United States
SECURITIES AND EXCHANGE COMMISSION
Washington DC 20549
FORM 10-Q
(Mark One)
[X] For the quarterly period ended March 31, 2004
-or-
[ ]Transition Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the transition period from ________ to ________
Commission File Number 1-12298
REGENCY CENTERS CORPORATION
---------------------------
(Exact name of registrant as specified in its charter)
Florida 59-3191743
------- ----------
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
121 West Forsyth Street, Suite 200
Jacksonville, Florida 32202
(Address of principal executive offices) (Zip Code)
(904) 598-7000 (Registrant's
telephone number, including area code)
Unchanged
(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No[ ]
Indicate by check mark whether the registrant is an accelerated filer (as
defined in Rule 12b-2 of the Exchange Act). Yes [X] No[ ]
(Applicable only to Corporate Registrants)
As of May 6, 2004, there were 60,757,635 shares outstanding of the Registrant's
common stock.
Regency Centers Corporation
Index to Financial Statements
Regency Centers Corporation Pages
Consolidated Balance Sheets as of March 31, 2004
and December 31, 2003 1
Consolidated Statements of Operations for the
three months ended March 31, 2004 and 2003 2
Consolidated Statement of Stockholders' Equity
for the three months ended March 31, 2004 3
Consolidated Statements of Cash Flows for the
three months ended March 31, 2004 and 2003 4
Notes to Consolidated Financial Statements 5-16
All other schedules are omitted because they are not applicable or because
information required therein is shown in the consolidated financial statements
or notes thereto.
REGENCY CENTERS CORPORATION
Consolidated Balance Sheets
March 31, 2004 and December 31, 2003
(in thousands, except share data)
(unaudited)
2004 2003
---- ----
Assets
- ------
Real estate investments at cost:
Land $ 762,459 738,101
Buildings and improvements 1,932,646 1,914,075
--------------- ----------------
2,695,105 2,652,176
Less: accumulated depreciation 299,127 285,665
--------------- ----------------
2,395,978 2,366,511
Properties in development 369,752 369,474
Operating properties held for sale 6,319 4,200
Investments in real estate partnerships 101,404 140,496
--------------- ----------------
Net real estate investments 2,873,453 2,880,681
Cash and cash equivalents 43,538 29,869
Notes receivable 70,181 70,782
Tenant receivables, net of allowance for uncollectible accounts
of $3,372 and $3,353 at March 31, 2004 and December 31, 2003,
respectively 38,085 54,573
Deferred costs, less accumulated amortization of $25,266 and
$29,493 at March 31, 2004 and December 31, 2003, respectively 38,045 35,804
Acquired lease intangible assets, net 9,764 10,205
Other assets 13,358 16,315
--------------- ----------------
$ 3,086,424 3,098,229
=============== ================
Liabilities and Stockholders' Equity
- ------------------------------------
Liabilities:
Notes payable $ 1,251,577 1,257,777
Unsecured line of credit 230,000 195,000
Accounts payable and other liabilities 71,506 94,280
Acquired lease intangible liabilities, net 5,877 6,115
Tenants' security and escrow deposits 9,549 9,358
--------------- ----------------
Total liabilities 1,568,509 1,562,530
--------------- ----------------
Preferred units 223,526 223,526
Exchangeable operating partnership units 20,238 26,544
Limited partners' interest in consolidated partnerships 2,380 4,651
--------------- ----------------
Total minority interest 246,144 254,721
--------------- ----------------
Stockholders' equity:
Series 3 cumulative redeemable preferred stock, $.01 par value
per share, 300,000 shares authorized, issued and outstanding at
March 31, 2004 and December 31, 2003, respectively;
liquidation preference $250 per share 75,000 75,000
Common stock $.01 par value per share, 150,000,000 shares
authorized; 65,833,896 and 64,956,077 shares issued
at March 31, 2004 and December 31, 2003, respectively 658 650
Treasury stock at cost, 5,139,623 and 5,048,120 shares held at
March 31, 2004 and December 31, 2003, respectively, at cost (111,414) (111,414)
Additional paid in capital 1,401,397 1,394,361
Accumulated other comprehensive (loss) income (5,720) 175
Distributions in excess of net income (88,150) (77,794)
--------------- ----------------
Total stockholders' equity 1,271,771 1,280,978
--------------- ----------------
Commitments and contingencies
$ 3,086,424 3,098,229
=============== ================
See accompanying notes to consolidated financial statements.
1
REGENCY CENTERS CORPORATION
Consolidated Statements of Operations
For the three months ended March 31, 2004 and 2003
(in thousands, except per share data)
(unaudited)
2004 2003
---- ----
Revenues:
Minimum rent $ 70,640 67,064
Percentage rent 453 299
Recoveries from tenants 20,362 20,197
Management fees and commissions 1,610 1,561
Equity in income of investments in
real estate partnerships 2,745 2,336
---------------- ----------------
Total revenues 95,810 91,457
---------------- ----------------
Operating expenses:
Depreciation and amortization 20,207 17,998
Operating and maintenance 13,367 12,786
General and administrative 5,883 4,135
Real estate taxes 10,589 9,852
Other expenses 488 427
---------------- ----------------
Total operating expenses 50,534 45,198
---------------- ----------------
Other expense (income)
Interest expense, net of interest income of $837 and $893
in 2004 and 2003, respectively 21,234 20,582
Gain on sale of operating properties and properties in development (3,983) (2,376)
---------------- ----------------
Total other expense (income) 17,251 18,206
---------------- ----------------
Income before minority interests 28,025 28,053
Minority interest of preferred units (5,081) (10,782)
Minority interest of exchangeable partnership units (380) (409)
Minority interest of limited partners (79) (64)
---------------- ----------------
Income from continuing operations 22,485 16,798
Income from discontinued operations 332 1,126
---------------- ----------------
Net income 22,817 17,924
Preferred stock dividends (1,397) -
---------------- ----------------
Net income for common stockholders $ 21,420 17,924
================ ================
Income per common share - basic:
Continuing operations $ 0.35 0.28
Discontinued operations 0.01 0.02
---------------- ----------------
Net income for common stockholders per share $ 0.36 0.30
================ ================
Income per common share - diluted:
Continuing operations $ 0.34 0.28
Discontinued operations 0.01 0.02
---------------- ----------------
Net income for common stockholders per share $ 0.35 0.30
================ ================
See accompanying notes to consolidated financial statements.
2
REGENCY CENTERS CORPORATION
Consolidated Statement of Stockholders' Equity
For the three months ended March 31, 2004
(in thousands, except per share data)
(unaudited)
Accumulated
Additional Other Distributions Total
Series 3 Common Treasury Paid In Comprehensive in Excess of Stockholders'
Preferred Stock Stock Stock Capital (Loss) Income Net Income Equity
--------------- -------- ------------ ------------ ----------------------------------------
Balance at December 31, 2003 $ 75,000 650 (111,414) 1,394,361 175 (77,794) 1,280,978
Comprehensive Income:
Net income 22,817 22,817
Change in fair value of
derivative instruments (5,895) (5,895)
-------------
Total comprehensive income 16,922
Common stock issued as
compensation or purchased by
directors or officers - 3 - 3,971 - - 3,974
Common stock issued for exercise
of stock options - 4 - 10,757 - - 10,761
Common stock surrendered for
payment of taxes and forfeitures - - - (5,920) (5,920)
Common stock issued for
partnership units exchanged - 1 - 2,861 - - 2,862
Reallocation of minority interest - - - (4,633) - - (4,633)
Cash dividends declared:
Common stock ($.53 per share) - - - - - (31,776) (31,776)
Preferred stock ($.466 per share) - - - - - (1,397) (1,397)
----------- --------- ------------ -------------- ------------ ----------- -------------
Balance at March 31, 2004 $ 75,000 658 (111,414) 1,401,397 (5,720) (88,150) 1,271,771
=========== ========= ============ ============== ============ =========== =============
See accompanying notes to consolidated financial statements.
3
REGENCY CENTERS CORPORATION
Consolidated Statements of Cash Flows
For the three months ended March 31, 2004 and 2003
(in thousands)
(unaudited)
2004 2003
---- ----
Cash flows from operating activities:
Net income $ 22,817 17,924
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization 20,344 18,863
Deferred loan cost and debt premium amortization 616 532
Stock based compensation 3,548 2,869
Minority interest of preferred units 5,081 10,782
Minority interest of exchangeable operating partnership units 385 437
Minority interest of limited partners 79 64
Equity in income of investments in real estate partnerships (2,745) (2,336)
(Gain) loss on sale of operating properties (41) 642
Distributions from operations of investments in real estate
partnerships 4,644 2,099
Hedge settlement (5,720) -
Changes in assets and liabilities:
Tenant receivables 17,025 12,876
Deferred leasing costs (2,058) (2,237)
Other assets 1,889 2,540
Accounts payable and other liabilities (28,155) (31,384)
Tenants' security and escrow deposits 158 378
-------------- --------------
Net cash provided by operating activities 37,867 34,049
-------------- --------------
Cash flows from investing activities:
Acquisition and development of real estate (67,289) (101,882)
Proceeds from sale of real estate investments 30,854 31,580
Repayment of notes receivable, net 602 25,753
Investments in real estate partnerships (512) (767)
Distributions received from investments in real estate
partnerships 17,960 1,350
-------------- --------------
Net cash used in investing activities (18,385) (43,966)
-------------- --------------
Cash flows from financing activities:
Net proceeds from common stock issuance 10,761 969
Redemption of preferred units - (75,750)
Redemption of exchangeable operating partnership units (7,784) -
Net distribution to limited partner in consolidated partnership (2) -
Distributions to exchangeable operating partnership unit holders (679) (696)
Distributions to preferred unit holders (5,081) (8,110)
Dividends paid to common stockholders (31,776) (31,380)
Dividends paid to preferred stockholders (1,397) -
Proceeds from unsecured line of credit, net 35,000 98,750
Repayment of notes payable, net - (507)
Scheduled principal payments (1,497) (1,532)
Deferred loan costs (3,358) -
-------------- --------------
Net cash used in financing activities (5,813) (18,256)
-------------- --------------
Net increase (decrease) in cash and cash equivalents 13,669 (28,173)
Cash and cash equivalents at beginning of the period 29,869 56,447
-------------- --------------
Cash and cash equivalents at end of the period $ 43,538 28,274
============== ==============
Supplemental disclosure of cash flow information - cash paid
for interest (net of capitalized interest of $3,323 and
$2,784 in 2004 and 2003, respectively) $ 30,017 29,400
============== ==============
Supplemental disclosure of non-cash transactions:
Common stock issued for partnership units exchanged $ 2,862 217
============== ==============
See accompanying notes to consolidated financial statements.
4
Regency Centers Corporation
Notes to Consolidated Financial Statements
March 31, 2004
1. Summary of Significant Accounting Policies
(a) Organization and Principles of Consolidation
The accompanying consolidated financial statements include the
accounts of Regency Centers Corporation, its wholly-owned
qualified REIT subsidiaries, and partnerships in which it has
voting control (the "Company" or "Regency"). All significant
intercompany balances and transactions have been eliminated in
the consolidated financial statements. The Company owns
approximately 98% of the outstanding common units ("Units") of
Regency Centers, L.P. ("RCLP"). Regency invests in real estate
through its partnership interest in RCLP. Generally all of the
acquisition, development, operations and financing activities of
Regency, including the issuance of Units and preferred units, are
executed by RCLP. The equity interests of third parties held in
RCLP and the majority owned or controlled partnerships are
included in the consolidated financial statements as preferred or
exchangeable operating partnership units and limited partners'
interest in consolidated partnerships. The Company is a qualified
real estate investment trust ("REIT"), which began operations in
1993.
The financial statements reflect all adjustments that are of a
normal recurring nature, and in the opinion of management, are
necessary to properly state the results of operations and
financial position. Certain information and footnote disclosures
normally included in financial statements prepared in accordance
with accounting principles generally accepted in the United
States of America have been condensed or omitted although
management believes that the disclosures are adequate to make the
information presented not misleading. The financial statements
should be read in conjunction with the financial statements and
notes thereto included in the Company's December 31, 2003 Form
10-K filed with the Securities and Exchange Commission.
(b) Revenues
The Company leases space to tenants under agreements with varying
terms. Leases are accounted for as operating leases with minimum
rent recognized on a straight-line basis over the term of the
lease regardless of when payments are due. Accrued rents are
included in tenant receivables.
Substantially all of the lease agreements contain provisions that
grant additional rents based on tenants' sales volume (contingent
or percentage rent) and reimbursement of the tenants' share of
real estate taxes and certain common area maintenance ("CAM")
costs. Percentage rents are recognized when the tenants achieve
the specified targets as defined in their lease agreements.
Recovery of real estate taxes and CAM costs are recognized as the
respective costs are incurred in accordance with their lease
agreements.
The Company accounts for profit recognition on sales of real
estate in accordance with Financial Accounting Standards Board
("FASB") Statement No. 66, "Accounting for Sales of Real Estate."
In summary, profits from sales will not be recognized by the
Company unless a sale has been consummated; the buyer's initial
and continuing investment is adequate to demonstrate a commitment
to pay for the property; the Company has transferred to the buyer
the usual risks and rewards of ownership; and the Company does
not have substantial continuing involvement with the property.
5
Regency Centers Corporation
Notes to Consolidated Financial Statements
March 31, 2004
(b) Revenues (continued)
The Company has been engaged by joint ventures to provide asset
and property management services for their shopping centers. The
fees are market based and generally calculated as a percentage of
revenues earned and the estimated values of the properties and
recognized as services are provided.
(c) Real Estate Investments
Land, buildings and improvements are recorded at cost. All direct
and indirect costs related to development activities are
capitalized. Included in these costs are interest and real estate
taxes incurred during construction as well as estimates for the
portion of internal costs that are incremental, and deemed
directly or indirectly related to development activity.
