
paragraph (c) of this Section.
(iv) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitment of, or the principal
amount of the Loans, owing to, each Lender pursuant to the terms hereof from
time to time (the "REGISTER"). The entries in the Register shall be conclusive
absent manifest error, and the Borrower, the Administrative Agent, and the
Lenders may treat each Person whose name is recorded in the Register
60
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and
Assumption executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in this
paragraph (b) and any written consent to such assignment required by this
paragraph (b), the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the Register;
PROVIDED that if either the assigning Lender or the assignee shall have failed
to make any payment required to be made by it pursuant to Section 2.7(b),
2.7(b), 3.4, 3.5 or 11.2, the Administrative Agent shall have no obligation to
accept such Assignment and Assumption and record the information therein in the
Register unless and until such payment shall have been made in full, together
with all accrued interest thereon. No assignment shall be effective for purposes
of this Agreement unless it has been recorded in the Register as provided in
this paragraph.
(c) (i) Any Lender may, without the consent of the Borrower or
the Administrative Agent, sell participations to one or more banks or other
entities (a "PARTICIPANT") in all or a portion of such Lender's rights and
obligations in respect of its Commitment, under this Agreement and under
the other Loan Documents (including all or a portion of its Commitment or
the Loans owing to it); PROVIDED that (A) such Lender's obligations under
this Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, and (C) the Borrower, the other Loan Parties, the
Administrative Agent, and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. Any
agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and the other Loan Documents and to approve any
amendment, modification or waiver of any provision of this Agreement or any
other Loan Document; PROVIDED that such agreement or instrument may provide
that such Lender will not, without the consent of the Participant, agree to
any amendment, modification or waiver described in the proviso to Section
12.1 that affects such Participant. Subject to paragraph (c)(ii) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.9, 2.10 and 2.11 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph
(b) of this Section. To the extent permitted by law, each Participant also
shall be entitled to the benefits of Section 12.12(b) as though it were a
Lender, provided such Participant agrees to be subject to Section 12.12(a)
as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.9 or 2.10 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with Kimco's
prior written consent. A Participant that would be a Non-U.S. Lender if it were
a Lender shall not be entitled to the benefits of Section 2.10(a) unless Kimco
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 2.10(b) as
though it were a Lender.
(d) Any Lender may at any time pledge or assign a security
interest in, all or any portion of its rights under this Agreement to
secure obligations of such Lender, including any pledge or assignment to
secure obligations to a Federal Reserve Bank, and this Section shall not
apply to any such pledge or assignment of a security interest; PROVIDED
that no such pledge or assignment of a security interest shall release a
Lender from any of its obligations hereunder or substitute any such pledgee
or assignee for such Lender as a party hereto.
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SECTION 12.7 DISCLOSURE.
Subject to Section 12.19, the Borrower authorizes each Lender to
disclose to any Participant or assignee (each, a "TRANSFEREE") and any
prospective Transferee any and all financial information in such Lender's
possession concerning the Borrower and its Affiliates and the Acquisition 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.
SECTION 12.8 [RESERVED].
SECTION 12.9 FTC GUARANTEE.
(a) GUARANTEE BY FIRST TIER COMPANIES. In order to induce the
Administrative Agent and the Lenders to execute and deliver this Agreement
and to make or maintain the Loans hereunder, and in consideration thereof,
the First Tier Companies (in their capacities as the guarantors under this
Section 12.9, the "FTC GUARANTORS") hereby unconditionally and irrevocably,
jointly and severally, guarantee, as primary obligors and not merely as
sureties, to the Administrative Agent, for the ratable benefit of the
Secured Parties, up to their respective FTG Percentages thereof, the prompt
and complete payment by the Borrower when due (whether at stated maturity,
by acceleration or otherwise) of the Obligations, and each FTC Guarantor
further agrees to pay any and all reasonable expenses (including, without
limitation, all reasonable fees, charges and disbursements of counsel)
which may be paid or incurred by the Administrative Agent or any Lender in
enforcing any of their rights against such FTC Guarantor under the
Guarantee contained in this Section 12.9; PROVIDED that the amount payable
at any time by any particular FTC Guarantor shall be limited to the amount
determined under Section 12.9(i) hereof. The Guarantee contained in this
Section 12.9, subject to Section 12.9(d), shall remain in full force and
effect, as limited in amount hereunder, until the Obligations are paid in
full in cash and the Commitments are terminated. Each FTC Guarantor agrees
that whenever, at any time, or from time to time, it shall make any payment
to the Administrative Agent or any Lender on account of its liability under
this Section 12.9, it will notify the Administrative Agent or such Lender
in writing that such payment is made under the Guarantee contained in this
Section 12.9 for such purpose, provided that failure to provide such notice
shall not alter or affect the amount of such FTC Guarantor's liability
hereunder or its FTG Percentage. No payment or payments made by the
Borrower or any other Person or received or collected by the Administrative
Agent or any Lender from the Borrower or any other Person by virtue of any
action or proceeding or any setoff or appropriation or application, at any
time or from time to time, in reduction of or in payment of the Obligations
shall be deemed to modify, reduce, release or otherwise affect the
liability of any FTC Guarantor under this Section 12.9, which,
notwithstanding any such payment or payments, shall remain liable for the
unpaid and outstanding Obligations, up to its FTG Percentage thereof,
until, subject to Section 12.9(d), the Obligations are paid in full in cash
and the Commitments are terminated.
