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$850,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of July 26, 2005
among
KIMCO REALTY CORPORATION,
The Subsidiary Borrowers
from time to time parties hereto,
The Several Lenders
from time to time parties hereto,
JPMORGAN CHASE BANK, N.A.,
as Issuing Lender,
WACHOVIA BANK, NATIONAL ASSOCIATION, UBS LOAN FINANCE LLC,
THE BANK OF NOVA SCOTIA, NEW YORK AGENCY, WELLS FARGO BANK NATIONAL ASSOCIATION,
as Syndication Agents, as Documentation Agents,
UFJ BANK LIMITED BANK OF AMERICA, N.A.
SUNTRUST BANK ROYAL BANK OF CANADA
MERRILL LYNCH BANK USA MIZUHO CORPORATE BANK (USA)
EUROHYPO AG, NEW YORK BRANCH US BANK NATIONAL ASSOCIATION
THE BANK OF NEW YORK WESTLB AG, NEW YORK BRANCH
AMSOUTH BANK
as Managing Agents,
MANUFACTURERS AND TRADERS TRUST COMPANY
CITICORP NORTH AMERICA, INC.
SUMITOMO MITSUI BANKING CORPORATION
BARCLAYS BANK PLC
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
as Co-Agents,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
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JPMORGAN SECURITIES INC.,
as Sole Bookrunner and Sole Lead Arranger
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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....................................23
SECTION 1.3 Accounting Terms; GAAP...........................................................24
SECTION 1.4 Exchange Rates...................................................................24
ARTICLE II THE LOANS.................................................................................25
SECTION 2.1 Competitive Bid Procedure........................................................25
SECTION 2.2 Loans; Repayment of Existing Loans; Etc..........................................27
SECTION 2.3 Prepayments......................................................................30
SECTION 2.4 Conversion and Continuation Options..............................................31
SECTION 2.5 Fees.............................................................................32
SECTION 2.6 Interest Rates and Payment Dates.................................................32
SECTION 2.7 Computation of Interest and Fees.................................................33
SECTION 2.8 Inability to Determine Interest Rate.............................................33
SECTION 2.9 Pro Rata Treatment and Payments..................................................34
SECTION 2.10 Illegality.......................................................................35
SECTION 2.11 Requirements of Law..............................................................35
SECTION 2.12 Taxes............................................................................37
SECTION 2.13 Indemnity........................................................................39
SECTION 2.14 Change of Lending Office.........................................................39
SECTION 2.15 Replacement of Lenders under Certain Circumstances...............................39
SECTION 2.16 Additional Reserve Costs.........................................................40
ARTICLE III LETTERS OF CREDIT.........................................................................40
SECTION 3.1 L/C Commitment...................................................................40
SECTION 3.2 Procedure for Issuance of Letters of Credit......................................41
SECTION 3.3 Fees and Other Charges...........................................................41
SECTION 3.4 L/C Participations...............................................................42
SECTION 3.5 Reimbursement Obligation of the Borrowers........................................43
SECTION 3.6 Obligations Absolute.............................................................43
SECTION 3.7 Letter of Credit Payments........................................................44
SECTION 3.8 Applications.....................................................................45
SECTION 3.9 Replacement of the Issuing Lender; Alternate Issuing Lender......................45
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PAGE
SECTION 3.10 Existing Letters of Credit.......................................................45
ARTICLE IV REPRESENTATIONS AND WARRANTIES............................................................45
SECTION 4.1 Financial Condition..............................................................46
SECTION 4.2 No Change........................................................................46
SECTION 4.3 Corporate Existence; Compliance with Law.........................................46
SECTION 4.4 Corporate Power; Authorization; Enforceable Obligations..........................47
SECTION 4.5 No Legal Bar.....................................................................47
SECTION 4.6 No Material Litigation...........................................................47
SECTION 4.7 No Default.......................................................................48
SECTION 4.8 Ownership of Property............................................................48
SECTION 4.9 Intellectual Property............................................................48
SECTION 4.10 No Burdensome Restrictions; Disclosure...........................................48
SECTION 4.11 Taxes............................................................................48
SECTION 4.12 Federal Regulations..............................................................49
SECTION 4.13 ERISA............................................................................49
SECTION 4.14 Investment Company Act; Other Regulations........................................49
SECTION 4.15 [Reserved].......................................................................49
SECTION 4.16 Purpose..........................................................................49
SECTION 4.17 Environmental Matters............................................................49
SECTION 4.18 Insurance........................................................................50
SECTION 4.19 Condition of Properties..........................................................50
SECTION 4.20 Benefit of Loans.................................................................51
SECTION 4.21 REIT Status......................................................................51
SECTION 4.22 Solvency.........................................................................51
ARTICLE V CONDITIONS................................................................................51
SECTION 5.1 Conditions to Effectiveness / Effective Date.....................................51
SECTION 5.2 Conditions to Each Extension of Credit...........................................53
ARTICLE VI AFFIRMATIVE COVENANTS.....................................................................53
SECTION 6.1 Financial Statements.............................................................53
SECTION 6.2 Certificates; Other Information..................................................54
SECTION 6.3 Payment of Obligations...........................................................55
SECTION 6.4 Maintenance of Existence, etc....................................................55
SECTION 6.5 Maintenance of Property; Insurance...............................................55
SECTION 6.6 Inspection of Property; Books and Records; Discussions...........................55
SECTION 6.7 Notices..........................................................................55
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PAGE
SECTION 6.8 Environmental Laws...............................................................56
SECTION 6.9 Baseline Conditions..............................................................57
ARTICLE VII NEGATIVE COVENANTS........................................................................57
SECTION 7.1 Financial Covenants..............................................................57
SECTION 7.2 Limitation on Certain Fundamental Changes........................................58
SECTION 7.3 Limitation on Restricted Payments................................................58
SECTION 7.4 Limitation on Investments, Loans and Advances....................................59
SECTION 7.5 Limitation on Transactions with Affiliates.......................................59
SECTION 7.6 Limitation on Changes in Fiscal Year.............................................59
SECTION 7.7 Limitation on Lines of Business; Issuance of Commercial Paper;
Creation of Subsidiaries; Negative Pledges; Swap Agreements......................59
ARTICLE VIII EVENTS OF DEFAULT.........................................................................60
ARTICLE IX THE AGENTS................................................................................63
SECTION 9.1 The Agents.......................................................................63
SECTION 9.2 Indemnification..................................................................65
SECTION 9.3 The Syndication Agents, Documentation Agents, Arrangers, and Bookrunners........66
ARTICLE X MISCELLANEOUS.............................................................................66
SECTION 10.1 Amendments and Waivers...........................................................66
SECTION 10.2 Notices..........................................................................67
SECTION 10.3 No Waiver; Cumulative Remedies...................................................68
SECTION 10.4 Survival of Representations and Warranties.......................................68
SECTION 10.5 Payment of Expenses and Taxes....................................................68
SECTION 10.6 Successors and Assigns...........................................................68
SECTION 10.7 Disclosure.......................................................................71
SECTION 10.8 Increases of Revolving Credit Facility...........................................71
SECTION 10.9 Extension of Maturity Date.......................................................72
SECTION 10.10 Subsidiary Borrowers and Subsidiary Guarantors...................................73
SECTION 10.11 Adjustments; Set-off.............................................................74
SECTION 10.12 Counterparts.....................................................................75
SECTION 10.13 Severability.....................................................................75
SECTION 10.14 Integration......................................................................75
SECTION 10.15 GOVERNING LAW....................................................................75
SECTION 10.16 Submission to Jurisdiction; Waivers..............................................75
SECTION 10.17 Acknowledgments..................................................................76
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PAGE
SECTION 10.18 WAIVERS OF JURY TRIAL............................................................76
SECTION 10.19 Confidentiality..................................................................76
SECTION 10.20 Judgment Currency................................................................77
SECTION 10.21 USA Patriot Act..................................................................77
SECTION 10.22 Sharing Event....................................................................78
ARTICLE XI GUARANTEE BY KIMCO........................................................................80
SECTION 11.1 Guarantee........................................................................80
SECTION 11.2 Guaranteed Obligations Not Waived................................................80
SECTION 11.3 Guarantee of Payment.............................................................80
SECTION 11.4 No Discharge or Diminishment of Guarantee........................................81
SECTION 11.5 Defenses Waived; Maturity of Guaranteed Obligations..............................81
SECTION 11.6 Agreement to Pay; Subordination..................................................82
SECTION 11.7 Reinstatement....................................................................82
SECTION 11.8 Information......................................................................82
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EXHIBITS:
Exhibit A -- Form of Assignment and Assumption
Exhibit B-1 -- Form of Revolving Credit Note
Exhibit B-2 -- Form of Competitive Loan Note
Exhibit C -- Form of Subsidiary Guarantee
Exhibit D -- Form of Opinion of Loan Party Counsel
Exhibit E -- Form of Closing Certificate of a Borrower
Exhibit F -- Form of Compliance Certificate
Exhibit G -- Form of Adherence Agreement
SCHEDULES:
Schedule 1.1A -- Lenders and Revolving Commitments Immediately After
Giving Effect to Effective Date
Schedule 1.1B -- FFO Definition Variations
Schedule 1.1C -- Exiting Lenders
Schedule 2.2 -- Existing Loans
Schedule 3.10 -- Existing Letters of Credit
Schedule 4.1 -- Certain Financial Disclosure
Schedule 4.2 -- Transaction(s) Referred to in Section 4.2
Schedule 4.19 -- Condemnation Proceedings
Schedule 7.2 -- Transaction(s) Referred to in Section 7.2
Schedule 10.10 -- Subsidiary Guarantors
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AMENDED AND RESTATED CREDIT AGREEMENT, dated as of July 26,
2005, among KIMCO REALTY CORPORATION, a Maryland corporation ("Kimco"), the
Subsidiaries of Kimco from time to time parties hereto (collectively, the
"Subsidiary Borrowers"; together with Kimco, the "Borrowers"), the several
banks, financial institutions and other entities from time to time parties to
this Agreement (collectively, the "Lenders"), the Issuing Lender party hereto,
WACHOVIA BANK, NATIONAL ASSOCIATION and THE BANK OF NOVA SCOTIA, NEW YORK
AGENCY, as Syndication Agents (in such capacity, collectively, the "Syndication
Agents"), UBS LOAN FINANCE LLC and WELLS FARGO BANK NATIONAL ASSOCIATION, as
Documentation Agents (in such capacity, collectively, the "Documentation
Agents"), UFJ BANK LIMITED, SUNTRUST BANK, MERRILL LYNCH BANK USA, EUROHYPO AG,
NEW YORK BRANCH, THE BANK OF NEW YORK, AMSOUTH BANK, BANK OF AMERICA, N.A.,
ROYAL BANK OF CANADA, MIZUHO CORPORATE BANK (USA), US BANK NATIONAL ASSOCIATION
AND WESTLB, NEW YORK BRANCH, as Managing Agents (in such capacity, collectively,
the "Managing Agents"), CITICORP NORTH AMERICA, INC., BARCLAYS BANK PLC, THE
GOVERNORS AND COMPANY OF THE BANK OF IRELAND, MANUFACTURERS AND TRADERS TRUST
COMPANY AND SUMITOMO MITSUI BAKING CORPORATION, as Co-Agents (in such capacity,
collectively, the "Co-Agents"), and JPMORGAN CHASE BANK, N.A., a national
banking association (formerly known as JPMorgan Chase Bank), as administrative
agent for the Lenders hereunder (in such capacity, the "Administrative Agent").
RECITALS
WHEREAS, Kimco entered into the Credit Agreement, dated as of
June 3, 2003 (as amended to the Effective Date, as defined below, the "Existing
Credit Agreement"), with the several banks and other financial institutions or
entities parties thereto (collectively, the "Existing Lenders"), Bank One, NA
and Wachovia Bank, National Association, as Syndication Agents (the "Existing
Syndication Agents"), UBS AG, Cayman Islands Branch, The Bank of Nova Scotia,
New York Agency, as Documentation Agents (the "Existing Documentation Agents"),
the Co-Agents party thereto (the "Existing Co-Agents"), and JPMorgan Chase Bank,
N.A., as administrative agent.
WHEREAS, the parties hereto have agreed to amend and restate
the Existing Credit Agreement as provided in this Agreement in order to, among
other things, remove the Existing Lenders listed on Schedule 1.1C (collectively,
the "Exiting Lenders") as parties and as Lenders, remove one or more certain
Existing Syndication Agents, Existing Documentation Agents and Existing
Co-Agents from serving as Syndication Agents, Documentation Agents or Co-Agents,
as applicable, under this Agreement, and add one or more Persons as parties and
as Lenders, Syndication Agents, Documentation Agents, Managing Agents and
Co-Agents, as applicable.
WHEREAS, this Agreement shall become effective upon the
satisfaction of certain conditions set forth in Section 5.1.
NOW, THEREFORE, in consideration of the above premises, the
parties hereto hereby agree that on the Effective Date the Existing Credit
Agreement shall be and hereby is amended and restated in its entirety 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": Revolving Credit Loans (or Competitive Loans
affected by Section 2.10) 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.
"Adherence Agreement": an agreement substantially in the form
of Exhibit G executed and delivered by Kimco and a Subsidiary Borrower to the
Administrative Agent in connection with the admission of such Subsidiary
Borrower as a Borrower hereunder.
"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. With respect to Alternate Currency Borrowings, the
Administrative Agent may be an Affiliate of JPMCB for purposes of administering
such Borrowings, and all references herein to the term "Administrative Agent"
shall be deemed to refer to the Administrative Agent in respect of the
applicable Borrowing or to all Administrative Agents, as the context requires;
provided, that in the event an Affiliate of JPMCB is designated as an
Administrative Agent hereunder with respect to any Alternate Currency
Borrowings, the Borrowers shall only be obligated to deal with JPMCB as
Administrative Agent hereunder with respect to matters other than requests for
Alternate Currency Loans or conversions or continuations thereof or requests for
the issuance, renewal, extension or amendment of Letters of Credit denominated
in Alternate Currencies, and all actions and other decisions taken and/or made
by JPMCB as Administrative Agent hereunder shall be binding upon such Affiliate
of JPMCB in its capacity as an Administrative Agent hereunder.
2
"Administrative Questionnaire": as defined in Section 10.6.
"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 Amended and Restated Credit Agreement.
"Alternate Currency": EURO, Sterling or Yen and any other
currency (other than dollars) that is freely tradable and exchangeable into
dollars in the London market and approved in writing as an Alternate Currency by
the Borrowers, the Administrative Agent, and all the Lenders in their sole
discretion.
"Alternate Currency Loan": a Tranche B Loan denominated in an
Alternate Currency.
"Alternate Issuing Lender": as defined in Section 3.9(b).
"Applicable Margin": with respect to each Revolving Credit
Loan at any date, the applicable percentage per annum set forth below based upon
the Status on such date:
Level I Level II Level III Level IV Level V Level VI
Status Status Status Status Status Status
------ ------ ------ ------ ------ ------
Eurocurrency Loans, and 0.40% 0.45% 0.55% 0.65% 0.85% 1.15%
Money Market Loans
ABR Loans 0% 0% 0% 0% 0% 0.40%
"Applicable Percentage": as to any Lender at any time, the
percentage which such Lender's Revolving Commitment, Tranche A Commitment or
Tranche B Commitment, as applicable, then constitutes of the aggregate Revolving
Commitments, Tranche A Commitments or Tranche B Commitments, as applicable, of
all Lenders (or, at any time after the Revolving Commitments shall have expired
or terminated, the percentage which the aggregate principal amount of such
Lender's Revolving Exposure, Tranche A Exposure or Tranche B Exposure, as
applicable, then outstanding constitutes of the aggregate principal amount of
the Revolving Exposure, Tranche A Exposure or Tranche B Exposure, as applicable,
of all Lenders then outstanding (for purposes of this definition, treating the
Issuing Lender as if it were a L/C Participant)).
"Application": an application, in such form as the Issuing
Lender may specify from time to time, requesting the Issuing Lender to issue a
Letter of Credit.
"Assignment and Assumption": as defined in Section 10.6.
"Available Commitment": as to any Lender, at any time of
determination, an amount equal to such Lender's Revolving Commitment at such
time minus such Lender's Revolving Exposure at such time.
"Baseline Conditions": as to any Wholly Owned Subsidiary, in
connection with the incurrence by such Subsidiary of any obligations in respect
of the Revolving Credit Facility, that such Subsidiary (a) at the time of
determination can truthfully make each of the Baseline Representations and
Warranties in all material respects and (b) if such Subsidiary is not organized
under the laws of any state of the United States, (x) shall be organized under
the laws of an Acceptable Jurisdiction or (y) shall have submitted 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, including 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.
3
"Baseline Representations and Warranties": as defined in the
first paragraph of Article IV.
"Board": the Board of Governors of the Federal Reserve System
of the United States of America (or any successor).
"Borrowers": as defined in the introductory paragraph hereof.
"Borrowing": (a) Tranche A 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, (b) Tranche B 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, and (c) a
Competitive Loan or a group of Competitive Loans of the same Type made on the
same date and as to which a single Interest Period is in effect.
"Borrowing Date": any Business Day specified in a notice
pursuant to Section 2.2(d) as a date on which any Borrower requests the Lenders
to make Revolving Credit Loans hereunder.
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to close; provided that, when used in connection with (i) a Eurocurrency Loan
denominated in dollars or in an Alternate Currency other than EURO, the term
"Business Day" shall also exclude any day on which commercial banks are not open
for dealings (A) in dollar deposits in the London interbank market or, as the
case may be, (B) in deposits of such Alternate Currency in its principal
domestic market and (ii) any Loan denominated in EURO, the term "Business Day"
shall also exclude any day on which the TARGET payment system is not open for
the settlement of payment in EURO.
"Calculation Date": (a) each date on which a Borrowing
involving an Alternate Currency occurs and (b) the last Business Day of each
calendar month.
"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 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.
4
"Change in Control": (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934, as amended, and the
rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof) of Capital Stock representing more than 35% of the aggregate
ordinary voting power represented by the issued and outstanding Capital Stock of
Kimco; (b) occupation of a majority of the seats (other than vacant seats) on
the board of directors of Kimco by Persons who were neither (i) nominated by the
board of directors of Kimco nor (ii) appointed by directors so nominated; or (c)
the acquisition of direct or indirect Control of Kimco by any Person or group.
"Class": when used in reference to any Loan, refers to whether
such Loan is a Revolving Credit Loan or Competitive Loan.
"Co-Agents": as defined in the introductory paragraph hereof.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment Period": the period from and including the date of
this Agreement to but not including the Termination Date.
"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.
"Competitive Bid": an offer by a Lender to make a Competitive
Loan in accordance with Section 2.1.
"Competitive Bid Rate": with respect to any Competitive Bid,
the Margin or Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"Competitive Bid Request": a request by Kimco for Competitive
Bids in accordance with Section 2.1.
"Competitive Loan Notes": as defined in Section 2.2(b).
"Competitive Loans": a Loan made pursuant to Section 2.1.
"Confidential Memorandum": the Confidential Information
Memorandum, dated June 2005, with respect to Kimco and the Revolving Credit
Facility herein.
"Consolidated Entities": as of any date of determination, any
entities whose financial results are consolidated with those of Kimco in
accordance with GAAP.
5
"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.
"Currency": as defined in the definition of the term "Cash
Equivalents".
"Default": any of the events specified in Article VIII,
whether or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Documentation Agents": as defined in the introductory
paragraph hereof.
"Dollar Equivalent": on any date of determination, (a) with
respect to any amount in dollars, such amount, and (b) with respect to any
amount in an Alternate Currency, the equivalent in dollars of such amount,
determined by the Administrative Agent pursuant to Section 1.4(b) using the
Exchange Rate with respect to such Alternate Currency at the time in effect
under the provisions of such Section.
"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 10.1).
"EMU Legislation": the legislative measures of the European
Union for the introduction of, changeover to or operation of the EURO in one or
more member states.
"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.
6
"EURO" and the sign "(euro)": the single currency of the
participating member states of the European Union as constituted by the Treaty
on European Union and as referred to in the EMU Legislation.
"Eurocurrency Loans": Revolving Credit Loans and Competitive
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 or 3740, as applicable, of
the Telerate Service (or on any successor or substitute page of such Service, or
any successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates in the London interbank market) at
approximately 11:00 a.m., London time, on the Quotation Day for such interest
period, as the rate for deposits in the currency of such Eurocurrency Loan with
a maturity comparable to such interest period; provided that, with respect to
any borrowing of Sterling, the "Eurocurrency Rate" with respect to such
borrowing for such interest period shall be the rate at which deposits in
Sterling for the Dollar Equivalent 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.
"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 (whether or not such
Loans shall originally have been made on the same day).
"Event of Default": any of the events specified in Article
VIII, 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 Alternate
Currency, the rate at which such Alternate 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 Alternate Currency. 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 Alternate Currency exchange
operations in respect of such Alternate 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 Credit Agreement": the Credit Agreement dated as of
June 3, 2003 among Kimco, the several banks, financial institutions and other
entities from time to time parties thereto, the Issuing Lender party thereto,
BANK ONE, NA and WACHOVIA BANK, NATIONAL ASSOCIATION, as Syndication Agents, UBS
AG, CAYMAN ISLANDS BRANCH and THE BANK OF NOVA SCOTIA, NEW YORK AGENCY, as
Documentation Agents, THE BANK OF NEW YORK, EUROHYPO AG, NEW YORK BRANCH,
KEYBANK NATIONAL ASSOCIATION, MERRILLLYNCH BANK USA and SUNTRUST, as Co-Agents,
and JPMORGAN CHASE BANK, N.A., as administrative agent for the lenders
thereunder, as in effect on the date hereof.
7
"Existing Lenders": as defined in the Recitals hereto.
"Existing Loans": any loans made under the Existing Credit
Agreement that are outstanding as of the Effective Date. The amount of the
Existing Loans is set forth on Schedule 2.2.
"Existing Notes": all promissory notes issued to Existing
Lenders under the Existing Credit Agreement that have not been replaced by
subsequent promissory notes issued to Existing Lenders under the Existing Credit
Agreement.
"Existing Co-Agents": as defined in the Recitals hereto.
"Existing Documentation Agents": as defined in the Recitals
hereto.
"Existing Syndication Agents": as defined in the Recitals
hereto.
"Exiting Lenders": as defined in the Recitals hereto.
"Extended Maturity Date": as defined in Section 10.9.
"Facility Fee Rate": the applicable percentage per annum set
forth below based upon the Status on the date of the relevant facility fee
payment:
Level I Level II Level III Level IV Level V Level VI
Status Status Status Status Status Status
------ ------ ------ ------ ------ ------
0.125% 0.125% 0.15% 0.20% 0.25% 0.25%
"Federal Funds Effective Rate": as defined in the definition
of the term "ABR".
"Fee Letter": the letter dated June 14, 2005 among Kimco,
JPMCB and J.P. Morgan regarding certain fees payable in connection with the
Revolving Credit Facility.
"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 2.11(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.
"Fixed Rate": with respect to any Competitive Loan (other than
a Competitive Loan which is a Eurocurrency Loan), the fixed rate of interest per
annum specified by the Lender making such Competitive Loan in its related
Competitive Bid.
"Fixed Rate Loan": a Competitive Loan bearing interest at a
Fixed Rate.
"GAAP": generally accepted accounting principles in the United
States of America.
8
"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 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.