Maintenance and repairs that do not improve or extend the useful
lives of the respective assets are reflected in operating and
maintenance expense. Depreciation is computed using the
straight-line method over estimated useful lives of up to 40
years for buildings and improvements, term of lease for tenant
improvements, and three to seven years for furniture and
equipment.
The Company allocates the purchase price of acquired properties
to land, buildings, and identifiable intangible assets based on
their respective fair values. Management uses various methods to
determine the fair value of acquired land and buildings,
including replacement cost, discounted cash flow analysis, and
comparable sales. Identifiable intangibles include amounts
allocated to acquired leases for rental rates that are above or
below market and the value of in-place leases. Intangibles
related to in place leases are amortized over the weighted
average life of the leases. Intangibles related to below market
rate leases are amortized to minimum rent over the remaining
terms of the underlying leases.
The Company follows the provisions of SFAS No. 144, "Accounting
for the Impairment or Disposal of Long-Lived Assets" ("Statement
144"). In accordance with Statement 144, operating properties
held for sale includes only those properties available for
immediate sale in their present condition and for which
management believes it is probable that a sale of the property
will be completed within one year. Operating properties held for
sale are carried at the lower of cost or fair value less costs to
sell. Depreciation and amortization are suspended during the held
for sale period.
The Company reviews its real estate portfolio for impairment
whenever events or changes in circumstances indicate that the
carrying amount may not be recoverable. Regency determines
whether impairment has occurred by comparing the property's
carrying value to an estimate of the future undiscounted cash
flows. In the event impairment exists, assets are adjusted to
fair value, for held and used assets, and fair value less costs
to sell, for held for sale assets.
The Company's properties generally have operations and cash flows
that can be clearly distinguished from the rest of the Company.
In accordance with Statement 144, the operations and gains on
sales reported in discontinued operations include those operating
properties and properties in development that have been sold and
for which operations and cash flows can be clearly distinguished.
6
Regency Centers Corporation
Notes to Consolidated Financial Statements
March 31, 2004
(c) Real Estate Investments (continued)
The operations from these properties have been eliminated from
ongoing operations and the Company will not have continuing
involvement after disposition. Prior periods have been restated
to reflect the operations of these properties as discontinued
operations. The operations and gains on sales of operating
properties sold to real estate partnerships in which the Company
has some continuing involvement are included in income from
continuing operations.
(d) Deferred Costs
Deferred costs include deferred leasing costs and deferred loan
costs, net of amortization. Such costs are amortized over the
periods through lease expiration or loan maturity. Deferred
leasing costs consist of internal and external commissions
associated with leasing the Company's shopping centers. Net
deferred leasing costs were $28.2 million and $28.0 million at
March 31, 2004 and December 31, 2003, respectively. Deferred loan
costs consist of initial direct and incremental costs associated
with financing activities. Net deferred loan costs were $9.8
million and $7.8 million at March 31, 2004 and December 31, 2003,
respectively.
(e) Earnings per Share and Treasury Stock
Basic net income per share of common stock is computed based upon
the weighted average number of common shares outstanding during
the year. Diluted net income per share also includes common share
equivalents for stock options and exchangeable operating
partnership units. See note 8 for the calculation of earnings per
share.
Repurchases of the Company's common stock (net of shares retired)
are recorded at cost and are reflected as Treasury stock in the
consolidated statement of stockholders' equity. Outstanding
shares do not include treasury shares.
(f) Stock-Based Compensation
The Company follows the provisions of SFAS No. 148, "Accounting
for Stock-Based Compensation - Transition and Disclosure"
("Statement 148"). Statement 148 provides alternative methods of
transition for a voluntary change to the fair value based method
of accounting for stock-based employee compensation. In addition,
Statement 148 amends the disclosure requirements of Statement No.
123, "Accounting for Stock-Based Compensation" ("Statement 123"),
to require more prominent and frequent disclosures in financial
statements about the effects of stock-based compensation. As
permitted under Statement 123 and Statement 148, the Company will
continue to follow the accounting guidelines pursuant to
Accounting Principles Board Opinion No. 25, "Accounting for Stock
Issued to Employees" ("Opinion 25"), for stock-based compensation
and to furnish the pro forma disclosures as required under
Statement 148.
7
Regency Centers Corporation
Notes to Consolidated Financial Statements
March 31, 2004
(f) Stock-Based Compensation (continued)
The Company applies Opinion 25 in accounting for its plan, and
accordingly, no compensation cost has been recognized for its
stock options in the consolidated financial statements. Had the
Company determined compensation cost based on the fair value at
the grant date for its stock options under Statement 123, the
Company's net income for common stockholders for the three months
ended March 31, 2004 and 2003 would have been reduced to the pro
forma amounts indicated below (in thousands except per share
data):
2004 2003
---- ----
Net income for common stockholders
as reported: $ 21,420 17,924
Add: stock-based employee compensation
expense included in reported net income 3,548 2,869
Deduct: total stock-based employee
compensation expense determined under
fair value based methods for all awards 4,729 4,094
-------------- -------------
Pro forma net income $ 20,239 16,699
============== =============
Earnings per share:
Basic - as reported $ 0.36 0.30
============== =============
Basic - pro forma $ 0.34 0.28
============== =============
Diluted - as reported $ 0.35 0.30
============== =============
Diluted - pro forma $ 0.33 0.28
============== =============
(g) Consolidation of Variable Interest Entities
In December 2003, the FASB issued Interpretation No. 46 ("FIN
46") (revised December 2003 ("FIN 46R")), "Consolidation of
Variable Interest Entities", which addresses how a business
enterprise should evaluate whether it has controlling financial
interest in an entity through means other than voting rights and
accordingly should consolidate the entity. FIN 46R replaces FIN
46, which was issued in January 2003. FIN 46R is applicable
immediately to a variable interest entity created after January
31, 2003 and as of the first interim period ending after March
15, 2004 to those variable interest entities created before
February 1, 2003 and not already consolidated under FIN 46 in
previously issued financial statements. The Company did not
create any variable interest entities after January 31, 2003. The
Company has adopted FIN 46R, analyzed the applicability of this
interpretation to its structures and determined that they are not
party to any variable interest entities that should be
consolidated.
8
Regency Centers Corporation
Notes to Consolidated Financial Statements
March 31, 2004
(h) Segment Reporting
The Company's business is investing in retail shopping centers
through direct ownership or through joint ventures. The Company
actively manages its portfolio of retail shopping centers and may
from time to time make decisions to sell lower performing
properties, or developments not meeting its long-term investment
objectives. The proceeds of sales are invested into higher
quality retail shopping centers through acquisitions or new
developments, which management believes will meet its planned
rate of return. It is management's intent that all retail
shopping centers will be owned or developed for investment
purposes. The Company's revenue and net income are generated from
the operation of its investment portfolio. The Company will also
earn incidental fees from third parties for services provided to
manage and lease retail shopping centers owned through joint
ventures.
The Company's portfolio is located throughout the United States;
however, management does not distinguish or group its operations
on a geographical basis for purposes of allocating resources or
measuring performance. The Company reviews operating and
financial data for each property on an individual basis,
therefore, the Company defines an operating segment as its
individual properties. No individual property constitutes more
than 10% of the Company's combined revenue, net income or assets,
and thus the individual properties have been aggregated into one
reportable segment based upon their similarities with regard to
both the nature of the centers, tenants and operational
processes, as well as long-term average financial performance. In
addition, no single tenant accounts for 10% or more of revenue
and none of the shopping centers are located outside the United
States.
(i) Derivative Financial Instruments
The Company adopted SFAS No. 133 "Accounting for Derivative
Instruments and Hedging Activities" as amended ("Statement 133"),
on January 1, 2001. Statement 133 requires that all derivative
instruments be recorded on the balance sheet at their fair value.
Gains or losses resulting from changes in the values of those
derivatives would be accounted for depending on the use of the
derivative and whether it qualifies for hedge accounting. The
Company uses derivative financial instruments such as interest
rate swaps to mitigate its interest rate risk on a related
financial instrument. Statement 133 requires that changes in fair
value of derivatives that qualify as cash flow hedges be
recognized in other comprehensive income (loss) while the
ineffective portion of the derivative's change in fair value be
recognized immediately in earnings. Upon the settlement of a
hedge, gains and losses associated with the transaction will be
recorded in other comprehensive income (loss) and amortized
over the underlying term of the hedge transaction.
To determine the fair value of derivative instruments, the
Company uses standard market conventions and techniques such as
discounted cash flow analysis, option pricing models and
termination costs at each balance sheet date. All methods of
assessing fair value result in a general approximation of value,
and such value may never actually be realized.
9
Regency Centers Corporation
Notes to Consolidated Financial Statements
March 31, 2004
(j) Financial Instruments with Characteristics of Both Liabilities
and Equity
In May 2003, the FASB issued Statement of Accounting Standards
No. 150, "Accounting for Certain Financial Instruments with
Characteristics of both Liabilities and Equity" ("Statement
150"). Statement 150 affects the accounting for certain financial
instruments, including requiring companies having consolidated
entities with specified termination dates to treat minority
owners' interests in such entities as liabilities in an amount
based on the fair value of the entities. Although Statement 150
was originally effective July 1, 2003, the FASB has indefinitely
deferred certain provisions related to classification and
measurement requirements for mandatorily redeemable financial
instruments that become subject to Statement 150 solely as a
result of consolidation including minority interests of entities
with specified termination dates. As a result, Statement 150 has
no impact on the Company's consolidated statements of operations
for the three months ended March 31, 2004.
At March 31, 2004, the Company held a majority interest in four
consolidated entities with specified termination dates ranging
from 2012 to 2049. The minority owners' interests in these
entities are to be settled upon termination by distribution of
either cash or specific assets of the underlying entities. The
estimated fair value of minority interests in entities with
specified termination dates was approximately $5.2 million at
March 31, 2004 as compared to the carrying value of $2.4 million.
The Company has no other financial instruments that are affected
by Statement 150.
(k) Reclassifications
Certain reclassifications have been made to the 2003 amounts to
conform to classifications adopted in 2004.
2. Discontinued Operations
During the three months ended March 31, 2004, the Company sold 100% of
its interest in three operating properties for net proceeds of $21.3
million and the combined operating income and gain of $331,998 on these
sales are included in discontinued operations. The revenues from
properties included in discontinued operations, including properties
sold in 2004 and 2003, as well as operating properties held for sale,
were $775,863 and $3.9 million for the three months ended March 31,
2004 and 2003, respectively. The operating income from these properties
was $320,241 and $1.8 million for the three months ended March 31, 2004
and 2003, respectively. Operating income and gains on sales included in
discontinued operations are shown net of minority interest of
exchangeable operating partnership units totaling $5,604 and $27,932
for the three months ended March 31, 2004 and 2003, respectively.
10
Regency Centers Corporation
Notes to Consolidated Financial Statements
March 31, 2004
3. Real Estate Investments
The Company accounts for all investments in which it owns 50% or less
and does not have a controlling financial interest using the equity
method. The Company's combined investment in these partnerships was
$101.4 million and $140.5 million at March 31, 2004 and December 31,
2003, respectively. Net income, which includes all operating results,
as well as gains and losses on sales of properties within the joint
ventures, is allocated to the Company in accordance with the respective
partnership agreements. Such allocations of net income are recorded in
equity in income of investments in real estate partnerships in the
accompanying consolidated statements of operations.
The Company has a 25% equity interest in Macquarie CountryWide-Regency,
LLC ("MCWR"), a joint venture with an affiliate of Macquarie
CountryWide Trust of Australia, a Sydney, Australia-based property
trust focused on investing in grocery-anchored shopping centers. At
March 31, 2004, the Company held a note receivable from MCWR with a
balance of $15.5 million for the acquisition of shopping centers during
the fourth quarter of 2003. The note receivable has an interest rate of
LIBOR plus 1.5% and was repaid in full on April 16, 2004.
The Company also has a 20% equity interest in Columbia Regency Retail
Partners, LLC ("Columbia"), a joint venture with the Oregon State
Treasury that was formed for the purpose of investing in retail
shopping centers.
Recognition of gains from sales to joint ventures is recorded on only
that portion of the sales not attributable to the Company's ownership
interest. The gains and operations are not recorded as discontinued
operations because of Regency's continuing involvement in these
shopping centers. Columbia and MCWR intend to continue to acquire
retail shopping centers, some of which they may acquire directly from
the Company. For those properties acquired from third parties, the
Company is required to contribute its pro-rata share of the purchase
price to the partnership.
With the exception of Columbia and MCWR, both of which intend to
continue expanding their investment in shopping centers, the
investments in real estate partnerships represent single asset entities
formed for the purpose of developing or owning retail based commercial
real estate.
In March 2004, the two properties in the OTR/Regency Texas Realty
Holdings, L.P., an unconsolidated joint venture in which Regency
has a 30% interest, were sold to an outside party for $28.3 million
resulting in gain of $8.2 million. The Company received $17.2 million
representing $12.9 million for loan repayments and a $4.3 distribution
for the Company's 30% interest. The Company recognized a $1.2 million
gain in the equity in income of investments in real estate partnerships
in the accompanying consolidated statements of operations.
11
Regency Centers Corporation
Notes to Consolidated Financial Statements
March 31, 2004
3. Real Estate Investments (continued)
The Company's investments in real estate partnerships as of March 31,
2004 and December 31, 2003 consist of the following (in thousands):
Ownership 2004 2003
--------- ---- ----
Columbia Regency Retail Partners, LLC 20% $ 38,747 40,267
Macquarie CountryWide-Regency, LLC 25% 38,167 39,071
Other investments in real estate partnerships 27% - 50% 24,490 61,158
--------------- -------------
$ 101,404 140,496
=============== =============
Summarized financial information for the unconsolidated investments on
a combined basis, is as follows (in thousands):
March 31, December 31,
2004 2003
---- ----
Balance Sheet:
Investment in real estate, net $ 691,156 727,530
Acquired lease intangibles, net 43,725 45,252
Other assets 32,220 39,408
-------------------- --------------------
Total assets $ 767,101 812,190
==================== ====================
Notes payable $ 328,051 322,238
Other liabilities 12,946 14,102
Equity and partners' capital 426,104 475,850
-------------------- --------------------
Total liabilities and equity $ 767,101 812,190
==================== ====================
Unconsolidated partnerships and joint ventures had notes payable of
$328.1 million at March 31, 2004 and the Company's proportionate share
of these loans was $78.5 million. The Company does not guarantee any
debt of these partnerships beyond their ownership percentage.