(b) AMENDMENTS, ETC. WITH RESPECT TO THE APPLICABLE OBLIGATIONS.
Each FTC Guarantor shall remain obligated under this Section 12.9
notwithstanding that (i) without any reservation of rights against any FTC
Guarantor, and (ii) without notice to or further assent by any FTC
Guarantor, (x) any demand for payment of any of the Obligations made by the
Administrative Agent or any Lender may be rescinded, (y) any of the
Obligations may be continued, increased in amount, or otherwise modified,
and the applicable Obligations, or the liability of any other party upon or
for any part thereof, or any collateral security or guarantee therefor or
right of offset with respect thereto, may, from time to time, in whole or
in part, be renewed, extended, amended, modified, accelerated, compromised,
waived, surrendered or released by the Administrative Agent or any
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Lender, and (z) this Agreement and any other documents executed and
delivered in connection herewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Lenders (or the Requisite Lenders,
as the case may be) may deem advisable from time to time, and any
collateral security, guarantee or right of offset at any time held by the
Administrative Agent or any Lender for the payment of the applicable
Obligations may be sold, exchanged, waived, surrendered or released. None
of the Administrative Agent or any Lender shall have any obligation to
protect, secure, perfect or insure any Lien at any time held by it as
security for the Obligations or for the Guarantee contained in this Section
12.9 or any property subject thereto.
(c) GUARANTEE ABSOLUTE AND UNCONDITIONAL. Each FTC Guarantor
waives any and all notice of the creation, renewal, extension or accrual of
any of the Obligations and notice of or proof of reliance by the
Administrative Agent or any Lender upon the Guarantee contained in this
Section 12.9 or acceptance of the Guarantee contained in this Section 12.9;
the Obligations, and any of them, shall conclusively be deemed to have been
created, contracted or incurred, or renewed, extended, amended or waived,
in reliance upon the Guarantee contained in this Section 12.9, and all
dealings between any FTC Guarantor, on the one hand, and the Administrative
Agent and the Lenders, on the other, shall likewise be conclusively
presumed to have been had or consummated in reliance upon the Guarantee
contained in this Section 12.9. The Administrative Agent and any Lender
will, to the extent permitted by applicable law, request payment of any
applicable Obligation from the Borrower before making any claim against the
FTC Guarantors under this Section 12.9, but will have no further obligation
to proceed against the Borrower or to defer for any period a claim against
any FTC Guarantor hereunder. Except as expressly provided in the preceding
sentence, each FTC Guarantor waives diligence, presentment, protest, demand
for payment and notice of default or nonpayment to or upon any FTC
Guarantor or the Borrower with respect to the Obligations. The Guarantee
contained in this Section 12.9 shall be construed as a continuing, absolute
and unconditional guarantee of payment without regard to (a) the validity
or enforceability of this Agreement or any other Loan Document, any of the
Obligations or any collateral security therefor or Guarantee or right of
offset with respect thereto at any time or from time to time held by the
Administrative Agent or any Lender, (b) the legality under applicable laws
of repayment by the Borrower of any Obligations or the adoption of any
applicable laws purporting to render any Obligations null and void, (c) any
change in the structure or tax characterization of the Borrower, or any
transaction (including any merger or consolidation) to which it may be a
party (in each case whether or not permitted under the Loan Documents), (d)
any defense, setoff or counterclaim (other than a defense of payment) which
may at any time be available to or be asserted by any FTC Guarantor or the
Borrower against the Administrative Agent or any Lender, or (e) any other
circumstance whatsoever (with or without notice to or knowledge of any FTC
Guarantor or the Borrower) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Borrower for any
Obligations, or of any FTC Guarantor under the Guarantee contained in this
Section 12.9, in bankruptcy or in any other instance. When the
Administrative Agent or any Lender is pursuing its rights and remedies
under this Section 12.9 against any FTC Guarantor, the Administrative Agent
or such Lender may, but shall be under no obligation to, pursue such rights
and remedies as it may have against the Borrower or any other Person or
against any collateral security or Guarantee for the Obligations or any
right of offset with respect thereto, and any failure by the Administrative
Agent or any Lender to pursue such other rights or remedies or to collect
any payments from the Borrower or any such other Person or to realize upon
any such collateral security or Guarantee or to exercise any such right of
offset, or any release of the Borrower or any such other Person or of any
such collateral security, Guarantee or right of offset, shall not relieve
any FTC Guarantor of any liability under this Section 12.9, and shall not
impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of the Administrative Agent and the Lenders
against any FTC Guarantor.