"Guarantor": at any particular time, (a) Kimco and/or (b) each
Subsidiary that is a party to a Subsidiary Guarantee at such time.
"Identified Property": as of any time, Properties acquired
during the most recent Test Period.
"Income REIT": Kimco Income Operating Partnership, L.P., a
Delaware limited partnership.
9
"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.
"Intellectual Property": as defined in Section 4.9.
"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, (c) as to any Money Market
Loan, the Money Market Loan Maturity Date applicable thereto, and (d) as to any
Fixed Rate Loan, the last day of the Interest Period applicable to the borrowing
of which such Fixed Rate Loan is a part and, in the case of a Fixed Rate Loan
with an Interest Period of more than 90 days' duration (unless otherwise
specified in the applicable Competitive Bid Request), each day prior to the last
day of such Interest Period that occurs at intervals of 90 days' duration after
the first day of such Interest Period, and any other days that are specified in
the applicable Competitive Bid Request as Interest Payment Dates with respect to
such Fixed Rate Loan.
"Interest Period":
(a) 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) week (only in the case of a Competitive Loan) or two (2)
weeks (only in the case of a Competitive Loan) or one (1), two (2), three (3) or
six (6) months thereafter, as selected by the applicable Borrower in its notice
of borrowing or notice of conversion, as the case may be, given with respect
thereto; and
(ii) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such Eurocurrency Loan
and ending one (1) week (only in the case of a Competitive Loan) or two (2)
weeks (only in the case of a Competitive Loan) or one (1), two (2), three (3) or
six (6) months thereafter, as selected by the applicable 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;
10
(b) with respect to any Fixed Rate Loan: each period, which
shall not be less than 7 days or more than 180 days, commencing on the date of
such borrowing and ending on the date specified in the applicable Competitive
Bid Request;
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.
"ISP": the International Standby Practices (1998),
International Chamber of Commerce Publication No. 590, and, if acceptable to the
Issuing Lender in its sole discretion, as the same may be amended or revised
from time to time.
"Issuing Lender": JPMCB, in its capacity as issuer of any
Letter of Credit, and any Alternate Issuing Lender appointed pursuant to Section
3.9(b). The Issuing Lender may, in its discretion, arrange for one or more
Letters of Credit to be issued by Affiliates of the Issuing Lender (provided
that such designation (a) does not result in any increased cost or liability to
any Borrower in any underlying transaction supported by such Letter of Credit as
opposed to the cost or liability to such Borrower of a Letter of Credit issued
by JPMCB or (b) is approved in writing by the applicable Borrower or Kimco), in
which case the term "Issuing Lender" shall include any such Affiliate with
respect to Letters of Credit issued by such Affiliate.
"Issuing Lender Affiliate": as defined in Section 10.6.
"JPMCB": JPMorgan Chase Bank, N.A.
"J.P. Morgan": J.P. Morgan Securities Inc.
"Kimco": As defined in the introductory paragraph hereof.
"L/C Commitment": the Dollar Equivalent of $100,000,000.
"L/C Fee Payment Date": with respect to each Letter of Credit,
the last Business Day of each March, June, September and December to occur while
such Letter of Credit is outstanding.
"L/C Fee Rate": with respect to each Letter of Credit at any
date, the applicable percentage per annum set forth below based upon the Status
on such date:
Level I Level II Level III Level IV Level V Level VI
Status Status Status Status Status Status
- ------ ------ ------ ------ ------ ------
0.40% 0.45% 0.55% 0.65% 0.85% 1.15%
11
"L/C Obligations": at any time, an amount equal to the sum of
(a) the Tranche A L/C Obligations and the Tranche B L/C Obligations at such
time.
"L/C Participants": the collective reference to all the
Lenders other than the Issuing Lender.
"Lender Party": each of Administrative Agent, the Issuing
Lender and the Lenders.
"Lenders": as defined in the introductory paragraph hereof.
"Letters of Credit": the Tranche A Letters of Credit and the
Tranche B Letters of Credit.
"Lien": any mortgage, pledge, hypothecation, assignment
(including any collateral assignment but excluding any assignment of an asset
made in lieu of a sale thereof where the assignor is paid the fair market value
of such asset by the assignee and the assignee assumes all of the rights and
obligations attributable to ownership of such asset), deposit arrangement,
encumbrance, lien (statutory or other), charge or other security interest or any
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever (including 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 the Lenders to any Borrower pursuant
to this Agreement, including any Competitive Loans, any Tranche A Loans and any
Tranche B Loans (whether such Loans are Fixed Rate Loans, Eurocurrency Loans,
ABR Loans or Money Market Loans).
"Loan Documents": this Agreement, the Notes, the Applications,
each Subsidiary Guarantee (if any) and the Fee Letter, and any instrument or
agreement waiving, amending, or supplementing any Loan Document.
"Loan Parties": as of any applicable date of determination,
(a) Kimco, (b) each other applicable Borrower and (c) each applicable Guarantor
other than Kimco.
"Majority Lenders": at any date, the holders of at least 51%
of the sum of the Dollar Equivalent of aggregate unpaid principal amount of the
Revolving Credit Loans, the Competitive Loans and the L/C Obligations; provided
that if such sum is zero, then the Majority Lenders shall be the holders of at
least 51% of the sum of the aggregate Revolving Commitments.
"Managing Agents": as defined in the introductory paragraph
hereof.
"Margin": with respect to any Competitive Loan bearing
interest at a rate based on the Eurocurrency Rate, the marginal rate of
interest, if any, to be added to or subtracted from the Eurocurrency Rate to
determine the rate of interest applicable to such Loan, as specified by the
Lender making such Loan in its related Competitive Bid.
"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 Loan Documents or the
rights or remedies of the Administrative Agent or the Lenders hereunder or
thereunder.
12
"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": (i) the date that is the third anniversary of
the date of this Agreement, or (ii) if the term of the Revolving Credit Facility
is extended pursuant to Section 10.9, the Extended Maturity Date; provided that
references hereunder to the Maturity Date shall be to the Maturity Date
specified in clause (i) unless and until extended in accordance with said
Section 10.9.
"Money Market Loan Maturity Date": with respect to any Money
Market Loan, the maturity date requested by the applicable Borrower in
connection therewith (which date shall in no event be later than the earlier of
(a) 29 days after the Borrowing Date thereof or (b) the Termination Date).
"Money Market Loans": Revolving Credit 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 requested Borrowing Date.
"Money Market Tranche": the collective reference to Money
Market Loans having the same Borrowing Date and Money Market Loan Maturity Date.
"Moody's": Moody's Investors Service, Inc.
"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 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 2.12(a).
"Non-Recourse Indebtedness": Indebtedness the documentation
with respect to which expressly provides that (a) the lender(s) thereunder (and
any agent for such lender(s)) may not seek a money judgment against the 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).
13
"Non-U.S. Lender": as defined in Section 2.12(b).
"Notes": the collective reference to the Revolving Credit
Notes and any Competitive Loan Notes.
"Obligated Property Owner": as defined in the definition of
the term "Unencumbered Properties".
"Obligations": with respect to any Borrower, all obligations,
liabilities and Indebtedness of every nature of such Borrower from time to time
owing to any Lender, the Issuing 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 10.6.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"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.
14
"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.
"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.
"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.
"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.
15
"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.
"Quotation Day" means, in connection with any Borrowing of
Eurocurrency Loans for a particular Interest Period, the day that is two (2)
Business Days before the first day of such Interest Period unless market
practice differs in the relevant interbank market for a currency, in which case
the Quotation Day for such currency will be determined by the Administrative
Agent in accordance with market practice in the relevant interbank market (and
if quotations would normally be given by leading banks in the relevant interbank
market on more than one day, the Quotation Day will be the last of such days).
"Rating Agencies": the collective reference to S&P and
Moody's.
"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).
"Register": as defined in Section 10.6.
"Regulation U": Regulation U of the Board as in effect from
time to time.
"Reimbursement Obligation": the obligation of any Borrower to
reimburse the Issuing Lender pursuant to Section 3.5(a) for amounts drawn under
Letters of Credit.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day notice
period is waived under Sections .13, .14, .16, .18, .19 or .20 of PBGC Reg. ss.
2615.
"Representation and Warranty Date": (a) the Effective Date,
(b) the date of any Borrowing, and (c) the date of issuance, renewal, extension
or amendment of any Letter of Credit.
"Required Lenders": at any time, the holders of at least
66-2/3% of the aggregate Revolving Commitments, or, if the Revolving Commitments
have been terminated, the sum of the aggregate unpaid principal amount of the
Competitive Loans and the Revolving Exposure 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.
16
"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.
"Revolving Commitment": as to any Lender, the sum of such
Lender's Tranche A Commitment and Tranche B Commitment, 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' Revolving Commitments is
$850,000,000.
"Revolving Credit Facility": the revolving credit facility
established pursuant to this Agreement.
"Revolving Credit Loans": as defined in Section 2.2(a)(i).
"Revolving Credit Note": as defined in Section 2.2(b).
"Revolving Exposure": as to any Lender at any time, an amount
equal to the sum of such Lender's Tranche A Exposure and Tranche B Exposure at
such time.
"S&P": Standard & Poor's Ratings Services.
"Sharing Event": (a) the occurrence of an Event of Default
described in paragraph (f) of Article VIII; (b) the acceleration of any Loans
and L/C Obligations pursuant to Article VIII; or (c) the occurrence of an Event
of Default described in paragraph (a) of Article VIII that continues after the
Maturity Date.
"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 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.
"Status": as to Kimco, the existence of Level I Status, Level
II Status, Level III Status, Level IV Status, Level V Status or Level VI Status,
as the case may be.
As used in this definition:
"Level I Status" exists at any date if, at such date,
Kimco has a long-term senior unsecured debt rating of A or better by
S&P and A2 or better by Moody's;
17
"Level II Status" exists at any date if, at such
date, Level I Status does not exist and Kimco has a long-term senior
unsecured debt rating of A- or better by S&P and A3 or better by
Moody's;
"Level III Status" exists at any date if, at such
date, neither Level I Status nor Level II Status exists and Kimco has a
long-term senior unsecured debt rating of BBB+ or better by S&P and
Baa1 or better by Moody's;
"Level IV Status" exists at any date if, at such
date, neither Level I Status, Level II Status nor Level III Status
exists and Kimco has a long-term senior unsecured debt rating of BBB or
better by S&P and Baa2 or better by Moody's;
"Level V Status" exists at any date if, at such date,
neither Level I Status, Level II Status, Level III Status nor Level IV
Status exists and Kimco has a long-term senior unsecured debt rating of
BBB- or better by S&P and Baa3 or better by Moody's; and
"Level VI Status" exists at any date if, at such
date, none of Level I Status, Level II Status, Level III Status, Level
IV Status or Level V Status exists;
provided that (i) in the event of a "split" rating, the Applicable Margin,
Facility Fee Rate, and L/C Fee Rate shall be based upon the higher of the two
ratings, (ii) Kimco may, at its option, obtain a debt rating from a third
nationally-recognized rating agency, in which case the Applicable Margin,
Facility Fee Rate, and L/C Fee Rate shall be based on the lower of the two
highest ratings, at least one of which must be Moody's or S&P, and (iii) if S&P
and/or Moody's shall cease to issue ratings of debt securities of real estate
investment trusts generally, then the Administrative Agent and Kimco shall
negotiate in good faith to agree upon a substitute rating agency or agencies
(and to correlate the system of ratings of such substitute rating agency with
that of the rating agency for which it is substituting) and (a) until such
substitute rating agency or agencies are agreed upon, Status shall be determined
on the basis of the rating assigned by the other rating agency (or, if both S&P
and Moody's shall have so ceased to issue such ratings, on the basis of the
Status in effect immediately prior thereto) and (b) after such substitute rating
agency or agencies are agreed upon, Status shall be determined on the basis of
the rating assigned by the other rating agency and such substitute rating agency
or the two substitute rating agencies, as the case may be.
"Sterling" or "(pound)": the lawful money of the United
Kingdom.
"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.
"Subsidiary Borrower Representation and Warranty Date": the
date of any Borrowing by, or issuance, renewal, extension or amendment of any
Letter of Credit for the account of, any Subsidiary Borrower.
"Subsidiary Borrowers": as defined in Section 10.10.
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"Subsidiary Guarantee": each Guarantee, substantially in the
form of Exhibit C, executed and delivered by a Subsidiary Guarantor, in
accordance with the terms of this Agreement.
"Subsidiary Guarantor": as defined in Section 10.10.
"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.
"Syndication Agents": as defined in the introductory paragraph
hereof.
"Termination Date": the date that is the earliest to occur of
(a) the Maturity Date, (b) the date on which the Revolving Commitments hereunder
shall be terminated or otherwise permanently reduced to zero pursuant to this
Agreement, or (c) 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 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.
19
"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.
"Tranche": any Eurocurrency Tranche or Money Market Tranche.
"Tranche A Commitment": as to any Lender, the obligation (if
any) to make Tranche A Loans to and/or issue or participate in Tranche A Letters
of Credit issued on behalf of Borrowers hereunder in an aggregate principal
and/or face amount at any one time outstanding not to exceed the amount set
forth opposite such Lender's name on Schedule 1.1A under the heading "Tranche A
Commitment (Dollars Only)," 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' Tranche A Commitments is $650,000,000.
"Tranche A Exposure": as to any Lender at any time, an amount
equal to the sum of (a) the outstanding aggregate amount of such Lender's
Tranche A Loans at such time and (b) such Lender's Applicable Percentage of the
Tranche A L/C Obligations then outstanding.
"Tranche A L/C Obligations": at any time, an amount equal to
the sum of (a) the aggregate then undrawn and unexpired amount of the then
outstanding Tranche A Letters of Credit and (b) the aggregate amount of drawings
under Tranche A Letters of Credit that have not then been reimbursed pursuant to
Section 3.5(a).
"Tranche A Letters of Credit": letters of credit issued by the
Issuing Lender pursuant to this Agreement, to the extent such Letters of Credit
are deemed, pursuant to the provisions of this Agreement, to be a use of the
Tranche A Commitment, including the letters of credit referred to in Schedule
3.10.
"Tranche A Loans": Revolving Credit Loans made by the Lenders
pursuant to this Agreement, to the extent such Loans are deemed, pursuant to the
provisions of this Agreement, to be a use of the Tranche A Commitment.
"Tranche B Commitment": as to any Lender, the obligation (if
any) to make Tranche B Loans to and/or issue or participate in Tranche B Letters
of Credit issued on behalf of Borrowers hereunder in an aggregate principal
and/or face amount at any one time outstanding not to exceed the amount set
forth opposite such Lender's name on Schedule 1.1A under the heading "Tranche B
Commitment (Dollars or Alternate Currency)," 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' Tranche B Commitments is $200,000,000.
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"Tranche B Exposure": as to any Lender at any time, an amount
equal to the sum of (a) the Dollar Equivalent of the outstanding aggregate
amount of such Lender's Tranche B Loans at such time and (b) such Lender's
Applicable Percentage of the Tranche B L/C Obligations then outstanding.
"Tranche B L/C Obligations": at any time, an amount equal to
the sum of (a) the Dollar Equivalent of the aggregate then undrawn and unexpired
amount of the then outstanding Tranche B Letters of Credit and (b) the Dollar
Equivalent of the aggregate amount of drawings under Tranche B Letters of Credit
that have not then been reimbursed pursuant to Section 3.5(a).
"Tranche B Letters of Credit": letters of credit issued by the
Issuing Lender pursuant to this Agreement, to the extent such Letters of Credit
are deemed, pursuant to the provisions of this Agreement, to be a use of the
Tranche B Commitment, including the letters of credit referred to in Schedule
3.10.
"Tranche B Loans": Revolving Credit Loans made by the Lenders
pursuant to this Agreement, to the extent such Loans are deemed, pursuant to the
provisions of this Agreement, to be a use of the Tranche B Commitment.
"Transferee": as defined in Section 10.7.
"Type": as to any Revolving Credit Loan, its nature as an ABR
Loan, a Eurocurrency Loan or a Money Market Loan; as to any Competitive Loan,
its nature as a Eurocurrency Loan or a Fixed Rate 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 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.
21
"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 a Subsidiary Guarantor
pursuant to an effective Subsidiary Guarantee.
"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 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.
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"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, and if acceptable to the Issuing Lender in its sole
discretion, as the same may be amended or revised from time to time.
"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.
"Wholly Owned Subsidiary": 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 Kimco directly or
indirectly through one or more Wholly Owned Subsidiaries.
"Yen" or "(yen)": the lawful money of Japan.
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.
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(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, 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.
SECTION 1.4 Exchange Rates.
(a) Not later than 12:00 noon, New York City time, three (3) Business
Days prior to each Calculation Date beginning with the date on which the initial
Alternate Currency Borrowing is made, the Administrative Agent shall determine
the Exchange Rate as of such Calculation Date with respect to each relevant
Alternate Currency. The Exchange Rates so determined shall become effective on
the relevant Calculation Date, shall remain effective until the next succeeding
Calculation Date, and shall for all purposes of this Agreement (other than
Section 2.2, Section 10.20, or any other provision expressly requiring the use
of a current Exchange Rate) be the Exchange Rates employed in converting any
amounts between dollars and any Alternate Currency.
(b) Not later than 5:00 p.m., New York City time, on each Calculation
Date, the Administrative Agent shall determine the aggregate amount of the
Dollar Equivalents of the principal amounts of Alternate Currency Loans or L/C
Obligations then outstanding (after giving effect to any Alternate Currency
Loans made or repaid on such date or any L/C Obligations incurred or repaid on
such date). The Administrative Agent shall determine the aggregate amount of the
Dollar Equivalent of all other amounts denominated in an Alternate Currency at
the applicable time provided for its making such determination pursuant to this
Agreement (and such determinations shall be conclusive and binding on the
parties hereto in the absence of manifest error).
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ARTICLE II
THE LOANS
SECTION 2.1 Competitive Bid Procedure.
(a) Subject to the terms and conditions set forth herein, from time to
time during the Commitment Period, Kimco may request Competitive Bids and may
(but shall not have any obligation to) accept Competitive Bids and borrow
Competitive Loans denominated in Dollars in an aggregate principal amount
outstanding at any time not to exceed fifty percent (50%) of the aggregate
Revolving Commitments; provided that after giving effect thereto the sum of the
total Revolving Exposure of all the Lenders plus the aggregate principal amount
of outstanding Competitive Loans shall not exceed the total Revolving
Commitments. Competitive Loans shall not be available in any Alternate Currency.
To request Competitive Bids, Kimco shall notify the Administrative Agent of such
request by telephone (x) in the case of a borrowing of Competitive Loans based
on a Eurocurrency Rate, not later than 11:00 a.m., New York City time, four (4)
Business Days before the date of the proposed borrowing, and (y) in the case of
a borrowing of Fixed Rate Loans, not later than 10:00 a.m., New York City time,
one (1) Business Day before the date of the proposed borrowing; provided that
Kimco may submit up to (but not more than) three (3) Competitive Bid Requests on
the same day, but a Competitive Bid Request shall not be made within five (5)
Business Days after the date of any previous Competitive Bid Request, unless any
and all such previous Competitive Bid Requests shall have been withdrawn or all
Competitive Bids received in response thereto rejected. Each such telephonic
Competitive Bid Request shall be confirmed promptly by hand delivery or telecopy
to the Administrative Agent of a written Competitive Bid Request in a form
approved by the Administrative Agent and signed by Kimco. Each such telephonic
and written Competitive Bid Request shall specify the following information:
(i) the aggregate amount of the requested Borrowing, which
shall be in Dollars;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be based on a Eurocurrency
Rate or at a Fixed Rate;
(iv) the Interest Period to be applicable to such Borrowing,
which shall be a period contemplated by the definition of the term "Interest
Period";
(v) the date of maturity of such Borrowing; and
(vi) the location and number of Kimco's account to which funds
are to be disbursed, which shall comply with the requirements of Section 2.2(d).
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
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(b) Each Lender may (but shall not have any obligation to) make one or
more Competitive Bids to Kimco in response to a Competitive Bid Request. Each
Competitive Bid by a Lender must be in a form approved by the Administrative
Agent and must be received by the Administrative Agent by telecopy (x) in the
case of a borrowing of a Competitive Loan at a rate based on the Eurocurrency
Rate, not later than 9:30 a.m., New York City time, three (3) Business Days
before the proposed date of such borrowing, and (y) in the case of a borrowing
of a Fixed Rate Loan, not later than 9:30 a.m., New York City time, on the
proposed date of such borrowing. Competitive Bids that do not conform
substantially to the form approved by the Administrative Agent may be rejected
by the Administrative Agent, and the Administrative Agent shall notify the
applicable Lender as promptly as practicable. Each Competitive Bid shall specify
(i) the principal amount (which shall be a minimum of $5,000,000 and an integral
multiple of $1,000,000 and which may equal the entire principal amount of the
borrowing of a Competitive Loan requested by Kimco) of the Competitive Loan or
Loans that the applicable Lender is willing to make, (ii) the Competitive Bid
Rate or Rates at which such Lender is prepared to make such Loan or Loans
(expressed as a percentage rate per annum in the form of a decimal to no more
than four decimal places) and (iii) the Interest Period applicable to each such
Loan and the last day thereof.
(c) The Administrative Agent shall promptly notify Kimco by telecopy of
the Competitive Bid Rate and the principal amount specified in each Competitive
Bid and the identity of the Lender that shall have made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, Kimco may accept
or reject any Competitive Bid. Kimco shall notify the Administrative Agent by
telephone, confirmed by telecopy in a form approved by the Administrative Agent,
whether and to what extent it has decided to accept or reject each Competitive
Bid (x) in the case of a Competitive Loan based on a Eurocurrency Rate, not
later than 10:30 a.m., New York City time, three (3) Business Days before the
date of the proposed borrowing, and (y) in the case of a Fixed Rate Loan, not
later than 10:30 a.m., New York City time, on the proposed date of the
borrowing; provided that (i) the failure of Kimco to give any such notice shall
be deemed to be a rejection of each Competitive Bid, (ii) Kimco shall not accept
a Competitive Bid made at a particular Competitive Bid Rate if Kimco rejects a
Competitive Bid made at a lower Competitive Bid Rate, (iii) the aggregate amount
of the Competitive Bids accepted by Kimco shall not exceed the aggregate amount
of the requested borrowing for Competitive Loans specified in the related
Competitive Bid Request, (iv) to the extent necessary to comply with clause
(iii) above, Kimco may accept Competitive Bids at the same Competitive Bid Rate
in part, which acceptance, in the case of multiple Competitive Bids at such
Competitive Bid Rate, shall be made pro rata in accordance with the amount of
each such Competitive Bid, and (v) except pursuant to clause (iv) above, no
Competitive Bid shall be accepted for a Competitive Loan unless such Competitive
Loan is in a minimum principal amount of $5,000,000 and an integral multiple of
$1,000,000; provided, further, that if a Competitive Loan must be in an amount
less than $5,000,000 because of the provisions of clause (iv) above, such
Competitive Loan may be for a minimum of $1,000,000 or any integral multiple
thereof, and in calculating the pro rata allocation of acceptances of portions
of multiple Competitive Bids at a particular Competitive Bid Rate pursuant to
clause (iv) the amounts shall be rounded to integral multiples of $1,000,000 in
a manner determined by Kimco. A notice given by Kimco pursuant to this paragraph
shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender
by telecopy whether or not its Competitive Bid has been accepted (and, if so,
the amount and Competitive Bid Rate so accepted), and each successful bidder
will thereupon become bound, subject to the terms and conditions hereof, to make
the Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) If the entity which is the Administrative Agent shall elect to
submit a Competitive Bid in its capacity as a Lender, it shall submit such
Competitive Bid directly to Kimco at least one quarter of an hour earlier than
the time by which the other Lenders are required to submit their Competitive
Bids to the Administrative Agent pursuant to paragraph (b) of this Section.