The revenues and expenses on a combined basis are summarized as follows
for the three months ended March 31, 2004 and 2003 (in thousands):
2004 2003
---- ----
Statement of Operations:
Total revenues $ 22,463 16,269
Gain on sale of operating properties 8,211 676
Total expenses 16,007 10,268
---------------- ---------------
Net income $ 14,667 6,677
================ ===============
12
Regency Centers Corporation
Notes to Consolidated Financial Statements
March 31, 2004
4. Acquired Lease Intangibles
Effective July 1, 2001, the Company adopted FAS 141, "Business
Combinations", to account for the acquisition of shopping centers that
are considered businesses. In accordance with FAS 141, identifiable
intangible assets are valued and recorded at the acquisition date. Such
intangibles include the value of in-place leases and above or
below-market leases.
Acquired lease intangible assets are net of accumulated amortization of
$846,592 and $405,327 at March 31, 2004 and December 31, 2003,
respectively. These assets have a weighted average amortization period
of seven years. The aggregate amortization expense from acquired leases
was $441,265 and $28,712 for the three months ended March 31, 2004 and
2003, respectively. Acquired lease intangible liabilities are net of
previously accreted minimum rent of $1.2 million and $953,964 at March
31, 2004 and December 31, 2003, respectively and have a weighted
average amortization period of seven years.
5. Notes Payable and Unsecured Line of Credit
The Company's outstanding debt at March 31, 2004 and December 31, 2003
consists of the following (in thousands):
2004 2003
---- ----
Notes Payable:
Fixed rate mortgage loans $ 210,797 217,001
Variable rate mortgage loans 41,589 41,629
Fixed rate unsecured loans 999,191 999,147
--------------- ---------------
Total notes payable 1,251,577 1,257,777
Unsecured line of credit 230,000 195,000
--------------- ---------------
Total $ 1,481,577 1,452,777
=============== ===============
On April 1, 2004, RCLP completed the sale of $150 million of ten-year
senior unsecured notes. The 4.95% notes are due April 15, 2014 and were
priced at 99.747% to yield 4.982%. The proceeds of the offering were
used to partially repay the $200 million of 7.4% notes maturing on
April 1, 2004 and the remaining balance due was funded from the
unsecured line of credit. As a result of two forward-starting interest
rate swaps initiated in 2003 totaling $144.2 million, the effective
interest rate is 5.47%. On March 31, 2004, the interest rate swaps were
settled for $5.7 million, which is recorded in other comprehensive loss
and will be amortized over ten years to interest expense. The swaps
qualify for hedge accounting under Statement 133; therefore, the change
in fair value was recorded through other comprehensive loss.
On March 26, 2004, the Company closed on the amended and restated
unsecured revolving line of credit (the "Line"). Under the new
agreement, the Line was reduced from $600 million to $500 million. The
Line has a three-year term with a one-year extension option at an
interest rate of LIBOR plus .75% which is a reduction of 10 basis
points from the prior agreement. The current balance on the Line is
$230 million. Interest rates paid on the Line, which were based on
LIBOR plus .85%, were 1.975% on March 31, 2004 and December 31, 2003.
The spread paid on the Line is dependent upon the Company maintaining
specific investment-grade ratings. The Company is also required to
comply, and is in compliance, with certain financial covenants such as
Minimum Net Worth, Total Liabilities to Gross Asset Value ("GAV") and
Secured Indebtedness to GAV and other covenants customary with this
type of unsecured financing. The Line is used primarily to finance the
development of real estate, but is also available for general working
capital purposes.
13
Regency Centers Corporation
Notes to Consolidated Financial Statements
March 31, 2004
5. Notes Payable and Unsecured Line of Credit (continued)
Mortgage loans are secured by certain real estate properties and may be
prepaid, but could be subject to a yield-maintenance premium. Mortgage
loans are generally due in monthly installments of interest and
principal and mature over various terms through 2023. Variable interest
rates on mortgage loans are currently based on LIBOR plus a spread in a
range of 125 to 150 basis points. Fixed interest rates on mortgage
loans range from 5.65% to 9.50%.
The fair value of the Company's notes payable and Line are estimated
based on the current rates available to the Company for debt of the
same remaining maturities. Variable rate notes payable and the Line are
considered to be at fair value, since the interest rates on such
instruments reprice based on current market conditions. Fixed rate
loans assumed in connection with real estate acquisitions are recorded
in the accompanying financial statements at fair value. Based on the
borrowing rates currently available to the Company for loans with
similar terms and average maturities, the fair value of long-term debt
is $1.5 billion.
As of March 31, 2004, scheduled principal repayments on notes payable
and the Line were as follows (in thousands):
Scheduled
Principal Term Loan Total
Scheduled Payments by Year Payments Maturities Payments
-------------------------- -------------- --------------- ---------------
Current year $ 3,612 224,485 228,097
2005 3,698 168,538 172,236
2006 3,397 21,126 24,523
2007 (includes the Line) 2,891 255,852 258,743
2008 2,697 19,619 22,316
2009 2,657 53,090 55,747
Beyond 5 Years 17,817 697,143 714,960
Unamortized debt premiums - 4,955 4,955
----------- --------------- ---------------
Total $ 36,769 1,444,808 1,481,577
=========== =============== ===============
6. Derivative Financial Instruments
The Company is exposed to capital market risk, such as changes in
interest rates. In order to manage the volatility relating to interest
rate risk, the Company may enter into interest rate hedging
arrangements from time to time. The Company does not utilize derivative
financial instruments for trading or speculative purposes.
During 2003, the Company entered into two forward-starting interest
rate swaps of $96.5 million and $47.7 million. The Company designated
the $144.2 million swaps as cash flow hedges to fix the rate on a
refinancing in April 2004. On March 31, 2004, the Company settled the
swaps with a payment to the counter-party for $5.7 million. The swaps
qualify for hedge accounting under Statement 133, therefore the losses
associated with the swaps have been included in accumulated other
comprehensive loss since the settlement date. These amounts will
be included as an adjustment to interest expense as interest is
incurred on the $150 million of ten-year unsecured notes sold April 1,
2004.
14
Regency Centers Corporation
Notes to Consolidated Financial Statements
March 31, 2004
7. Stockholders' Equity and Minority Interest
(a) The Company, through RCLP, has issued Cumulative Redeemable
Preferred Units ("Preferred Units") in various amounts since 1998.
The issues were sold primarily to institutional investors in
private placements for $100 per unit. The Preferred Units, which
may be called by RCLP at par after certain dates, have no stated
maturity or mandatory redemption, and pay a cumulative, quarterly
dividend at fixed rates. At any time after ten years from the date
of issuance, the Preferred Units may be exchanged by the holder for
Cumulative Redeemable Preferred Stock ("Preferred Stock") at an
exchange rate of one share for one unit. The Preferred Units and
the related Preferred Stock are not convertible into common stock
of the Company. At March 31, 2004 and December 31, 2003, the face
value of total Preferred Units issued was $229 million with an
average fixed distribution rate of 8.88%.
Terms and conditions of the Preferred Units outstanding as of
March 31, 2004 are summarized as follows:
Units Issue Amount Distribution Callable Exchangeable
Series Outstanding Price Outstanding Rate by Company by Unitholder
- ---------------------------------------------------------------------------------------------------------------------------
Series B 850,000 100.00 85,000,000 8.750% 09/03/04 09/03/09
Series C 400,000 100.00 40,000,000 9.000% 09/03/04 09/03/09
Series D 500,000 100.00 50,000,000 9.125% 09/29/04 09/29/09
Series E 300,000 100.00 30,000,000 8.750% 05/25/05 05/25/10
Series F 240,000 100.00 24,000,000 8.750% 09/08/05 09/08/10
--------------
------------
2,290,000 $ 229,000,000
============ ==============
15
Regency Centers Corporation
Notes to Consolidated Financial Statements
March 31, 2004
8. Earnings per Share
The following summarizes the calculation of basic and diluted earnings
per share for the three months ended March 31, 2004 and 2003,
respectively (in thousands except per share data):
2004 2003
---- ----
Numerator:
- ---------
Income from continuing operations 22,485 16,798
Discontinued operations $ 332 1,126
-------------- --------------
Net income 22,817 17,924
Less: Preferred stock dividends 1,397 -
-------------- --------------
Net income for common stockholders - basic 21,420 17,924
Add: Minority interest of exchangeable operating
partnership units - continuing operations 380 409
Add: Minority interest of exchangeable operating
partnership units - discontinued operations 6 28
-------------- --------------
Net income for common stockholders - diluted $ 21,806 18,361
============== ==============
Denominator:
- -----------
Weighted average common shares outstanding for basis EPS 60,142 60,164
Exchangeable operating partnership units 1,152 1,497
Incremental shares to be issued under common
stock options using the Treasury method 347 437
-------------- --------------
Weighted average common shares outstanding for diluted EPS 61,641 62,098
============== ==============
Income per common share - basic
- -------------------------------
Income from continuing operations $ 0.35 0.28
Discontinued operations 0.01 0.02
-------------- --------------
Net income for common stockholders per share $ 0.36 0.30
============== ==============
Income per common share - diluted
- ---------------------------------
Income from continuing operations $ 0.34 0.28
Discontinued operations 0.01 0.02
-------------- --------------
Net income for common stockholders per share $ 0.35 0.30
============== ==============
9. Contingencies
The Company is involved in litigation on a number of matters and is
subject to certain claims which arise in the normal course of business,
none of which, in the opinion of management, is expected to have a
material adverse effect on the Company's consolidated financial
position, results of operations or liquidity.
16
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations
In addition to historical information, the following information
contains forward-looking statements as defined under federal securities laws.
These statements are based on current expectations, estimates and projections
about the industry and markets in which Regency operates, and managements'
beliefs and assumptions. Forward-looking statements are not guarantees of future
performance and involve certain known and unknown risks and uncertainties that
could cause actual results to differ materially from those expressed or implied
by such statements. Such risks and uncertainties include, but are not limited
to, changes in national and local economic conditions; financial difficulties of
tenants; competitive market conditions, including pricing of acquisitions and
sales of properties and out-parcels; changes in expected leasing activity and
market rents; timing of acquisitions, development starts and sales of properties
and out-parcels; weather; the ability to obtain governmental approvals; and
meeting development schedules. The following discussion should be read in
conjunction with the accompanying Consolidated Financial Statements and Notes
thereto of Regency Centers Corporation ("Regency" or "Company") appearing
elsewhere within.
Introduction and Strategic Overview
- -----------------------------------
Regency is a qualified real estate investment trust ("REIT"), which
began operations in 1993. Our primary operating and investment goal is long-term
growth in earnings per share and total shareholder return by focusing on a
strategy of owning and operating grocery anchored shopping centers that are
anchored by market-leading supermarkets, and that are located in areas with
attractive demographics.
Currently, our real estate investments before depreciation total $3.2
billion with 260 shopping centers in 21 states. At March 31, 2004, our gross
leasable area ("GLA") totaled 29.8 million square feet and was 92.8% leased.
Geographically, 20.1% of our GLA is located in Florida, 19.8% in California,
15.9% in Texas, 6.7% in Georgia, 6.4% in Ohio, and 31.1% spread throughout 16
other states. We own and operate our shopping centers through our operating
partnership, Regency Centers, L.P. ("RCLP"), in which we currently own 98% of
the operating partnership units. Regency's operating, investing and financing
activities are generally performed by RCLP.
We earn revenues and generate operating cash flow by leasing space to
grocers and retail side-shop tenants in our shopping centers. We experience
growth in revenues by increasing occupancy and rental rates at currently owned
shopping centers, and by developing new shopping centers. A neighborhood center
is a convenient, cost-effective distribution platform for food retailers.
Grocery anchored centers generate substantial daily traffic and offer
sustainable competitive advantages to their tenants. This high traffic generates
increased sales, thereby driving higher occupancy, rental rates and rental-rate
growth for Regency, which we expect to sustain our growth in earnings per share
and increase the value of our portfolio over the long term.
We seek a range of strong national, regional and local specialty
tenants, for the same reason that we choose to anchor our centers with leading
grocers. We have created a formal partnering process -- the Premier Customer
Initiative ("PCI") -- to promote mutually beneficial relationships with our
non-grocer specialty retailers. The objective of PCI is for Regency to build a
base of specialty tenants who represent the "best-in-class" operators in their
respective merchandising categories. Such tenants reinforce the consumer appeal
and other strengths of a center's grocery anchor, help to stabilize a center's
occupancy, reduce re-leasing downtime, reduce tenant turnover and yield higher
sustainable rents.
We primarily grow our shopping center portfolio through new shopping
center development, where we acquire the land and construct the building.
Development is customer-driven, meaning we generally have an executed lease from
the anchor before we start construction. Developments serve the growth needs of
our grocery and specialty retail customers, result in modern shopping centers
with long-term leases from the grocery anchors and produce attractive returns on
our invested capital. This development process can require up to 36 months from
initial land or redevelopment acquisition through construction, lease-up and
stabilization of rental income, depending upon the size of the project.
17
Generally, anchor tenants begin operating their stores prior to construction
completion of the entire center, resulting in rental income during the
development phase.
We intend to maintain a conservative capital structure to fund our
growth programs without compromising our investment-grade ratings. Our approach
is founded on our self-funding business model. This model utilizes center
"recycling" as a key component. Our recycling strategy calls for us to re-deploy
the proceeds from the sales of properties into new higher quality developments
that we expect to generate sustainable revenue growth and more attractive
returns on invested capital. Our commitment to maintaining a high-quality
shopping center portfolio dictates that we continually assess the value of all
of our properties and sell those that no longer meet our long-term investment
standards.
