Exhibit 10.1
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AMENDMENT NO. 1 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (the "Amendment"), dated as of
March 18, 2004, is entered into by and among EQUITY ONE, INC., a corporation
organized under the laws of the State of Maryland (the "Borrower"), WELLS FARGO
BANK, NATIONAL ASSOCIATION, in its capacity as contractual representative of the
"Lenders" under and as defined in the Credit Agreement referred to below (in
such capacity, the "Administrative Agent"), as a Lender and as Sole Lead
Arranger, COMMERZBANK AG NEW YORK AND GRAND CAYMAN BRANCHES, KEYBANK NATIONAL
ASSOCIATION, and SOUTHTRUST BANK, each as a Lender and as a Documentation Agent,
and BANK ONE, NA, PNC BANK, NATIONAL ASSOCIATION, AMSOUTH BANK, DEUTSCHE BANK
TRUST COMPANY AMERICAS, SUNTRUST BANK, BANK LEUMI USA, CIBC INC., COMERICA BANK,
COMMERCEBANK, N.A, COMPASS BANK, and ISRAEL DISCOUNT BANK OF NEW YORK, as
Lenders.
R E C I T A L S
A. Pursuant to the terms of a Credit Agreement, dated as of February 7, 2003
between Borrower and Lenders (as amended, restated supplemented or
otherwise modified from time to time, the "Credit Agreement"), Lenders
extended credit to Borrower in the principal amount of Three Hundred Forty
Million Dollars ($340,000,000) (the "Loan"). The Loan is evidenced by
certain promissory notes executed by Borrower in favor of Lenders, which
promissory notes aggregate to the principal amount of the Loan
(collectively, as amended, restated supplemented or otherwise modified from
time to time, the "Notes"), and is further evidenced by the documents
described in the Credit Agreement as the "Loan Documents". All capitalized
and herein undefined terms shall have the meanings as set forth in the
Credit Agreement.
B. By this Amendment, Borrower, Lenders and Administrative Agent intend to
modify and amend certain terms and provisions of the Loan Documents.
NOW, THEREFORE, Borrower, Lenders and Administrative Agent agree as
follows:
1. CONDITIONS PRECEDENT. The following are conditions precedent to Lenders'
obligations under this Amendment:
1.1 Receipt by Administrative Agent of fully executed originals of
this Amendment, the Amended and Restated Swing Line Note (in the
form attached as Exhibit A hereto), and any and all other
documents which are required by this Amendment or by any other
Loan Document, each in form and content acceptable to
Administrative Agent;
1.2 Reimbursement to Administrative Agent by Borrower of
Administrative Agent's costs and expenses incurred in connection
with this Amendment and the transactions contemplated hereby,
including, without limitation, reasonable attorneys'
Page 1
fees and documentation costs and charges, whether such services
are furnished by Administrative Agent's employees or agents or by
independent contractors;
1.3 The representations and warranties contained in this Amendment
are true and correct; and
1.4 All payments due and owing to Lenders under the Loan Documents
have been paid current as of the effective date of this
Amendment.
Notwithstanding the foregoing, the provisions set forth in Section 3.4
below shall have prospective effect only from and after the date on which
Borrower has complied with Section 4 below.
2. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and warrants
to Administrative Agent and each Lender that no Event of Default or Default
exists under any of the Loan Documents (as modified by this Amendment) and that
all representations and warranties herein and in the other Loan Documents are
true and correct, which representations and warranties shall survive execution
of this Amendment. Without limiting the foregoing Borrower further represents
and warrants to Administrative Agent and each Lender that, except as listed on
Schedule 1 hereto, (a) Borrower is in full compliance with the requirements of
Section 8.14 of the Credit Agreement, (b) each entity required pursuant to the
terms of such Section 8.14 to execute and deliver a Guaranty or an Accession
Agreement has done so, and (c) the Guarantor's Consent appended hereto correctly
and accurately lists as signatories all entities which are required, pursuant to
the terms of such Section 8.14, to execute a Guaranty or an Accession Agreement
in connection with the Loan.