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SECTION 2.2 Loans; Repayment of Existing Loans; Etc.
(a) Revolving Commitments.
(i) Subject to the terms and conditions hereof, each Lender
severally agrees to make revolving credit loans ("Revolving Credit Loans") to
the Borrowers, without double-counting (i.e., amounts advanced by a Lender in
respect of its Tranche A Commitment shall not be counted in reduction of its
Tranche B Commitment, or vice versa) (x) in the case of Lenders with a Tranche A
Commitment, in Dollars only, from time to time during the Commitment Period in
an aggregate principal amount at any one time outstanding which, when added to
such Lender's Applicable Percentage of the then outstanding Tranche A L/C
Obligations, does not exceed the amount of such Lender's Tranche A Commitment,
and (y) in the case of Lenders with a Tranche B Commitment, in Dollars or in an
Alternate Currency, from time to time during the Commitment Period in an
aggregate principal amount at any one time outstanding the Dollar Equivalent of
which, when added to such Lender's Applicable Percentage of the then outstanding
Tranche B L/C Obligations, does not exceed the amount of such Lender's Tranche B
Commitment; provided that no Money Market Loan shall be available in an
Alternate Currency. During the Commitment Period the Borrowers may use the
Revolving Commitments by borrowing, prepaying the Revolving Credit Loans in
whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. Notwithstanding anything to the contrary contained in this
Agreement, in no event shall, at any time, the sum of the Revolving Exposure of
all of the Lenders plus the aggregate principal amount of outstanding
Competitive Loans exceed the aggregate Revolving Commitments then in effect.
(ii) Each Revolving Credit Loan shall be made as part of a
borrowing consisting of Revolving Credit Loans made by the Lenders in accordance
with their respective Applicable Percentages of the Tranche A Commitments or the
Tranche B Commitments, as applicable, and to the extent such Revolving Credit
Loan is made shall constitute a use of the Tranche A Commitment or the Tranche B
Commitment, as applicable. Each Competitive Loan shall be made in accordance
with the procedures set forth in Section 2.1. 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 Revolving Commitments and Competitive
Bids of the Lenders are several and no Lender shall be responsible for any other
Lender's failure to make Loans as required.
(iii) Subject to Section 2.8 and Section 2.10, Revolving
Credit Loans denominated in Dollars may from time to time be Eurocurrency Loans,
ABR Loans, or Money Market Loans or a combination thereof, as determined by the
applicable Borrower and notified to the Administrative Agent in accordance with
Sections 2.2(d) and 2.4, provided that no Revolving Credit Loan shall be made as
a Eurocurrency Loan after the day that is one (1) month prior to the Termination
Date. Revolving Credit Loans denominated in an Alternate Currency shall be
composed entirely of Eurocurrency Loans and shall only be made using Tranche B
Commitments. Each Lender at its option may make any Eurocurrency Loan by causing
any domestic or foreign branch or Affiliate of such Lender to make such Loan;
provided that any exercise of such option shall not affect the obligation of the
applicable 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 2.12, and no Lender shall make any such election if and to the extent
the same would cause the applicable Borrower to increase its payment obligations
hereunder. Subject to Section 2.8 and Section 2.10, any Competitive Loan may
from time to time be a Eurocurrency Loan or a Fixed Rate Loan as the applicable
Borrower may request in accordance with Section 2.1.
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(b) Notes. The Revolving Credit Loans made by each Lender shall be
evidenced by a promissory note executed and delivered by the applicable Borrower
at the request of such Lender, substantially in the form of Exhibit B-1, with
appropriate insertions as to payee and date (a "Revolving Credit Note"), payable
to the order of such Lender in a principal amount equal to the aggregate unpaid
principal amount of all Revolving Credit Loans made by such Lender. The
Competitive Loans made by each Lender shall be evidenced by a promissory note
executed and delivered by Kimco at the request of such Lender, substantially in
the form of Exhibit B-2, with appropriate insertions as to payee and date (a
"Competitive Loan Note"), payable to the order of such Lender. Each Lender is
hereby authorized to record, as applicable, the date, Type and amount of each
Revolving Credit Loan or Competitive 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 Fixed Rate Loans and Eurocurrency Loans, the length of each Interest Period
with respect thereto and, in the case of Money Market Loans, the Money Market
Loan Maturity Date with respect thereto, on the schedule (including any
continuation thereof) annexed to and constituting a part of its Revolving Credit
Note or Competitive Loan Note, as the case may be, 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 any
Borrower under this Agreement or the Notes.
(c) Repayment of Loans. Kimco shall pay to the Administrative Agent for
the account of each Lender the then unpaid principal amount of each Competitive
Loan on the last day of the Interest Period applicable to such Loan. Each
Borrower shall repay all then outstanding Revolving Credit Loans and Competitive
Loans made to such Borrower on the Termination Date (or, if earlier, the
applicable Money Market Loan Maturity Date in respect of a Money Market Loan) to
the Administrative Agent for the account of each Lender in the currency in which
such Loan was made.
(d) Procedure for Borrowing Revolving Credit Loans. The Borrowers may
borrow Revolving Credit Loans during the Commitment Period on any Business Day,
provided that the applicable 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 (or, in the
case of any requested Borrowing in an Alternate Currency, four (4) Business
Days) prior to the requested Borrowing Date, if all or any part of the requested
Revolving Credit Loans are to be initially Eurocurrency Loans, (ii) two (2)
Business Days prior to the requested Borrowing Date, if all or any part of the
requested Revolving Credit Loans are to be initially Money Market Loans, or
(iii) one (1) Business Day prior to the requested Borrowing Date, otherwise),
specifying (A) the aggregate amount to be borrowed, (B) whether the amount to be
borrowed will use the Tranche A Commitments or the Tranche B Commitments or, if
a combination thereof, indicating the respective amounts thereof, (C) the
requested Borrowing Date and, in the case of each Money Market Loan, the
requested Money Market Loan Maturity Date, (D) whether the borrowing is to be of
Eurocurrency Loans, ABR Loans, Money Market Loans or a combination thereof, (E)
if a Eurocurrency Loan, the currency of such requested Revolving Credit Loan
(which must be Dollars in the case of Revolving Credit Loans using the Tranche A
Commitments), and (F) if the borrowing is to be entirely or partly of
Eurocurrency Loans the respective amounts of each such Type of Revolving Credit
Loan and the respective lengths of the initial Interest Periods therefor. Each
borrowing under the Revolving Commitments shall be in an amount equal to (i) in
the case of ABR Loans, $500,000 or a whole multiple of $100,000 in excess
thereof (or, if the then aggregate Available Commitments are less than $500,000,
such lesser amount) and (ii) in the case of Eurocurrency Loans or Money Market
Loans, $5,000,000 or a whole multiple of $100,000 in excess thereof or the
Dollar Equivalent in an Alternate Currency, in each case subject to Section
2.2(e). Upon receipt of any such notice from the applicable Borrower, the
Administrative Agent shall promptly notify each Lender thereof. Each Lender will
make the amount of its pro rata share of each such borrowing available to the
Administrative Agent for the account of the applicable Borrower at the office of
the Administrative Agent specified in Section 10.2 prior to 1:00 P.M., New York
City time (or (i) in the case of Money Market Loans having a Money Market Loan
Maturity Date of six (6) days or less from the relevant Borrowing Date, 3:00
P.M., New York City time and (ii) in the case of an Alternate Currency
Borrowing, local time for the principal market of such currency), on the
Borrowing Date requested by the applicable Borrower in funds immediately
available to the Administrative Agent. Such borrowing will then be made
available to the applicable Borrower by the Administrative Agent crediting the
account of the applicable Borrower on the books of such office with the
aggregate of the amounts made available to the Administrative Agent by the
Lenders and in like funds as received by the Administrative Agent. In no event
may the number of Money Market Loans requested in any calendar month exceed four
(4). In no event may the number of Money Market Loans requested in any calendar
year exceed eighteen (18).
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(e) Tranches. Notwithstanding anything to the contrary in this
Agreement, all borrowings, prepayments, conversions and continuations of
Revolving Credit Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, (i) the aggregate principal amount of the
Revolving Credit Loans comprising each Tranche of Tranche A Loans and each
Tranche of Tranche B Loans shall be equal to $5,000,000 or a whole multiple of
$100,000 in excess thereof or the Dollar Equivalent in an Alternate Currency,
and (ii) there shall be no more than ten (10) Eurocurrency Tranches outstanding
at any one time.
(f) Termination or Reduction of Revolving Commitments. Kimco shall have
the right, upon not less than three (3) Business Days' irrevocable notice to the
Administrative Agent (which shall promptly notify each Lender thereof), to
terminate the Revolving Commitments or, from time to time, to reduce the amount
of the Tranche A Commitments and/or the Tranche B Commitments (as designated by
Kimco); provided that no such termination or reduction shall be permitted if,
after giving effect thereto and to any payments of the Revolving Credit Loans
made on the effective date thereof, (i) the sum of the Tranche A Exposure of all
the Lenders would exceed the Tranche A Commitments of all the Lenders, (ii) the
sum of the Tranche B Exposure of all the Lenders would exceed the Tranche B
Commitments of all the Lenders, (iii) the sum of the Revolving Exposure, plus
the aggregate principal amount of the Competitive Loans then outstanding, would
exceed the total Revolving Commitments then in effect or (iv) the Available
Commitment of any Lender would be less than zero. Any such reduction shall be in
an amount equal to $25,000,000 or a whole multiple of $10,000,000 in excess
thereof and shall reduce permanently the Revolving Commitments then in effect.
No such reductions may occur in excess of one (1) per calendar month.
(g) Existing Loans. In addition to the provisions relating to the
Existing Credit Agreement set forth herein, including Sections 3.10 and 5.1(b)
and following the signature pages of the Lenders to this Agreement, the parties
hereto agree as follows:
(i) Kimco hereby confirms that, immediately prior to giving
effect to this Agreement, the Existing Loans are payable in accordance with the
terms of the Existing Credit Agreement, without any defense, setoff or
counterclaim of any kind and are correctly described in Schedule 2.2.
(ii) Each Existing Lender severally agrees to use commercially
reasonable efforts to deliver to Moses & Singer LLP, special counsel to JPMCB,
on or prior to the Effective Date (or promptly thereafter), for delivery for
cancellation to Kimco on or promptly after the Effective Date, all Existing
Notes issued to it, if any, or written certification that such Existing Notes
are lost or cannot be located. Each Existing Lender that fails so to deliver its
Existing Note(s) hereby agrees to indemnify Kimco against any loss, cost or
expense to the extent resulting from such failure provided that (A) such
indemnity shall not be available to the extent that such loss, cost or expense
is determined by a court of competent jurisdiction to have resulted from the
gross negligence or willful misconduct of Kimco; (B) Kimco shall provide such
Existing Lender with prompt written notice of the assertion by any holder of any
Existing Note of any claim or demand for payment in connection with which Kimco
is seeking indemnity from such Existing Lender (each, a "Claim"); (C) Kimco
shall not, without the prior written consent of such Existing Lender not to be
unreasonably withheld, conditioned or delayed (except that such consent shall
not be required if such Existing Lender shall have repudiated its indemnity
obligation hereunder), make any payment on the Existing Note or settle,
compromise or admit any liability in respect of any Claim; and (D) such Existing
Lender shall have the right to prosecute, with counsel selected by such Existing
Lender and reasonably acceptable to Kimco, the defense of any Claim, and Kimco
shall reasonably cooperate with such Existing Lender and its counsel, at no cost
or expense to Kimco, in the defense of such Claim. Loans outstanding under this
Agreement are to be evidenced by the Notes provided for herein.
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(iii) Neither this Agreement nor any of the other Loan
Documents executed and delivered as of the Effective Date shall extinguish the
obligations for the payment of money outstanding under the Existing Credit
Agreement. Nothing contained herein or in any other such Loan Documents shall be
construed as a substitution or novation of the obligations outstanding under the
Existing Credit Agreement, all of which shall remain in full force and effect,
except to the extent expressly modified hereby. The Existing Loans shown on
Schedule 2.2 as not being repaid on the Effective Date shall continue as
outstanding Tranche A Loans under this Agreement, except that the outstanding
Competitive Loans made under the Existing Credit Agreement shall continue as
Competitive Loans of the respective Lenders thereof under this Agreement as
shown on such Schedule 2.2. Each Lender on the Effective Date that was not a
Lender under the Existing Credit Agreement or whose Applicable Percentage of the
Tranche A Commitments as of the Effective Date is greater than its Commitment
Percentage under the Existing Credit Agreement as of such date (collectively, a
"Purchasing Lender") shall purchase from any Existing Lenders that are Exiting
Lenders and any Existing Lenders whose Applicable Percentage of the Tranche A
Commitments as of the Effective Date is less than its Commitment Percentage
under the Existing Credit Agreement as of such date (collectively, a "Selling
Lender") (without recourse and without representation or warranty of any kind,
express or implied, except that each Selling Lender represents and warrants that
as of the Effective Date it is the legal and beneficial owner of the interests
being assigned by it pursuant to this Section and that such interests are free
and clear of any adverse claims or any Liens) such portion of the then
outstanding Loans made by such Selling Lender as would result in each Lender
owning such Lender's Applicable Percentage (after giving effect to the amendment
and restatement of the Existing Credit Agreement pursuant to this Agreement) of
all of the Tranche A Loans, except that the outstanding Competitive Loans made
under the Existing Credit Agreement shall continue as Competitive Loans of the
respective Lenders thereof under this Agreement as shown on such Schedule 2.2.
The purchase price for each such purchase shall equal the principal amount of
such Loans purchased by such Purchasing Lender. The Purchasing Lenders shall be
deemed to have made such purchases pro rata in accordance with the principal
amount of Loans purchased by each of them. Schedule 2.2 sets forth, as of the
Effective Date, the outstanding principal amount of such Loans being purchased
by each Purchasing Lender, and certain related information. Each Purchasing
Lender shall pay such purchase price by wire transfer of immediately available
funds to the Administrative Agent, for the account of the Selling Lenders, to
the account of the Administrative Agent designated by it for such purpose by
notice to the Lenders. Section 2.9(b) of this Agreement shall apply, mutatis
mutandis, to the payment obligations of the Purchasing Lenders under this
Section; provided that the Borrowers shall not be liable for any late payment or
non-payment by any Purchasing Lender.
SECTION 2.3 Prepayments.
(a) Optional. Each Borrower may at any time and from time to time
prepay the Revolving Credit Loans of such Borrower (subject, in the case of
Eurocurrency Loans and Money Market Loans to compliance with the terms of
Section 2.2(e) and Section 2.13), in whole or in part, without premium or
penalty, upon at least three (3) Business Days' (or, in the case of the
prepayment of an Alternate Currency Loan, four (4) Business Days') irrevocable
notice to the Administrative Agent, specifying the date and amount of prepayment
and whether the prepayment is of Tranche A Loans, Tranche B Loans, Eurocurrency
Loans, ABR Loans, Money Market Loans or a combination thereof, and, if of a
combination thereof, the amount allocable to each. Kimco may not prepay any
Competitive Loan without the prior consent of the relevant Lender(s) thereof.
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 2.13. Subject to Section
2.2(e), partial prepayments shall be in an aggregate principal amount of
$500,000 (or, in the case of prepayments of any Alternate Currency Loans, the
Dollar Equivalent of $500,000 at the time of such prepayment) or a whole
multiple of $100,000 (or, in the case of prepayments of any Alternate Currency
Loans, the Dollar Equivalent of $100,000 at the time of such prepayment) in
excess thereof (or, if less, the aggregate outstanding principal amount of the
Revolving Credit Loans).
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(b) Mandatory. If, on any Calculation Date, for any reason, the sum of
any Lender's Revolving Exposure plus the aggregate principal amount of its
Competitive Loans then outstanding exceeds one hundred five percent (105%) of
such Lender's Revolving Commitment, then one or more of the Borrowers shall
promptly prepay such Lender's Loans (or if no Loans are outstanding, cash
collateralize Letters of Credit (in the manner provided in Article VIII), if
any, which shall then be treated solely for purposes of this paragraph as no
longer outstanding to the extent so cash collateralized) in an aggregate amount
sufficient such that, after giving effect thereto, the sum of such Lender's
Revolving Exposure plus the aggregate principal amount of its Competitive Loans
then outstanding does not exceed one hundred percent (100%) of such Lender's
Revolving Commitment.
SECTION 2.4 Conversion and Continuation Options.
(a) The applicable Borrower may elect from time to time to convert
Eurocurrency 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. The applicable Borrower may elect from
time to time to convert ABR Loans to Eurocurrency Loans by giving the
Administrative Agent at least three (3) 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.
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 and ABR Loans may be converted as provided herein, provided that (i) no
Loan may be converted into a Eurocurrency 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 2.2(e) would not be contravened, and (iii) no Revolving
Credit Loan may be converted into a Eurocurrency Loan after the date that is one
(1) month prior to the Termination Date.
(b) Any Eurocurrency Loans may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the applicable
Borrower giving irrevocable notice to the Administrative Agent, in accordance
with the applicable provisions of the term "Interest Period" set forth in
Section 1.1, of the length of the next Interest Period to be applicable to such
Loans, provided that no Eurocurrency 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 2.2(e) would be contravened, or (iii) after the date that is one month
prior to the Termination Date, and provided, further, that if such 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. Upon receipt of any notice pursuant to this Section
2.4(b), the Administrative Agent shall promptly notify each Lender thereof.
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(c) Notwithstanding anything herein to the contrary, Sections 2.4(a)
and (b) shall not apply to Competitive Loans, which may not be converted or
continued.
SECTION 2.5 Fees.
(a) Kimco agrees to pay to the Administrative Agent for the account of
each Lender a facility fee at a per annum rate for the period from and including
the first day of the Commitment Period to but excluding the Termination Date,
computed at the Facility Fee Rate on the daily amount of the Revolving
Commitment of such Lender, whether used or unused; provided that if such Lender
continues to have any Revolving Exposure or outstanding Competitive Loans after
its Revolving Commitment terminates, then such facility fee shall continue to
accrue at the Facility Fee Rate on the average daily amount of such Lender's
Revolving Exposure and Competitive Loans from and including the date on which
its Revolving Commitment terminates to but excluding the date on which such
Lender ceases to have any Revolving Exposure or outstanding Competitive Loans.
Accrued facility fees shall be payable in arrears on the last Business Day of
each calendar quarter and on the date on which the Revolving Commitments
terminate, commencing on the first such date to occur after the date hereof;
provided that any facility fees accruing after the date on which the Revolving
Commitments terminate shall be payable on demand.
(b) Kimco shall pay to the Administrative Agent, for its own account,
and, to the extent mutually agreed upon by the Administrative Agent and the
Lenders, for the account of the Lenders, the fees in the amounts and on the
dates previously agreed to in writing by Kimco pursuant to the Fee Letter.
SECTION 2.6 Interest Rates and Payment Dates.
(a) Each Eurocurrency Loan (other than Competitive Loans) 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) Each Competitive Loan (other than a Fixed Rate 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 (or minus,
as applicable) the Margin applicable thereto. Each Fixed Rate Loan shall bear
interest at the Fixed Rate applicable thereto.
(e) If all or a portion of (i) the principal amount of any Revolving
Credit Loan or Competitive 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 at a rate per annum which is (x) in the case of overdue principal
(except as otherwise specified in clause (y) below), the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
Section 2.6 plus 3% or (y) in the case of any overdue principal with respect to
Money Market Loans or any overdue interest, fee or other amount, the rate
described in Section 2.6(b) plus 3%, in each case from the date of such
non-payment to the date on which such amount is paid in full (as well after as
before judgment).
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(f) Interest shall be payable in arrears on each Interest Payment Date,
provided that interest accruing pursuant to Section 2.6(e) shall be payable from
time to time on demand.
SECTION 2.7 Computation of Interest and Fees.
(a) Facility fees and interest (other than interest calculated on the
basis of the Prime Rate) shall be calculated on the basis of a 360-day year for
the actual days elapsed. Interest calculated on the basis of the Prime Rate
shall be calculated on the basis of a 365- (or 366-, as the case may be) day
year for the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the applicable Borrowers and the Lenders of each
determination of a Eurocurrency Rate or Money Market Rate. Any change in the
interest rate on a Revolving Credit Loan (or a Competitive Loan subject to
Section 2.10) 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 applicable
Borrowers 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 Borrowers and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrowers, deliver to the
Borrowers a statement showing the quotations used by the Administrative Agent in
determining any interest rate with respect to any Eurocurrency Loan.
SECTION 2.8 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 Borrowers) 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 (or, in the case of a Competitive Loan, the Lender that is
required to make such Competitive Loan) that the Eurocurrency Rate determined or
to be determined for such Interest Period will not adequately and fairly reflect
the cost to such Lenders (or Lender) (as conclusively certified by such Lenders
or Lender, as the case may be) of making or maintaining their affected Revolving
Credit Loans (or its Competitive Loan) during such Interest Period;
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrowers and the Lenders as soon as practicable thereafter. If such notice is
given, (i) any Eurocurrency Loans (other than Competitive Loans) requested to be
made on the first day of such Interest Period shall be made as ABR Loans (ii)
any Revolving Credit Loans that were to have been converted on the first day of
such Interest Period to Eurocurrency Loans shall be (x) converted to or
continued as ABR Loans, or (y) if such Revolving Credit Loan is in an Alternate
Currency, such Eurocurrency Loan shall be repaid on the last day of the Interest
Period applicable thereto, unless the relevant Borrower requests an ABR
Borrowing in Dollars in lieu of such Eurocurrency Borrowing at least one
Business Day prior to the last day of such Interest Period, (iii) any
outstanding Eurocurrency Loans (other than Competitive Loans) shall be (x)
converted, on the first day of such Interest Period, to ABR Loans, or (y) if
such Eurocurrency Loan is in an Alternate Currency, such Eurocurrency Loan shall
be repaid on the last day of the Interest Period applicable thereto, unless the
relevant Borrower requests an ABR Borrowing in Dollars in lieu of such
Eurocurrency Borrowing at least one Business Day prior to the last day of such
Interest Period, and (iv) any request by Kimco for a Competitive Loan (other
than a Fixed Rate Loan) shall be ineffective; provided that if the circumstances
giving rise to such notice do not affect all the Lenders, then requests by Kimco
for such Competitive Loans may be made to the Lenders that are not affected
thereby. Until such notice has been withdrawn by the Administrative Agent, no
further Eurocurrency Loans shall be made or continued as such, nor shall any
Borrower have the right to convert any other Revolving Credit Loans to
Eurocurrency Loans.
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SECTION 2.9 Pro Rata Treatment and Payments.