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(d) REINSTATEMENT. The Guarantee contained in this Section 12.9
shall continue to be effective, or be reinstated, as the case may be, if at
any time payment, or any part thereof, of any of the Obligations is
rescinded or must otherwise be restored or returned by the Administrative
Agent or any Lender upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Borrower or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or
similar officer for, the Borrower or any substantial part of its Property,
or otherwise, all as though such payments had not been made.
(e) PAYMENTS. Each FTC Guarantor hereby agrees that any payments
in respect of the Obligations pursuant to this Section 12.9 will be paid
without setoff or counterclaim in Dollars at the office of the
Administrative Agent specified for payment under this Agreement.
(f) INDEPENDENT OBLIGATIONS. The obligations of each FTC
Guarantor under the Guarantee contained in this Section 12.9 are
independent of the obligations of the Borrower, and a separate action or
actions may be brought and prosecuted against any FTC Guarantor whether or
not the Borrower is joined in any such action or actions. Any payment by
the Borrower or other circumstance which operates to toll any statute of
limitations as to the Borrower shall operate to toll the statute of
limitations as to each FTC Guarantor.
(g) DEFENSES OF FTC GUARANTOR. To the fullest extent permitted by
applicable law, each FTC Guarantor waives any defense based on or arising
out of any defense of any Loan Party or the unenforceability of the
Obligations or any part thereof from any cause, or the cessation from any
cause of the liability of any Loan Party, other than the final and
indefeasible payment in full in cash of the Obligations. To the fullest
extent permitted by applicable law, the Administrative Agent and the other
Secured Parties may, at their election, foreclose on any security held by
one or more of them by one or more judicial or nonjudicial sales, accept an
assignment of any such security in lieu of foreclosure, compromise, extend
or otherwise adjust any part of the Obligations, make any other
accommodation with any Loan Party or any other guarantor or exercise any
other right or remedy available to them against any Loan Party or any other
guarantor, without affecting or impairing in any way the liability of any
FTC Guarantor hereunder except to the extent the Obligations have been
fully paid in cash. Pursuant to applicable law, each FTC Guarantor waives
any defense arising out of any such election even though such election
operates, pursuant to applicable law, to impair or to extinguish any right
of reimbursement or subrogation or other right or remedy of any FTC
Guarantor against any Loan Party or any other guarantor, as the case may
be, or any security, or would otherwise exonerate any FTC Guarantor.
(h) AGREEMENT TO PAY; SUBORDINATION. In furtherance of the
foregoing and not in limitation of any other right that the Administrative
Agent or any other Secured Party has at law or in equity against the FTC
Guarantors by virtue hereof, upon the failure of any Loan Party to pay any
Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, each FTC Guarantor
hereby promises to and will forthwith pay, or cause to be paid, to the
Administrative Agent or such other Secured Party as designated thereby in
cash the amount of such unpaid Obligations, up to its FTG Percentage
thereof. Upon payment by any FTC Guarantor of any sums to the
Administrative Agent or any Secured Party as provided above, all rights of
such FTC Guarantor against any Loan Party arising as a result thereof by
way of right of subrogation, contribution, reimbursement, indemnity or
otherwise shall in all respects be subordinate and junior in right of
payment to the prior indefeasible payment in full in cash of all the
Obligations. If any amount shall erroneously be paid to any FTC Guarantor
on account of such subrogation, contribution, reimbursement, indemnity or
similar right or any such indebtedness of any Loan Party, such amount shall
be held in trust for the benefit of the Secured Parties and shall forthwith
be paid to
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the Administrative Agent to be credited against the payment of the
Obligations, whether matured or unmatured, in accordance with the terms of
the Loan Documents.