3. MODIFICATION OF LOAN DOCUMENTS. The Loan Documents are hereby
supplemented and modified to incorporate the following, which shall supersede
and prevail over any conflicting provisions of the Loan Documents:
3.1 Addition of Ground Lease Properties. In order to add two new
approved ground leases to the Credit Agreement, the definition of "Approved
Ground Leases" set forth therein is replaced in its entirety with the
following:
"Approved Ground Leases" means the following six Leasehold
estates: McAlpin Square, Shelby Plaza and Plaza Acadienne, the
Kmart at Lantana, El Novillo and Park Northern.
3.2 Increase of Swing line. In order to increase the swingline
subfacility permitted under the Loan from $25,000,000 to $35,000,000, in
each of the first "Whereas" clause of the preamble and in Section 2.3(a) of
the Credit Agreement the reference therein to "$25,000,000" is hereby
amended to read "$35,000,000". In furtherance of the foregoing,
concurrently with the execution and delivery of this Amendment, Borrower
shall execute and deliver to Administrative Agent, for the benefit of the
Swingline Lender, an Amended and Restated Swing Line Note (in the form
attached hereto as Exhibit A) reflecting such increase in the swingline
subfacility.
Page 2
3.3 Modifications to Competitive Bid Subfacility. The following
modifications are hereby made with respect to the Competitive Bid
Subfacilty:
(a) Increase in Amount. In order to increase the competitive bid
subfacility permitted under the Loan from $150,000,000 to
$170,000,000, in each of the first "Whereas" clause of the
preamble, Section 2.4(a), Section 2.8(b)(iii) and Section
2.13 of the Credit Agreement the reference therein to
"$150,000,000" are hereby amended to read "$170,000,000".
(b) Decrease in Minimum Amount of Bid Rate Borrowings. In order
to decrease the permitted minimum amounts of Bid Rate
Borrowings from a required minimum amount of $5,000,000 and
integral multiples of $1,000,000 to a required minimum
amount of $2,000,000 and integral multiples of $500,000, in
each of Section 2.4(b)(ii), Section 2.4(c)(ii)(F) and
Section 2.4(e)(i)(D) the reference therein to "$5,000,000
and integral multiples of $1,000,000" is hereby amended to
read "$2,000,000 and integral multiples of $500,000". In
furtherance of the foregoing, replacement forms of Bid Rate
Quote Request and Bid Rate Quote are attached hereto (as
Exhibits B and C, respectively) in order to modify the
amount limitations currently reflected in footnote number 1
of each such document.
3.4 Modification of Guarantor Requirements. Effective as of the
Guarantor Modification Effective Date (as defined in Section 4 below),
Section 8.14(a) of the Credit Agreement is hereby amended and restated in
its entirety as follows:
(a) Generally. Borrower shall cause any Subsidiary and
Unconsolidated Affiliate that is not already a Guarantor and to which
any of the following conditions apply (each a "New Guarantor") to
execute and deliver to Administrative Agent an Accession Agreement,
together with the other items required to be delivered under the
subsection (c) below:
(i) such Person (other than the Borrower) owns an
Unencumbered Pool Property;
(ii) such Person is a Wholly Owned Subsidiary of Borrower;
or
(iii) such Person is a Subsidiary of Borrower or
Unconsolidated Affiliate which Guarantees, or otherwise becomes
obligated in respect of, any Indebtedness of Borrower, any
Unconsolidated Affiliate or any Subsidiary of the Borrower.
Any such Accession Agreement and the other items required under
subsection (c) below must be delivered to the Administrative Agent no
later than ten (10) Business Days following the date on which any of
the above conditions first applies to a New Guarantor. Notwithstanding
the foregoing, a Wholly Owned Subsidiary shall not be required to
become a Guarantor if such Wholly Owned Subsidiary (1) cannot become a
party to the Guaranty without violating (A) express provisions of
indebtedness incurred by such Wholly Owned Subsidiary,
Page 3
or (B) in the case of a Wholly Owned Subsidiary obligated under any
secured mortgage indebtedness, express provisions of such Wholly Owned
Subsidiary's organizational documents, or (2) is not obligated under
any Indebtedness. With respect to clause (1) above, Borrower shall
deliver to Administrative Agent promptly upon request copies of such
indebtedness or organizational documentation or such other items as
Administrative Agent may reasonably request to confirm the possibility
of such violation. For the avoidance of doubt, no Property owned by a
New Guarantor shall be deemed an Eligible Property nor included among
the Unencumbered Pool Properties unless and until such New Guarantor
shall have executed and delivered to the Administrative Agent an
Accession Agreement in accordance with the terms hereof.