(a) Each borrowing by any Borrower of Revolving Credit Loans using the
Tranche A Commitments or the Tranche B Commitments, as applicable, each payment
by any Borrower on account of any fees hereunder and any reduction of the
Tranche A Commitments or Tranche B Commitments, as applicable, shall be made pro
rata according to the respective Applicable Percentages of the Lenders. Each
payment (including each prepayment) by any Borrower on account of principal of
and interest on the Tranche A Loans or Tranche B Loans, as applicable, shall be
made pro rata according to the respective outstanding principal amounts of the
Tranche A Loans or Tranche B Loans, as applicable, then held by the Lenders in
the currency in which such Revolving Credit Loan was made. If at any time
insufficient funds are received by and available to the Administrative Agent to
pay fully all amounts of principal, unreimbursed Letter of Credit drawings,
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 and
unreimbursed Letter of Credit drawings then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of principal and
unreimbursed Letter of Credit drawings then due to such parties. All payments
(including prepayments) to be made by the Borrowers 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, or, if the payment is due in an Alternate Currency, local time
for the principal market of such currency, on the due date thereof to the
Administrative Agent, for the account of the applicable Lenders, at (x) in the
case of payments due in Dollars the Administrative Agent's office specified in
Section 10.2 in immediately available funds and (y) in the case of payments due
in an Alternate Currency, to such office as the Administrative Agent may
hereafter specify by notice to the Borrowers. 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.
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(b) Unless the Administrative Agent shall have been notified in writing
by any Lender prior to a borrowing that such Lender will not make the amount
that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the applicable
Borrower a corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Effective
Rate for the period until such Lender makes such amount immediately available to
the Administrative Agent. A certificate of the Administrative Agent submitted to
any Lender with respect to any amounts owing under this Section 2.9(b) shall be
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 such Borrowing Date, the Administrative Agent
shall also be entitled to recover such amount with interest thereon at the rate
per annum applicable to ABR Loans hereunder, on demand, from the applicable
Borrower.
SECTION 2.10 Illegality.
Notwithstanding any other provision herein, if the adoption of
or any change in any Requirement of Law or in the interpretation or application
thereof shall make it unlawful for any Lender to make or maintain 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 ABR Loans to Eurocurrency Loans shall forthwith be cancelled, (b)
such Lender's Revolving Credit 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 and (c) such Lender's Competitive Loans then
outstanding as Eurocurrency Loans, if any, shall, if required by law, be
converted automatically to ABR Loans. 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 applicable Borrower shall pay to such Lender
such amounts, if any, as may be required pursuant to Section 2.13.
SECTION 2.11 Requirements of Law.
(a) If the adoption of or any change in any Requirement of Law or in
the interpretation or application thereof or compliance by any Lender with any
request or directive (whether or not having the force of law) from any central
bank or other Governmental Authority made subsequent to the Effective Date:
(i) shall subject any Lender or the Issuing Lender to any tax
of any kind whatsoever with respect to this Agreement, any Note, any Letter of
Credit (or any participation therein) or any Application or any Eurocurrency
Loan, Money Market Loan or Fixed Rate Loan made by it, or change the basis of
taxation of payments to such Lender or the Issuing Lender in respect thereof
(except in each case for Non-Excluded Taxes covered by Section 2.12 and changes
in the rate of tax on the overall net income of such Lender or the Issuing
Lender);
(ii) shall impose, modify or hold applicable any reserve
(except to the extent that such reserve is specifically subject to Section
2.11(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, the Money Market Rate or the Fixed Rate;
or
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(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 or
the Issuing Lender, by an amount which such Lender or the Issuing Lender, as the
case may be, deems to be material, of making, converting into, continuing or
maintaining Eurocurrency Loans, Money Market Loans or Fixed Rate Loans or
issuing or participating in Letters of Credit or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, (x) each Borrower shall
promptly pay such Lender or the Issuing Lender, upon its demand, any additional
amounts necessary to compensate such Lender or the Issuing Lender, as the case
may be, for such increased cost or reduced amount receivable solely with respect
to such Borrower's Loans and Letters of Credit and (y) the Borrowers agree,
jointly and severally, to pay such Lender or the Issuing Lender, upon its
demand, any additional amounts necessary to compensate such Lender or the
Issuing Lender, as the case may be, for such increased cost or reduced amount
receivable with respect to this Agreement or the Revolving Commitments generally
and not solely with respect to any particular Borrower's Loans and Letters of
Credit. If any Lender or the Issuing Lender becomes entitled to claim any
additional amounts pursuant to this Section 2.11(a), it shall promptly notify
the Borrowers, 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 or the Issuing Lender is generally charging other
borrowers or account parties on loans or letters of credit (as the case may be)
similarly situated to the Borrowers.
(b) If any Lender or the Issuing Lender shall have determined that the
application of any Requirement of Law regarding capital adequacy or compliance
by such Lender or the Issuing Lender or any corporation controlling such Lender
or the Issuing 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 the
Issuing Lender's or such corporation's capital as a consequence of its
obligations hereunder or under any Letter of Credit to a level below that which
such Lender or the Issuing Lender or such corporation could have achieved but
for such application or compliance (taking into consideration such Lender's or
the Issuing Lender's or such corporation's policies with respect to capital
adequacy and such Lender's or the Issuing Lender's treatment of its Revolving
Commitments and Letters of Credit 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 or the Issuing Lender to
the Borrowers (with a copy to the Administrative Agent) of a written request
therefor (setting forth in reasonable detail the basis for such request), (i)
each Borrower shall pay to such Lender or the Issuing Lender, as the case may
be, such additional amount or amounts as will compensate such Lender or the
Issuing Lender or such corporation, as the case may be, for such reduction
solely with respect to such Borrower's Loans and Letters of Credit and (ii) the
Borrowers shall, jointly and severally, pay to such Lender or the Issuing
Lender, as the case may be, such additional amount or amounts as will compensate
such Lender or the Issuing Lender or such corporation, as the case may be, for
such reduction with respect to this Agreement or the Revolving Commitments
generally and not solely with respect to any particular Borrower's Loans and
Letters of Credit.
(c) Each Borrower agrees to pay to each Lender which requests
compensation under this Section 2.11(c) (by notice to such Borrower), on the
last day of each Interest Period with respect to any Eurocurrency Loan made by
such Lender to such Borrower, 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 such 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:
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(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 2.11(c) shall promptly withdraw
such notice (by written notice of withdrawal given to the Administrative Agent
and the applicable 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 2.11 submitted by any Lender, through the Administrative Agent, to the
Borrowers shall be conclusive in the absence of manifest error. The agreements
in this Section 2.11 shall survive the termination of this Agreement, the
expiration, cancellation, or other termination of the Letters of Credit, and the
payment of the Revolving Credit Loans, the Competitive 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 2.11, no Borrower shall be
obligated to pay any greater amounts than such Lender(s) or Issuing Lender(s) is
(are) generally charging other borrowers or account parties on loans or letters
of credit (as the case may be) similarly situated to the Borrowers.
SECTION 2.12 Taxes.
(a) All payments made by any Borrower under this Agreement and the
Notes shall be made free and clear of, and without deduction or withholding for
or on account of, any present or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any Governmental Authority,
excluding net income taxes and franchise taxes (imposed in lieu of net income
taxes) imposed on the Administrative Agent, the Issuing Lender or any Lender as
a result of a present or former connection between the Administrative Agent, the
Issuing Lender 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, the Issuing Lender 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, the Issuing Lender or any
Lender hereunder or under the Notes, the amounts so payable to the
Administrative Agent, the Issuing Lender or such Lender shall be increased to
the extent necessary to yield to the Administrative Agent, the Issuing Lender 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 no Borrower shall be required to increase
any such amounts payable to any Non-U.S. Lender if such Lender fails to comply
with the requirements of Section 2.12(b). Whenever any Non-Excluded Taxes are
payable by any Borrower, as promptly as possible thereafter such Borrower shall
send to the Administrative Agent for its own account or for the account of such
Lender or the Issuing Lender, as the case may be, a certified copy of an
original official receipt received by such Borrower showing payment thereof. If
any 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, such Borrower shall indemnify
the Administrative Agent, the Issuing Lender and the Lenders for any incremental
taxes, interest or penalties that may become payable by the Administrative
Agent, the Issuing Lender or any Lender as a result of any such failure. The
agreements in this Section 2.12(a) shall survive the termination of this
Agreement, the expiration, cancellation, or other termination of the Letters of
Credit, and the payment of the Revolving Credit Loans, the Competitive Loans and
all other amounts payable hereunder.
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(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 Effective Date in the case of any such Person that is a Lender
as of the Effective Date) to the Borrowers 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 any Borrower and is not a controlled foreign
corporation related to any 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 Borrowers 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 Borrowers 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 applicable Borrower at any time it determines
that it is no longer in a position to provide any previously delivered
certificate to such Borrower (or any other form of certification adopted by the
U.S. taxing authorities for such purpose). Notwithstanding any other provision
of this Section 2.12(b), a Non-U.S. Lender shall not be required to deliver any
form pursuant to this Section 2.12(b) that such Non-U.S. Lender is not legally
able to deliver.
(c) Each Lender (or Transferee) that is not a Non-U.S. Lender (a "U.S.
Lender") shall deliver (on or prior to the Effective Date in the case of any
such Person that is a Lender as of the Effective Date) to the Borrowers 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
Borrowers 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
2.12(c), a U.S. Lender shall not be required to deliver any form pursuant to
this Section 2.12(c) that such U.S. Lender is not legally able to deliver.
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SECTION 2.13 Indemnity.
Each 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 such
Borrower in making a borrowing of Eurocurrency Loans, Money Market Loans or
Fixed Rate Loans or in the conversion into or continuation of Eurocurrency Loans
after such Borrower has given a notice requesting or accepting the same in
accordance with the provisions of this Agreement, (b) default by such Borrower
in making any prepayment after such 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, Money Market Loans or Fixed Rate
Loans on a day which is not the last day of an Interest Period or the Money
Market Loan Maturity Date, as the case may be, with respect thereto. Such
indemnification may, at the option of any Lender, include an amount equal to the
excess, if any, of (i) the amount of interest which would have accrued on the
amount so prepaid or 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 Loan Maturity Date, as the case may be (or proposed
Interest Period or proposed Money Market Loan Maturity Date, as the case may
be), in each case at the applicable rate of interest for such Loans provided for
herein (excluding, however, the Applicable Margin or 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, the expiration, cancellation, or other termination of the Letters of
Credit, and the payment of the Revolving Credit Loans, the Competitive Loans and
all other amounts payable hereunder, until the first anniversary of the Final
Date.
SECTION 2.14 Change of Lending Office.
Each Lender and each Transferee agrees that, upon the
occurrence of any event giving rise to the operation of Section 2.10, 2.11 or
2.12 with respect to such Lender or Transferee, it will, if requested by any
Borrower, use reasonable efforts (subject to overall policy considerations of
such Lender or Transferee) to designate another lending office for any Revolving
Credit Loans or Competitive Loans affected by such event with the object of
avoiding the consequences of such event; provided that such designation is made
on terms that, in the sole judgment of such Lender or Transferee, cause such
Lender or Transferee and its lending office(s) to suffer no economic, legal or
regulatory disadvantage, and provided, further, that nothing in this Section
2.14 shall affect or postpone any of the obligations of any Borrower or the
rights of any Lender or Transferee pursuant to Sections 2.10, 2.11 and 2.12.
SECTION 2.15 Replacement of Lenders under Certain Circumstances.
Kimco shall be permitted to replace any Lender which (a)
requests reimbursement for amounts owing pursuant to Section 2.11 or 2.12, (b)
is affected in the manner described in Section 2.10 and as a result thereof any
of the actions described in Section 2.10 is required to be taken or (c) defaults
in its obligation to make Revolving Credit Loans hereunder, with a replacement
bank or other financial institution; provided that (i) such replacement does not
conflict with any Requirement of Law, (ii) no Event of Default shall have
occurred and be continuing at the time of such replacement, (iii) the Borrowers
shall repay (or the replacement bank or institution shall purchase, at par) all
Revolving Credit Loans and other amounts (other than Competitive Loans) owing to
such replaced Lender prior to the date of replacement, (iv) the applicable
Borrowers shall be liable to such replaced Lender under Section 2.13 if any
Eurocurrency Loan, Money Market Loan or Fixed Rate Loan owing to such replaced
Lender shall be prepaid (or purchased) other than on the last day of the
Interest Period or the Money Market Loan Maturity Date, as the case may be,
relating thereto, (v) the replacement bank or institution, if not already a
Lender, and the terms and conditions of such replacement, shall be satisfactory
to the Administrative Agent and the Issuing Lender, (vi) the replaced Lender
shall be obligated to make such replacement in accordance with the provisions of
Section 10.6 (provided that Kimco shall be obligated to pay the registration and
processing fee referred to therein), (vii) the replaced Lender shall (except as
provided in the following clause (ix)) be released from its obligations under
this Agreement, (viii) until such time as such replacement shall be consummated,
the applicable Borrowers shall pay all additional amounts (if any) required
pursuant to Section 2.11 or 2.12, as the case may be, and (ix) any such
replacement shall not be deemed to be a waiver of any rights which any Borrower,
the Administrative Agent or any other Lender shall have against the replaced
Lender if it defaulted in its obligation to make Revolving Credit Loans
hereunder.
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SECTION 2.16 Additional Reserve Costs.
(a) If and so long as any Lender is required to comply with reserve
assets, liquidity, cash margin or other requirements of any monetary or other
authority (including any such requirement imposed by the European Central Bank
or the European System of Central Banks, in respect of any of such Lender's
Alternate Currency Loans, such Lender may require the applicable Borrower to
pay, contemporaneously with each payment of interest on each of such Lender's
Alternate Currency Loans (to the extent such Loans were made to such Borrower)
subject to such requirements, additional interest on such Alternate Currency
Loan at a rate per annum specified by such Lender to be the cost to such Lender
of complying with such requirements in relation to such Alternate Currency Loan.
(b) Any additional interest owed pursuant to paragraph (a) above shall
be determined by the relevant Lender, which determination shall be conclusive
absent manifest error, and notified (which notice shall show the basis for the
calculation of such additional interest) to the applicable Borrower (with a copy
to the Administrative Agent) at least five Business Days before each date on
which interest is payable for the relevant Alternate Currency Loan, and such
additional interest so notified by such Lender shall be payable to the
Administrative Agent for the account of such Lender on each date on which
interest is payable for such Alternate Currency Loan. Notwithstanding anything
contained in this Section 2.16, no Borrower shall be obligated to pay any
greater amounts than such Lender(s) is (are) generally charging other borrowers
on loans similarly situated to the Borrowers.
ARTICLE III
LETTERS OF CREDIT
SECTION 3.1 L/C Commitment.
(a) Subject to the terms and conditions hereof, the Issuing Lender, in
reliance on the agreements of the Lenders set forth in Section 3.4(a), agrees to
issue Letters of Credit for the account of any Borrower on any Business Day
during the Commitment Period other than the last ten (10) Business Days thereof
in such form as may be acceptable from time to time to the Issuing Lender;
provided that the Issuing Lender shall not issue any Letter of Credit if, after
giving effect to such issuance, (i) the sum of the L/C Obligations of all the
Lenders would exceed the L/C Commitment, (ii) the sum of the Tranche A Exposure
of all the Lenders would exceed the sum of the Tranche A Commitments of all the
Lenders, (iii) the sum of the Tranche B Exposure of all the Lenders would exceed
the sum of the Tranche B Commitments of all the Lenders, (iv) the Available
Commitment of any Lender would be less than zero, or (v) the sum of the
Revolving Exposure of all the Lenders plus the aggregate principal amount of all
outstanding Competitive Loans shall exceed the aggregate Revolving Commitments.
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(b) Each Letter of Credit (i) shall be denominated (x) in the case of
Tranche A Letters of Credit, only in Dollars, or (y) in the case of Tranche B
Letters of Credit, in Dollars or in an Alternate Currency, (ii) shall be
available by sight payment (rather than by acceptance, by deferred payment or by
negotiation), (iii) shall be a standby letter of credit issued to support
obligations of Kimco and its Subsidiaries, contingent or otherwise, incurred in
the ordinary course of business and (iv) shall expire no later than ten (10)
Business Days prior to the Termination Date.
(c) Each Letter of Credit shall be subject to the Uniform Customs or
the ISP and, to the extent not inconsistent therewith, the laws of the State of
New York or any other jurisdiction requested by the applicable Borrower and
acceptable to the Administrative Agent and the Issuing Lender in their sole
discretion.
(d) The Issuing Lender shall not at any time be obligated to issue any
Letter of Credit hereunder if such issuance would conflict with, or cause the
Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
SECTION 3.2 Procedure for Issuance of Letters of Credit.
Each Borrower may from time to time request that the Issuing
Lender issue (or amend, renew or extend) a Letter of Credit by delivering to the
Issuing Lender, with a copy to the Administrative Agent, in each case, at the
applicable address for notices specified herein (i) an Application therefor,
specifying whether such Letter of Credit is to be a Tranche A Letter of Credit
(in which case such Letter of Credit when issued shall be deemed to use the
Tranche A Commitments to the extent of the amount of such Letter of Credit) or a
Tranche B Letter of Credit (in which case such Letter of Credit when issued
shall be deemed to use the Tranche B Commitments to the extent of the amount of
each Letter of Credit) and otherwise completed to the satisfaction of the
Issuing Lender, and (ii) such other certificates, documents and other papers and
information as the Issuing Lender may request. Upon receipt of any Application,
the Issuing Lender will confirm with the Administrative Agent (by telephone or
in writing) that the limitations contained in Section 3.1(a) shall not be
violated and shall then process such Application and the certificates, documents
and other papers and information delivered to it in connection therewith in
accordance with its customary procedures and shall promptly issue (or amend,
renew or extend) the Letter of Credit requested thereby (but in no event shall
the Issuing Lender be required to issue (or amend, renew or extend) any Letter
of Credit earlier than three (3) Business Days after its receipt of the
Application therefor and all such other certificates, documents and other papers
and information relating thereto) by issuing the original of such Letter of
Credit (or amendment, renewal or extension) to the beneficiary thereof or as
otherwise may be agreed by the Issuing Lender and the applicable Borrower. The
Issuing Lender shall furnish a copy of such Letter of Credit (or amendment,
renewal or extension) to the applicable Borrower and the Administrative Agent
promptly following the issuance thereof, and the Administrative Agent shall
promptly notify the Lenders thereof.
SECTION 3.3 Fees and Other Charges.
(a) The applicable Borrower shall pay to the Administrative Agent, for
the account of the Issuing Lender and the L/C Participants (in the case of a
Tranche A Letter of Credit, having Tranche A Commitments, and, in the case of a
Tranche B Letter of Credit, having Tranche B Commitments), a letter of credit
fee with respect to each Letter of Credit issued for its account at a per annum
rate, for each day during the period from and including the date of issuance of
such Letter of Credit to and including the first date thereafter on which such
Letter of Credit shall expire or be cancelled or fully drawn, equal to the L/C
Fee Rate in effect on such day, calculated on the basis of a 360-day year, of
the Dollar Equivalent of the aggregate amount available to be drawn under such
Letter of Credit on such day. In addition, the applicable Borrower shall pay to
the Issuing Lender for its own account a fronting fee of 0.10% per annum on the
Dollar Equivalent of the undrawn and unexpired amount of each Letter of Credit
issued for its account. Letter of credit fees and fronting fees pursuant to this
paragraph shall be payable in Dollars quarterly in arrears on each L/C Fee
Payment Date to occur while the relevant Letter of Credit is outstanding and
shall be nonrefundable.
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(b) In addition to the foregoing fees, the applicable Borrower shall
pay or reimburse the Issuing Lender in Dollars for such normal and customary
costs and expenses as are incurred or charged by the Issuing Lender in issuing,
effecting payment under, amending or otherwise administering any Letter of
Credit issued for its account.
(c) The Administrative Agent shall, promptly following its receipt
thereof, distribute to the Issuing Lender and the applicable L/C Participants
all fees received by the Administrative Agent for their respective accounts
pursuant to this Section 3.3.
SECTION 3.4 L/C Participations.
(a) The Issuing Lender irrevocably agrees to grant and hereby grants to
each L/C Participant (in the case of a Tranche A Letter of Credit, having
Tranche A Commitments, and, in the case of a Tranche B Letter of Credit, having
Tranche B Commitments), and, to induce the Issuing Lender to issue Letters of
Credit hereunder, each applicable L/C Participant irrevocably agrees to accept
and purchase and hereby accepts and purchases from the Issuing Lender, on the
terms and conditions hereinafter stated, for such L/C Participant's own account
and risk an undivided interest equal to such L/C Participant's Applicable
Percentage of the Tranche A Commitments or Tranche B commitments, as applicable,
in the Issuing Lender's obligations and rights in respect of each Letter of
Credit issued hereunder (and in respect of each amendment to a Letter of Credit
increasing the amount thereof in accordance with the provisions of this
Agreement) and the amount of each draft or other demand for payment paid by the
Issuing Lender thereunder. Each applicable L/C Participant unconditionally and
irrevocably agrees with the Issuing Lender that, if the Issuing Lender notifies
it that a draft or other demand for payment has been paid under any Letter of
Credit for which the Issuing Lender has not been reimbursed in full by the
applicable Borrower in accordance with the terms of this Agreement, such L/C
Participant shall pay to the Issuing Lender upon demand at the Issuing Lender's
address for notices specified herein an amount equal to such L/C Participant's
Applicable Percentage of the Tranche A Commitments or the Tranche B Commitments,
as applicable, of the amount of such draft or other demand for payment, or any
part thereof, which is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to the
Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion
of any payment made by the Issuing Lender under any Letter of Credit is paid to
the Issuing Lender within three (3) Business Days after the date such payment is
due, such L/C Participant shall pay to the Issuing Lender on demand an amount
equal to the product of (i) the Dollar Equivalent of such amount, times (ii) the
daily average Federal funds rate, as quoted by the Issuing Lender, during the
period from and including the date such payment is required to the date on which
such payment is immediately available to the Issuing Lender, times (iii) a
fraction the numerator of which is the number of days that elapse during such
period and the denominator of which is 360. If any such amount required to be
paid by any L/C Participant pursuant to Section 3.4(a) is not in fact made
available to the Issuing Lender by such L/C Participant within three (3)
Business Days after the date such payment is due, the Issuing Lender shall be
entitled to recover from such L/C Participant, on demand, such amount with
interest thereon calculated from such due date at the rate per annum applicable
to ABR Loans hereunder (or, if such Letter of Credit is denominated in an
Alternate Currency, the rate per annum applicable to Eurocurrency Loans for
Interest Periods of one month). A certificate of the Issuing Lender submitted to
any L/C Participant with respect to any amounts owing under this Section shall
be conclusive in the absence of manifest error.
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(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its pro
rata share of such payment in accordance with this Section 3.4, the Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from the applicable Borrower or otherwise, including proceeds of any collateral
applied thereto by the Issuing Lender), or any payment of interest on account
thereof, the Issuing Lender will promptly distribute to such L/C Participant its
pro rata share thereof; provided that in the event that any such payment
received by the Issuing Lender shall be required to be returned by the Issuing
Lender, such L/C Participant shall return to the Issuing Lender the portion
thereof previously distributed by the Issuing Lender to it.
SECTION 3.5 Reimbursement Obligation of the Borrowers.