Joint venturing of shopping centers also provides us with a capital
source for new development, as well as the opportunity to earn fees for asset
and property management services. As asset manager, we are engaged by our
partners to apply similar operating, investment, and capital strategies to the
portfolios owned by the joint ventures. Joint ventures grow their shopping
center investments through acquisitions from third parties or direct purchases
of shopping centers from Regency. Although selling properties to joint ventures
reduces our ownership interest, we continue to share in the risks and rewards of
centers that meet our long-term investment strategy. Regency is not subject to
liability and has no obligations or guarantees of the joint ventures beyond its
ownership percentage.
We have identified certain significant risks and challenges affecting
our industry, and we are addressing them accordingly. A further economic
downturn could result in declines in occupancy levels at our shopping centers,
which would reduce our rental revenues; however, we believe that our investment
focus on grocery anchored shopping centers that provide daily necessities will
minimize the impact of a downturn in the economy. Increased competition from
super-centers such as Wal-Mart could result in grocery anchor closings or
consolidations in the grocery store industry. We currently have 29 shopping
centers, less than 15% of our portfolio, that operate within three miles of a
super-center and we closely monitor their performance and tenants' sales. A slow
down in our shopping center development program would reduce operating revenues
and gains from sales. We believe that developing shopping centers in markets
with strong demographics with leading grocery stores will enable us to continue
to maintain our development program at historical averages.
Shopping Center Portfolio
- -------------------------
The following table summarizes general operating statistics related to
our shopping center portfolio, including properties partially owned in joint
ventures, that we use to evaluate and monitor our performance:
3/31/04 12/31/03
------- --------
Number of Properties 260 265
Properties in Development 33 36
Gross Leaseable Area (GLA) 29,761,376 30,347,744
Percent Leased - All Properties 92.8% 92.2%
Percent Leased - Non development 95.4% 95.4%
Same Property Growth Rate 2.3% 2.7%
Lease Renewal Rate 81% 75%
Base Rent Growth on Re-Leasing 8.5% 9.5%
18
A list of our shopping centers summarized by state and in order of
largest holdings follows, including those properties that we partially own in
joint ventures:
March 31, 2004 December 31, 2003
-------------- -----------------
Location # Properties GLA % Leased # Properties GLA % Leased
-------- ------------ --- -------- ------------ --- --------
Florida 50 5,969,835 94.9% 50 5,943,345 94.3%
California 47 5,885,932 93.1% 49 5,917,372 90.8%
Texas 38 4,719,882 87.4% 41 5,086,086 88.1%
Georgia 20 2,008,066 95.4% 20 2,008,066 95.8%
Ohio 14 1,901,538 89.7% 14 1,901,538 90.6%
Colorado 15 1,623,654 95.7% 14 1,623,674 94.2%
Virginia 10 1,272,244 90.0% 10 1,272,369 89.1%
North Carolina 10 1,054,561 97.7% 10 1,050,061 98.7%
Washington 10 1,047,532 94.5% 9 1,020,470 96.4%
Oregon 8 838,715 92.2% 8 838,715 92.2%
Arizona 7 653,000 93.2% 7 652,906 91.5%
Tennessee 6 444,234 96.5% 6 444,234 96.5%
Illinois 3 408,211 96.3% 3 408,211 97.0%
Alabama 5 380,607 84.7% 6 543,330 85.5%
Michigan 4 368,260 88.4% 4 368,260 87.2%
South Carolina 5 339,926 96.0% 5 339,926 95.7%
Kentucky 3 321,525 98.3% 3 323,029 97.8%
Delaware 2 240,418 99.4% 2 240,418 99.5%
Maryland 1 188,243 91.5% 1 188,243 90.2%
New Jersey 1 88,993 93.9% 1 88,993 89.4%
Pennsylvania 1 6,000 100.0% 1 6,000 100.0%
Missouri - - - 1 82,498 91.5%
---------------------------------------------------------------------------------------------------
Total 260 29,761,376 92.8% 265 30,347,744 92.2%
===================================================================================================
The following summarizes the four largest grocery tenants occupying
our shopping centers, including those partially owned through joint ventures at
March 31, 2004:
Percentage of Percentage of
Grocery Number of Company-owned Annualized
Anchor Stores (a) GLA (b) Base Rent (b)
------ ---------- ------------- -------------
Kroger 58 11.1% 8.1%
Publix 53 8.2% 5.1%
Safeway 48 6.2% 4.8%
Albertsons 23 2.9% 2.2%
(a) Includes stores owned by the grocery anchor that are attached to
our centers.
(b) GLA includes 100% of the GLA in unconsolidated joint ventures.
Annualized base rent includes only Regency's pro-rata share of
rent from unconsolidated joint ventures.
Liquidity and Capital Resource
- ------------------------------
General
- -------
We expect that cash generated from revenues will provide the necessary
funds on a short-term basis to pay our operating expenses, interest expense,
scheduled principal payments on outstanding indebtedness, recurring capital
expenditures necessary to maintain our shopping centers properly, and
distributions to stock and unit holders. Net cash provided by operating
activities was $37.9 million and $34.0 million for the three months ended March
31, 2004 and 2003, respectively. During the three months ended March 31, 2004
and 2003, we incurred capital expenditures of $1.4 million and $2.6 million to
19
maintain our shopping centers, paid scheduled principal payments of $1.5 million
and $1.5 million to our lenders, and paid dividends and distributions of $38.9
million and $40.2 million to our share and unit holders, respectively.
Although base rent is supported by long-term lease contracts, tenants
who file bankruptcy are able to cancel their leases and close the related
stores. In the event that a tenant with a significant number of leases in our
shopping centers files bankruptcy and cancels its leases, we could experience a
significant reduction in our revenues. We are not currently aware of any current
or pending bankruptcy of any of our tenants that would cause a significant
reduction in our revenues, and no tenant represents more than 10% of our annual
base rental revenues.
We expect to meet long-term capital requirements for maturing preferred
units and debt, the acquisition of real estate, and the renovation or
development of shopping centers from: (i) residual cash generated from operating
activities after the payments described above, (ii) proceeds from the sale of
real estate, (iii) joint venturing of real estate, (iv) refinancing of debt, and
(v) equity raised in the private or public markets. We currently have $325
million available for equity securities under our shelf registration and RCLP
has $185 million available for debt under their shelf registration.
Additionally, we have the right to call and repay, at par, outstanding preferred
units five years after their issuance date, at our discretion.
We intend to continue to grow our portfolio through new development and
acquisitions, either directly or through our joint venture relationships.
Because development and acquisition activities are discretionary in nature, they
are not expected to burden the capital resources we have currently available for
liquidity requirements. Capital necessary to complete developments-in-process
are funded from our line of credit. Regency expects that cash provided by
operating activities, unused amounts available under our line of credit and cash
reserves are adequate to meet short-term and committed long-term liquidity
requirements.
Shopping Center Development, Acquisitions and Sales
- ---------------------------------------------------
At March 31, 2004, we had 33 projects under construction or undergoing
major renovations, which, when completed, will represent an expected investment
of $613.7 million before the estimated reimbursement of certain tenant-related
costs and projected sales proceeds from adjacent land and out-parcels of $127.6
million. Costs necessary to complete these developments will be $241.7 million,
are generally already committed as part of existing construction contracts, and
will be expended through 2006. These developments are approximately 61% complete
and 78% pre-leased. The costs necessary to complete these developments will be
funded from our line of credit which has a commitment amount of $500 million and
a balance of $230.0 million at March 31, 2004. In the first quarter of 2004, we
started one new development of $4.9 million based on total costs that we expect
to expend through completion.
At March 31, 2004, we sold three retail centers to third parties for
$27.0 million, compared with three retail centers sold for $14.0 million during
the first quarter of 2003 as part of our asset recycling program. Of the centers
sold in 2004, all three were operating during 2004 and are included in
discontinued operations in our accompanying consolidated statements of
operations. The three centers sold during the first quarter of 2003 were
operating and are included in discontinued operations. We have land out-parcels
adjacent to our shopping centers that we routinely develop, lease, or sell. At
March 31, 2004 and 2003, sales related to out-parcels were $10.0 million and
$19.1 million, respectively.
Investments in new developments and acquisitions, and proceeds from the
sale of properties to third parties or partial sales to joint ventures are
included in investing activities in the accompanying consolidated statements of
cash flows. Net cash used in investing activities was $18.4 million and $44.0
million for the three months ended March 31, 2004 and 2003, respectively.
20
Investments in Real Estate Partnerships
---------------------------------------
At March 31, 2004, we had investments in real estate partnerships of
$101.4 million, primarily comprised of two partnerships, a 20% investment
interest in Columbia Regency Retail Partners, LLC ("Columbia"), a joint
venture with the Oregon State Treasury, and a 25% investment interest in
Macquarie CountryWide-Regency, LLC ("MCWR"), a joint venture with an affiliate
of Macquarie CountryWide Trust of Australia, a Sydney, Australia-based
property trust. The purpose of these partnerships is to invest in retail
shopping centers, and we have been engaged by our partners to provide asset
and property management services.
The following is a summary of unconsolidated combined assets and
liabilities of these partnerships, and our pro-rata share at March 31, 2004
and December 31, 2003 ($ amounts in thousands):
2004 2003
---- ----
Number of Joint Ventures 7 8
Regency's Ownership 20%-50% 20%-50%
Number of Properties 44 46
Combined Assets $ 767,101 $ 812,190
Combined Liabilities 340,997 336,340
Combined Equity 426,104 475,850
Regency's Share of:
Assets $182,554 $239,801
Liabilities 81,150 99,305
Equity 101,404 140,496
At March 31, 2004 and 2003 total unconsolidated combined net income was
$14.7 million and $6.7 million, and our pro-rata share was $2.7 million and $2.3
million, respectively.
At March 31, 2004, Columbia owned 13 shopping centers and had total
assets of $291.8 million. At March 31, 2004, MCWR owned 26 shopping centers and
had total assets of $408.6 million. At March 31, 2004, we held a note receivable
from MCWR with a balance of $15.5 million for the acquisition of shopping
centers during the fourth quarter of 2003. The note receivable was repaid in
full on April 16, 2004.
The gain we recognize on the sales of our properties to Columbia and
MCWR is recorded on only the portion attributable to their ownership
percentage. The gains and operations are not recorded as discontinued operations
because of our continuing involvement in these shopping centers. Columbia and
MCWR intend to continue to acquire retail shopping centers, some of which they
may acquire directly from us. For those properties acquired from third parties,
we are required to contribute our pro-rata share of the purchase price to the
partnership.
In March 2004, the only two properties owned by the OTR/Regency Texas
Realty Holdings, L.P. were sold to a third party for $28.3 million resulting in
a gain of $8.2 million. We received $17.2 million and recognized our share of
the gain of $1.2 million in equity in income of investments and real estate
partnerships.
21
Debt and Equity
- ---------------
Outstanding debt at March 31, 2004 and December 31, 2003 consists of
the following (in thousands):
2004 2003
---- ----
Notes Payable:
Fixed-rate mortgage loans $ 210,797 217,001
Variable-rate mortgage loans 41,589 41,629
Fixed-rate unsecured loans 999,191 999,147
-------------- ---------------
Total notes payable 1,251,577 1,257,777
Unsecured line of credit 230,000 195,000
-------------- ---------------
Total $ 1,481,577 1,452,777
============== ===============
Mortgage loans are secured and may be prepaid, but could be subject to
yield maintenance premiums. Mortgage loans are generally due in monthly
installments of interest and principal, and mature over various terms through
2023. Variable interest rates on mortgage loans are currently based on LIBOR,
plus a spread in a range of 125 to 150 basis points. Fixed interest rates on
mortgage loans range from 5.65% to 9.5%.
On March 26, 2004, we entered into a new unsecured revolving line of
credit (the "Line"). Under the new agreement, we reduced the line commitment
from $600 million to $500 million, but have the right to expand the Line by an
additional $150 million subject to additional lender syndication. The new
facility has a three-year term, a one-year extension option at maturity, and an
interest rate of LIBOR plus .75% which is a reduction of 10 basis points from
the previous agreement. Interest rates paid on the Line, which were based on
LIBOR plus .85%, were 1.975% on March 31, 2004 and December 31, 2003. The spread
that we pay on the Line is dependent upon maintaining specific investment-grade
ratings. We are also required to comply, and are in compliance, with certain
financial covenants such as Minimum Net Worth, Total Liabilities to Gross Asset
Value ("GAV") and Secured Indebtedness to GAV and other covenants customary with
this type of unsecured financing. The Line is used primarily to finance the
development of real estate, but is also available for general working capital
purposes.
As of March 31, 2004, scheduled principal repayments on notes payable
and the Line were as follows (in thousands):
Scheduled
Principal Term-Loan Total
Scheduled Payments by Year Payments Maturities Payments
-------------------------- -------------- --------------- ---------------
Current year $ 3,612 224,485 228,097
2005 3,698 168,538 172,236
2006 3,397 21,126 24,523
2007 (includes the Line) 2,891 255,852 258,743
2008 2,697 19,619 22,316
2009 2,657 53,090 55,747
Beyond 5 Years 17,817 697,143 714,960
Unamortized debt premiums - 4,955 4,955
-------------- --------------- ---------------
Total $ 36,769 1,444,808 1,481,577
============== =============== ===============
Our investments in real estate partnerships had unconsolidated notes
and mortgage loans payable of $328.1 million at March 31, 2004, and our
proportionate share of these loans was $78.5 million. We do not guarantee any
debt of these partnerships beyond our ownership percentage.