3.5 Additional Guarantor Reporting. A new Section 8.14(e) to the
Credit Agreement is hereby added to the Credit Agreement as follows:
(e) Required Reporting. Concurrently with each delivery by
Borrower of a Compliance Certificate as and when required by Section
9.3, Borrower shall include therewith a complete listing of all
Subsidiaries which are Non-Guarantor Entities, along with a notation
for each such Subsidiary as to the applicable exception (set forth in
the final paragraph of subsection (a) above) which permits such
Subsidiary to remain a Non-Guarantor Entity. For the avoidance of
doubt, no Property owned by an entity of the type herein described
shall be deemed an Eligible Property nor included among the
Unencumbered Pool Properties unless and until such entity shall have
executed and delivered to the Administrative Agent an Accession
Agreement in accordance with the terms of the Credit Agreement.
4. ADDITIONAL GUARANTORS. On or before the earlier of (a) five (5) days
following the date on which Borrower closes its currently pending "Medium Term
Note Issuance", or (b) June 30, 2004 (the earlier such date, the "Guarantor
Modification Effective Date"), Borrower shall cause each entity which, under the
terms of Section 8.14 of the Credit Agreement (not taking into account the
amendment to such section contemplated in Section 3.4 above) are required to
execute and deliver an Accession Agreement or Guaranty (and which have not yet
done so), to execute and deliver same to Administrative Agent. Borrower
represents and warrants for the benefit of Administrative Agent and Lenders that
Schedule 1 attached hereto lists, as of the date hereof, all Borrower
Subsidiaries which are not currently Guarantors, but which, pursuant to the
provisions of Section 8.14 of the Credit Agreement (not taking into account the
amendment to such section contemplated in Section 3.4 above), were previously
supposed to execute either a Guaranty or an Accession Agreement.
5. FORMATION AND ORGANIZATIONAL DOCUMENTS. Borrower has previously
delivered to Administrative Agent all of the relevant formation and
organizational documents of Borrower and Guarantor, and all such formation
documents remain in full force and effect and have not been amended or modified
since they were delivered to Administrative Agent. Borrower hereby certifies
that: (a) the above documents are all of the relevant formation and
organizational documents of Borrower and Guarantor; (b) they remain in full
force and
Page 4
effect; and (c) they have not been amended or modified since they were
previously delivered to Administrative Agent.
6. NON-IMPAIRMENT. Except as expressly provided herein, nothing in this
Amendment shall alter or affect any provision, condition, or covenant contained
in the Notes or other Loan Documents or affect or impair any rights, powers, or
remedies of Lenders, it being the intent of the parties hereto that the
provisions of the Notes and other Loan Documents shall continue in full force
and effect except as expressly modified hereby.
7. MISCELLANEOUS. This Amendment and the other Loan Documents shall be
governed by and interpreted in accordance with the laws of the State of
California, except if preempted by federal law. Time is of the essence of each
term of the Loan Documents, including this Amendment. If any provision of this
Amendment or any of the other Loan Documents shall be determined by a court of
competent jurisdiction to be invalid, illegal or unenforceable, that portion
shall be deemed severed from this Amendment and the remaining parts shall remain
in full force as though the invalid, illegal, or unenforceable portion had never
been a part thereof.
8. INTEGRATION; INTERPRETATION. The Loan Documents, including this
Amendment, contain or expressly incorporate by reference the entire agreement of
the parties with respect to the matters contemplated therein and supersede all
prior negotiations, written or oral. The Loan Documents shall not be modified
except by written instrument executed by all parties. Any reference to the Loan
Documents includes any amendments, renewals or extensions now or hereafter
approved by Administrative Agent and Lenders in writing.
9. EXECUTION IN COUNTERPARTS. To facilitate execution, this document may be
executed in as many counterparts as may be convenient or required. It shall not
be necessary that the signature of, or on behalf of, each party, or that the
signature of all persons required to bind any party, appear on each counterpart.