(a) Each Borrower agrees to reimburse the Issuing Lender on each date
on which the Issuing Lender notifies such Borrower of the date and amount of a
draft or other demand for payment presented under any Letter of Credit issued
for its account and paid by the Issuing Lender for the amount in the currency of
such Letter of Credit of (i) such draft or other demand so paid (which
reimbursement may be effected through the procedure described in Section 3.5(c))
and (ii) any taxes, fees, charges or other costs or expenses (including
post-judgment taxes, fees, charges or other costs or expenses) incurred by the
Issuing Lender in connection with such payment. Each such payment shall be made
to the Issuing Lender at its address for notices specified herein in the
currency of such Letter of Credit and in immediately available funds.
(b) Interest shall be payable on the Dollar Equivalent of any and all
amounts remaining unpaid by the applicable Borrower under this Article III from
the date such amounts become payable (whether at stated maturity, by
acceleration or otherwise) until payment in full at the rate which would be
payable on any outstanding ABR Loans which were then overdue.
(c) Each drawing under any Letter of Credit denominated in Dollars
shall constitute a request by the applicable Borrower to the Administrative
Agent for a borrowing pursuant to Section 2.2(d) of ABR Loans in the amount of
such drawing. The Borrowing Date with respect to such borrowing shall be the
date of such drawing.
SECTION 3.6 Obligations Absolute.
(a) Each Borrower's obligations under this Article III shall be
absolute and unconditional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment which such Borrower may have or
have had against the Issuing Lender, any L/C Participant or any beneficiary of a
Letter of Credit.
(b) Each Borrower also agrees that the Issuing Lender and the L/C
Participants shall not be responsible for, and such Borrower's Reimbursement
Obligations under Section 3.5(a) shall not be affected by, among other things,
(i) the validity or genuineness of documents or of any endorsements thereon,
even though such documents shall in fact prove to be invalid, fraudulent or
forged, or (ii) any dispute between or among such Borrower and any beneficiary
of any Letter of Credit or any other party to which such Letter of Credit may be
transferred or (iii) any claims whatsoever of such Borrower against any
beneficiary of such Letter of Credit or any such transferee.
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(c) The Issuing Lender shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit, except for
errors or omissions caused by the Issuing Lender's gross negligence or willful
misconduct.
(d) Each Borrower agrees that any action taken or omitted by the
Issuing Lender under or in connection with any Letter of Credit issued for its
account or the related drafts or documents, if done in the absence of gross
negligence or willful misconduct and in accordance with any applicable standard
of care specified in the Uniform Commercial Code of the State of New York (or
other law applicable to such Letters of Credit), shall be binding on such
Borrower and shall not result in any liability of the Issuing Lender or any L/C
Participant to such Borrower. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that (i) with respect to
documents presented which appear on their face to be in substantial compliance
with the terms of a Letter of Credit, the Issuing Lender may, in its sole
discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit, (ii) the Issuing Lender may, in its sole discretion, (x)
assert or waive application of Article 17 and Article 45 of the Uniform Customs,
or (y) accept as a draft any written demand or request for payment under a
Letter of Credit even if non-negotiable or not in the form of a draft, and (iii)
with respect to documents presented which the Issuing Lender determines do not
appear on their face to comply with the terms of a Letter of Credit, the Issuing
Lender may, in its sole discretion, approach the applicable Borrower for a
waiver of the discrepancy(ies), but neither requesting such a waiver from such
Borrower nor receiving such a waiver from such Borrower shall obligate the
Issuing Lender to make payment against such documents. The applicable Borrower
will notify the Issuing Lender in writing of any objection such Borrower may
have to the Issuing Lender's issuance or amendment of any Letter of Credit, the
Issuing Lender's honor or dishonor of any presentation under any Letter of
Credit, or any other action or inaction taken or proposed to be taken by the
Issuing Lender under or in connection with this Agreement or any Letter of
Credit. The applicable Borrower's notice of objection must be delivered to the
Issuing Lender within five (5) Business Days after such Borrower receives notice
of the action or inaction it objects to. Any Borrower's failure to give such
notice of objection within five (5) Business Days after such Borrower's actual
receipt of notice of the action or inaction it objects to shall automatically
waive such Borrower's objection, authorize or ratify the Issuing Lender's action
or inaction, and preclude such Borrower from raising the objection as a defense
or claim against the Issuing Lender.
SECTION 3.7 Letter of Credit Payments.
If any draft or other demand for payment shall be presented
for payment under any Letter of Credit, the Issuing Lender shall promptly notify
the applicable Borrower of the date and amount thereof. The responsibility of
the Issuing Lender to the applicable Borrower in connection with any draft or
other demand for payment presented for payment under any Letter of Credit issued
for such Borrower's account shall, in addition to any payment obligation
expressly provided for in such Letter of Credit, be limited to determining that
the documents (including each draft or other demand for payment) delivered under
such Letter of Credit in connection with such presentment appear on their face
to be in conformity with the terms and conditions of such Letter of Credit.
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SECTION 3.8 Applications.
To the extent that any provision of any Application related to
any Letter of Credit is inconsistent with the provisions of this Article III,
the provisions of this Article III shall apply.
SECTION 3.9 Replacement of the Issuing Lender; Alternate Issuing Lender.
(a) The Issuing Lender may be replaced at any time by written agreement
among the Borrowers, the Administrative Agent, the replaced Issuing Lender and
the successor Issuing Lender. The Administrative Agent shall notify the Lenders
of any such replacement of the Issuing Lender. At the time any such replacement
shall become effective, the Borrowers shall, jointly and severally, pay all
unpaid fees accrued for the account of the replaced Issuing Lender. From and
after the effective date of any such replacement, (i) the successor Issuing
Lender shall have all the rights and obligations of the Issuing Lender under
this Agreement with respect to Letters of Credit to be issued thereafter and
(ii) references herein to the term "Issuing Lender" shall be deemed to refer to
such successor or to any previous Issuing Lender, or to such successor and all
previous Issuing Lenders, as the context shall require. After the replacement of
an Issuing Lender hereunder, the replaced Issuing Lender shall remain a party
hereto and shall continue to have all the rights and obligations of an Issuing
Lender under this Agreement with respect to Letters of Credit issued by it prior
to such replacement, but shall not be required to issue additional Letters of
Credit.
(b) Kimco may request that another Lender having a higher credit rating
(as rated by S&P and/or Moody's) than JPMCB act as the issuing bank on a Letter
of Credit (such Lender, an "Alternate Issuing Lender") if (i) the beneficiary of
a proposed Letter of Credit requires that the issuing bank have a credit rating
higher that that of JPMCB or (ii) as a result of such Alternate Issuing Lender
having a higher credit rating than JPMCB, Kimco or the applicable Borrower will
obtain from the beneficiary economically superior terms in the specific
transaction in respect of which the Letter of Credit is proposed to be issued;
provided that (i) no Lender shall have any obligation to serve as such Alternate
Issuing Lender, and (ii) any such Alternate Issuing Lender must agree to such
record-keeping and reporting requirements as the Administrative Agent shall
reasonably require in connection with the Revolving Credit Facility.
SECTION 3.10 Existing Letters of Credit.
Schedule 3.10 (Existing Letters of Credit) contains a schedule
of certain letters of credit issued prior to the Effective Date by JPMCB for the
account of Kimco. On the Effective Date such letters of credit, to the extent
outstanding, shall be deemed, automatically and without further action by the
parties thereto, to be Tranche A Letters of Credit or Tranche B Letters of
Credit, as shown on such Schedule, issued pursuant to this Article III for the
account of Kimco and subject to the provisions hereof as if such letters of
credit had been issued on the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent, the Issuing Lender, and
the Lenders to enter into this Agreement, to make or maintain the Revolving
Credit Loans and Competitive Loans, and to issue or participate in the Letters
of Credit, Kimco hereby represents and warrants as to itself only, and not as to
any other Loan Party (and, solely with respect to the representations and
warranties contained in Sections 4.3(b) (only as to itself and not as to its
Subsidiaries), 4.4, 4.5(b), 4.13, 4.14, 4.16 and 4.22 (the "Baseline
Representations and Warranties"), on any applicable Subsidiary Borrower
Representation and Warranty Date in respect of a specific Subsidiary Borrower,
such Subsidiary Borrower hereby represents and warrants as to itself) to the
Administrative Agent, the Issuing Lender, and each Lender that:
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SECTION 4.1 Financial Condition.
The consolidated balance sheet of Kimco and its subsidiaries
as at December 31, 2004 and December 31, 2003 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 March
31, 2005 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 reflected in the foregoing
statements or in the notes thereto. Except as set forth on Schedule 4.1, during
the period from December 31, 2004 to and including the Effective Date there has
been no sale, transfer or other disposition by Kimco or any of the Consolidated
Entities of any material part of its business or property and no purchase or
other acquisition of any business or property (including any capital stock of
any other Person) material in relation to the consolidated financial condition
of Kimco and the Consolidated Entities at December 31, 2004.
SECTION 4.2 No Change.
Since December 31, 2004 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. Without limiting the foregoing, no
dividends or other distributions have been declared, paid or made upon the
Capital Stock of Kimco nor has any of the Capital Stock of Kimco been redeemed,
retired, purchased or otherwise acquired for value by Kimco or any of its
Subsidiaries, except pursuant to transactions not prohibited under Section 7.3
and the transactions described on Schedule 4.2.
SECTION 4.3 Corporate Existence; Compliance with Law.
(a) 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.
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(b) Each Subsidiary (i) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (ii) 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 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 (or limited partnership or limited liability company or
other form of organization, as applicable) and in good standing under the laws
of each jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification, and (iv) is in compliance
with all Requirements of Law except, in the case of clauses (i), (ii), (iii) or
(iv) above, as could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
SECTION 4.4 Corporate Power; Authorization; Enforceable Obligations.
Each applicable 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 each
applicable Borrower, to borrow and request the issuance of Letters of Credit
hereunder, and each applicable Loan Party 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 each applicable
Borrower, the borrowings and requests for Letters of Credit on the terms and
conditions of this Agreement. No consent or authorization of, filing with or
other act by or in respect of, any Governmental Authority or any other Person is
required in connection with the borrowings and requests for Letters of Credit
hereunder or with the execution, delivery, performance, validity or
enforceability of any Loan Document. Each Loan Document has been duly executed
and delivered on behalf of each applicable Loan Party party thereto. Each Loan
Document constitutes a legal, valid and binding obligation of each applicable
Loan Party party thereto enforceable against each such Loan Party in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
SECTION 4.5 No Legal Bar.
(a) The execution, delivery and performance of the Loan Documents and
the Borrowings and requests for Letters of Credit hereunder and the use of the
proceeds thereof will not violate any Requirement of Law or any Contractual
Obligation of Kimco 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.
(b) The execution, delivery and performance of the Loan Documents and
the Borrowings and requests for Letters of Credit hereunder and the use of the
proceeds thereof will not violate any Requirement of Law or any Contractual
Obligation of the applicable Loan Party other than Kimco 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,
except, in each of the foregoing cases, where the same could not reasonably be
expected to have a Material Adverse Effect.
SECTION 4.6 No Material Litigation.
No litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of Kimco,
threatened by or against Kimco 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.
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SECTION 4.7 No Default.
Neither Kimco nor any of its Subsidiaries is in default under
or with respect to any of its Contractual Obligations in any respect which could
reasonably be expected to have a Material Adverse Effect. No Default or Event of
Default has occurred and is continuing.
SECTION 4.8 Ownership of Property.
Each of Kimco 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.
SECTION 4.9 Intellectual Property.
Kimco 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 Kimco know of any valid basis for any such claim. The use of
such Intellectual Property by Kimco 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 4.10 No Burdensome Restrictions; Disclosure.
No Requirement of Law or Contractual Obligation of Kimco or
any of its Subsidiaries could reasonably be expected to have a Material Adverse
Effect. Neither the Confidential Memorandum nor any of the other reports,
financial statements, certificates or other information furnished by or on
behalf of Kimco to the Administrative Agent, the Issuing Lender or any Lender in
connection with the negotiation of this Agreement or delivered hereunder (as
modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected financial
information, Kimco represents only that such information was prepared in good
faith based upon assumptions believed to be reasonable at the time.
SECTION 4.11 Taxes.
Each of Kimco and its Subsidiaries has filed or caused to be
filed all tax returns which, to the knowledge of Kimco, are required to be filed
and has paid all taxes shown to be due and payable on said returns or on any
assessments made against it or any of its property and all other taxes, fees or
other charges imposed on it or any of its property by any Governmental Authority
(other than any 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 Kimco or its Subsidiaries, as the case may be); no tax Lien has been
filed, and, to the knowledge of Kimco, no claim is being asserted, with respect
to any such tax, fee or other charge.
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SECTION 4.12 Federal Regulations.
No part of the proceeds of any Revolving Credit Loan or
Competitive Loan and no Letter of Credit will be used for "purchasing" or
"carrying" any "margin stock" within the respective meanings of each of the
quoted terms under Regulation U of the Board as now and from time to time
hereafter in effect or for any purpose which violates the provisions of the
Regulations of the Board. If requested by the Administrative Agent, each
Borrower will furnish to the Administrative Agent a statement to the foregoing
effect in conformity with the requirements of FR Form U-1 referred to in said
Regulation U.
SECTION 4.13 ERISA.
No Reportable Event has occurred during the five-year period
prior to the date on which this representation is made or deemed made with
respect to any Plan, and each Plan has complied in all material respects with
the applicable provisions of ERISA and the Code. The present value of all
accrued benefits under each Single Employer Plan maintained by Kimco or any
Commonly Controlled Entity (based on those assumptions used to fund the Plans)
did not, as of the last annual valuation date prior to the date on which this
representation is made or deemed made, exceed the value of the assets of such
Plan allocable to such accrued benefits. Neither any Borrower nor any Commonly
Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan, and neither any Borrower nor any Commonly Controlled Entity
would become subject to any liability under ERISA if such Borrower or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made. No such Multiemployer Plan is in
Reorganization or Insolvent. The present value (determined using actuarial and
other assumptions which are reasonable in respect of the benefits provided and
the employees participating) of the liability of the Borrowers and each Commonly
Controlled Entity for post retirement benefits to be provided to their current
and former employees under Plans which are welfare benefit plans (as defined in
Section 3(1) of ERISA) equals or exceeds the assets under all such Plans
allocable to such benefits.
SECTION 4.14 Investment Company Act; Other Regulations.
No Borrower is an "investment company", or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended. No Borrower is subject to regulation under any
Federal or State statute or regulation which limits its ability to incur
Indebtedness.
SECTION 4.15 [Reserved].
SECTION 4.16 Purpose.
The proceeds of the Revolving Credit Loans and the Competitive
Loans and the Letters of Credit shall be used by the Borrowers for general
corporate purposes (excluding commercial paper back-up).
SECTION 4.17 Environmental Matters.
Each of the following representations and warranties is true
and correct on and as of the Effective Date except to the extent that the facts
and circumstances giving rise to any such failure to be so true and correct, in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect:
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(a) To the best knowledge of Kimco, the Properties do not contain, and
have not previously contained, any Materials of Environmental Concern in amounts
or concentrations which constitute or constituted a violation of, or could
reasonably give rise to liability under, Environmental Laws.
(b) To the best knowledge of Kimco, the Properties and all operations
at the Properties are in compliance, and have in the last two years been in
compliance, with all applicable Environmental Laws, and there is no
contamination at, under or about the Properties, or violation of any
Environmental Law with respect to the Properties.
(c) Neither Kimco nor any of its Subsidiaries has received any notice
of violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with Environmental Laws
with regard to any of the Properties, nor does Kimco have knowledge or reason to
believe that any such notice will be received or is being threatened.
(d) To the best knowledge of Kimco, Materials of Environmental Concern
have not been transported or disposed of from the Properties in violation of, or
in a manner or to a location which could reasonably give rise to liability
under, Environmental Laws, nor have any Materials of Environmental Concern been
generated, treated, stored or disposed of at, on or under any of the Properties
in violation of, or in a manner that could give rise to liability under, any
applicable Environmental Laws.
(e) No judicial proceeding or governmental or administrative action is
pending, or, to the knowledge of Kimco, threatened, under any Environmental Law
to which Kimco or any of its Subsidiaries is or, to the knowledge of Kimco, will
be named as a party with respect to the 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 Properties.
(f) To the best knowledge of Kimco, there has been no release or threat
of release of Materials of Environmental Concern at or from the Properties, or
arising from or related to the operations of Kimco and its Subsidiaries in
connection with the Properties in violation of or in amounts or in a manner that
could give rise to liability under Environmental Laws.
SECTION 4.18 Insurance.
Kimco and each Subsidiary maintains with insurance companies
rated at least A- by A.M. Best & Co., with premiums at all times currently paid,
insurance upon fixed assets and inventories, including public liability
insurance, fire and all other risks insured against by extended coverage,
fidelity bond coverage, business interruption insurance, and all insurance
required by law, all in form and amounts required by law and customary to the
respective natures of their businesses and properties, except in cases where
failure to maintain such insurance will not have or potentially have a Material
Adverse Effect.
SECTION 4.19 Condition of Properties.
Each of the following representations and warranties is true
and correct except to the extent that the facts and circumstances giving rise to
any such failure to be so true and correct, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect:
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(a) All of the improvements located on the 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.
(b) No material portion of any of the Properties, nor any improvements
located on said Properties that are material to the operation, use or value
thereof, have been damaged in any respect as a result of any fire, explosion,
accident, flood or other casualty.
(c) No condemnation or eminent domain proceeding has been commenced or
to the knowledge of Kimco is about to be commenced against any portion of any of
the Properties, or any improvements located thereon that are material to the
operation, use or value of said Properties except as set forth and described in
Schedule 4.19.
(d) No notices of violation of any federal, state or local law or
ordinance or order or requirement have been issued with respect to any
Properties.
SECTION 4.20 Benefit of Loans.
Kimco and each Subsidiary are engaged as an integrated
corporate group in the business of acquiring, owning, developing and operating
shopping centers and of providing the required services and other facilities for
those integrated operations. Kimco and each Subsidiary require financing on such
a basis that funds can be made available to the Borrowers and each Subsidiary to
the extent required for the continued operation of their integrated activities
and each of them expects to derive benefits, directly or indirectly, in return
for undertaking their respective obligations under this Agreement and the other
Loan Documents, both individually and as members of the integrated group.
SECTION 4.21 REIT Status.
Kimco is an equity-oriented real estate investment trust under
Sections 856 through 860 of the Code.
SECTION 4.22 Solvency.
On the Effective Date and the date of each Borrowing or the
issuance, amendment, renewal or extension of each Letter of Credit, after giving
effect to the transactions contemplated by the Loan Documents occurring on such
date, (a) Kimco is Solvent and (b) each applicable Borrower other than Kimco is
Solvent.
ARTICLE V
CONDITIONS
SECTION 5.1 Conditions to Effectiveness / Effective Date.
The effectiveness of this Agreement and the availability of
the Revolving Credit Facility hereunder, is subject to the satisfaction of the
following conditions (or the waiver of such conditions in accordance with
Section 10.1):
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(a) Credit Agreement. The Administrative Agent shall have received from
each party hereto either (i) a counterpart of this Agreement signed on behalf of
such party or (ii) written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement.
(b) Interest, Fees, Breakage Costs and Expenses. The Administrative
Agent shall have received payment (which may be proceeds of the initial Loans
under this Agreement) of (i) for the account of the Existing Lenders, the
aggregate outstanding principal amount of all of the Existing Loans (other than
any Existing Loans of any Existing Lender listed on Schedule 2.2 as continuing
as Loans hereunder from and after the Effective Date), (ii) for the account of
the Existing Lenders and the Issuing Lender under the Existing Credit Agreement,
as the case may be, all interest and fees accrued to but excluding the Effective
Date under the Existing Credit Agreement or any fee letter referred to therein
or relating thereto (other than any accrued and unpaid interest on any
Competitive Loans listed on Schedule 2.2 as continuing as Competitive Loans
hereunder), (iii) for the account of the Existing Lenders, any and all amounts
payable pursuant to Section 2.13 of the Existing Credit Agreement, (iv) for the
account of the Existing Lenders or the Issuing Lender under the Existing Credit
Agreement, as the case may be, all unpaid reimbursement obligations in respect
of any drawings under any letter of credit issued pursuant to or governed by the
Existing Credit Agreement, and (v) for the account of the applicable payee, all
fees and other amounts due and payable on or prior to the Effective Date under
or in connection with the Existing Credit Agreement or this Agreement, including
pursuant to the Fee Letter and, to the extent invoiced, reimbursement or payment
of all out-of-pocket expenses required to be reimbursed or paid by the Borrowers
hereunder, including the reasonable fees and disbursements invoiced through the
Effective Date of JPMCB's special counsel.
(c) Legal Opinion. The Administrative Agent shall have received, with a
counterpart for the Administrative Agent, each Lender and the Issuing Lender,
the executed legal opinion of Robert Schulman, Esq., counsel to the Loan
Parties, substantially in the form of Exhibit D. The Borrowers hereby request
such counsel to deliver such opinion.
(d) [Reserved].
(e) Notes. The Administrative Agent shall have received from each
Borrower a signed Revolving Credit Note and from Kimco a signed Competitive Loan
Note, in each case, for the account of each Lender that notified the
Administrative Agent and Kimco of its request for Notes.
(f) Closing Certificates. The Administrative Agent shall have received
a certificate from a Responsible Officer of Kimco dated the Effective Date, (i)
in the case of Kimco, confirming compliance with the conditions specified in
this Section 5.1 and in Section 5.2 and (ii) certifying as to the names and
offices of the Persons authorized to sign the Loan Documents to be delivered
pursuant to the terms hereof by each Loan Party, together with the signatures of
each such Person and a certificate of another Responsible Officer, certifying as
to the name, office, and signature of such first Responsible Officer.
(g) 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 each Borrower, and the authorization of each Borrower 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.
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The Administrative Agent shall notify Kimco, the Issuing Lender, the Lenders and
the Exiting Lenders of the Effective Date, and such notice shall be conclusive
and binding.
SECTION 5.2 Conditions to Each Extension of Credit.
The agreement of each Lender to make a Loan and of the Issuing
Lender to issue, amend, renew or extend any Letter of Credit, is subject to the
satisfaction of the following conditions precedent:
(a) Representations and Warranties. On each Representation and Warranty
Date, each of the representations and warranties made by Kimco in or pursuant to
the Loan Documents shall be true and correct in all material respects on and as
of such date as if made on and as of such date 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.
(b) No Default. On each Representation and Warranty Date, (i) no
Default or Event of Default shall have occurred and be continuing on such date
or after giving effect to the extension of credit requested to be made on such
date and (ii) Kimco would be in compliance with each financial covenant set
forth in paragraphs (a) through (f) of Section 7.1 if the ratio or amount
referred to therein were to be calculated as of such date (provided that for the
purposes of determining such compliance, Gross Asset Value and Value of
Unencumbered Properties shall be determined for the most recent Test Period as
to which a compliance certificate has been delivered pursuant to Section
6.2(b)).