We are exposed to capital market risk such as changes in interest
rates. In order to manage the volatility related to interest-rate risk, we
originate new debt with fixed interest rates, or we consider entering into
interest-rate hedging arrangements. At March 31, 2004, 82% of our total debt had
fixed
22
interest rates, compared with 84% at December 31, 2003. We intend to limit
the percentage of variable interest- rate debt to be no more than 30% of total
debt, which we believe to be an acceptable risk. Based upon the variable
interest-rate debt outstanding at March 31, 2004, if variable interest rates
were to increase by 1%, our annual interest expense would increase by $2.7
million. We do not utilize derivative financial instruments for trading or
speculative purposes. We account for derivative instruments under Statement of
Financial Accounting Standards No. 133, "Accounting for Derivative Instruments
and Hedging Activities" as amended ("Statement 133").
On April 1, 2004, we completed the sale of $150 million ten-year senior
unsecured notes (the "Notes"). The 4.95% Notes are due April 15, 2014 and were
priced at 99.747% to yield 4.982%. The proceeds of the offering combined with
borrowings from the Line were used to repay $200 million of 7.4% notes maturing
on April 1, 2004. Related to the offering, we settled two forward-starting
interest rate swaps that were initiated in 2003 totaling $144.2 million. Our
settlement payment of $5.7 million is recorded in other comprehensive loss
and will be amortized over the ten year term of the Notes into interest expense.
The swaps qualified for hedge accounting under Statement 133; and therefore, the
change in fair value was recorded in other comprehensive loss. After taking
into effect the hedge settlement, the effective interest rate on the Notes is
5.47%.
We have issued Preferred Units in various amounts since 1998, the net
proceeds of which we used to reduce the balance of the Line. We issued Preferred
Units primarily to institutional investors in private placements. The Preferred
Units, which may be called by us in 2004 and 2005, have no stated maturity or
mandatory redemption, and they pay a cumulative, quarterly dividend at fixed
rates ranging from 8.75% to 9.125%. At any time after ten years from the date of
issuance, the Preferred Units may be exchanged by the holders for Cumulative
Redeemable Preferred Stock at an exchange rate of one share for one unit. The
Preferred Units and the related Preferred Stock are not convertible into Regency
common stock. At March 31, 2004 and December 31, 2003, the face value of total
Preferred Units issued was $229 million with an average fixed distribution rate
of 8.88%. Included in Preferred Units are original issuance costs of $5.5
million that will be expensed as the underlying Preferred Units are redeemed in
the future.
In summary, net cash used in financing activities related to the debt
and equity activity discussed above was $5.8 million and $18.3 million for the
three months ended March 31, 2004 and 2003, respectively.
Critical Accounting Policies and Estimates
- ------------------------------------------
Knowledge about our accounting policies is necessary for a complete
understanding of our financial results, and discussions and analysis of these
results. The preparation of our financial statements requires that we make
certain estimates that impact the balance of assets and liabilities at a
financial statement date and the reported amount of income and expenses during a
financial reporting period. These accounting estimates are based upon our
judgments and are considered to be critical because of their significance to the
financial statements and the possibility that future events may differ from
those judgments, or that the use of different assumptions could result in
materially different estimates. We review these estimates on a periodic basis to
ensure reasonableness. However, the amounts we may ultimately realize could
differ from such estimates.
Capitalization of Costs - We have an investment services group with an
established infrastructure that supports the due diligence, land acquisition,
construction, leasing and accounting of our development properties. All direct
costs related to these activities are capitalized. Included in these costs are
interest and real estate taxes incurred during construction, as well as
estimates for the portion of internal costs that are incremental and deemed
directly or indirectly related to our development activity. If future accounting
standards limit the amount of internal costs that may be capitalized, or if our
development activity were to decline significantly without a proportionate
decrease in internal costs, we could incur a significant increase in our
operating expenses.
23
Valuation of Real Estate Investments - Our long-lived assets, primarily
real estate held for investment, are carried at cost unless circumstances
indicate that the carrying value of the assets may not be recoverable. We review
long-lived assets for impairment whenever events or changes in circumstances
indicate such an evaluation is warranted. The review involves a number of
assumptions and estimates used to determine whether impairment exists. Depending
on the asset, we use varying methods such as i) estimating future cash flows,
ii) determining resale values by market, or iii) applying a capitalization rate
to net operating income using prevailing rates in a given market. These methods
of determining fair value can fluctuate significantly as a result of a number of
factors, including changes in the general economy of those markets in which we
operate, tenant credit quality and demand for new retail stores. If we determine
that impairment exists due to our inability to recover an asset's carrying
value, a provision for loss is recorded to the extent that the carrying value
exceeds estimated fair value.
Discontinued Operations - The application of current accounting
principles that govern the classification of any of our properties as held for
sale on the balance sheet, or the presentation of results of operations and
gains on the sale of these properties as discontinued, requires management to
make certain significant judgments. In evaluating whether a property meets the
criteria set forth by Financial Accounting Standards Board ("FASB") Statement
No. 144 "Accounting for the Impairment and Disposal of Long-Lived Assets"
("Statement 144"), the Company makes a determination as to the point in time
that it can be reasonably certain that a sale will be consummated. Given the
nature of all real estate sales contracts, it is not unusual for such contracts
to allow potential buyers a period of time to evaluate the property prior to
formal acceptance of the contract. In addition, certain other matters critical
to the final sale, such as financing arrangements often remain pending even upon
contract acceptance. As a result, properties under contract may not close within
the expected time period, if at all. Due to these uncertainties, it is not
likely that the Company can meet the criteria of Statement 144 prior to the sale
formally closing. Therefore, any properties categorized as held for sale
represent only those properties that management has determined are probable to
close within the requirements set forth in Statement 144. The Company also makes
judgments regarding the extent of involvement it will have with a property
subsequent to its sale, in order to determine if the results of operations and
gain on sale should be reflected as discontinued. Consistent with Statement 144,
any property sold to an entity in which the Company has significant continuing
involvement (most often joint ventures) are not considered to be discontinued.
In addition, any property which the Company sells to an unrelated third party,
but retains a property or asset management function, is also not considered
discontinued. Thus, only properties sold, or to be sold, to unrelated third
parties for which the Company, in its judgment, has no continuing involvement
are classified as discontinued.
Income Tax Status - The prevailing assumption underlying the operation
of our business is that we will continue to operate so as to qualify as a REIT,
defined under the Internal Revenue Code. We are required to meet certain income
and asset tests on a periodic basis to ensure that we continue to qualify as a
REIT. As a REIT, we are allowed to reduce taxable income by all or a portion of
our distributions to stockholders. We evaluate the transactions that we enter
into and determine their impact on our REIT status. Determining our taxable
income, calculating distributions, and evaluating transactions requires us to
make certain judgments and estimates as to the positions we take in our
interpretation of the Internal Revenue Code. Because many types of transactions
are susceptible to varying interpretations under federal and state income tax
laws and regulations, our positions are subject to change at a later date upon
final determination by the taxing authorities.
Results from Operations
- -----------------------
Comparison of the three months ended March 31, 2004 to 2003
At March 31, 2004, we were operating or developing 260 shopping
centers. We identify our shopping centers as either development properties or
stabilized properties. Development properties are defined as properties that are
in the construction and initial lease-up process and are not yet fully leased
(fully leased generally means greater than 93% leased) or occupied. Stabilized
properties are those properties that are generally greater than 93% leased and,
if they were developed, are more than three years beyond their original
development start date. At March 31, 2004, we had 227 stabilized shopping
centers that were 95.4% leased.
24
Our revenues increased by $4.4 million, or 5%, to $95.8 million in
2004. This increase was related to changes in occupancy for the combined
portfolio of stabilized and development properties, growth in re-leasing rental
rates, and revenues from new developments commencing operations in 2004, net of
a reduction in revenues from properties sold. During the first quarter of 2004,
our rental rates grew by 8.5% from renewal leases and new leases replacing
previously occupied spaces in the stabilized properties. In addition to
collecting minimum rent from our tenants for the GLA that they lease from us, we
also collect contingent rent based upon tenant sales, which we refer to as
percentage rent. Tenants are also responsible for reimbursing us for their
pro-rata share of the expenses associated with operating our shopping centers.
In 2004, our minimum rent increased by $3.6 million, or 5%, and our recoveries
from tenants increased $164,820, or 1%. Percentage rent was $453,410 in 2004
compared with $298,841 in 2003 due to an increase related to higher tenant
sales.
Our operating expenses increased by $5.3 million, or 12%, to $50.5
million in 2004. Our combined operating, maintenance, and real estate taxes
increased by $1.3 million, or 6%, during 2004 to $24.0 million. This increase
was primarily due to new developments that incurred operating expenses for only
a portion of the previous year and general increases in operating expenses on
the stabilized properties. Our general and administrative expenses were $5.9
million during 2004, compared with $4.1 million in 2003, or 42% higher,
primarily related to accruing higher incentive compensation based upon growth in
revenues and earnings per share. Our depreciation and amortization expense
increased $2.2 million during the current year related to development properties
placed in service during 2004.
Our net interest expense increased to $21.2 million in 2004 from $20.6
million in 2003. Average interest rates on our outstanding debt declined to
6.45% at March 31, 2004 compared with 6.84% at March 31, 2003, primarily due to
reductions in the LIBOR rate. Our average fixed interest rates were 7.46% at
March 31, 2004, compared with 7.49% at March 31, 2003. Our weighted average
outstanding debt at March 31, 2004 was $1.5 billion compared with $1.4 billion
at March 31, 2003.
We account for profit recognition on sales of real estate in accordance
with FASB Statement No. 66, "Accounting for Sales of Real Estate." Profits from
sales of real estate will not be recognized by us unless a sale has been
consummated; the buyer's initial and continuing investment is adequate to
demonstrate a commitment to pay for the property; we have transferred to the
buyer the usual risks and rewards of ownership; and we do not have substantial
continuing involvement with the property. Gains from the sale of operating and
development properties were $4.0 million in 2004 related to the sale of seven
out-parcels for $10.0 million. During 2003, we recorded gains of $2.4 million
related to the sale of ten out-parcels for $19.1 million. These gains are
included in continuing operations rather than discontinued operations because
they were either properties that had no operating income, or they were
properties sold to joint ventures where we have a continuing minority
investment.
We review our real estate portfolio for impairment whenever events or
changes in circumstances indicate that we may not be able to recover the
carrying amount of an asset. We determine whether impairment has occurred by
comparing the property's carrying value to an estimate of fair value based upon
methods described in our Critical Accounting Policies. In the event a property
is impaired, we write down the asset to fair value for "held-and-used" assets
and to fair value less costs to sell for "held-for-sale" assets.
Our income from discontinued operations was $331,998 in 2004 related to
three centers sold to third parties for $27.0 million, which produced gains on
sale of $11,757. In compliance with the adoption of SFAS No. 144, "Accounting
for the Impairment or Disposal of Long-Lived Assets" ("Statement 144") in
January 2002, if we sell an asset in the current year, we are required to
reclassify its operating income into discontinued operations for all prior
periods. This practice results in a reclassification of amounts previously
reported as continuing operations into discontinued operations. Reclassified
operating income from discontinued operations was $1.8 million in 2003, a result
of reclassifying the historical operations of the properties sold in 2004 as
well as properties sold subsequent to March 31, 2003. During the first quarter
of 2003, we sold two properties for $9.2 million to third parties, which
resulted in a loss of
25
$626,577. Our operating income and gain or loss on sales from discontinued
operations are shown net of minority interest of exchangeable partnership units
totaling $5,604 and $27,932 for the three months ended March 31, 2004 and 2003,
respectively.
In March of 2003, we redeemed $35 million of Series C 9% Preferred
Units and $40 million of Series E 8.75% Preferred Units. At the time of
redemption, the premium and $1.9 million of previously deferred costs related to
the original preferred units' issuance were recognized in the consolidated
statements of operations as a component of minority interest of preferred units.
During August of 2003, we redeemed the $80 million Series A 8.125% Preferred
Units. As a result of these redemptions, the minority interest of preferred
units was $5.7 million lower for the three months ended March 31, 2004.
Net income for common stockholders was $21.4 million in 2004, compared
with $17.9 million in 2003 or a 20% increase for the reasons previously
discussed. Diluted earnings per share were $0.35 in 2004, compared with $0.30 in
2003, or 17% higher, related to the increase in net income and a decrease in
weighted average common shares of 457,098 shares.
Environmental Matters
- ---------------------
We are subject to numerous environmental laws and regulations and we
are primarily concerned with dry cleaning plants that currently operate or have
operated at our shopping centers in the past. We believe that the tenants who
currently operate plants do so in accordance with current laws and regulations.
Generally, we use all legal means to cause tenants to remove dry cleaning plants
from our shopping centers or convert them to environmentally approved systems.
Where available, we have applied and been accepted into state-sponsored
environmental programs. We have a blanket environmental insurance policy that
covers us against third-party liabilities and remediation costs on shopping
centers that currently have no known environmental contamination. We have also
placed environmental insurance, where possible, on specific properties with
known contamination, in order to mitigate our environmental risk. We believe
that the ultimate disposition of currently known environmental matters will not
have a material effect on Regency's financial position, liquidity, or
operations; however, we can give no assurance that existing environmental
studies with respect to our shopping centers have revealed all potential
environmental liabilities; that any previous owner, occupant or tenant did not
create any material environmental condition not known to us; that the current
environmental condition of the shopping centers will not be affected by tenants
and occupants, by the condition of nearby properties, or by unrelated third
parties; or that changes in applicable environmental laws and regulations or
their interpretation will not result in additional environmental liability to
us.
Inflation
- ---------
Inflation has remained relatively low and has had a minimal impact on
the operating performance of our shopping centers; however, substantially all of
our long-term leases contain provisions designed to mitigate the adverse impact
of inflation. Such provisions include clauses enabling us to receive percentage
rentals based on tenants' gross sales, which generally increase as prices rise;
and/or escalation clauses, which generally increase rental rates during the
terms of the leases. Such escalation clauses are often related to increases in
the consumer price index or similar inflation indices. In addition, many of our
leases are for terms of less than ten years, which permits us to seek increased
rents upon re-rental at market rates. Most of our leases require tenants to pay
their share of operating expenses, including common area maintenance, real
estate taxes, and insurance and utilities, thereby reducing our exposure to
increases in costs and operating expenses resulting from inflation.