All counterparts shall collectively constitute a single document. It shall not
be necessary in making proof of this document to produce or account for more
than a single counterpart containing the respective signatures of, or on behalf
of, each of the parties hereto. Any signature page to any counterpart may be
detached from such counterpart without impairing the legal effect of the
signatures thereon and thereafter attached to another counterpart identical
thereto except having attached to it additional signature pages.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
Page 5
IN WITNESS WHEREOF, Borrower, Lenders and Administrative Agent have caused
this Amendment to be duly executed as of the date first above written.
BORROWER: EQUITY ONE, INC.
By: /s/ Chaim Katzman
-------------------------------
Name: Chaim Katzman
Title: Chief Executive Officer
ADMINISTRATIVE AGENT WELLS FARGO BANK, NATIONAL ASSOCIATION
AND LENDER:
By: /s/ Edwin S. Poole, III
-------------------------------
Name: Edwin S. Poole, III
Title: Vice President
DOCUMENTATION AGENT COMMERZBANK AG NEW YORK AND GRAND
AND LENDER: CAYMAN BRANCHES
By: /s/ Ralph C. Marra, Jr.
-------------------------------
Name: Ralph C. Marra, Jr.
Title: Vice President
By: /s/ Christian Berry
-------------------------------
Name: Christian Berry
Title: Vice President
DOCUMENTATION AGENT KEYBANK NATIONAL ASSOCIATION
AND LENDER:
By: /s/ Michael P. Szuba
-------------------------------
Name: Michael P. Szuba
Title: AVP
DOCUMENTATION AGENT SOUTHTRUST BANK
AND LENDER:
By: /s/ J.R. Miller
-------------------------------
Name: J. R. Miller
Title: G.V.P.
LENDER: BANK ONE, NA
By: /s/ Mark Kramer
-------------------------------
Name: Mark Kramer
Title: Director
Page 6
LENDER: PNC BANK, NATIONAL ASSOCIATION
By: /s/ Michael E. Smith
-------------------------------
Name: Michael E. Smith
Title: Vice President
LENDER: AMSOUTH BANK
By: /s/ Lee Surtees
-------------------------------
Name: Lee Surtees
Title: Officer
LENDER: DEUTSCHE BANK TRUST COMPANY AMERICAS
By: /s/ Steven P. Lapham
-------------------------------
Name: Steven P. Lapham
Title: Managing Director
LENDER: SUNTRUST BANK
By: /s/ Nancy B. Richards
-------------------------------
Name: Nancy B. Richards
Title: Vice President
LENDER: BANK LEUMI USA
By: /s/ Shirly Yechilerich
-------------------------------
Name: Shirly Yechilerich
Title: AVP
By: /s/ Michaela Klein, 212
-------------------------------
Name: Michaela Klein, 212
Title: Senior Vice President
LENDER: CIBC INC.
By: /s/ Joel Gershkon
-------------------------------
Name: Joel Gershkon
Title: Authorized Signatory
LENDER: COMERICA BANK
By: /s/ Leslie A. Vogel
-------------------------------
Name: Leslie A. Vogel
Title: Vice President
Page 7
LENDER: COMMERCEBANK, N.A.
By: /s/ Alan L. Hills
-------------------------------
Name: Alan L. Hills
Title: Vice President
LENDER: COMPASS BANK
By: /s/ Johanna Duke Paley
-------------------------------
Name: Johanna Duke Paley
Title: Senior Vice President
LENDER: ISRAEL DISCOUNT BANK OF NEW YORK
By: /s/ David Kenin
-------------------------------
David Kenin
SVP and Regional Manager
Its: Senior VP & Regional Mgr.
/s/ Herbert K. Fried
-------------------------------
Herbert K. Fried
Secretary, V.P.
Page 8
Schedule 1
List of Entities Required (as of the date hereof) to Execute a Guaranty or
an Accession Agreement Which Have Not Yet Done So
Name of Entity State of Organization
- -------------- ---------------------
Equity One Butler Creek LLC Georgia
Equity One Realty & Management SE, Inc. Georgia
Equity One (Belfair II) Inc. South Carolina
Equity One (Hamilton Ridge) Inc. Georgia
Equity One (Hunter's Creek) Inc. Florida
Equity One (Louisiana Portfolio) LLC Florida
Equity One (Louisiana Holding) LLC Florida
Equity One (Monument) Inc. Florida
Equity One (North Village) LLC South Carolina
Equity One (North Village II) Inc. South Carolina
Equity One (Pavilion) Inc. Florida
Equity One (Presidential Movies) Inc. Georgia
Equity One (Sheridan) Inc. Florida
Equity One (Sheridan Plaza) LLC Florida
Louisiana Holding Corp. Florida
North Kingwood Centre I LP Texas
South Kingwood Centre I LP Texas
VW Mall, Inc. Georgia
Guarantor' Consent - Page 1
GUARANTOR'S CONSENT
The undersigned (each a "Guarantor") consent to the foregoing AMENDMENT NO.