(c) Baseline Representations and Warranties. On each Subsidiary
Borrower Representation and Warranty Date, each of the Baseline Representations
and Warranties made by the applicable Subsidiary Borrower in or pursuant to the
Loan Documents shall be true and correct in all material respects on and as of
such date as if made on and as of such date 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
Each Borrowing by, or issuance, renewal, extension or amendment of a Letter of
Credit on behalf of, any Borrower hereunder shall constitute a representation
and warranty, as of the date of such extension of credit (or renewal, extension
or amendment of a Letter of Credit), (i) by Kimco in all cases that the
conditions contained in Section 5.2 (a) and (b) have been satisfied, and (ii) if
the applicable Borrower is a Subsidiary Borrower, by such Subsidiary Borrower
that the conditions contained in Section 5.2(c) have been satisfied.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as the Revolving Commitments remain in effect, any
Competitive Loan or any Revolving Credit Loan remains outstanding and unpaid,
any Letter of Credit remains outstanding, any Reimbursement Obligation remains
unpaid in respect of any Letter of Credit, or any other amount is owing to any
Lender, the Issuing Lender or the Administrative Agent hereunder, Kimco hereby
agrees as set forth in Sections 6.1 through 6.8, inclusive, and each applicable
Subsidiary Borrower hereby agrees as set forth in Section 6.9, that:
SECTION 6.1 Financial Statements.
Kimco shall furnish to the Administrative Agent (with
sufficient copies for each Lender and the Issuing Lender):
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(a) 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
(b) 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 as being fairly stated in all material respects (subject to
normal year-end audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
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.
Kimco shall furnish to the Administrative Agent (with
sufficient copies for each Lender and the Issuing Lender (in the case of clauses
(b)-(c) below) or each relevant Lender or Issuing Lender (in the case of clause
(e) below)):
(a) [reserved];
(b) concurrently with the delivery of the financial statements referred
to in Sections 6.1(a) and 6.1(b), a compliance certificate of a Responsible
Officer of Kimco substantially in the form of Exhibit F;
(c) 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;
(d) [reserved]; and
(e) 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 or the Issuing 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.
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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 $20,000,000, 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.
Kimco shall:
(a) Preserve, renew and keep in full force and effect its corporate
existence and take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its business except
as otherwise permitted pursuant to Section 7.2.
(b) Comply with all Contractual Obligations and Requirements of Law
except to the extent that failure to comply therewith could not, in the
aggregate, be reasonably expected to have a Material Adverse Effect.
SECTION 6.5 Maintenance of Property; Insurance.
Kimco 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 each
Lender and the Issuing Lender, upon written request, full information as to the
insurance carried.
SECTION 6.6 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 or the Issuing 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 6.7 Notices.
Kimco shall promptly give notice to the Administrative Agent,
the Issuing Lender and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of 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;
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(c) any litigation or administrative or other proceeding affecting
Kimco or any of its Subsidiaries in which the amount involved is $20,000,000 or
more and not covered by insurance or in which material injunctive or similar
relief is sought, or the occurrence in respect of any Guarantor of any case,
proceeding, event, or circumstance of the nature set forth in paragraph (f) of
Article VIII;
(d) the following events, as soon as possible and in any event within
30 days after Kimco knows or has reason to know thereof: (i) the occurrence or
expected occurrence of any Reportable Event with respect to any Plan, a failure
to make any required contribution to a Plan, the creation of any Lien in favor
of the PBGC or a Plan or any withdrawal from, or the termination, Reorganization
or Insolvency of, any Multiemployer Plan or (ii) the institution of proceedings
or the taking of any other action by the PBGC or Kimco or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the withdrawal from,
or the terminating, Reorganization or Insolvency of, any Plan; and
(e) any development or event which has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section 6.7 shall be accompanied by a statement of
a Responsible Officer 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 6.8 Environmental Laws.
Kimco 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.
(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) Kimco has
determined in good faith that contesting the same is not in the best interests
of Kimco 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, the
Issuing Lender 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 Kimco, its Subsidiaries or the Properties, 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.
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SECTION 6.9 Baseline Conditions.
(a) Each Subsidiary Borrower shall at all times comply with the
Baseline Conditions in all material respects.
(b) In the event any Subsidiary Borrower fails, at any time, to comply
with any of the Baseline Conditions in any material respect or fails to pay any
amount payable hereunder within five (5) Business Days after such amount becomes
due in accordance with the terms hereof (a "Non-complying Subsidiary Borrower"),
(i) one or more of the other Borrowers shall promptly prepay any and all Loans
to and any other obligations under any of the Loan Documents of such
Non-complying Subsidiary Borrower (and cash collateralize any Letters of Credit
issued for its account unless Kimco is a co-applicant thereof), or (ii) Kimco or
any other Subsidiary Borrower that can satisfy each of the Baseline Conditions
shall assume (pursuant to a written agreement reasonably satisfactory to the
Administrative Agent) any and all Loans to and any other obligations (including
in respect of any such Letters of Credit) under any of the Loan Documents of
such Non-complying Subsidiary Borrower.
(c) Each Subsidiary Guarantor shall at all times comply with the
Baseline Conditions in all material respects and in the event any Subsidiary
Guarantor fails, at any time, to comply with any of the Baseline Conditions in
any material respect, such Subsidiary Guarantor shall (i) notwithstanding any
provision of this Agreement to the contrary, cease to be an Obligated Property
Owner for all purposes of this Agreement, and (ii) continue as a Subsidiary
Guarantor unless released as provided in Section 10.10(d).
ARTICLE VII
NEGATIVE COVENANTS
So long as the Revolving Commitments remain in effect, any
Competitive Loan or any Revolving Credit Loan remains outstanding and unpaid,
any Letter of Credit remains outstanding, any Reimbursement Obligation remains
unpaid in respect of any Letter of Credit, or any other amount is owing to any
Lender, the Issuing Lender or the Administrative Agent hereunder, Kimco hereby
agrees that:
SECTION 7.1 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.
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(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 7.1: 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.
SECTION 7.2 Limitation on Certain Fundamental Changes.
Neither Kimco nor any of its Subsidiaries shall, directly or
indirectly: (a) enter into any merger (except as described in Schedule 7.2),
consolidation or amalgamation, (b) liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or (c) convey, sell, lease, assign,
transfer or otherwise dispose of, all or a substantial portion of its property,
business or assets (each such transaction referred to in the preceding clauses
(a), (b) and (c), a "Capital Transaction"), unless (i) such Capital Transaction
does not involve all or a substantial portion of the property, business or
assets owned or leased by Kimco and its Subsidiaries determined on a
consolidated basis with respect to Kimco and its Subsidiaries taken as a whole,
(ii) there is no Default or Event of Default, before and after giving effect to
such Capital Transaction (including any changes resulting from
recharacterization of Unencumbered Property), and (iii) without limiting the
foregoing, Kimco is in compliance with all covenants under Section 7.1 after
giving effect to such Capital Transaction (including any changes resulting from
recharacterization of Unencumbered Property), and would have been in compliance
therewith for the most recent Test Period if such Capital Transaction had been
given effect (including any changes resulting from recharacterization of
Unencumbered Property) during such Test Period; provided that Kimco may not
engage in a Capital Transaction other than a merger as to which it is the
surviving entity.
SECTION 7.3 Limitation on Restricted Payments.
Neither Kimco nor any of its Subsidiaries shall, directly or
indirectly, unless otherwise required in order to maintain Kimco's status as a
real estate investment trust, declare or pay any dividend (other than dividends
payable solely in the same class of Capital Stock) on, or make any payment on
account of, or set apart assets for a sinking or other analogous fund for, the
purchase, redemption, defeasance, retirement or other acquisition of, any shares
of any class of Capital Stock of Kimco 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 Kimco or any
Subsidiary (collectively, "Restricted Payments"); provided that notwithstanding
the foregoing, (i) during any period of four (4) consecutive fiscal quarters of
Kimco on a cumulative basis, Kimco may make Restricted Payments in an aggregate
amount not to exceed the greater of (a) an amount equal to 95% of FFO for such
period on a cumulative basis, and (b) the amount of dividends required to be
paid by Kimco in order to maintain its status as a real estate investment trust
under the Code, and (ii) dividends and distributions may be paid by any
Subsidiary to Kimco, to any other Subsidiary or to any other Guarantor, if any.
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Solely for the purpose of this Section 7.3, all references to
shares in the definition of the term "Capital Stock" shall be to common shares
only.
SECTION 7.4 Limitation on Investments, Loans and Advances.
Neither Kimco nor any of its Subsidiaries shall, directly or
indirectly, make any advance, loan, extension of credit or capital contribution
to any Person, or purchase any stock, bonds, notes, debentures or other
securities of or any assets constituting a business unit of, or otherwise make
any investment in, any Person, or acquire or otherwise make any investment in
any real property (collectively, "Investments"), if, after giving effect
thereto, the aggregate amount of Investments (valued at cost) made in
Noncontrolled Entities from and after the date of this Agreement would exceed
25% of Gross Asset Value.
SECTION 7.5 Limitation on Transactions with Affiliates.
Neither Kimco 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 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 any Loan Party that
is a party thereto and (ii) upon fair and reasonable terms no less favorable to
any 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 7.6 Limitation on Changes in Fiscal Year.
Kimco shall not 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 7.7 Limitation on Lines of Business; Issuance of Commercial
Paper; Creation of Subsidiaries; Negative Pledges; Swap Agreements.
Neither Kimco nor any of its Subsidiaries shall, directly or
indirectly:
(a) Engage in activities other than real estate business and real
estate related business activities, and in activities permitted for real estate
investment trusts under the Code (including through taxable REIT subsidiaries).
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(b) Issue any commercial paper in an aggregate principal amount
exceeding the aggregate unused and available commitments under any revolving
credit facility (other than the Revolving Commitments hereunder) entered into by
the Borrowers and not prohibited by this Agreement. For the purposes of this
paragraph, commitments shall be deemed to be available to the extent that, on
any date of determination, assuming timely delivery of a borrowing notice by the
applicable Borrower, the lender(s) thereunder would be obligated to fund loans
pursuant thereto.
(c) Enter into with any Person, or suffer to exist, any agreement,
other than (i) this Agreement and the other Loan Documents or (ii) any
agreements governing any purchase money Liens, Financing Leases or mortgage
financings not prohibited by this Agreement (in which cases, any prohibition or
limitation referred to below shall only be effective against the assets financed
thereby) which, in any such case, prohibits or limits the ability of any
Borrower or any of its Subsidiaries to create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired.
(d) 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 Kimco or such Subsidiary is exposed in the conduct of its
business or the management of its liabilities.
ARTICLE VIII
EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any Revolving
Credit Loan, any Competitive Loan or any Reimbursement Obligation when due in
accordance with the terms thereof or hereof; or any Borrower shall fail to pay
any interest on any Revolving Credit Loan, any Competitive Loan, any
Reimbursement Obligation 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 Kimco 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 6.7(a) or Article VII; or
(d) Kimco 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, the Issuing Lender or the Required Lenders; or
(e) Any Borrower or any Subsidiary of any Borrower shall (i) default in
making any payment of any principal of any Indebtedness (including any Guarantee
Obligation, but excluding (x) any Revolving Credit Loans, any Competitive Loans
or Reimbursement Obligations (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 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;
provided, further, 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 if such default, event or condition relates solely
to any Subsidiary Borrower and/or its observance or performance of its
obligations under this Agreement or in any other Loan Document; or
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(f) (i) Kimco 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 Kimco shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against Kimco 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 Kimco 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) Kimco 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) Kimco shall generally not, or
shall be unable to, or shall admit in writing its inability to, pay its debts as
they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
(ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan or any Lien in favor
of the PBGC or a Plan shall arise on the assets of Kimco or any Commonly
Controlled Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed (or a trustee shall be
appointed) to administer, or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a trustee is,
in the reasonable opinion of the Majority Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA, (v) Kimco or
any Commonly Controlled Entity shall, or is, in the reasonable opinion of the
Majority Lenders, likely to, incur any liability in connection with a withdrawal
from, or the Insolvency or Reorganization of, a Multiemployer Plan or (vi) any
other event or condition shall occur or exist with respect to a Plan; and in
each case in clauses (i) through (vi) above, such event or condition, together
with all other such events or conditions, if any, could reasonably be expected
to have a Material Adverse Effect; or
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(h) One or more judgments or decrees shall be entered against Kimco or
any Entity involving in the aggregate a liability (not paid or fully covered by
insurance) of $20,000,000 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
(i) [reserved]; or
(j) Kimco shall cease, for any reason, to maintain its status as an
equity-oriented real estate investment trust under Sections 856 through 860 of
the Code; or
(k) At any time any Borrower or any Subsidiary of any Borrower 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 Kimco and, in the judgment of the
Majority Lenders, could reasonably be expected to exceed $20,000,000; provided
that any such remediation or compliance shall not be taken into consideration
for the purposes of determining whether an Event of Default has occurred
pursuant to this paragraph (k) if (i) such remediation or compliance is being
contested by such Borrower or the applicable Subsidiary in good faith by
appropriate proceedings or (ii) such remediation or compliance is satisfactorily
completed within 90 days from the date on which such Borrower or the applicable
Subsidiary receives notice that such remediation or compliance is required,
unless such remediation or compliance cannot reasonably be completed within such
90 day period in which case such time period shall be extended for a period of
time reasonably necessary to perform such compliance or remediation using
diligent efforts (not to exceed 180 days if the continuance of such remediation
or compliance beyond such 180 day period, in the judgment of the Majority
Lenders, could reasonably be expected to have a Material Adverse Effect); or
(l) a Change in Control shall occur;
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (f) above, automatically the Revolving Commitments shall
immediately terminate and the Revolving Credit Loans and Competitive Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement (including all amounts of L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have presented the
documents required thereunder) and the Notes shall immediately become due and
payable, and (B) if such event is any other Event of Default, either or both of
the following actions may be taken: (i) the Administrative Agent may, or upon
the request of the Majority Lenders the Administrative Agent shall, by notice to
Kimco, declare the Revolving Commitments to be terminated forthwith, whereupon
the Revolving 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 Revolving Credit
Loans and Competitive Loans hereunder (with accrued interest thereon) and all
other amounts owing under this Agreement (including all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) and the Notes to
be due and payable forthwith, whereupon the same shall immediately become due
and payable.
With respect to all Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an acceleration
pursuant to the preceding paragraph, Kimco or the applicable Borrower shall at
such time deposit in a cash collateral account opened by and under the exclusive
dominion and control of the Administrative Agent an amount equal to the
aggregate then undrawn and unexpired amount of such Letters of Credit. Each such
depositing Borrower hereby grants to the Administrative Agent, for the benefit
of the Issuing Lender and the applicable L/C Participants, a security interest
in such cash collateral to secure all obligations of such Borrower under this
Agreement and the other Loan Documents. Amounts held in such cash collateral
account shall be applied by the Administrative Agent to the payment of drafts or
other demands for payment drawn under such Letters of Credit, and the unused
portion thereof after all such Letters of Credit shall have expired or been
fully drawn upon, if any, shall be applied to repay other obligations of the
Borrowers hereunder and under the other Loan Documents. After all such Letters
of Credit shall have expired or been fully drawn upon, all Reimbursement
Obligations shall have been satisfied and all other obligations of the Borrowers
hereunder and under the other Loan Documents shall have been paid in full, the
balance, if any, in such cash collateral account shall be returned to the
applicable Borrower or to whomsoever may be lawfully entitled thereto. The
Borrowers shall execute and deliver to the Administrative Agent, for the account
of the Issuing Lender and the applicable L/C Participants, such further
documents and instruments as the Administrative Agent may request to evidence
the creation and perfection of the within security interest in such cash
collateral account.
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Except as expressly provided above in this Article,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived.
ARTICLE IX
THE AGENTS
SECTION 9.1 The Agents.
For purposes of this Section 9.1 and Section 10.6, 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 and the Issuing Lender 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
Article V or elsewhere herein, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
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(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 Borrowers), 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, the Issuing Lender 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 Revolving
Commitments, Loans, and its Applicable Percentage of the L/C Obligations to
another bank, financial institution or other entity pursuant to Section 10.6,
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, provided that it is a condition to
the removal of the Administrative Agent under clause (ii) above in the
circumstance in which the Agent Bank is the Issuing Lender hereunder, that all
outstanding Letters of Credit issued by the Issuing Lender (including Letters of
Credit issued by any Affiliate of the Agent Bank) hereunder shall be returned to
the Issuing Lender for cancellation, that the Issuing Lender shall be reimbursed
for all drafts or other demands for payment under the Letters of Credit that
have not yet been reimbursed by the Borrowers or paid by the L/C Participants
(except to the extent of the Applicable Percentage of L/C Obligations assigned
by the Agent Bank), that all fees and expenses accrued and payable to the
Issuing Lender be paid, and that the Issuing Lender shall be deemed to be
replaced under Section 3.9(a) hereof. 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 and the Issuing Lender, 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 Borrowers to a successor Administrative Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrowers and
such successor. After the Administrative Agent's resignation or removal
hereunder, the provisions of this Article, including Section 9.2, 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.
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(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 9.2 Indemnification.
The Lenders agree to indemnify the Administrative Agent in its
capacity as such (to the extent not reimbursed by the Borrowers and without
limiting the obligation of the Borrowers to do so), ratably according to their
respective Applicable Percentages of the Revolving Commitments in effect on the
date on which indemnification is sought under this Section 9.2 (or, if
indemnification is sought after the date upon which the Revolving Commitments
shall have terminated and the Revolving Credit Loans and Competitive 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 Revolving Credit Loans and
Competitive 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 9.2 shall survive the termination of this Agreement and the payment
of the Revolving Credit Loans and all other amounts payable hereunder.
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SECTION 9.3 The Syndication Agents, Documentation Agents, Managing Agents,
Co-Agents, Arrangers, and Bookrunners.
Each of the Syndication Agents, Documentation Agents, Managing
Agents, Co-Agents, Bookrunner and Lead Arranger 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 Syndication Agents, Documentation Agents, Managing Agents,
Co-Agents, Bookrunner or Lead Arranger in their respective capacities as such.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Amendments and Waivers.
Neither this Agreement nor any other Loan Document, nor any
terms hereof or thereof, may be amended, supplemented or modified except in
accordance with the provisions of this Section 10.1. The Required Lenders may,
or, with the written consent of the Required Lenders, the Administrative Agent
may, from time to time, (a) enter into with the relevant Loan Parties written
amendments, supplements or modifications hereto and to the other Loan Documents
for the purpose of adding any provisions to this Agreement or the other Loan
Documents or changing in any manner the rights of the Lenders or of the Loan
Parties hereunder or thereunder or (b) waive, on such terms and conditions as
the Required Lenders or the Administrative Agent, as the case may be, may
specify in such instrument, any of the requirements of this Agreement or the
other Loan Documents or any Default or Event of Default and its consequences;
provided that no such waiver and no such amendment, supplement or modification
shall (i) reduce the amount or extend the scheduled date of maturity of any
Revolving Credit Loan, Competitive 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 2.2(f)) the amount or extend the expiration date of any Lender's
Revolving Commitment, in each case without the consent of each Lender directly
affected thereby, or (ii) amend, modify or waive any provision of this Section
10.1, change Section 2.9(a), Section 10.11(a) or Section 10.22 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 Kimco 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", 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 III or otherwise affect the rights or duties of the Issuing
Lender without the written consent of the Issuing Lender, or (iv) amend, modify
or waive any provision of Article IX 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 Borrowers,
the other Loan Parties, the Lenders, the Issuing Lender, the Administrative
Agent and all future holders of the Notes. In the case of any waiver, the
Borrowers, the other Loan Parties, the Lenders, the Issuing Lender 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.
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SECTION 10.2 Notices.
All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by telecopy), and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given or made when delivered by hand, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrowers, the Issuing Lender
and the Administrative Agent, and as notified to the Administrative Agent
pursuant to an administrative questionnaire in the case of the other parties
hereto, or to such other address as may be hereafter notified by the respective
parties hereto and any future holders of the Notes:
The Borrowers: Kimco Realty Corporation
3333 New Hyde Park Road, Suite 100
New Hyde Park, New York 11042
Attention: Glenn G. Cohen
Telecopy: (516) 869-2572
The Administrative Agent JPMorgan Chase Bank, N.A.
and the Issuing Lender: 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 10.8 or 10.9) 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, 2.3 or 2.4 shall not be effective
until received.
SECTION 10.3 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part
of the Administrative Agent, the Issuing Lender 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.
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SECTION 10.4 Survival of Representations and Warranties.
All representations and warranties made hereunder, in the
other Loan Documents and in any document, certificate or statement delivered
pursuant hereto or 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 extensions of credit hereunder.
SECTION 10.5 Payment of Expenses and Taxes.
Kimco 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, any
Letters of Credit, 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, the Issuing
Lender and the Administrative Agent for all its costs and expenses (including
post-judgment costs and expenses) incurred in connection with the enforcement or
preservation of any rights under this Agreement, the other Loan Documents, any
Letters of Credit, and any such other documents, including the fees and
disbursements of counsel to the Administrative Agent, the Issuing Lender and the
several Lenders; (c) to pay, and indemnify and hold harmless each Lender, the
Issuing 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, the Existing Credit Agreement, this
Agreement, the other Loan Documents, any Letters of Credit, and any such other
documents; and (d) to pay, and indemnify and hold harmless each Lender, the
Issuing 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 the Existing Credit Agreement, this Agreement, the other Loan Documents, the
Letters of Credit, 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 Kimco, any of its Subsidiaries
or any of the Properties (all the foregoing in this clause (d), collectively,
the "indemnified liabilities"), provided that Kimco shall have no obligation
hereunder to any indemnitee with respect to indemnified liabilities arising from
the gross negligence or willful misconduct of such indemnitee. The agreements in
this Section 10.5 shall survive the termination of this Agreement, the
expiration, cancellation, or other termination of the Letters of Credit, and the
payment of the Revolving Credit Loans, the Competitive Loans and all other
amounts payable hereunder.
SECTION 10.6 Successors and Assigns.
For purposes of this Section 10.6 the term "Related Parties"
shall have the meaning given thereto in Section 9.1 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 (including any Affiliate of the Issuing Lender that issues any
Letter of Credit (an "Issuing Lender Affiliate")), 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 (including any Issuing Lender Affiliate), 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,
the Issuing Lender and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement or any other Loan Document.
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(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 Revolving Commitment and the Loans at the
time owing to it) with the prior written consent (such consent not to be
unreasonably withheld or delayed) of:
(A) Kimco, provided that no consent of Kimco
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;
(B) the Administrative Agent, provided that
no consent of the Administrative Agent shall be required for an
assignment of any Revolving Commitment to an assignee that is a Lender
or an Affiliate of a Lender with a Revolving Commitment immediately
prior to giving effect to such assignment; and
(C) the Issuing Lender.
(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 Revolving Commitment or
Loans of any Class, the amount of the Tranche A Commitment or Tranche B
Commitment or Tranche A Loans or Tranche B Loans 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 Kimco and the Administrative Agent otherwise
consent, provided that no such consent of Kimco 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 in respect of its Tranche A Commitment or its
Tranche B Commitment, as applicable, 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 2.15, shall not be payable by the Borrowers);
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").
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For the purposes of this Section 10.6, 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 2.11, 2.12, 2.13 and 10.5). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this Section 10.6 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 Borrowers, 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 Tranche A
Commitment and Tranche B Commitment of, and principal amount of the Loans and
payments made by the Issuing Lender pursuant to the Letters of Credit, 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
Borrowers, the Administrative Agent, the Issuing Lender and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by the
Borrowers, the Issuing Lender 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 2.9(b),
2.9(b), 3.4, 3.5 or 9.2, 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 any Borrower, the
Administrative Agent, or the Issuing Lender, 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 Tranche A Commitment or its Tranche B
Commitment, as applicable, under this Agreement and under the other Loan
Documents (including all or a portion of its Revolving Commitment and 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
Borrowers, the other Loan Parties, the Administrative Agent, the Issuing Lender
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 10.1 that affects such Participant. Subject to paragraph (c)(ii) of this
Section, each Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.11, 2.12 and 2.13 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 10.11(b) as though it were a Lender,
provided such Participant agrees to be subject to Section 10.11(a) as though it
were a Lender.