26
Item 3. Quantitative and Qualitative Disclosures about Market Risk
Market Risk
- -----------
We are exposed to interest-rate changes primarily related to the
variable interest rate on the line of credit and the refinancing of long-term
debt which currently contain fixed interest rates. Our interest-rate risk
management objective is to limit the impact of interest-rate changes on earnings
and cash flows and to lower our overall borrowing costs. To achieve these
objectives, we borrow primarily at fixed interest rates and may enter into
derivative financial instruments such as interest-rate swaps, caps and treasury
locks in order to mitigate our interest-rate risk on a related financial
instrument. We have no plans to enter into derivative or interest-rate
transactions for speculative purposes.
Our interest-rate risk is monitored using a variety of techniques. The
table below presents the principal cash flows (in thousands), weighted average
interest rates of remaining debt, and the fair value of total debt (in
thousands), by year of expected maturity to evaluate the expected cash flows and
sensitivity to interest-rate changes.
Fair
2004 2005 2006 2007 2008 2009 Thereafter Total Value
---- ---- ---- ---- ---- ---- ---------- ----- -----
Fixed rate debt $ 211,509 147,236 24,523 28,743 22,316 55,747 714,960 1,205,034 1,267,218
Average interest rate
for all debt 7.60% 7.60% 7.60% 7.59% 7.61% 7.59% 7.34% - -
Variable rate LIBOR
debt $ 16,589 25,000 - 230,000 - - - 271,589 271,589
Average interest rate
for all debt 1.89% 1.84% - 1.84% - - - - -
As the table incorporates only those exposures that exist as of March
31, 2004, it does not consider those exposures or positions, which could arise
after that date. Moreover, because firm commitments are not presented in the
table above, the information presented above has limited predictive value. As a
result, our ultimate realized gain or loss with respect to interest-rate
fluctuations will depend on the exposures that arise during the period, our
hedging strategies at that time, and actual interest rates.
Item 4. Controls and Procedures
Under the supervision and with the participation of the Company's
management, including the Company's Chief Executive Officer, Chief Operating
Officer and Chief Financial Officer, the Company has evaluated the effectiveness
of the design and operation of its disclosure controls and procedures as of the
end of the period covered by this report, and, based on their evaluation, the
Chief Executive Officer, Chief Operating Officer and Chief Financial Officer
have concluded that these disclosure controls and procedures are effective.
There were no significant changes in our internal controls or in other factors
that could significantly affect these controls subsequent to the date of their
evaluation.
27
PART II
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits:
10. Material Contracts
10.1 Credit Agreement dated as of March 26, 2004
by and among Regency Centers, L.P., Regency,
each of the financial institutions initially
a signatory thereto, and Wells Fargo Bank,
National Association.
31.1 Rule 13a-14 Certification of Chief Executive Officer.
31.2 Rule 13a-14 Certification of Chief Financial Officer.
31.3 Rule 13a-14 Certification of Chief Operating Officer.
32.1 Section 1350 Certification of Chief Executive Officer.
32.2 Section 1350 Certification of Chief Financial Officer.
32.3 Section 1350 Certification of Chief Operating Officer.
(b) Reports on Form 8-K:
Form 8-K dated January 28, 2004, as amended by Form
8-K/A dated April 13, 2004, furnishing Regency's
earnings release for the period ended December 31,
2003 and supplemental information.
28
SIGNATURE
Pursuant to the requirements of the Securities and Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Date: May 7, 2004 REGENCY CENTERS CORPORATION
By: /s/ J. Christian Leavitt
-------------------------------------
Senior Vice President and
Chief Accounting Officer
29
EXECUTION COPY
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement") dated as
of March 26, 2004 by and among REGENCY CENTERS, L.P., a Delaware limited
partnership (the "Borrower"), REGENCY CENTERS CORPORATION, a Florida corporation
formerly known as Regency Realty Corporation (the "Parent"), each of the
financial institutions initially a signatory hereto together with their
assignees under Section 12.8. (the "Lenders"), each of PNC BANK, NATIONAL
ASSOCIATION, JPMORGAN CHASE BANK and SUNTRUST BANK, as a Documentation Agent
(the "Documentation Agent"), WACHOVIA BANK, NATIONAL ASSOCIATION, as Syndication
Agent (the "Syndication Agent"), each of COMMERZBANK AG NEW YORK BRANCH, AMSOUTH
BANK, SOUTHTRUST BANK and ING REAL ESTATE FINANCE (USA) LLC, as Managing Agent
(the "Managing Agent") and WELLS FARGO BANK, NATIONAL ASSOCIATION, as the Sole
Lead Arranger (the "Sole Lead Arranger") and as contractual representative of
the Lenders to the extent and in the manner provided in Article XI. below (in
such capacity, the "Agent").
WHEREAS, the Borrower, the Parent, certain of the Lenders, the Agent
and certain other parties have entered into that certain Credit Agreement dated
as of April 30, 2001 (as amended and as in effect immediately prior to the date
hereof, the "Existing Credit Agreement"); and
WHEREAS, the Borrower, the Parent, the Lenders and the Agent desire to
amend and restate the Existing Credit Agreement, among other things, to make
available to the Borrower a revolving credit facility in the amount of
$500,000,000, including a $50,000,000 swingline subfacility and a $25,000,000
letter of credit subfacility, all pursuant to the terms hereof.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto agree the Existing Credit Agreement is amended and restated in its
entirety as follows:
ARTICLE I. DEFINITIONS
SECTION 1.1. Definitions.
The following terms, as used herein, have the following meanings:
"Absolute Rate" has the meaning given that term in Section
2.2.(c)(ii)(C).
"Absolute Rate Auction" means a solicitation of Bid Rate Quotes setting
forth Absolute Rates pursuant to Section 2.2.
"Absolute Rate Loan" means a Bid Rate Loan the interest rate on which
is determined on the basis of an Absolute Rate pursuant to an Absolute Rate
Auction.
"Accession Agreement" means an Accession Agreement substantially in the
form of Annex I to the Guaranty.
"Acquisition" means any transaction, or any series of related
transactions, by which a Person directly or indirectly acquires any assets of
another Person, whether through purchase of assets, merger or otherwise.
"Additional Costs" has the meaning given that term in Section 5.1.
"Affiliate" means, with respect to a Person, any other Person: (a)
directly or indirectly controlling, controlled by, or under common control with,
such first Person; (b) directly or indirectly owning or holding ten percent
(10%) or more of any equity interest in such first Person; or (c) ten percent
(10%) or more of whose voting stock or other equity interest is directly or
indirectly owned or held by such first Person. For purposes of this definition,
"control" (including with correlative meanings, the terms "controlling",
"controlled by" and "under common control with") means the possession directly
or indirectly of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities or
by contract or otherwise.
"Agreement Date" means the date as of which this Agreement is dated.
"Applicable Facility Fee" means the percentage set forth in the table
below corresponding to the Level at which the "Applicable Margin" is determined
in accordance with the definition thereof:
Level Facility Fee
----- ------------
1 0.15%
2 0.15%
3 0.15%
4 0.20%
5 0.25%
As of the Agreement Date, the Applicable Facility Fee equals 0.15%.
"Applicable Law" means all applicable provisions of local, state,
federal and foreign constitutions, statutes, rules, regulations, ordinances,
decrees, permits, concessions and orders of all governmental bodies and all
orders and decrees of all courts, tribunals and arbitrators.
"Applicable Margin" shall mean, as of any date of determination, the
respective percentage rates set forth below corresponding to the Credit Ratings
of the Borrower and the Parent as assigned by the applicable Rating Agencies:
- 2 -
Level Credit Rating Applicable Applicable
(S&P/Moody's or equivalent) Margin for Margin for
LIBOR Loans Base Rate Loans
-----------------------------------------------------------------------------------------
1 A-/A3 or equivalent or higher 0.55% 0.00%
2 BBB+/Baa1 or equivalent 0.65% 0.00%
3 BBB/Baa2 or equivalent 0.75% 0.00%
4 BBB-/Baa3 or equivalent 0.90% 0.00%
5 Less than BBB-/Baa3 or equivalent 1.25% 0.00%
The Agent shall determine the Applicable Margin from time to time in accordance
with the above table and the provisions of this definition and notify the
Borrower and the Lenders of such determination. If the Rating Agencies assign
Credit Ratings which correspond to different Levels in the above table resulting
in different Applicable Margin determinations, the Applicable Margin will be
determined based on the Level corresponding to the lower of the two Credit
Ratings. During any period that the Borrower or the Parent receives more than
two Credit Ratings and such Credit Ratings are not equivalent, the Applicable
Margin shall equal the average of the Applicable Margins as determined in
accordance with the two lowest of such Credit Ratings; provided that one of such
Credit Ratings has been issued by either S&P or Moody's and such Credit Rating
is an Investment Grade Rating. Each change in the Applicable Margin resulting
from a change in a Credit Rating of the Borrower or the Parent shall take effect
on the first calendar day of the month following the month in which such Credit
Rating is publicly announced by the relevant Rating Agency. As of the Agreement
Date, the Applicable Margin for LIBOR Loans equals 0.75 % and for Base Rate
Loans equals 0.0%.
"Asset Value" means
(a) with respect to any Consolidated Subsidiary at a given time, the
sum of (i) the Capitalized EBITDA of such Consolidated Subsidiary at such time,
plus (ii) the Capitalized Third Party Net Revenue of such Subsidiary at such
time, plus (iii) the book value of all Construction in Process of such
Consolidated Subsidiary as of the end of the Parent's fiscal quarter most
recently ended, and
(b) with respect to any Unconsolidated Affiliate at a given time the
sum of (i) with respect to any of such Unconsolidated Affiliate's Properties
under construction, the Parent's Ownership Share of the book value of
Construction in Process for such Property as of the end of the Parent's fiscal
quarter most recently ended and (ii) with respect to any of such Unconsolidated
Affiliate's Properties which have been completed, the Parent's Ownership Share
of Capitalized EBITDA of such Unconsolidated Affiliate attributable to such
Properties.
"Assignee" has the meaning given that term in Section 12.8.(c).
"Assignment and Acceptance Agreement" means an Assignment and
Acceptance Agreement among a Lender, an Assignee and the Agent, substantially in
the form of Exhibit A.
- 3 -
"Base Rate" means the greater of (a) the rate of interest per annum
established from time to time by Wells Fargo, San Francisco, California and
designated as its prime rate (which rate of interest may not be the lowest rate
charged by such bank, the Agent or any of the Lenders on similar loans) and (b)
the Federal Funds Rate plus one-half of one percent (0.5%). Each change in the
Base Rate shall become effective without prior notice to the Borrower or the
Lenders automatically as of the opening of business on the date of such change
in the Base Rate.
"Base Rate Loan" means any Revolving Loan hereunder with respect to
which the interest rate is calculated by reference to the Base Rate.
"Bid Rate Borrowing" has the meaning given that term in Section
2.2.(b).
"Bid Rate Loan" means a loan made by a Lender under Section 2.2.(b).
"Bid Rate Note" means a promissory note of the Borrower substantially
in the form of Exhibit B, payable to the order of a Lender and otherwise duly
completed.
"Bid Rate Quote" means an offer in accordance with Section 2.2.(c) by a
Lender to make a Bid Rate Loan with one single specified interest rate.
"Bid Rate Quote Request" has the meaning given that term in Section
2.2.(b).
"Borrowing Base" means, without duplication, the sum of (i) the
aggregate Unencumbered Pool Values of all Stabilized Retail Operating Properties
and Pre-Stabilized Retail Operating Properties divided by 1.75, plus (ii) the
aggregate Unencumbered Pool Values of Qualified Development Properties divided
by 2.0, plus (iii) the aggregate Unencumbered Pool Values of all Environmentally
Impacted Properties divided by 2.25. Notwithstanding anything set forth in this
definition to the contrary, (a) not more than 7.5% of the Borrowing Base can be
attributable to Environmentally Impacted Properties, (b) not more than 25.0% of
the Borrowing Base can be attributable to Qualified Development Properties,
Pre-Stabilized Retail Operating Properties and Environmentally Impacted
Properties and (c) not more than 15.0% of the Borrowing Base can be attributable
to Properties that are not anchored by grocery store tenants (for purposes of
this definition, a Side Shop Center shall be considered to be anchored by a
grocery store tenant).
"Business Day" means (a) any day other than Saturday, Sunday or other
day on which commercial banks in Atlanta, Georgia or San Francisco, California
are authorized or required to close and (b) with reference to LIBOR Loans, any
such day on which dealings in Dollar deposits are carried out in the London
interbank market.
"Capitalized EBITDA" means, with respect to a Person and as of a given
date, (a) such Person's EBITDA for the fiscal quarter most recently ended times
(b) 4 and divided by (c) 8.50%. In determining Capitalized EBITDA (i) EBITDA
attributable to real estate properties either acquired or disposed of by such
Person during such fiscal quarter shall be disregarded, (ii) for each of the
first three fiscal quarters of each fiscal year, EBITDA shall include the lesser
of (A) 25% of the budgeted percentage rents for such fiscal year or (B) 25% of
the actual percentage rents received by such Person in the immediately preceding
fiscal year, (iii) for the fourth fiscal
- 4 -
quarter of each fiscal year, EBITDA shall include 25% of the percentage rents
actually received by such Person in such fiscal year, (iv) Third Party Net
Revenue for the applicable period shall be excluded from EBITDA, (v) any amounts
deducted from the net earnings of Properties owned by Consolidated Subsidiaries
in which a third party owns a minority equity interest shall be included in
EBITDA; and (vi) distributions of cash received by such Person during such
period from any of its Unconsolidated Affiliates shall be excluded from EBITDA.