1 TO CREDIT AGREEMENT and the transactions contemplated thereby and each
Guarantor reaffirms its obligations under, as applicable, (a) the Guaranty dated
as of February 7, 2003 and (b) the Accession Agreement dated as of February 12,
2003 (collectively, as amended, restated, supplemented or otherwise modified
from time to time, the "Guaranty"), and its waivers, as set forth in the
Guaranty, of each and every one of the possible defenses to such obligations.
Each Guarantor further reaffirms that its obligations under the Guaranty are
separate and distinct from Borrower's obligations.
Dated as of: March 18, 2004
GUARANTORS
Bandera Festival GP, LLC
Beechnut Centre Corp.
Benbrook Centre Corp.
Bend Shopping Centre Corp.
Cashmere Developments, Inc.
Centerfund (US), LLC
Centrefund Acquisition (Texas) Corp.
Centrefund Acquisition Corp.
Centrefund Development (Gainesville), LLC
Centrefund Realty (U.S.) Corporation
Colony GP, LLC
Copperfield Crossing, Inc.
Eastbelt Centre Corp.
East Townsend Square, Inc.
Equity (Landing) Inc.
Equity One (147) Inc.
Equity One (Alpha) Corp.
Equity One (Atlantic Village) Inc.
Equity One (Beauclerc) Inc.
Equity One (Beta) Inc.
Equity One (Commonwealth) Inc.
Equity One Construction Inc.
By: /s/ Chaim Katzman
----------------------------------
Chaim Katzman
President
Guarantor' Consent - Page 1
Equity One (Coral Way) Inc.
Equity One (Delta) Inc.
Equity One (El Novillo) Inc.
Equity One (Eustis Square) Inc.
Equity One (Forest Edge) Inc.
Equity One (Forest Village Phase II) Inc.
Equity One (Gamma) Inc.
Equity One (Lantana) Inc.
Equity One (Losco) Inc.
Equity One (Mandarin) Inc.
Equity One (Monument) Inc.
Equity One (North Port) Inc.
Equity One (Oak Hill) Inc.
Equity One (Olive) Inc.
Equity One (Point Royale) Inc.
Equity One (Sky Lake) Inc.
Equity One (Summerlin) Inc.
Equity One (Walden Woods) Inc.
Equity One (West Lake) Inc.
Equity One Acquisition Corp.
Equity One (Clematis) LLC
Equity One Properties, Inc.
Equity One Realty & Management Texas, Inc.
Equity One Realty & Management FL, Inc.
Equity Texas Properties, LLC
FC Market GP, LLC
Florida Del Rey Holdings II, Inc.
Forrestwood Equity Partners GP, LLC
Garland & Barns, LLC
Garland & Jupiter, LLC
Gazit (Meridian) Inc.
Grogan Centre Corp.
Harbor Barker Cypress GP, LLC
Hedwig GP, LLC
Homestead Market Center, Inc.
IRT Alabama, Inc.
IRT Capital Corporation II
IRT Management Company
KirkBiss GP, LLC
By: /s/ Chaim Katzman
----------------------------------
Chaim Katzman
President
Guarantor' Consent - Page 2
Leesburg DrugStore, LLC
Mariner Outparcel, Inc.
Mason Park GP, LLC
McMinn Holdings, Inc.
North American Acquisition Corp.
North Kingwood Centre Corp.
Oakbrook Square Shopping Center Corp.
Parcel F, LLC
Plymouth South Acquisition Corp.
Prosperity Shopping Center Corp.
PSL Developments, Inc.
Ryanwood Shopping Center, L.L.C.
SA Blanco Village Partners GP, LLC
Salerno Village Shopping Center, LLC
Shoppes at Jonathan's Landing, Inc.