(i) LIMITATIONS. The maximum liability of each FTC Guarantor
under this Section 12.9 (and accordingly the liability of such FTC
Guarantor that is secured by Collateral in which such FTC Guarantor has
granted a security interest securing its obligations hereunder) shall be
limited as provided in paragraph (a). For purposes of this Agreement, the
"FTG PERCENTAGE" of each FTC Guarantor shall be the percentage set forth
opposite the name of such FTC Guarantor on Schedule 12.9; PROVIDED, that if
there is an Event of Default which affects only a particular First Tier
Company (a "DEFAULTING FTC") so that, pursuant to the proviso at the end of
the penultimate paragraph of Article X, only a portion of the Obligations
become due and payable, and such portion is paid by the Borrower or Kimco,
thereafter the FTG Percentage of each First Tier Company other than the
Defaulting FTC shall be adjusted to be equal to the percentage equivalent
of a fraction, the numerator of which is the FTG Percentage of such First
Tier Company immediately prior to such default, and the denominator of
which is the sum of the FTG Percentages immediately prior to such default
of all of the First Tier Companies other than the Defaulting FTC.
SECTION 12.10 KIMCO GUARANTEE.
(a) GUARANTEE BY KIMCO. In order to induce the Administrative
Agent and the Lenders to execute and deliver this Agreement and to make or
maintain the Loans hereunder, and in consideration thereof, Kimco (in its
capacity as the guarantor under this Section 12.10, the "INVESTOR
GUARANTOR") hereby unconditionally and irrevocably guarantees, as primary
obligor and not merely as surety, to the Administrative Agent, for the
ratable benefit of the Secured Parties, the prompt and complete payment by
the Borrower when due (whether at stated maturity, by acceleration or
otherwise) of the Obligations, and the Investor Guarantor further agrees to
pay any and all reasonable expenses (including, without limitation, all
reasonable fees, charges and disbursements of counsel) which may be paid or
incurred by the Administrative Agent or any Lender in enforcing any of
their rights under the Guarantee contained in this Section 12.10. The
Guarantee contained in this Section 12.10, subject to Section 12.10(d),
shall remain in full force and effect until the Obligations are paid in
full in cash and the Commitments are terminated. The Investor Guarantor
agrees that whenever, at any time, or from time to time, it shall make any
payment to the Administrative Agent or any Lender on account of its
liability under this Section 12.10, it will notify the Administrative Agent
or such Lender in writing that such payment is made under the Guarantee
contained in this Section 12.10 for such purpose. No payment or payments
made by the Borrower or any other Person or received or collected by the
Administrative Agent or any Lender from the Borrower or any other Person by
virtue of any action or proceeding or any setoff or appropriation or
application, at any time or from time to time, in reduction of or in
payment of the Obligations shall be deemed to modify, reduce, release or
otherwise affect the liability of the Investor Guarantor under this Section
12.10, which, notwithstanding any such payment or payments, shall remain
liable for the unpaid and outstanding Obligations until, subject to Section
12.10(d), the Obligations are paid in full in cash and the Commitments are
terminated.
(b) AMENDMENTS, ETC. WITH RESPECT TO THE APPLICABLE OBLIGATIONS.
The Investor Guarantor shall remain obligated under this Section 12.10
notwithstanding that (i) without any reservation of rights against the
Investor Guarantor, and (ii) without notice to or further assent by the
Investor Guarantor, (x) any demand for payment of any of the Obligations
made by the Administrative Agent or any Lender, (y) any of the Obligations
may be continued, increased in amount, or otherwise modified, and the
applicable Obligations, or the liability of any other party upon or for any
part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part,
be renewed, extended, amended, modified,
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accelerated, compromised, waived, surrendered or released by the
Administrative Agent or any Lender, and (z) this Agreement and any other
documents executed and delivered in connection herewith may be amended,
modified, supplemented or terminated, in whole or in part, as the Lenders
(or the Requisite Lenders, as the case may be) may deem advisable from time
to time, and any collateral security, guarantee or right of offset at any
time held by the Administrative Agent or any Lender for the payment of the
applicable Obligations may be sold, exchanged, waived, surrendered or
released. None of the Administrative Agent or any Lender shall have any
obligation to protect, secure, perfect or insure any Lien at any time held
by it as security for the Obligations or for the Guarantee contained in
this Section 12.10 or any property subject thereto.