"Capitalized Lease Obligation" means Indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP, and the amount of such Indebtedness
shall be the capitalized amount of such obligations determined in accordance
with such principles.
"Capitalized Third Party Net Revenue" means, with respect to a Person
and as of a given date, (a) such Person's Third Party Net Revenue for the four
fiscal quarters most recently ended less general and administrative expenses of
such Person for such period attributable to the generation of such Third Party
Net Revenue divided by (b) 20.0%.
"Collateral Account" means a special non-interest bearing deposit
account maintained by the Agent under its sole dominion and control.
"Commitment" means, as to each Lender, such Lender's obligation to make
Revolving Loans pursuant to Section 2.1. and to issue (in the case of the Agent)
or participate in (in the case of the Lenders other than the Agent in such
capacity) Letters of Credit pursuant to Section 2.15.(a) and 2.15.(f)
respectively, in an amount up to, but not exceeding (but in the case of the
Agent, excluding the aggregate amount of participations in the Letters of Credit
held by other Lenders), the amount set forth for such Lender on its signature
page hereto as such Lender's "Commitment Amount" or as set forth in the
applicable Assignment and Acceptance Agreement, as the same may be reduced from
time to time pursuant to Section 2.9. or as appropriate to reflect any
assignments to or by such Lender effected in accordance with Section 12.8.
"Compliance Certificate" means the certificate described in Section
8.1.(c).
"Consolidated Subsidiary" means, with respect to a Person at any date,
any Subsidiary or other entity the accounts of which would be consolidated with
those of such Person in its consolidated financial statements in accordance with
GAAP, if such statements were prepared as of such date.
"Construction Budget" means the fully budgeted costs for the
construction, development and redevelopment of a given Development Property,
such budget to include an adequate operating deficiency reserve. For purposes of
this definition the "fully budgeted costs" of a Development Property to be
acquired by a Person upon completion pursuant to a contract in which the seller
is required to develop or renovate prior to, and as a condition precedent to,
such acquisition shall equal the maximum amount reasonably estimated to be
payable by such Person under the contract assuming performance by the seller of
its obligations under the contract which amount shall include, without
limitation, any amounts payable after consummation of such acquisition which may
be based on certain performance levels or other related criteria.
- 5 -
"Construction in Process" means construction in process as determined
in accordance with GAAP.
"Contingent Obligation" means, for any Person, any commitment,
undertaking, Guarantee or other obligation constituting a contingent liability
that must be accrued under GAAP.
"Continue", "Continuation" and "Continued" each refers to the
continuation of a LIBOR Loan from one Interest Period to the next Interest
Period pursuant to Section 2.5.
"Convert", "Conversion" and "Converted" each refers to the conversion
of a Revolving Loan of one Type into a Revolving Loan of another Type pursuant
to Section 2.6.
"Credit Rating" means the lowest rating assigned by a Rating Agency to
each series of rated senior unsecured long term indebtedness of the Borrower or
the Parent, as the case may be.
"Debt Service" means, with respect to any Person and for any period,
the sum of (a) Interest Expense of such Person for such period plus (b)
regularly scheduled principal payments on Indebtedness of such Person during
such period, other than any balloon, bullet or similar principal payment payable
on any Indebtedness of such Person which repays such Indebtedness in full.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Defaulting Lender" has the meaning given that term in Section 3.5.
"Designated Lender" means a special purpose corporation which is an
affiliate of, or sponsored by, a Lender, that is engaged in making, purchasing
or otherwise investing in commercial loans in the ordinary course of its
business and that issues (or the parent of which issues) commercial paper rated
at least P-1 (or the then equivalent grade) by Moody's or A-1 (or the then
equivalent grade) by S&P that, in either case, (a) is organized under the laws
of the United States of America or any state thereof, (b) shall have become a
party to this Agreement pursuant to Section 12.8.(d) and (c) is not otherwise a
Lender.
"Designated Lender Note" means a Bid Rate Note of the Borrower
evidencing the obligation of the Borrower to repay Bid Rate Loans made by a
Designated Lender.
"Designating Lender" has the meaning given that term in Section
12.8.(d).
"Designation Agreement" means a Designation Agreement between a Lender
and a Designated Lender and accepted by the Agent, substantially in the form of
Exhibit C or such other form as may be agreed to by such Lender, such Designated
Lender and the Agent.
"Development Property" means either (a) a Property acquired by the
Borrower, any Subsidiary or any Unconsolidated Affiliate as unimproved real
estate to be developed or (b) a Property acquired by any such Person on which
such Person is to (A) partially or completely
- 6 -
demolish and redevelop the improvements on such Property, (B) substantially
reconfigure the existing improvements on such Property or (C) increase
materially the rentable square footage of such Property, in each case for which
an 80% Occupancy Rate has not been achieved. The term "Development Property"
shall include real property of the type described in the immediately preceding
clause (a) or (b) to be (but not yet) acquired by any such Person upon
completion of construction pursuant to a contract in which the seller of such
real property is required to develop or renovate prior to, and as a condition
precedent to, such acquisition, but shall not include any build-to-suit Property
which is 100% preleased by a single tenant having an investment grade rating
assigned to its senior long-term unsecured debt obligations by a nationally
recognized securities rating agency.
"Dollars" or "$" means the lawful currency of the United States of
America.
"EBITDA" means, with respect to any Person for any period and without
duplication, net earnings (loss) of such Person for such period (including
equity in net earnings or net loss of Unconsolidated Affiliates) excluding the
following amounts (but only to the extent included in determining net earnings
(loss) for such period): (a) depreciation and amortization expense and other
non-cash charges of such Person for such period; (b) interest expense of such
Person for such period; (c) income tax expense of such Person in respect of such
period; and (d) extraordinary and nonrecurring gains and losses of such Person
for such period, including without limitation, gains and losses from the sale of
operating Properties (but not from the sale of Properties developed for the
purpose of sale). For purposes of this definition, (i) net earnings (loss) shall
be determined before minority interests and distributions to holders of
Preferred Stock and (ii) to the extent Third Party Net Revenue exceeds 7.5% of
Real Estate Revenue, such excess shall be excluded from EBITDA.
"Effective Date" means the later of (a) the Agreement Date and (b) the
date on which all of the conditions precedent set forth in Section 6.1. shall
have been fulfilled or waived in accordance with the provisions of Section 12.7.
"Eligible Assignee" means any Person that is: (a) an existing Lender;
(b) a commercial bank, trust company, savings and loan association, savings
bank, insurance company, investment bank or pension fund organized under the
laws of the United States of America, any state thereof or the District of
Columbia, and having total assets in excess of $5,000,000,000; or (c) a
commercial bank organized under the laws of any other country which is a member
of the Organisation for Economic Co-operation and Development, or a political
subdivision of any such country, and having total assets in excess of
$10,000,000,000, provided that such bank is acting through a branch or agency
located in the United States of America. If such entity is not currently a
Lender, such entity's (or in the case of a bank which is a subsidiary, such
bank's parent's) senior unsecured long term indebtedness must be rated BBB or
higher by S&P, Baa2 or higher by Moody's or the equivalent or higher of either
such rating by another rating agency acceptable to the Agent.
"Eligible Property" means a Property which satisfies all of the
following requirements: (a) such Property is owned in fee simple by only the
Borrower or a Wholly Owned Subsidiary of the Borrower; (b) neither such
Property, nor any interest of the Borrower or such Subsidiary, as
- 7 -
applicable, therein, is subject to any Lien other than Permitted Liens or to any
agreement (other than this Agreement or any other Loan Document) that prohibits
the creation of any Lien thereon as security for Indebtedness; (c) if such
Property is owned by a Wholly Owned Subsidiary of the Borrower, (i) none of the
Borrower's or Parent's direct or indirect ownership interest in such Subsidiary
is subject to any Lien other than Permitted Liens or to any agreement (other
than this Agreement or any other Loan Document) that prohibits the creation of
any Lien thereon as security for Indebtedness and (ii) the Borrower directly, or
indirectly through a Subsidiary, has the right to take the following actions
without the need to obtain the consent of any Person: (A) to create Lien on such
Property as security for Indebtedness of the Borrower or such Subsidiary, as
applicable and (B) to sell, transfer or otherwise dispose of such Property; (d)
such Property is free of all structural defects or major architectural
deficiencies, title defects, environmental conditions (except in the case of an
Environmentally Impacted Property) or other adverse matters except for defects,
conditions or matters individually or collectively which are not material to the
profitable operation of such Property; (e) such Property is not subject to a
ground lease (other than a lease of land on such Property owned by the Borrower
or such Subsidiary of the Borrower and leased to a Person which is not an
Affiliate), (f) in the case of any Property first included as an Unencumbered
Pool Property following the Agreement Date, the Borrower or such Subsidiary, as
the case may be, has obtained, with respect to such Property, a "Phase I"
environmental assessment in accordance with ASTM E 1527-97 standards, prepared
within one year of the date such Property is to be included as an Unencumbered
Pool Property, by a consultant of good repute within the region in which such
Property is located and who is believed by the Borrower to be competent and the
Borrower has reviewed such assessment and believes it reasonable to rely upon
such assessment.
"Eligible Use" means, with respect to a Property, that such Property is
(a) grocery store-anchored or non-grocery store-anchored retail shopping center;
(b) a stand-alone grocery store; (c) a stand-alone build-to-suit building
occupied by non-grocery store tenants; or (d) a Side Shop Center.
"Environmental Laws" means any Applicable Law relating to environmental
protection or the manufacture, storage, disposal or clean-up of Hazardous
Materials including, without limitation, the following: Clean Air Act, 42 U.S.C.
ss. 7401 et seq.; Federal Water Pollution Control Act, 33 U.S.C. ss. 1251 et
seq.; Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act, 42 U.S.C. ss. 6901 et seq.; Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. ss. 9601 et seq.; National
Environmental Policy Act, 42 U.S.C. ss. 4321 et seq.; regulations of the
Environmental Protection Agency and any applicable rule of common law and any
judicial interpretation thereof relating primarily to the environment or
Hazardous Materials.
"Environmentally Impacted Property" means a Property where a "Phase I"
or "Phase II" environmental assessment has identified a potential or actual
recognized environmental condition ("REC") unless remediation of such REC has
been successfully completed, a "no listing" letter has been received for such
Property with respect to each such REC, or a "no further action" letter has been
received for each such REC.
- 8 -
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
that are treated as a single employer under Section 414 of the Internal Revenue
Code.
"ERISA Plan" means any employee benefit plan subject to Title I of
ERISA.
"Event of Default" means the occurrence of any of the events specified
in Section 10.1., whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
governmental or nongovernmental body; provided that any requirement for notice
or lapse of time or any other condition has been satisfied.
"Existing Credit Agreement" has the meaning given that term in the
first "WHEREAS" clause of this Agreement.
"Extension Request" has the meaning given that term in Section 2.10.
"Federal Funds Rate" means, on any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day, provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is published on such next succeeding Business Day, the
Federal Funds Rate for such day shall be the average rate quoted to the Agent on
such day on such transactions as reasonably determined by the Agent.
"Funds From Operations" means, with respect to a Person and for a given
period, net income (loss) of such Person for such period determined in
accordance with GAAP excluding the following amounts (but only to the extent
included in determining net income (loss) for such period): (a) depreciation and
amortization expense of such Person with respect to its real estate assets for
such period and (b) extraordinary gains and losses and gains and losses from
sales of depreciable operating property of such Person for such period. For
purposes of determining Funds From Operations of a Person, adjustments for
Unconsolidated Affiliates of such Person are to be calculated to reflect Funds
From Operations on the same basis.
"GAAP" shall mean generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination.
- 9 -
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any national, state or local government
(whether domestic or foreign), any political subdivision thereof or any other
governmental, quasi-governmental, judicial, public or statutory instrumentality,
authority, body, agency, bureau or entity (including, without limitation, the
Federal Deposit Insurance Corporation, the Comptroller of the Currency or the
Federal Reserve Board, any central bank or any comparable authority) or any
arbitrator with authority to bind a party at law.
"Gross Asset Value" means, at a given time, the sum (without
duplication) of (a) the Capitalized EBITDA of the Parent and its Consolidated
Subsidiaries at such time, plus (b) the Capitalized Third Party Net Revenue of
the Parent and its Consolidated Subsidiaries at such time, plus (c) the purchase
price paid by the Parent or any Consolidated Subsidiary (less any amounts paid
to the Parent or such Consolidated Subsidiary as a purchase price adjustment,
held in escrow, retained as a contingency reserve, or other similar
arrangements) for any Property (other than a Development Property) acquired by
the Parent or such Consolidated Subsidiary during the Parent's fiscal quarter
most recently ended, plus (d) all of Parent's and its Consolidated Subsidiaries'
cash and cash equivalents as of the end of such fiscal quarter (excluding tenant
deposits and other cash and cash equivalents the disposition of which is
restricted in any way (excluding restrictions in the nature of early withdrawal
penalties and restrictions on cash deposited into an escrow account for the
payment of property taxes in respect of real property but only to the extent the
aggregate amount of cash held in such account exceeds the amount of accrued
property taxes at such time)), plus (e) with respect to each of the Parent's
Unconsolidated Affiliates, (i) with respect to any of such Unconsolidated
Affiliate's Properties under construction, the Parent's pro rata share of the
book value of Construction in Process for such Property as of the end of such
fiscal quarter and (ii) with respect to any of such Unconsolidated Affiliate's
Properties which have been completed, the Parent's pro rata share of Capitalized
EBITDA of such Unconsolidated Affiliate attributable to such Properties, plus
(f) the book value of (i) all Construction in Process for Properties acquired
for development by the Parent or any Consolidated Subsidiary and (ii) all
unimproved real property, in each case as such book value is set forth on the
Parent's consolidated balance sheet most recently delivered to the Lenders under
Section 8.1.(a) or (b) plus (g) the contractual purchase price of any real
property subject to a purchase obligation, repurchase obligation or forward
commitment which at such time could be specifically enforced by the seller of
such real property, but only to the extent such obligations are included in the
Parent's or any Consolidated Subsidiary's Total Liabilities plus (h) in the case
of any real property subject to a purchase obligation, repurchase obligation or
forward commitment which at such time could not be specifically enforced by the
seller of such real property, the aggregate amount of due diligence deposits,
earnest money payments and other similar payments made under the applicable
contract which, at such time, would be subject to forfeiture upon termination of
the contract, but only to the extent such amounts are included in the Parent's
or any Consolidated Subsidiary's Total Liabilities.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Indebtedness
or other obligation of any other Person and, without limiting the generality of
the foregoing, any obligation, direct or indirect, contingent or
- 10 -
otherwise, of such Person (a) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation (whether
arising by virtue of partnership arrangements, by agreement to keep-well, to
purchase assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (b) entered into for the purpose
of assuring in any other manner the obligee of such Indebtedness or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part), provided that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Guarantor" means any Person that is party to the Guaranty as a
"Guarantor".