Shoppes at Westbury Shopping Center, Inc.
South Kingwood Centre Corp.
Spring Shadows GP, LLC
St. Charles Outparcel, Inc.
Steeplechase Centre Corp.
Southwest 19 Northern, Inc.
Texas Equity Holdings, LLC
The Harbour Center, Inc.
The Meadows Shopping Center, LLC
The Shoppes of Eastwood, LLC
UIRT GP, L.L.C.
UIRT I - Centennial, Inc.
UIRT LP, L.L.C.
UIRT-Northwest Crossing, Inc.
Wickham DrugStore, LLC
Wimbledon Center Corp.
Wurzbach Centre, LLC
By: /s/ Chaim Katzman
----------------------------------
Chaim Katzman
President
Bandera Festival Partners, LP
By: Bandera Festival GP, LLC
By: /s/ Chaim Katzman
-------------------------------
Chaim Katzman
President
Guarantor' Consent - Page 3
BC Centre Partners, LP
By: Harbour Barker Cypress GP, LLC
By: /s/ Chaim Katzman
-------------------------------
Chaim Katzman
President
Beechnut Centre I L.P.
By: Beechnut Centre Corp.
By: /s/ Chaim Katzman
-------------------------------
Chaim Katzman
President
Bend Shopping Centre I L.P.
By: Bend Shopping Centre Corp.
By: /s/ Chaim Katzman
-------------------------------
Chaim Katzman
President
Eastbelt Centre I L.P.
By: Eastbelt Centre Corp.
By: /s/ Chaim Katzman
-------------------------------
Chaim Katzman
President
FC Market Partners, LP
By: FC Market GP, LLC
By: /s/ Chaim Katzman
-------------------------------
Chaim Katzman
President
Guarantor' Consent - Page 4
Grogan Centre I L.P.
By: Grogan Centre Corp.
By: /s/ Chaim Katzman
-------------------------------
Chaim Katzman
President
Hedwig Partners, LP
By: Hedwig GP, LLC
By: /s/ Chaim Katzman
-------------------------------
Chaim Katzman
President
IRT Partners LP
By: Equity One, Inc.
By: /s/ Chaim Katzman
-------------------------------
Chaim Katzman
President
Kirkwood - Bissonnet Partners, LP
By: KirkBiss GP, LLC
By: /s/ Chaim Katzman
-------------------------------
Chaim Katzman
President
Mason Park Partners, LP
By: Mason Park GP, LLC
By: /s/ Chaim Katzman
-------------------------------
Chaim Katzman
President
Guarantor' Consent - Page 5
Park Northern/Centennial Partners, L.P.
By: UIRT I - Centennial, Inc.
By: /s/ Chaim Katzman
-------------------------------
Chaim Katzman
President
SA Blanco Village Partners, LP
By: SA Blanco Village Partners GP, LLC
By: /s/ Chaim Katzman
-------------------------------
Chaim Katzman
President
Steeplechase Centre I L.P.
By: Steeplechase Centre Corp.
By: /s/ Chaim Katzman
-------------------------------
Chaim Katzman
President
Texas CP Land, LP
By: Colony GP, LLC
By: /s/ Chaim Katzman
-------------------------------
Chaim Katzman
President
Texas Spring Shadows Partners, LP
By: Spring Shadows GP, LLC
By: /s/ Chaim Katzman
-------------------------------
Chaim Katzman
President
Guarantor' Consent - Page 6
UIRT, Ltd.
By: UIRT GP, LLC
By: /s/ Chaim Katzman
-------------------------------
Chaim Katzman
President
Guarantor' Consent - Page 7
EXHIBIT A
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AMENDED AND RESTATED SWING LINE NOTE
$35,000,000 March __, 2004
FOR VALUE RECEIVED, the undersigned, EQUITY ONE, INC., a corporation
organized under the laws of the State of Maryland (the "Borrower"), hereby
unconditionally promises to pay to the order of WELLS FARGO BANK, NATIONAL
ASSOCIATION (the "Swingline Lender"), in care of Wells Fargo Bank, National
Association, as Administrative Agent (the "Administrative Agent"), to Wells
Fargo Bank, National Association, 2120 E. Park Place, Suite 100, El Segundo,
California 90245 or at such other address as may be specified by the
Administrative Agent to the Borrower, the principal sum of THIRTY-FIVE MILLION
AND NO/100 DOLLARS ($35,000,000), or such lesser amount as shall equal the
aggregate unpaid principal amount of Swingline Loans made by the Swingline
Lender to the Borrower pursuant to, and in accordance with the terms of, the
Credit Agreement.