(c) GUARANTEE ABSOLUTE AND UNCONDITIONAL. The Investor Guarantor
waives any and all notice of the creation, renewal, extension or accrual of
any of the Obligations and notice of or proof of reliance by the
Administrative Agent or any Lender upon the Guarantee contained in this
Section 12.10 or acceptance of the Guarantee contained in this Section
12.10; the Obligations, and any of them, shall conclusively be deemed to
have been created, contracted or incurred, or renewed, extended, amended or
waived, in reliance upon the Guarantee contained in this Section 12.10, and
all dealings between the Investor Guarantor, on the one hand, and the
Administrative Agent and the Lenders, on the other, shall likewise be
conclusively presumed to have been had or consummated in reliance upon the
Guarantee contained in this Section 12.10. The Administrative Agent and any
Lender will, to the extent permitted by applicable law, request payment of
any applicable Obligation from the Borrower before making any claim against
the Investor Guarantor under this Section 12.10, but will have no further
obligation to proceed against the Borrower or to defer for any period a
claim against the Investor Guarantor hereunder. Except as expressly
provided in the preceding sentence, the Investor Guarantor waives
diligence, presentment, protest, demand for payment and notice of default
or nonpayment to or upon the Investor Guarantor or the Borrower with
respect to the Obligations. The Guarantee contained in this Section 12.10
shall be construed as a continuing, absolute and unconditional guarantee of
payment without regard to (a) the validity or enforceability of this
Agreement or any other Loan Document, any of the Obligations or any
collateral security therefor or Guarantee or right of offset with respect
thereto at any time or from time to time held by the Administrative Agent
or any Lender, (b) the legality under applicable laws of repayment by the
Borrower of any Obligations or the adoption of any applicable laws
purporting to render any Obligations null and void, (c) any change in the
structure or tax characterization of the Borrower, or any transaction
(including any merger or consolidation) to which it may be a party (in each
case whether or not permitted under the Loan Documents), (d) any defense,
setoff or counterclaim (other than a defense of payment) which may at any
time be available to or be asserted by the Investor Guarantor or the
Borrower against the Administrative Agent or any Lender, or (e) any other
circumstance whatsoever (with or without notice to or knowledge of the
Investor Guarantor or the Borrower) which constitutes, or might be
construed to constitute, an equitable or legal discharge of the Borrower
for any Obligations, or of the Investor Guarantor under the Guarantee
contained in this Section 12.10, in bankruptcy or in any other instance.
When the Administrative Agent or any Lender is pursuing its rights and
remedies under this Section 12.10 against the Investor Guarantor, the
Administrative Agent or such Lender may, but shall be under no obligation
to, pursue such rights and remedies as it may have against the Borrower or
any other Person or against any collateral security or Guarantee for the
Obligations or any right of offset with respect thereto, and any failure by
the Administrative Agent or any Lender to pursue such other rights or
remedies or to collect any payments from the Borrower or any such other
Person or to realize upon any such collateral security or Guarantee or to
exercise any such right of offset, or any release of the Borrower or any
such other Person or of any such collateral security, Guarantee or right of
offset, shall not relieve the Investor Guarantor of any liability under
this Section 12.10, and shall not impair or affect the rights and remedies,
whether express, implied or available as a matter of law, of the
Administrative Agent and the Lenders against the Investor Guarantor.
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(d) REINSTATEMENT. The Guarantee contained in this Section 12.10
shall continue to be effective, or be reinstated, as the case may be, if at
any time payment, or any part thereof, of any of the Obligations is
rescinded or must otherwise be restored or returned by the Administrative
Agent or any Lender upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Borrower or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or
similar officer for, the Borrower or any substantial part of its Property,
or otherwise, all as though such payments had not been made.
(e) PAYMENTS. The Investor Guarantor hereby agrees that any
payments in respect of the Obligations pursuant to this Section 12.10 will
be paid without setoff or counterclaim, in Dollars at the office of the
Administrative Agent specified for payment under this Agreement.
(f) INDEPENDENT OBLIGATIONS. The obligations of the Investor
Guarantor under the Guarantee contained in this Section 12.10 are
independent of the obligations of the Borrower, and a separate action or
actions may be brought and prosecuted against the Investor Guarantor
whether or not the Borrower is joined in any such action or actions. Any
payment by the Borrower or other circumstance which operates to toll any
statute of limitations as to the Borrower shall operate to toll the statute
of limitations as to the Investor Guarantor.