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(ii) A Participant shall not be entitled to receive
any greater payment under Section 2.11 or 2.12 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
2.12(a) unless Kimco is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrowers, to comply with
Section 2.12(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.
SECTION 10.7 Disclosure.
Subject to Section 10.19, each 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 such Borrower and its Affiliates which has been delivered
to such Lender by or on behalf of such Borrower pursuant to this Agreement or
which has been delivered to such Lender by or on behalf of such Borrower in
connection with such Lender's credit evaluation of such Borrower and its
Affiliates prior to becoming a party to this Agreement.
SECTION 10.8 Increases of Revolving Credit Facility.
During the period commencing the Effective Date through and
including the date that is 24 months (or 33 months, if the Maturity Date has
been extended to the Extended Maturity Date pursuant to Section 10.9 below)
after the date of this Agreement, Kimco may from time to time request increases
in the aggregate amount of the Tranche A Commitments, in minimum increments of
$50,000,000 (or whole multiples of $5,000,000 in excess of $50,000,000),
provided that the total amount by which the Tranche A Commitments may be
increased under this Section 10.8 shall be limited to the excess of (i)
$150,000,000 over (ii) the total amount by which the Revolving Commitments have
been reduced under Section 2.2(f). Each such request shall offer to each Lender
the opportunity to participate in the increased Tranche A Commitments and, with
the consent of the Administrative Agent (such consent not to be unreasonably
withheld or delayed) and Kimco, to any additional bank, financial institution or
other entity that elects to become a Lender hereunder and obtain a Tranche A
Commitment. No Lender shall have any obligation to increase its Tranche A
Commitment nor shall the Administrative Agent or J.P. Morgan have any obligation
to locate banks, financial institutions or other entities willing to increase or
obtain such Tranche A Commitments. The form of documentation pursuant to which
any such Tranche A Commitment is increased or obtained must be acceptable to
Kimco and the Administrative Agent. Each increase of the Tranche A Commitments
under this Section 10.8 is subject to the following conditions:
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(a) Each of the representations and warranties made by Kimco
in or pursuant to the Loan Documents shall be true and correct in all
material respects on and as of the date of such increase 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.
(b) (i) No Default or Event of Default shall have occurred and
be continuing on the date of such increase or after giving effect
thereto and (ii) Kimco would be in compliance with each financial
covenant set forth in paragraphs (a) through (f) of Section 7.1 if the
ratio or amount referred to therein were to be calculated as of such
date (provided that for the purposes of determining such compliance,
Gross Asset Value and Value of Unencumbered Properties shall be
determined for the most recent Test Period as to which a compliance
certificate has been delivered pursuant to Section 6.2(b)).
Each request for an increase of the Tranche A Commitments
under this Section 10.8 shall constitute a representation and warranty by Kimco
as of the date of such increase that the conditions contained in this Section
10.8 have been satisfied, and shall be accompanied by a certificate of a
Responsible Officer of Kimco to such effect.
SECTION 10.9 Extension of Maturity Date.
By notice to the Administrative Agent not earlier than twelve
(12) months nor later than three (3) months before the Maturity Date specified
in clause (i) of the definition of the term "Maturity Date" (the "Original
Maturity Date"), Kimco may extend the Maturity Date to the date one year after
the Original Maturity Date (the "Extended Maturity Date"); provided that (i)
Kimco shall have paid to the Administrative Agent for the account of the Lenders
on or before the Original Maturity Date a nonrefundable extension fee in an
amount equal to 0.10% of the aggregate amount of the Revolving Commitments in
effect on the Original Maturity Date, whether used or unused, and (ii), the
following conditions shall be satisfied:
(a) Each of the representations and warranties made by Kimco
in or pursuant to the Loan Documents shall be true and correct in all
material respects on and as of the as of the Original Maturity 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.
(b) (i) No Default or Event of Default shall have occurred and
be continuing on the date of such notice or as of the Original Maturity
Date, and (ii) Kimco would be in compliance with each financial
covenant set forth in paragraphs (a) through (f) of Section 7.1 if the
ratio or amount referred to therein were to be calculated as of the
Original Maturity Date (provided that for the purposes of determining
such compliance, Gross Asset Value and Value of Unencumbered Properties
shall be determined for the most recent Test Period as to which a
compliance certificate has been delivered pursuant to Section 6.2(b)).
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The request for an extension under this Section 10.9 shall constitute a
representation and warranty by Kimco as of the date of such request and as of
the Original Maturity Date that the conditions contained in this Section 10.9
have been satisfied, and shall be accompanied by a certificate of a Responsible
Officer of Kimco to such effect. The Administrative Agent shall promptly notify
the Lenders of any such extension.
SECTION 10.10 Subsidiary Borrowers and Subsidiary Guarantors.
(a) At the election of Kimco at any time and from time to time, upon
not less than five (5) Business Days notice to the Administrative Agent, at the
time of such election, one or more Wholly Owned Subsidiaries shall become a
Borrower hereunder (each, a "Subsidiary Borrower") by Kimco and such Subsidiary
Borrower's executing and delivering to the Administrative Agent, as applicable,
(i) an Adherence Agreement, (ii) an incumbency certificate as to the names,
titles and specimen signatures of such Wholly Owned Subsidiary's officers or
other representatives authorized to act on its behalf in connection with the
Revolving Credit Facility, and (iii) if and to the extent generally issued by
the applicable jurisdiction, a current good standing certificate as to such
Wholly Owned Subsidiary from its jurisdiction of organization and a certified
copy of its organizational or constituent documents (such as a certificate or
articles of incorporation or formation and by-laws, limited liability company
agreement or limited partnership agreement, as applicable); provided that (x)
each such Wholly Owned Subsidiary shall satisfy the Baseline Conditions on and
as of the date such Wholly Owned Subsidiary delivers its Adherence Agreement,
(y) Kimco shall be deemed to represent and warrant as of such date that such
proposed Subsidiary Borrower is a Wholly Owned Subsidiary, and (z) no Subsidiary
Borrower shall cease to be a Subsidiary Borrower solely because it ceases to be
a Wholly-Owned Subsidiary. Following the giving of any notice pursuant to this
Section 10.10(a), if the designation of such Subsidiary Borrower obligates the
Administrative Agent or any Lender to comply with "know your customer" or
similar identification procedures in accordance with applicable laws and
regulations in circumstances where the necessary information is not already
available to it, the applicable Subsidiary Borrower shall, promptly upon the
request of the Administrative Agent or such Lender, supply such documentation
and other evidence as is reasonably and customarily requested by the
Administrative Agent or such Lender in order for the Administrative Agent or
such Lender to be satisfied (in good faith) it has complied with all necessary
"know your customer" or other similar verifications under all applicable laws
and regulations.
(b) At the election of Kimco at any time and from time to time, at the
time of such election, one or more Wholly Owned Subsidiaries shall become a
guarantor of the Revolving Credit Facility (together with the Subsidiaries
listed on Schedule 10.10, each a "Subsidiary Guarantor") by executing and
delivering to the Administrative Agent, as applicable, a Subsidiary Guarantee;
provided that (x) each such Wholly Owned Subsidiary shall satisfy the Baseline
Conditions on and as of the date such Wholly Owned Subsidiary delivers its
Subsidiary Guarantee and (y) Kimco shall be deemed to represent and warrant as
of such date that such proposed Subsidiary Guarantor is a Wholly Owned
Subsidiary.
(c) A Subsidiary Borrower shall be released as a Borrower hereunder
upon written request by Kimco provided that (i) any Loans to and/or other
obligations of such Subsidiary Borrower proposed to be released shall have been
either (A) repaid (and any outstanding Letters of Credit issued for its account
shall have been fully cash collateralized unless Kimco is a co-applicant
thereof) or (B) assumed (pursuant to a written agreement reasonably satisfactory
in form and substance to the Administrative Agent), concurrently with or prior
to such release, by Kimco or by another Subsidiary Borrower (which other
Subsidiary Borrower satisfies the Baseline Conditions at the time of such
assumption), (ii) there is no Event of Default after giving effect to such
release, (iii) Kimco is in compliance with each of the financial covenants set
forth in paragraphs (a) through (f) of Section 7.1 if the ratio or amount
referred to therein were to be calculated as of such date, but after giving
effect to such release (provided that for the purposes of determining such
compliance, Gross Asset Value and Value of Unencumbered Properties shall be
determined for the most recent Test Period as to which a compliance certificate
has been delivered pursuant to Section 6.2(b), after giving effect to such
release), and (iv) Kimco has furnished to the Administrative Agent a certificate
of its chief financial officer or other authorized officer as to the matters
referred in the preceding sub-clauses (ii) and (iii)
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(d) A Subsidiary Guarantor shall be released from any Subsidiary
Guarantee upon written request by Kimco provided that (i) there is no Event of
Default after giving effect to such release (including any changes resulting
from any Property's ceasing to be an Unencumbered Property if such released
guarantor immediately prior to giving effect to such release was an Obligated
Property Owner in respect thereof), (ii) Kimco is in compliance with each of the
financial covenants set forth in paragraphs (a) through (f) of Section 7.1 if
the ratio or amount referred to therein were to be calculated as of such date,
but after giving effect to such release (including any changes resulting from
any Property's ceasing to be an Unencumbered Property if such released guarantor
was an Obligated Property Owner in respect thereof immediately prior to giving
effect to such release and provided that for the purposes of determining such
compliance, Gross Asset Value and Value of Unencumbered Properties shall be
determined for the most recent Test Period as to which a compliance certificate
has been delivered pursuant to Section 6.2(b)), and (iii) Kimco has furnished to
the Administrative Agent a certificate of its chief financial officer or other
authorized financial officer as to the matters referred to in the preceding
clauses (i) and (ii).
SECTION 10.11 Adjustments; Set-off.
(a) If any Lender (a "benefited Lender") shall at any time receive any
payment of all or part of its Tranche A Exposure or Tranche B Exposure, as
applicable, 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 VIII(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 Tranche A Exposure or Tranche
B Exposure, as applicable, 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 Tranche A Exposure or Tranche B Exposure, as
applicable, 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 any 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 Revolving Credit
Loans or Competitive Loans or participations in respect of Letters of Credit to
any assignee or participant, other than to any 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 Borrowers, any such notice being expressly waived by the Borrowers
to the extent permitted by applicable law, upon any amount becoming due and
payable by any 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 such Borrower. Each Lender agrees promptly
to notify the applicable Borrower, the Issuing Lender 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.
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SECTION 10.12 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, the Issuing Lender 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 10.13 Severability.
Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 10.14 Integration.
This Agreement and the other Loan Documents represent the
entire agreement of the Borrowers, the Guarantors, the Administrative Agent, the
Issuing Lender 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, the Issuing Lender 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 10.15 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 10.16 Submission to Jurisdiction; Waivers.
Kimco 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;
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(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 Borrower at its
address set forth in Section 10.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service
of process in any other manner permitted by law or shall limit the right to sue
in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding in connection
with this Agreement or any other Loan Document any special, exemplary, punitive
or consequential damages.
SECTION 10.17 Acknowledgments.
Each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent, the Issuing Lender nor any Lender
has any fiduciary relationship with or duty to any Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent, the Issuing Lender and the Lenders,
on the one hand, and the Borrowers, 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, the Issuing Lender and the Administrative Agent or among the Borrowers,
the Administrative Agent, the Issuing Lender and the Lenders.
SECTION 10.18 WAIVERS OF JURY TRIAL.
THE BORROWERS, THE ADMINISTRATIVE AGENT, THE ISSUING LENDER
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 10.19 Confidentiality.
Each of the Administrative Agent, the Issuing Lender 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, the Issuing Lender or any
Lender is a party, (f) subject to an agreement containing provisions
substantially the same as those of this Section, 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
any Borrower and its obligations, (g) with the consent of any 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, the Issuing Lender or any Lender on a nonconfidential
basis from a source other than the Borrowers. For the purposes of this Section,
"Information" means all information received from the Borrowers relating to any
Borrower or its business, other than any such information that is available to
the Administrative Agent, the Issuing Lender or any Lender on a nonconfidential
basis; provided that in the case of information received from the Borrowers
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.
76
SECTION 10.20 Judgment Currency.
(a) The obligations hereunder and under the other Loan Documents of the
Borrowers to make payments in Dollars or in an Alternate Currency, as the case
may be (the "Obligation Currency"), shall not be discharged or satisfied by any
tender or recovery pursuant to any judgment expressed in or converted into any
currency other than the Obligation Currency, except to the extent that such
tender or recovery results in the effective receipt by the Administrative Agent,
the Issuing Lender or a Lender of the full amount of the Obligation Currency
expressed to be payable to the Administrative Agent, the Issuing Lender or such
Lender under this Agreement or the other Loan Documents. If, for the purpose of
obtaining or enforcing judgment against any Borrower in any court or in any
jurisdiction, it becomes necessary to convert into or from any currency other
than the Obligation Currency (such other currency being hereinafter referred to
as the "Judgment Currency") an amount due in the Obligation Currency, the
conversion shall be made, at the Dollar Equivalent of such amount, in each case,
as of the date immediately preceding the day on which the judgment is given
(such Business Day being hereinafter referred to as the "Judgment Currency
Conversion Date").
(b) If there is a change in the rate of exchange prevailing between the
Judgment Currency Conversion Date and the date of actual payment of the amount
due, the applicable Borrower obligated in respect thereof covenants and agrees
to pay, or cause to be paid, such additional amounts, if any (but in any event
not a lesser amount), as may be necessary to ensure that the amount paid in the
Judgment Currency, when converted at the rate of exchange prevailing on the date
of payment, will produce the amount of the Obligation Currency which could have
been purchased with the amount of Judgment Currency stipulated in the judgment
or judicial award at the rate of exchange prevailing on the Judgment Currency
Conversion Date.
(c) For purposes of determining the Dollar Equivalent under this
Section, such amounts shall include any premium and costs payable in connection
with the purchase of the Obligation Currency.
SECTION 10.21 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 Borrowers that pursuant to the requirements of
the Act, it is required to obtain, verify and record information that identifies
the Borrowers, which information includes the name and address of the Borrowers
and other information that will allow such Lender to identify the Borrowers in
accordance with the Act.
77
SECTION 10.22 Sharing Event.
(a) (a) Upon the occurrence of a Sharing Event, automatically (and
without the taking of any action) (x) all then outstanding Eurocurrency Loans
denominated in an Alternate Currency shall be automatically converted into Loans
denominated in Dollars (in an amount equal to the Dollar Equivalent, as
determined by the Administrative Agent in accordance with this Agreement, of the
aggregate principal amount of such Eurocurrency Loans on the date such Sharing
Event first occurred, which Loans denominated in Dollars (i) shall thereafter be
deemed to be ABR Loans and (ii) shall be immediately due and payable on the date
such Sharing Event occurred) and (y) all accrued and unpaid interest and other
amounts owing with respect to such Eurocurrency Loans shall be immediately due
and payable in Dollars, in an amount equal to the Dollar Equivalent of such
accrued and unpaid interest and other amounts.
(b) Upon the occurrence of a Sharing Event, and after giving effect to
any automatic conversion pursuant to Section 10.22(a), each Lender shall (and
hereby unconditionally and irrevocably agrees to) purchase and sell (in each
case in Dollars) undivided participating interests in all Loans (other than
Competitive Rate Loans) outstanding to, and any unpaid amounts the Issuing
Lender has disbursed under a Letter of Credit owing by, any Borrower in amounts
such that each Lender shall have a share of the outstanding Loans (other than
Competitive Loans) and unpaid amounts the Issuing Lender has disbursed under a
Letter of Credit then owing by any Borrower equal to its Applicable Percentage
of the Revolving Commitments (although if because of fluctuations in currency
exchange rates any Lender would be required to purchase such participations
after giving effect to which such Lender's Loans and Letter of Credit
participations (including participations therein purchased pursuant to this
Section) would exceed such Lender's Revolving Commitment, then such
participations shall be in an amount after giving effect to which such Lender's
Loans and Letter of Credit participations (including participations therein
purchased pursuant to this Section) would equal such Lender's Revolving
Commitment). Upon any such occurrence, the Administrative Agent shall notify
each Lender and shall specify the amount of Dollars required from such Lender in
order to effect the purchases and sales by the various Lenders of participating
interests in the amounts required above (together with accrued interest with
respect to the period for the last interest payment date through the date of the
Sharing Event); provided, in the event that a Sharing Event shall have occurred,
each Lender shall be deemed to have purchased, automatically and without
request, such participating interests. Promptly upon receipt of such request,
each Lender shall deliver to the Administrative Agent (in immediately available
funds in Dollars) the net amounts as specified by the Administrative Agent. The
Administrative Agent shall promptly deliver the amounts so received to the
various Lenders in such amounts as are needed to effect the purchases and sales
of participations as provided above. Promptly following receipt thereof, each
Lender which has sold participations in any of its Loans and Letter of Credit
participations (through the Administrative Agent) will deliver to each Lender
(through the Administrative Agent) which has so purchased a participating
interest a participation certificate dated the date of receipt of such funds and
in such amount. It is understood that the amount of funds delivered by each
Lender shall be calculated on a net basis, giving effect to both the sales and
purchases of participations by the various Lenders as required above.
(c) Upon the occurrence of a Sharing Event (i) no further Loans shall
be made, (ii) all amounts from time to time accruing with respect to, and all
amounts from time to time payable on account of, any outstanding Eurocurrency
Loans denominated in any Alternate Currency (including any interest and other
amounts which were accrued but unpaid on the date of such purchase) shall be
converted to Loans denominated in Dollars in accordance with Section 10.22(a)
and be payable immediately in Dollars as if such Eurocurrency Loans had
originally been made in Dollars and shall be distributed by the relevant Lenders
(or their affiliates) to the Administrative Agent for the account of the Lenders
which made such Loans or are participating therein and (iii) the Revolving
Commitments of the Lenders shall be automatically terminated. Notwithstanding
anything to the contrary contained above, the failure of any Lender to purchase
its participating interest in any Loans upon the occurrence of a Sharing Event
shall not relieve any other Lender of its obligation hereunder to purchase its
participating interests in a timely manner, but no Lender shall be responsible
for the failure of any other Lender to purchase the participating interest to be
purchased by such other Lender on any date.
78
(d) If any amount required to be paid by any Lender pursuant to Section
10.22(b) is not paid to the Administrative Agent within one (1) Business Day
following the date upon which such Lender receives notice from the
Administrative Agent of the amount of its participations required to be
purchased pursuant to said Section, such Lender shall also pay to the
Administrative Agent on demand an amount equal to the product of (i) the amount
so required to be paid by such Lender for the purchase of its participations
times (ii) the daily average Federal Funds Effective Rate during the period from
and including the date of request for payment to the date on which such payment
is immediately available to the Administrative Agent times (iii) a fraction the
numerator of which is the number of days that elapsed during such period and the
denominator of which is 360. If any such amount required to be paid by any
Lender pursuant to Section 10.22(b) is not in fact made available to the
Administrative Agent within three (3) Business Days following the date upon
which such Lender receives notice from the Administrative Agent as to the amount
of participations required to be purchased by it, the Administrative Agent shall
be entitled to recover from such Lender on demand, such amount with interest
thereon calculated from such request date at the rate per annum applicable to
ABR Loans hereunder. A certificate of the Administrative Agent submitted to any
Lender with respect to any amounts payable by any Lender pursuant to this
Section shall be deemed conclusive absent manifest error. Amounts payable under
this Section shall be paid to the Administrative Agent for the account of the
relevant Lenders; provided that, if the Administrative Agent (in its sole
discretion) has elected to fund on behalf of such Lender the amounts owing to
such Lenders, then the amounts shall be paid to the Administrative Agent for its
own account.
(e) Whenever, at any time after the relevant Lenders have received from
any Lenders purchases of participations in any Loans pursuant to this Section,
the Lenders receive any payment on account thereof, such Lenders will distribute
to the Administrative Agent, for the account of the various Lenders
participating therein, such Lenders' participating interests in such amounts
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such participations were outstanding) in like funds as
received; provided, that in the event that such payment received by any Lenders
are required to be returned, the Lenders who received previous distributions in
respect of their participating interests therein will return to the respective
Lenders any portion thereof previously so distributed to them in like funds as
such payment is required to be returned by the respective Lenders.
(f) Each Lender's obligation to purchase participating interests
pursuant to this Section shall be absolute and unconditional and shall not be
affected by any circumstances including (i) any setoff, counterclaim,
recoupment, defense or other right which such Lender may have against any other
Lender, any Borrower or any other Person for any reason whatsoever, (ii) the
occurrence or continuance of an Event of Default, (iii) any adverse change in
the condition (financial or otherwise) of Kimco or any other Person, (iv) any
breach of this Agreement by Kimco, any of its Subsidiaries or any Lender or any
other Person, or (v) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
(g) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, upon any purchase of participations as required above, each
Lender which has purchased such participations shall be entitled to receive from
the applicable Borrower any increased costs and indemnities directly from the
applicable Borrower to the same extent as if it were the direct Lender as
opposed to a participant therein. Each Borrower acknowledges and agrees that,
upon the occurrence of a Sharing Event and after giving effect to the
requirements of this Section, increased taxes may be owing by the Borrower
pursuant to Section 2.12, which taxes shall be paid (to the extent provided in
Section 2.12) by the applicable Borrower, without any claim that the increased
taxes are not payable because same resulted from the participations effected as
otherwise required by this Section.
79
ARTICLE XI
GUARANTEE BY KIMCO
SECTION 11.1 Guarantee.
In order to induce the Lenders to extend credit hereunder,
Kimco hereby irrevocably and unconditionally guarantees to the Administrative
Agent for the benefit of the Lender Parties and the Administrative Agent, as a
primary obligor and not merely as a surety, the due and punctual payment of all
Obligations of all the Subsidiary Borrowers (collectively, the "Guaranteed
Obligations"). Kimco agrees that the Guaranteed Obligations may be extended or
renewed, in whole or in part, without notice to or further assent from it, and
that it will remain bound upon its guarantee notwithstanding any extension or
renewal of any Guaranteed Obligations. Each and every default in payment or
performance on any Guaranteed Obligation shall give rise to a separate cause of
action hereunder, and separate suits may be brought hereunder as each cause of
action arises.
SECTION 11.2 Guaranteed Obligations Not Waived.
To the fullest extent permitted by applicable law, Kimco
waives presentment to, demand of payment from and protest to any Subsidiary
Borrower or to any other guarantor of any of the Guaranteed Obligations, and
also waives notice of acceptance of its guarantee and notice of protest for
nonpayment. To the fullest extent permitted by applicable law, the obligations
of Kimco hereunder shall not be affected by (a) the failure of any Lender Party
to assert any claim or demand or to enforce or exercise any right or remedy
against the applicable Borrower or any other Loan Party under the provisions of
the Loan Documents or otherwise; (b) any rescission, waiver, amendment or
modification of, or any release from any of the terms or provisions of any Loan
Document or any other agreement; (c) the failure or delay of any Lender Party
for any reason whatsoever to exercise any right or remedy against any other
guarantor of the Obligations; (d) the failure of any Lender Party to assert any
claim or demand or to enforce any remedy under any Loan Document, any guarantee
or any other agreement or instrument; (e) any default, failure or delay, willful
or otherwise, in the performance of any Guaranteed Obligations; (f) any change
in the corporate existence or structure of any Borrower; (g) the existence of
any claims or set-off rights that Kimco may have, (h) any law, regulation,
decree or order of any jurisdiction or any event affecting any term of a
guaranteed obligation; or (i) any other act, omission or delay to do any other
act which may or might in any manner or to any extent vary the risk of Kimco or
otherwise operate as a discharge or exoneration of Kimco as a matter of law or
equity or which would impair or eliminate any right of Kimco to subrogation
SECTION 11.3 Guarantee of Payment.