The principal amount of this Note, if not sooner paid as required pursuant
to the Credit Agreement, will be due and payable, together with all accrued and
unpaid interest and other amounts due and unpaid under the Credit Agreement, on
the applicable maturity date, but in no event later than the Swingline
Termination Date. Borrower may make voluntary prepayments of all or a portion of
this Note, upon prior written notice, in accordance with the provisions of
Section 2.3 of the Credit Agreement.
The Borrower further agrees to pay interest at said office, in like money,
on the unpaid principal amount owing hereunder from time to time on the dates
and at the rates and at the times specified in the Credit Agreement. Interest
will be computed on the basis of the actual number of days elapsed in the period
during which interest accrues and a year of three hundred sixty (360) days. The
Credit Agreement provides for the payment by Borrower of various other charges
and fees, in addition to the interest charges described in the Credit Agreement,
as set forth more fully in the Credit Agreement.
In no contingency or event whatsoever shall interest charged in respect of
the Loans evidenced hereby, however such interest may be characterized or
computed, exceed the highest rate permissible under any law that a court of
competent jurisdiction shall, in a final determination, deem applicable hereto.
If such a court determines that Swingline Lender has received interest hereunder
in excess of the highest rate applicable hereto, Swingline Lender shall, at
Swingline Lender's election, either (a) promptly refund such excess interest to
Borrower or (b) credit such excess to the principal balance of the outstanding
Loans held by Swingline Lender. This provision shall control over every other
provision of all agreements between Borrower and Swingline Lender.
This Swingline Note is the "Swingline Note" referred to in that certain
Credit Agreement dated as of February 7, 2003 (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
by and among the Borrower, the financial institutions party thereto and their
assignees under Section 13.6 thereof and the Administrative Agent, and is
subject to, and entitled to, all provisions and benefits thereof. Capitalized
terms used herein and not defined herein shall have the respective meanings
given to such terms in the Credit
Swing Line Note - Page 1
Agreement. The Credit Agreement, among other things, (a) provides for the making
of Swingline Loans by the Swingline Lender, for the benefit of each Lender, to
the Borrower from time to time in an aggregate amount not to exceed at any time
outstanding the Dollar amount first above mentioned, (b) permits the prepayment
of the Swingline Loans by the Borrower subject to certain terms and conditions,
and (c) provides for the acceleration of the Swingline Loans upon the occurrence
of certain specified events.
The date, amount of each Swingline Loan, and each payment made on account
of the principal thereof, shall be recorded by the Swingline Lender on its books
and, prior to any transfer of this Swingline Note, endorsed (with respect to any
unpaid Swingline Loans) by the Swingline Lender on the schedule attached hereto
or any continuation thereof, provided that the failure of the Swingline Lender
to made any such recordation or endorsement shall not affect the obligations of
the Borrower to make a payment when due of any amount owing under the Credit
Agreement or hereunder in respect of the Swingline Loans.
The Borrower hereby waives presentment, demand, protest and notice of any
kind. No failure to exercise, and no delay in exercising any rights hereunder on
the part of the holder hereof shall operate as a waiver of such rights.
Time is of the essence for this Note.
THIS NOTE HAS BEEN DELIVERED AND ACCEPTED AT ATLANTA, GEORGIA. THIS NOTE
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
CALIFORNIA APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH
STATE.
Whenever possible each provision of this Note shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Note shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Note.
This Note shall supersede and replace in its entirety that certain
Swingline Note dated February 7, 2003 in the original maximum principal amount
of Twenty-Five Million Dollars ($25,000,000.00), executed by Borrower in favor
of Swingline Lender. All outstanding obligations of Borrower under said note
shall be deemed outstanding for all purposes under this Note.
IN WITNESS WHEREOF, the undersigned has executed and delivered this Note as
of the date written above.
EQUITY ONE, INC.