(g) DEFENSES OF INVESTOR GUARANTOR. To the fullest extent
permitted by applicable law, the Investor Guarantor waives any defense
based on or arising out of any defense of any Loan Party or the
unenforceability of the Obligations or any part thereof from any cause, or
the cessation from any cause of the liability of any Loan Party, other than
the final and indefeasible payment in full in cash of the Obligations. To
the fullest extent permitted by law, the Administrative Agent and the other
Secured Parties may, at their election, foreclose on any security held by
one or more of them by one or more judicial or nonjudicial sales, accept an
assignment of any such security in lieu of foreclosure, compromise, extend
or otherwise adjust any part of the Obligations, make any other
accommodation with any Loan Party or any other guarantor or exercise any
other right or remedy available to them against any Loan Party or any other
guarantor, without affecting or impairing in any way the liability of the
Investor Guarantor hereunder except to the extent the Obligations have been
fully paid in cash. Pursuant to applicable law, the Investor Guarantor
waives any defense arising out of any such election even though such
election operates, pursuant to applicable law, to impair or to extinguish
any right of reimbursement or subrogation or other right or remedy of the
Investor Guarantor against any Loan Party or any other guarantor, as the
case may be, or any security, or would otherwise exonerate the Investor
Guarantor.
(h) AGREEMENT TO PAY; SUBORDINATION. In furtherance of the
foregoing and not in limitation of any other right that the Administrative
Agent or any other Secured Party has at law or in equity against the
Investor Guarantor by virtue hereof, upon the failure of any Loan Party to
pay any Obligation when and as the same shall become due, whether at
maturity, by acceleration, after notice of prepayment or otherwise, the
Investor Guarantor hereby promises to and will forthwith pay, or cause to
be paid, to the Administrative Agent or such other Secured Party as
designated thereby in cash the amount of such unpaid Obligations. Upon
payment by the Investor Guarantor of any sums to the Administrative Agent
or any Secured Party as provided above, all rights of the Investor
Guarantor against any Loan Party arising as a result thereof by way of
right of subrogation, contribution, reimbursement, indemnity or otherwise
shall in all respects be subordinate and junior in right of payment to the
prior indefeasible payment in full in cash of all the Obligations. If any
amount shall erroneously be paid to the Investor Guarantor on account of
(i) such subrogation, contribution, reimbursement, indemnity or similar
right or (ii) any such indebtedness of any Loan Party, such amount shall be
held in trust for the benefit of the Secured Parties and shall forthwith be
paid to the
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Administrative Agent to be credited against the payment of the Obligations,
whether matured or unmatured, in accordance with the terms of the Loan
Documents.
SECTION 12.11 RESERVED.
SECTION 12.12 ADJUSTMENTS; SET-OFF.
(a) If any Lender (a "BENEFITED" Lender) shall at any time
receive any payment of all or part of its Exposure 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 Article X(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 Exposure or interest thereon, such benefited
Lender shall purchase for cash from the other Lenders a participating
interest in such portion of each such other Lender's Exposure, or shall
provide such other Lenders with the benefits of any such collateral, or the
proceeds thereof, as shall be necessary to cause such benefited Lender to
share the excess payment or benefits of such collateral or proceeds ratably
with each of the Lenders; PROVIDED that (i) if all or any portion of such
excess payment or benefits is thereafter recovered from such benefited
Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest,
and (ii) the provisions of this paragraph shall not be construed to apply
to any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of
its Loans to any assignee or participant, other than to the Borrower or any
Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply).
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender and each of its Affiliates 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, obligations, 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 of its Affiliates 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.
SECTION 12.13 COUNTERPARTS.
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts each of which shall constitute
an original, but all of which when 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 Kimco and the Administrative Agent. Delivery of
an executed counterpart of a signature page of this Agreement by telecopy shall
be effective as delivery of a manually executed counterpart of this Agreement.
SECTION 12.14 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
68
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.
SECTION 12.15 INTEGRATION.
This Agreement and the other Loan Documents represent the entire
agreement of the Borrower, the Guarantors, the Administrative Agent, and the
Lenders with respect to the subject matter hereof and thereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agent, or any Lender relative to subject matter hereof or thereof not expressly
set forth or referred to herein or in the other Loan Documents.
SECTION 12.16 GOVERNING LAW.