Kimco agrees that its guarantee hereunder constitutes a
guarantee of payment when due and not of collection, that such guarantee may be
enforced at any time and from time to time, on one or more occasions, during the
continuance of any Event of Default, without any prior demand or enforcement in
respect of any Guaranteed Obligations, and that Kimco waives any right to
require that any resort be had by any Lender Party to any other Guarantor or
other guarantee, or to any security held for payment of any Guaranteed
Obligations. The solicitation of, or the delivery by Kimco of, any confirmation
or reaffirmation of this Agreement under any circumstance shall not give rise to
any inference as to the continued effectiveness of this Agreement in any other
circumstance in which the confirmation or reaffirmation hereof has not been
solicited or has not been delivered (whether or not solicited), and the
obligations of Kimco hereunder shall continue in effect as herein provided
notwithstanding any solicitation or delivery of any confirmation or
reaffirmation hereof, or any failure to solicit or to deliver any such
confirmation or reaffirmation, under any circumstances.
80
SECTION 11.4 No Discharge or Diminishment of Guarantee.
The obligations of Kimco under this guarantee shall not be
subject to any reduction, limitation, impairment or termination for any reason
(other than the payment in full in cash of the Guaranteed Obligations),
including any claim of waiver, release, surrender, amendment, modification,
alteration or compromise of any of the Guaranteed Obligations or of any
collateral security or guarantee or other accommodation in respect thereof, and
shall not be subject to any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Guaranteed Obligations or any Loan Document or any
provision thereof (or of this Agreement or any provision hereof) or otherwise.
Without limiting the generality of the foregoing, the obligations of Kimco under
this guarantee shall not be discharged or impaired or otherwise affected by any
change of location, form or jurisdiction of any Subsidiary Borrower or any other
Person, any merger, consolidation or amalgamation of any Subsidiary Borrower or
any other Person into or with any other Person, any sale, lease or transfer of
any of the assets of any Subsidiary Borrower or any other Person to any other
Person, any other change of form, structure, or status under any law in respect
of any Subsidiary Borrower or any other Person, or any other occurrence,
circumstance, happening or event whatsoever, whether similar or dissimilar to
the foregoing, whether foreseen or unforeseen, that might otherwise constitute a
legal or equitable defense, release, exoneration, or discharge or that might
otherwise limit recourse against any Subsidiary Borrower or Kimco or any other
Person. The obligations of Kimco under this guarantee shall extend to all
Guaranteed Obligations without limitation of amount, and Kimco agrees that it
shall be obligated to honor its guarantee hereunder whether or not any other
Guarantor (i) has been called to honor its guarantee (ii) has failed to honor
its guarantee in whole or in part, or (iii) has been released for any reason
whatsoever from its obligations under its guarantee.
SECTION 11.5 Defenses Waived; Maturity of Guaranteed Obligations.
To the fullest extent permitted by applicable law, Kimco
waives any defense based on or arising out of any defense of any Subsidiary
Borrower or any other guarantor or the unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of any Subsidiary Borrower, other than the final payment in
full in cash of the Guaranteed Obligations. The Lender Parties may, at their
election, compromise or adjust any part of the Guaranteed Obligations, make any
other accommodation with any Subsidiary Borrower or any other Person (including
any other Guarantor) or exercise any other right or remedy available to them
against such Subsidiary Borrower or any other Person (including any other
Guarantor), without affecting or impairing in any way the liability of any
Guarantor hereunder except to the extent the Guaranteed Obligations have been
fully, and finally paid in cash. To the fullest extent permitted by applicable
law, Kimco 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 Kimco against
any Subsidiary Borrower or any other Person, as the case may be, or any
security. Kimco agrees that, as between Kimco, on the one hand, and the Lender
Parties, on the other hand, (i) the maturity of the Guaranteed Obligations
guaranteed hereby may be accelerated for the purposes of Kimco's guarantee
herein, notwithstanding any stay, injunction or other prohibition preventing
such acceleration as to any Subsidiary Borrower in respect of the Guaranteed
Obligations guaranteed hereby (other than any notices and cure periods expressly
granted to any Subsidiary Borrower in this Agreement or any other Loan Document
evidencing or securing the Guaranteed Obligations) and (ii) in the event of any
such acceleration of such Guaranteed Obligations, such Guaranteed Obligations
(whether or not due and payable) shall forthwith become due and payable in full
by Kimco for purposes of this Agreement.
81
SECTION 11.6 Agreement to Pay; Subordination.
In furtherance of the foregoing and not in limitation of any
other right that any Lender Party has at law or in equity against Kimco by
virtue hereof, upon the failure of any Subsidiary Borrower to pay (after the
giving of any required notice and the expiration of any cure period expressly
granted to such Subsidiary Borrower in this Agreement or any other Loan Document
evidencing any Guaranteed Obligation) any Guaranteed Obligation when and as the
same shall become due, whether at maturity, upon mandatory prepayment, by
acceleration, after notice of prepayment or otherwise, Kimco hereby promises to
and will forthwith pay, or cause to be paid, to the Administrative Agent for the
benefit of the Lender Parties, in cash the amount of such unpaid Guaranteed
Obligation. Upon payment by Kimco of any sums as provided above, all rights of
Kimco against the applicable Subsidiary Borrower or any other Person 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 payment in full in cash of all the Guaranteed
Obligations. In addition, any indebtedness of any Subsidiary Borrower now or
hereafter held by Kimco is hereby subordinated in right of payment to the prior
payment in full in cash of the Guaranteed Obligations. If any amount shall
erroneously be paid to Kimco on account of (i) such subrogation, contribution,
reimbursement, indemnity or similar right or (ii) any such indebtedness of any
Subsidiary Borrower, such amount shall be held in trust for the benefit of the
Lender Parties and shall forthwith be paid to the Administrative Agent to be
credited against the payment of the Guaranteed Obligations, whether matured or
unmatured.
SECTION 11.7 Reinstatement.
Kimco further agrees that its obligations hereunder shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any Guaranteed Obligation is rescinded or must
otherwise be restored by any Lender Party upon the bankruptcy or reorganization
of any Subsidiary Borrower or otherwise. Nothing shall discharge or satisfy the
liability of Kimco hereunder except the full performance and payment in full in
cash of the Guaranteed Obligations.
SECTION 11.8 Information.
Kimco assumes all responsibility for being and keeping itself
informed of the Subsidiary Borrowers' financial condition and assets, and of all
other circumstances bearing upon the nature, scope and extent of the risks that
Kimco assumes and incurs hereunder, and agrees that neither the Administrative
Agent nor any other Lender Party will have any duty to advise Kimco of
information now or hereafter known to it or any of them regarding any of the
foregoing.
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]
82
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
KIMCO REALTY CORPORATION
By: /s/ Glenn G. Cohen
------------------------
Name: Glenn G. Cohen
Title: Vice President
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
JPMORGAN CHASE BANK, N.A.
(formerly known as JPMorgan Chase Bank), as a Lender, as
Issuing Lender, and as Administrative Agent
By: /s/ Charles e. Hoagland
----------------------------------
Name: Charles E. Hoagland
Title: Vice President
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
J.P. MORGAN EUROPE LIMITED, as Administrative
Agent with respect to Alternate Currency
Borrowings
By: /s/ Stephen Gillies /s/ Ching Lou
-------------------------------------------
Name: Stephen Gillies Ching Lou
Title: Associate Associate
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
WACHOVIA BANK, NATIONAL ASSOCIATION, as Lender and as
Syndication Agent
By: /s/ Cynthia A. Bean
---------------------------------
Name: Cynthia A. Bean
Title: Vice President
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
THE BANK OF NOVA SCOTIA, NEW YORK AGENCY, as Lender and as
Syndication Agent
By: /s/ R. H. Boese
---------------------
Name: R. H. Boese
Title: Managing Director
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
UBS LOAN FINANCE LLC , as Lender and as Documentation Agent
By: /s/ Toba Lumbantobing
-----------------------------------
Name: Toba Lumbantobing
Title: Associate Director
Banking Products
Services, US
By: /s/ Richard L. Tavrow
Name: Richard L. Tavrow
Title: Director
Banking Products
Services, US
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
WELLS FARGO BANK NATIONAL ASSOCIATION, as Lender and as
Documentation Agent
By: /s/ William Jordan
----------------------------------
Name: William Jordan
Title: Vice President
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
UFJ BANK LIMITED, as Lender and as Managing Agent
By: /s/ Jesse McDonald
----------------------------------
Name: Jesse McDonald
Title: Vice President
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
SUNTRUST BANK, as Lender and as Managing Agent
By: /s/ Nancy B. Richard
--------------------------------------
Name: Nancy B. Richards
Title: Senior Vice President
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
MERRILL LYNCH BANK USA, as Lender and as Managing Agent
By: /s/ Louis Alder
--------------------------------
Name: Louis Alder
Title: Director
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
EUROHYPO AG, NEW YORK BRANCH, as Lender and as
Managing Agent
By: /s/ David Sarner
-----------------------------
Name: David Sarner
Title: Director
By: /s/ Jeff Pago
-----------------------------
Name: Jeff Pago
Title: Director
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
THE BANK OF NEW YORK, as Lender and as Managing Agent
By: /s/ Anthony A. Filorimo
------------------------------------
Name: Anthony A. Filorimo
Title: Vice President
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
AMSOUTH BANK, as Lender and as Managing Agent
By: /s/ Robert Blair
--------------------------------
Name: Robert Blair
Title: Vice President
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
BANK OF AMERICA, N.A., as Lender and as Managing Agent
By: /s/ Michael W. Edwards
---------------------------------------
Name: Michael W. Edwards
Title: Senior Vice President
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
ROYAL BANK OF CANADA, as Lender and as Managing Agent
By: /s/ Gordon MacArthur
-----------------------------------------
Name: Gordon MacArthur
Title: Authorized Signatory
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
MIZUHO CORPORATE BANK (USA), as Lender and as
Managing Agent
By: /s/ Yuichi Hirashima
--------------------------------------
Name: Yuichi Hirashima
Title: Senior Vice President
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
US BANK NATIONAL ASSOCIATION, as Lender and as
Managing Agent
By: /s/ A. Jeffrey Jacobson
--------------------------------------
Name: A. Jeffrey Jacobson
Title: Vice President
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
WESTLB AG, NEW YORK BRANCH, as Lender and as
Managing Agent
By: /s/ Lillian Tung Lum
--------------------------------
Name: Lillian Tung Lum
Title:
By: /s/ Pui Chow
--------------------------------
Name: Pui Chow
Title: Director
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
CITICORP NORTH AMERICA, INC. , as Lender and as Co-Agent
By: /s/ Jeanne M. Craig
----------------------------------
Name: Jeanne M. Craig
Title: Vice President
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
BARCLAYS BANK PLC, as Lender and as Co-Agent
By: /s/ Alison a. McGuigan
--------------------------------------
Name: Alison A. McGuigan
Title: Associate Director
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND, as Lender
and as Co-Agent
By: /s/ Gwen Evans /s/ Iain Donovan
-------------------------------------------------------
Name: Gwen Evans Iain Donovan
Title: Authorised Signature Authorised Signatory
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
MANUFACTURERS AND TRADERS TRUST COMPANY, as Lender and as
Co-Agent
By: /s/ James Morris
------------------------------------------
Name: James Morris
Title: Assistant Vice President
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
SUMITOMO MITSUI BANKING CORPORATION, as Lender and as
Co-Agent
By: /s/ William M. Ginn
-----------------------------------
Name: William M. Ginn
Title: General Manager
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
KEYBANK NATIONAL ASSOCIATION, as Lender
By: /s/ Joshua K. Mayers
----------------------------------------
Name: Joshua K. Mayers
Title: Assistant Vice President
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
CHANG HWA COMMERCIAL BANK, LTD., NEW YORK BRANCH, as Lender
By: /s/ Jim c. Y. Chen
------------------------
Name: Jim C. Y. Chen
Title: VP & General Manager
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
CIBC INC., as Lender
By: /s/ Joel Gershkon
---------------------------------------
Name: Joel Gershkon
Title: Authorized Signatory
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
BANCO POPULAR DE PUERTO RICO, as Lender
By: /s/ Hector J. Gonzalez
-------------------------------------
Name: Hector J. Gonzalez
Title: Vice President
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
MALAYAN BANKING BERHAD, as Lender
By: /s/ Wan Fadzmi Oriman
-------------------------------------
Name: Wan Fadzmi Oraiman
Title: General Manager
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
By signing below, each of the undersigned Exiting Lenders, Existing
Documentation Agents and the Existing Co-Agents hereby consents and agrees, upon
the Effective Date referred to in this Agreement, to its removal as a party (in
the case of an Exiting Lender), as a Lender (in the case of an Exiting Lender),
as a Documentation Agent (in the case of an Existing Documentation Agent) and as
Co-Agent (in the case of an Existing Co-Agent), as the case may be, to or under
this Agreement and, in the case of an Exiting Lender, to the rescission of all
purchases of Letter of Credit participations pursuant to Section 3.4 of the
Existing Credit Agreement referred to in this Agreement and further agrees to
the provisions relating to its Existing Notes, if any, contained in Section
2.2(g) of this Agreement; provided, in each case, that (i) the payments
specified in Section 5.1(b) of this Agreement shall have been made and (ii) the
provisions of Sections 10.5 and 9.3 of the Existing Credit Agreement referred to
in this Agreement shall continue in effect for their benefit in respect of any
actions taken or omitted to be taken by any of them on or prior to the Effective
Date:
THE BANK OF NOVA SCOTIA, NEW YORK AGENCY,
as Existing Documentation Agent
By: /s/ R. H. Boese
-----------------------------------------------------------
Name: R. H. Boese
Title: Managing Director
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
By signing below, each of the undersigned Exiting Lenders, Existing
Documentation Agents and the Existing Co-Agents hereby consents and agrees, upon
the Effective Date referred to in this Agreement, to its removal as a party (in
the case of an Exiting Lender), as a Lender (in the case of an Exiting Lender),
as a Documentation Agent (in the case of an Existing Documentation Agent) and as
Co-Agent (in the case of an Existing Co-Agent), as the case may be, to or under
this Agreement and, in the case of an Exiting Lender, to the rescission of all
purchases of Letter of Credit participations pursuant to Section 3.4 of the
Existing Credit Agreement referred to in this Agreement and further agrees to
the provisions relating to its Existing Notes, if any, contained in Section
2.2(g) of this Agreement; provided, in each case, that (i) the payments
specified in Section 5.1(b) of this Agreement shall have been made and (ii) the
provisions of Sections 10.5 and 9.3 of the Existing Credit Agreement referred to
in this Agreement shall continue in effect for their benefit in respect of any
actions taken or omitted to be taken by any of them on or prior to the Effective
Date:
THE BANK OF NEW YORK, as Existing Co-Agent
By: /s/ Anthony A. Filorimo
-----------------------------------------------------------
Name: Anthony A. Filorimo
Title: Vice President
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
By signing below, each of the undersigned Exiting Lenders, Existing
Documentation Agents and the Existing Co-Agents hereby consents and agrees, upon
the Effective Date referred to in this Agreement, to its removal as a party (in
the case of an Exiting Lender), as a Lender (in the case of an Exiting Lender),
as a Documentation Agent (in the case of an Existing Documentation Agent) and as
Co-Agent (in the case of an Existing Co-Agent), as the case may be, to or under
this Agreement and, in the case of an Exiting Lender, to the rescission of all
purchases of Letter of Credit participations pursuant to Section 3.4 of the
Existing Credit Agreement referred to in this Agreement and further agrees to
the provisions relating to its Existing Notes, if any, contained in Section
2.2(g) of this Agreement; provided, in each case, that (i) the payments
specified in Section 5.1(b) of this Agreement shall have been made and (ii) the
provisions of Sections 10.5 and 9.3 of the Existing Credit Agreement referred to
in this Agreement shall continue in effect for their benefit in respect of any
actions taken or omitted to be taken by any of them on or prior to the Effective
Date:
EUROHYPO AG, NEW YORK BRANCH, as Existing Co-Agent
By: /s/ David Sarner
-----------------------------------------------------------
Name: David Sarner
Title: Director
By: /s/ Jeff Page
-----------------------------------------------------------
Name: Jeff Page
Title: Director
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
By signing below, each of the undersigned Exiting Lenders, Existing
Documentation Agents and the Existing Co-Agents hereby consents and agrees, upon
the Effective Date referred to in this Agreement, to its removal as a party (in
the case of an Exiting Lender), as a Lender (in the case of an Exiting Lender),
as a Documentation Agent (in the case of an Existing Documentation Agent) and as
Co-Agent (in the case of an Existing Co-Agent), as the case may be, to or under
this Agreement and, in the case of an Exiting Lender, to the rescission of all
purchases of Letter of Credit participations pursuant to Section 3.4 of the
Existing Credit Agreement referred to in this Agreement and further agrees to
the provisions relating to its Existing Notes, if any, contained in Section
2.2(g) of this Agreement; provided, in each case, that (i) the payments
specified in Section 5.1(b) of this Agreement shall have been made and (ii) the
provisions of Sections 10.5 and 9.3 of the Existing Credit Agreement referred to
in this Agreement shall continue in effect for their benefit in respect of any
actions taken or omitted to be taken by any of them on or prior to the Effective
Date:
KEYBANK NATIONAL ASSOCIATION, as Existing Co-Agent
By: /s/ Joshua K. Mayers
-----------------------------------------------------------
Name: Joshua K. Mayers
Title: Assistant Vice President
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
By signing below, each of the undersigned Exiting Lenders, Existing
Documentation Agents and the Existing Co-Agents hereby consents and agrees, upon
the Effective Date referred to in this Agreement, to its removal as a party (in
the case of an Exiting Lender), as a Lender (in the case of an Exiting Lender),
as a Documentation Agent (in the case of an Existing Documentation Agent) and as
Co-Agent (in the case of an Existing Co-Agent), as the case may be, to or under
this Agreement and, in the case of an Exiting Lender, to the rescission of all
purchases of Letter of Credit participations pursuant to Section 3.4 of the
Existing Credit Agreement referred to in this Agreement and further agrees to
the provisions relating to its Existing Notes, if any, contained in Section
2.2(g) of this Agreement; provided, in each case, that (i) the payments
specified in Section 5.1(b) of this Agreement shall have been made and (ii) the
provisions of Sections 10.5 and 9.3 of the Existing Credit Agreement referred to
in this Agreement shall continue in effect for their benefit in respect of any
actions taken or omitted to be taken by any of them on or prior to the Effective
Date:
MERRILL LYNCH BANK USA, as Existing Co-Agent
By: /s/ Louis Alder
-----------------------------------------------------------
Name: Louis Alder
Title: Director
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
By signing below, each of the undersigned Exiting Lenders, Existing
Documentation Agents and the Existing Co-Agents hereby consents and agrees, upon
the Effective Date referred to in this Agreement, to its removal as a party (in
the case of an Exiting Lender), as a Lender (in the case of an Exiting Lender),
as a Documentation Agent (in the case of an Existing Documentation Agent) and as
Co-Agent (in the case of an Existing Co-Agent), as the case may be, to or under
this Agreement and, in the case of an Exiting Lender, to the rescission of all
purchases of Letter of Credit participations pursuant to Section 3.4 of the
Existing Credit Agreement referred to in this Agreement and further agrees to
the provisions relating to its Existing Notes, if any, contained in Section
2.2(g) of this Agreement; provided, in each case, that (i) the payments
specified in Section 5.1(b) of this Agreement shall have been made and (ii) the
provisions of Sections 10.5 and 9.3 of the Existing Credit Agreement referred to
in this Agreement shall continue in effect for their benefit in respect of any
actions taken or omitted to be taken by any of them on or prior to the Effective
Date:
SUNTRUST BANK, as Existing Co-Agent
By: /s/ Nancy B. Richards
-----------------------------------------------------------
Name: Nancy B. Richards
Title: Senior Vice President
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
By signing below, each of the undersigned Exiting Lenders, Existing
Documentation Agents and the Existing Co-Agents hereby consents and agrees, upon
the Effective Date referred to in this Agreement, to its removal as a party (in
the case of an Exiting Lender), as a Lender (in the case of an Exiting Lender),
as a Documentation Agent (in the case of an Existing Documentation Agent) and as
Co-Agent (in the case of an Existing Co-Agent), as the case may be, to or under
this Agreement and, in the case of an Exiting Lender, to the rescission of all
purchases of Letter of Credit participations pursuant to Section 3.4 of the
Existing Credit Agreement referred to in this Agreement and further agrees to
the provisions relating to its Existing Notes, if any, contained in Section
2.2(g) of this Agreement; provided, in each case, that (i) the payments
specified in Section 5.1(b) of this Agreement shall have been made and (ii) the
provisions of Sections 10.5 and 9.3 of the Existing Credit Agreement referred to
in this Agreement shall continue in effect for their benefit in respect of any
actions taken or omitted to be taken by any of them on or prior to the Effective
Date:
UBS AG, CAYMAN ISLANDS BRANCH, as Exiting Lender and as Existing Documentation
Agent
By: /s/ Wilfred v. Saint
-----------------------------------------------------------
Name: Wilfred V. Saint
Title: Director
By: /s/ Richard L. Tavrow
-----------------------------------------------------------
Name: Richard L. Tavrow
Title: Director
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT
Signature Page to Amended and Restated Credit Agreement dated as of July 26,
2005 among Kimco Realty Corporation and Others
By signing below, each of the undersigned Exiting Lenders, Existing
Documentation Agents and the Existing Co-Agents hereby consents and agrees, upon
the Effective Date referred to in this Agreement, to its removal as a party (in
the case of an Exiting Lender), as a Lender (in the case of an Exiting Lender),
as a Documentation Agent (in the case of an Existing Documentation Agent) and as
Co-Agent (in the case of an Existing Co-Agent), as the case may be, to or under
this Agreement and, in the case of an Exiting Lender, to the rescission of all
purchases of Letter of Credit participations pursuant to Section 3.4 of the
Existing Credit Agreement referred to in this Agreement and further agrees to
the provisions relating to its Existing Notes, if any, contained in Section
2.2(g) of this Agreement; provided, in each case, that (i) the payments
specified in Section 5.1(b) of this Agreement shall have been made and (ii) the
provisions of Sections 10.5 and 9.3 of the Existing Credit Agreement referred to
in this Agreement shall continue in effect for their benefit in respect of any
actions taken or omitted to be taken by any of them on or prior to the Effective
Date:
CIBC WORLD MARKETS CORP., as Exiting Lender
By: /s/ Joel Gershkon
-----------------------------------------------------------
Name: Joel Gershkon
Title: Authorized Signatory
EXECUTION PAGE TO AMENDED AND RESTATED CREDIT AGREEMENT