By: ____________________________
Name: ____________________________
Title: ____________________________
Swing Line Note - Page 2
EXHIBIT B
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FORM OF BID RATE QUOTE REQUEST
______________, 200_
Wells Fargo Bank, National Association, as
Administrative Agent
[Address]
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of February 7,
2003 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among Equity One, Inc. (the "Borrower"),
the financial institutions party thereto and their assignees under Section 13.6
thereof and Wells Fargo Bank, National Association, as Administrative Agent (the
"Administrative Agent"). Capitalized terms used herein, and not otherwise
defined herein, have their respective meanings given them in the Credit
Agreement.
1. The Borrower hereby requests Bid Rate Quotes for the following proposed
Bid Rate Borrowings:
Borrowing Date Amount(1) Type(2) Interest Period(3)
______________, 200__ $____________ ____________ ______ days
______________, 200__ $____________ ____________ ______ days
______________, 200__ $____________ ____________ ______ days
2. After giving effect to the Bid Rate Borrowing requested herein, the
total amount of Bid Rate Loans outstanding shall be $______________.
_____________________________
1 Minimum amount of $2,000,000 or larger multiple of $500,000.
2 Insert either Absolute Rate (for Absolute Rate Loan) or LIBOR Margin (for
LIBOR Margin Loan).
3 Must be 30, 60, 90 or 180 days.
Form of Bid Rate Quote Request - Page 1
The Borrower hereby certifies to the Administrative Agent and the Lenders
that as of the date hereof and as of the date of the making of the requested Bid
Rate Loans (after taking into effect such requested Bid Rate Loans), (a) no
Default (including, without limitation, the existence of the condition described
in Section 2.8(b)(iii) of the Credit Agreement) or Event of Default exists or
shall exist, and (b) the representations and warranties of the Borrower and the
other Loan Parties contained in the Credit Agreement and the other Loan
Documents are and shall be true and correct in all material respects, except to
the extent such representations or warranties specifically relate to an earlier
date or such representations or warranties become untrue by reason of events or
conditions otherwise permitted under the Credit Agreement or the other Loan
Documents. In addition, the Borrower certifies to Administrative Agent and the
Lenders that all applicable conditions to the making of the requested Bid Rate
Loans contained in Section 6.2 of the Credit Agreement will have been satisfied
at the time such Bid Rate Loans are made.
BORROWER EQUITY ONE, INC.
By: ____________________________
Name: ____________________________
Title: ____________________________
Form of Bid Rate Quote Request - Page 2
EXHIBIT C
---------
FORM OF BID RATE QUOTE
______________, 200_
Wells Fargo Bank, National Association, as
Administrative Agent
[Address]
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of February 7,
2003 (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), by and among Equity One, Inc. (the "Borrower"),
the financial institutions party thereto and their assignees under Section 13.6
thereof and Wells Fargo Bank, National Association, as Administrative Agent (the
"Administrative Agent"). Capitalized terms used herein, and not otherwise
defined herein, have their respective meanings given them in the Credit
Agreement.
In response to the Borrower's Bid Rate Quote Request dated _____________,
200_, the undersigned hereby makes the following Bid Rate Quote(s) on the
following terms:
1. Quoting Lender: .
2. Person to contact at quoting Lender: .
3. The undersigned offers to make Bid Rate Loan(s) in the following
principal amount(s), for the following Interest Period(s) and at the
following Bid Rate(s):
Borrowing Date Amount(1) Type(2) Interest Period(3) Bid Rate
______________, 200__ $____________ ____________ ______ days _________ %
______________, 200__ $____________ ____________ ______ days _________ %
______________, 200__ $____________ ____________ ______ days _________ %
___________________________________
1 Minimum amount of $2,000,000 or larger multiple of $500,000.
2 Insert either Absolute Rate (for Absolute Rate Loan) or LIBOR Margin (for
LIBOR Margin Loan).
3 Must be 30, 60, 90 or 180 days.
Form of Bid Rate Quote - Page 1
The undersigned understands and agrees that the offer(s) set forth above,
subject to satisfaction of the applicable conditions set forth in the Credit
Agreement, irrevocably obligate[s] the undersigned to make the Bid Rate Loan(s)
for which any offer(s) [is/are] accepted, in whole or in part.
By: ____________________________
Name: ____________________________
Title: ____________________________
Form of Bid Rate Quote Request - Page 2