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
SECTION 12.17 SUBMISSION TO JURISDICTION; WAIVERS.
Each Loan Party 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 judgment 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 such Loan Party at its address set forth in Section 12.2 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 in
connection with this Agreement or any other Loan Document any special,
exemplary, punitive or consequential damages.
SECTION 12.18 ACKNOWLEDGMENTS.
Each Loan Party hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Loan Documents;
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(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to such Loan Party arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and the Lenders, on the one hand,
and such Loan Party, 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 and the Administrative Agent or among the Loan
Parties, the Administrative Agent, and the Lenders.
SECTION 12.19 WAIVERS OF JURY TRIAL.
EACH LOAN PARTY, 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 ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
SECTION 12.20 CONFIDENTIALITY.
Each of the Administrative Agent and the Lenders agrees to maintain
the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates' directors, officers,
employees and agents, including accountants, legal counsel and other advisors
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedies hereunder or under any other
Loan Document or any suit, action or proceeding relating to this Agreement or
any other Loan Document or the enforcement of rights hereunder or thereunder or
to which the Administrative Agent or any Lender is a party, (f) subject to an
agreement containing provisions substantially the same as those of this Section,
a copy of which shall have been provided to Kimco, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to
the Borrower and its obligations, (g) with the consent of the Borrower or (h) to
the extent such Information (i) becomes publicly available other than as a
result of a breach of this Section or (ii) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Loan Parties. For the purposes of this Section, "INFORMATION"
means all information received from the Loan Parties relating to any Loan Party
or its business, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis; PROVIDED that in
the case of information received from any Loan Party after the date hereof, such
information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information. Notwithstanding anything herein to the contrary,
"Information" shall not include, and each party hereto may disclose to any and
all Persons, without limitation of any kind, any information with respect to the
U.S. federal income tax treatment and U.S. federal income tax structure of the
transactions contemplated hereby and all materials of any kind (including
opinions or other tax analyses) that are provided to such party relating to such
tax treatment and tax structure.
70
SECTION 12.21 USA PATRIOT ACT.
Each Lender that is subject to the requirements of the USA Patriot
Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
"ACT"), hereby notifies the Loan Parties that pursuant to the requirements of
the Act, it is required to obtain, verify and record information that identifies
the Loan Parties, which information includes the name and address of the Loan
Parties and other information that will allow such Lender to identify the Loan
Parties in accordance with the Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duty executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
[SIGNATURE PAGES TO FOLLOW]
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KIMCO REALTY CORPORATION
By: /s/ Glenn G. Cohen
------------------------------------
Name: Glenn G. Cohen
Title: Vice-President - Treasurer
PK SALE LLC
By: /s/ Glenn G. Cohen
------------------------------------
Name: Glenn G. Cohen
Title: Vice-President - Treasurer
PRK HOLDINGS I LLC
By: KIMCO PK, LLC, member
By: KIMCO PK INC., managing member
By: /s/ Glenn G. Cohen
------------------------------------
Name: Glenn G. Cohen
Title: Vice-President - Treasurer
PRK HOLDINGS II LLC
By: KIMCO PK, LLC, member
By: KIMCO PK INC., managing member
By:
By: /s/ Glenn G. Cohen
------------------------------------
Name: Glenn G. Cohen
Title: Vice-President - Treasurer
EXECUTION PAGE TO CREDIT AGREEMENT
PRK HOLDINGS III LLC
By: KIMCO PK, LLC, member
By: KIMCO PK INC., managing member
By: /s/ Glenn G. Cohen
------------------------------------
Name: Glenn G. Cohen
Title: Vice-President - Treasurer
EXECUTION PAGE TO CREDIT AGREEMENT
JPMORGAN CHASE BANK, N.A., as a Lender,
as Administrative Agent
By: /s/ Charles Hoagland
------------------------------------
Name: Charles Hoagland
Title: Vice President
EXECUTION PAGE TO CREDIT AGREEMENT
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Co-Syndication Agent and as a
Lender
By: /s/ Cynthia A. Bean
----------------------------------
Name: Cindy Bean
Title: Vice President
Execution Page to the Credit Agreement
BANK OF AMERICA N.A., as a
Co-Syndication Agent and as a Lender
By: /s/ Michael W. Edwards
----------------------------------
Name: Michael W. Edwards
Title: Senior Vice President
Execution Page to the Credit Agreement
SCOTIABANC, INC., as a
Co-Documentation Agent and as a
Lender
By: /s/ William E. Zarrett
----------------------------------
Name: William E. Zarrett
Title: Managing Director
Execution Page to the Credit Agreement
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as a Co-Documentation
Agent and as a Lender
By: /s/ William A. Jordan
----------------------------------
Name: William A. Jordan
Title: Vice President
Execution Page to the Credit Agreement
THE ROYAL BANK OF SCOTLAND, PLC,
as a Co-Managing Agent and as a
Lender
By: /s/ Neil J. Crawford
----------------------------------
Name: Neil J. Crawford
Title: Senior Vice President
Execution Page to the Credit Agreement
SUMITOMO MITSUI BANKING CORPORATION,
as a Co-Managing Agent and as a
Lender
By: /s/ William M. Ginn
----------------------------------
Name: William M. Ginn
Title: General Manager
Execution Page to the Credit Agreement
WEST LB AG, NEW YORK BRANCH, as a
Co-Managing Agent and as a Lender
By: /s/ Lillian Tung Lum
----------------------------------
Name: Lillian Tung Lum
Title: Executive Director
WEST LB AG, NEW YORK BRANCH, as a
Co-Managing Agent and as a Lender
By: /s/ Pui Chow
----------------------------------
Name: Pui Chow
Title: Director
Execution Page to the Credit Agreement
THE BANK OF NEW YORK, as a Co-Agent
and as a Lender
By: /s/ Rick Laudisi
----------------------------------
Name: Rick Laudisi
Title: Managing Director
Execution Page to the Credit Agreement
MIZUHO CORPORATE BANK (USA),
as a Co-Agent and as a Lender
By: /s/ Yasuo Imaizumi
----------------------------------
Name: Yasuo Imaizumi
Title: Senior Vice President
Execution Page to the Credit Agreement
ROYAL BANK OF CANADA, as a Co-Agent
and as a Lender
By: /s/ Dan LePage
----------------------------------
Name: Dan LePage
Title: Authorized Signatory
Execution Page to the Credit Agreement
U.S. BANK, NATIONAL ASSOCIATION, as a
Co-Agent and as a Lender
By: /s/ A. Jeffrey Jacobson
----------------------------------
Name: A. Jeffrey Jacobson
Title: Vice President
Execution Page to the Credit Agreement
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY, as a Lender
BY: BABSON CAPITAL MANAGEMENT LLC,
ITS AUTHORIZED AGENT
By: /s/ Richard F. McKeever
----------------------------------
Name: Richard F. McKeever
Title: Managing Director
Execution Page to the Credit Agreement
THE BANK OF TOKYO-MITSUBISHI UFJ,
LTD., as a Lender
By: /s/ Yoichi Orikasa
----------------------------------
Name: Yoichi Orikasa
Title: Vice President & Manager
Execution Page to the Credit Agreement
CALYON BANK NEW YORK, as a Lender
By: /s/ John. A. Wain
----------------------------------
Name: John. A. Wain
Title: Managing Director
CALYON BANK NEW YORK, as a Lender
By: /s/ Daniel J. Reddy
----------------------------------
Name: Daniel J. Reddy
Title:Director
Execution Page to the Credit Agreement
UBS LOAN FINANCE LLC, as a Lender
By: /s/ Richard Tavrow
----------------------------------
Name: Richard Tavrow
Title: Director
By: /s/ Barbara Ezell-McMichael
----------------------------------
Name: Barbara Ezell-McMichael
Title: Associate Director
Execution Page to the Credit Agreement
EMIGRANT BANK, as a Lender
By: /s/ Michael A. Walsh
----------------------------------
Name: Michael A. Walsh
Title: First Vice President
Execution Page to the Credit Agreement
BANCO POPULAR DE PUERTO RICO, NEW
YORK BRANCH, as a Lender
By: /s/ Hector J. Gonzalez
----------------------------------
Name: Hector J. Gonzalez
Title: Vice President
Execution Page to the Credit Agreement
EUROHYPO AG, NEW YORK BRANCH,
as a Lender
By: /s/ Alfrye Koch
----------------------------------
Name: Alfrye Koch
Title: Managing Director
/s/ Anthony L. Merolla
----------------------------------
Anthony L. Merolla
Vice President
Execution Page to the Credit Agreement
PEOPLE'S BANK, as a Lender
By: /s/ Anne Kuchinski
----------------------------------
Name: Anne Kuchinski
Title: Vice President
Execution Page to the Credit Agreement