"Guaranty" means the Guaranty executed and delivered by the Guarantors
substantially in the form of Exhibit D.
"Hazardous Materials" means all or any of the following: (a) substances
that are defined or listed in, or otherwise classified pursuant to, any
applicable Environmental Laws as "hazardous substances", "hazardous materials",
"hazardous wastes", "toxic substances" or any other formulation intended to
define, list or classify substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity or
"TLCP" toxicity, "EP toxicity"; (b) oil, petroleum or petroleum derived
substances, natural gas, natural gas liquids or synthetic gas and drilling
fluids, produced waters and other wastes associated with the exploration,
development or production of crude oil, natural gas or geothermal resources; (c)
any flammable substances or explosives or any radioactive materials; and (d)
asbestos in any form or (e) electrical equipment which contains any oil or
dielectric fluid containing levels of polychlorinated biphenyls in excess of
fifty parts per million.
"Hedging Agreements" means, collectively, Interest Rate Agreements,
commodity future or option contracts, currency swap agreements, currency future
or option contracts and other similar agreements.
"Indebtedness" means, with respect to a Person, at the time of
computation thereof, all of the following (without duplication and determined on
a consolidated basis): (a) obligations of such Person in respect of money
borrowed; (b) obligations of such Person (other than trade debt incurred in the
ordinary course of business), whether or not for money borrowed (i) represented
by notes payable, or drafts accepted, in each case representing extensions of
credit, (ii) evidenced by bonds, debentures, notes or similar instruments, or
(iii) constituting purchase money indebtedness, conditional sales contracts,
title retention debt instruments or other similar instruments, upon which
interest charges are customarily paid or that are issued or assumed as full or
partial payment for property; (c) Capitalized Lease Obligations of such Person;
(d) all reimbursement obligations of such Person under any letters of credit or
acceptances (whether or not the same have been presented for payment); (e) all
Off-Balance Sheet Obligations; (f) all Indebtedness of other Persons which (i)
such Person has Guaranteed or which is otherwise recourse to such Person or (ii)
is secured by a Lien on any property of such Person; (g) all Indebtedness of any
other Person of which such Person is a general partner; and (h) with respect to
Indebtedness of an Unconsolidated Affiliate, (i) all such Indebtedness which
such Person has
- 11 -
Guaranteed or is otherwise obligated on a recourse basis and (ii) such Person's
Ownership Share of all other Indebtedness of such Unconsolidated Affiliate.
"Interest Expense" means, with respect to a Person and for any period,
(a) the total interest expense (including, without limitation, capitalized
interest expense and interest expense attributable to Capitalized Lease
Obligations) of such Person and in any event shall include all letter of credit
fees and all interest expense with respect to any Indebtedness in respect of
which such Person is wholly or partially liable whether pursuant to any
repayment, interest carry, performance Guarantee or otherwise, plus (b) to the
extent not already included in the foregoing clause (a) such Person's Ownership
Share of all paid, accrued or capitalized interest expense for such period of
Unconsolidated Affiliates of such Person.
"Interest Period" means,
(a) with respect to any LIBOR Loan, each period commencing on the
date such LIBOR Loan is made or the last day of the next preceding Interest
Period for such Loan and ending on the numerically corresponding day in the
first, second, third or sixth calendar month thereafter, as the Borrower may
select in a Notice of Borrowing, Notice of Continuation or Notice of Conversion,
as the case may be, except that each Interest Period that commences on the last
Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar month.
In addition to such periods, the Borrower may request Interest Periods for LIBOR
Loans having durations of at least 7, but not more than 30, days no more than
ten times during any 12-month period beginning during the term of this Agreement
but only in anticipation of (i) the Borrower's prepayment of such LIBOR Loans
from equity or debt offerings, financings or proceeds resulting from the sale or
other disposition of major assets of the Borrower or any of its Subsidiaries or
(ii) changes in the amount of the Lenders' Commitments associated with a
modification of this Agreement;
(b) with respect to any Absolute Rate Loan, the period commencing on
the date such Absolute Rate Loan is made and ending on the numerically
corresponding day in the first, second, or third calendar month thereafter, as
the Borrower may select as provided in Section 2.2.(b), except that each
Interest Period that commences on the last Business Day of a calendar month (or
on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month; and
(c) with respect to any LIBOR Margin Loan, each period commencing on
the date such LIBOR Margin Loan is made and ending on the numerically
corresponding day in the first, second or third calendar month thereafter, as
the Borrower may select as provided in Section 2.2.(b), except that each
Interest Period that commences on the last Business Day of a calendar month (or
on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month.
- 12 -
Notwithstanding the foregoing: (i) if any Interest Period would otherwise end
after the Termination Date, such Interest Period shall end on the Termination
Date; (ii) each Interest Period that would otherwise end on a day which is not a
Business Day shall end on the next succeeding Business Day (or, if such next
succeeding Business Day falls in the next succeeding calendar month, on the next
preceding Business Day); and (iii) notwithstanding either of the immediately
preceding clause (i) but except as otherwise provided in the second sentence of
the immediately preceding clause (a), no Interest Period for any LIBOR Loan
shall have a duration of less than one month and, if the Interest Period for any
LIBOR Loan would otherwise be a shorter period, such Loan shall not be available
hereunder for such period.
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
contractual agreement or arrangement entered into by a Person with a nationally
recognized then rated investment grade financial institution for the purpose of
protecting such Person against fluctuations in interest rates.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"Investment" means, with respect to any Person and whether or not such
investment constitutes a controlling interest in such Person: (a) the purchase
or other acquisition of any share of capital stock or other equity interest,
evidence of Indebtedness or other security issued by any other Person; (b) any
loan, advance or extension of credit to, or contribution to the capital of, any
other Person; (c) any Guarantee of the Indebtedness of any other Person; (d) the
subordination of any claim against a Person to other Indebtedness of such
Person; and (e) any other investment in any other Person.
"Investment Grade Rating" means a Credit Rating of BBB- or higher by
S&P or Baa3 or higher by Moody's.
"L/C Commitment Amount" has the meaning given to that term in Section
2.15.
"Lender" means each financial institution from time to time party
hereto as a "Lender" or a "Designated Lender," together with its respective
successors and permitted assigns, and, as the context requires, includes the
Swingline Lender; provided, however, that the term "Lender" shall exclude each
Designated Lender when used in reference to any Loan other than a Bid Rate Loan,
the Commitments or terms relating to any Loan other than a Bid Rate Loan and the
Commitments and shall further exclude each Designated Lender for all other
purposes hereunder except that any Designated Lender which funds a Bid Rate Loan
shall, subject to Section 12.8.(d), have the rights (including the rights given
to a Lender contained in Sections 12.3. and 12.5.) and obligations of a Lender
associated with holding such Bid Rate Loan.
"Lending Office" means, for each Lender and for each Type of Loan, the
office of such Lender specified as such on its signature page hereto, or in any
applicable Assignment or Acceptance Agreement or such other office of such
Lender as such Lender may notify the Agent from time to time.
- 13 -
"Letter of Credit" has the meaning set forth in Section 2.15.(a).
"Letter of Credit Documents" means, with respect to any Letter of
Credit, collectively, any application therefor, any certificate or other
document presented in connection with a drawing under such Letter of Credit and
any other agreement, instrument or other document governing or providing for (a)
the rights and obligations of the parties concerned or at risk with respect to
such Letter of Credit or (b) any collateral security for any of such
obligations.
"Letter of Credit Liabilities" shall mean, without duplication, at any
time and in respect of any Letter of Credit, the sum of (a) the Stated Amount of
such Letter of Credit plus (b) the aggregate unpaid principal amount of all
Reimbursement Obligations of the Borrower at such time due and payable in
respect of all drawings made under such Letter of Credit. For purposes of this
Agreement, a Lender (other than the Lender then acting as Agent) shall be deemed
to hold a Letter of Credit Liability in an amount equal to its participation
interest in the related Letter of Credit under Section 2.15.(f), and the Lender
then acting as Agent shall be deemed to hold a Letter of Credit Liability in an
amount equal to its retained interest in the related Letter of Credit after
giving effect to the acquisition by the Lenders (other than the Agent of their
participation interests under such Section).
"LIBO Rate" means, with respect to each Interest Period, for any LIBOR
Loan or LIBOR Margin Loan, the average rate of interest per annum (rounded
upwards, if necessary, to the next highest 1/16th of 1%) at which deposits in
immediately available funds in Dollars are offered to Wells Fargo Bank, National
Association (at approximately 9:00 a.m., two Business Days prior to the first
day of such Interest Period) by first class banks in the interbank Eurodollar
market, for delivery on the first day of such Interest Period, such deposits
being for a period of time equal or comparable to such Interest Period and in an
amount equal to or comparable to the principal amount of the LIBOR Loan to which
such Interest Period relates. Each determination of the LIBO Rate by the Agent
shall, in absence of demonstrable error, be conclusive and binding.
"LIBOR Auction" means a solicitation of Bid Rate Quotes setting forth
LIBOR Margins based on the LIBO Rate pursuant to Section 2.2.
"LIBOR Loan" means any Revolving Loan hereunder with respect to which
the interest rate is calculated by reference to the LIBO Rate for a particular
Interest Period.
"LIBOR Margin" shall have the meaning assigned to such term in Section
2.2.(c)(ii)(D).
"LIBOR Margin Loan" means a Bid Rate Loan the interest rate on which is
determined on the basis of the LIBO Rate pursuant to a LIBOR Auction.
"Lien" as applied to the property of any Person means: (a) any
mortgage, deed to secure debt, deed of trust, pledge, lien, charge or lease
constituting a Capitalized Lease Obligation, conditional sale or other title
retention agreement, or other security interest, security title or encumbrance
of any kind in respect of any property of such Person, or upon the income or
profits therefrom; (b) any arrangement, express or implied, under which any
property of such Person is transferred, sequestered or otherwise identified for
the purpose of subjecting the same to the
- 14 -
payment of Indebtedness or performance of any other obligation in priority to
the payment of the general, unsecured creditors of such Person; and (c) the
filing of, or any agreement to give, any financing statement under the Uniform
Commercial Code or its equivalent in any
jurisdiction.
"Loan" means a Revolving Loan, a Bid Rate Loan or a Swingline Loan.
"Loan Document" means this Agreement, each of the Notes, each Letter of
Credit Document, the Guaranty, each Accession Agreement, any agreement
evidencing the fees referred to in Section 3.1.(e) and each other document or
instrument executed and delivered by the Borrower or any other Loan Party in
connection with this Agreement or any of the other foregoing documents.
"Loan Party" means the Borrower, the Parent and each other Guarantor.
"Materially Adverse Effect" means a materially adverse effect on (a)
the business, assets, liabilities, financial condition, results of operations or
business prospects of (i) the Borrower and its Consolidated Subsidiaries, taken
as a whole or (ii) the Parent and its Consolidated Subsidiaries, taken as a
whole, (b) the ability of the Borrower or any other Loan Party to perform its
obligations under any Loan Document to which it is a party, (c) the validity or
enforceability of any of such Loan Documents, (d) the rights and remedies of the
Lenders and the Agent under any of such Loan Documents or (e) the timely payment
of the principal of or interest on the Loans or other amounts payable in
connection therewith. Except with respect to representations made or deemed made
by the Borrower under Article VII. or in any of the other Loan Documents to
which it is a party, all determinations of materiality shall be made by the
Agent in its reasonable judgment unless expressly provided otherwise.
"Maximum Loan Availability" means, at any time, the lesser of (a) an
amount equal to the positive difference, if any, of (i) the Borrowing Base minus
(ii) all Unsecured Liabilities (other than the Loans and the Letter of Credit
Liabilities), of the Parent and its Consolidated Subsidiaries and (b) the
aggregate amount of the Commitments at such time.
"Moody's" means Moody's Investors Services, Inc.
"Mortgage" means a mortgage, deed of trust, deed to secure debt or
similar security instrument made or to be made by a Person owning an interest in
real estate granting a Lien on such interest in real estate as security for the
payment of Indebtedness.
"Multiemployer Plan" means a multiemployer plan defined as such in
Section 3(37) of ERISA to which contributions have been made by the Borrower or
any ERISA Affiliate and which is covered by Title IV of ERISA.
"Net Operating Income" means, for any Property and for a given period,
the sum of the following (without duplication): (a) rents and other revenues
received in the ordinary course from such Property (including proceeds of rent
loss insurance but excluding pre-paid rents and revenues and security deposits
except to the extent applied in satisfaction of tenants' obligations for rent)
minus (b) all expenses paid or accrued related to the ownership, operation or
maintenance of such property, including but not limited to taxes, assessments
and the like,
- 15 -
insurance, utilities, payroll costs, maintenance, repair and landscaping
expenses, marketing expenses, and general and administrative expenses (including
an appropriate allocation for legal, accounting, advertising, marketing and
other expenses incurred in connection with such property, but specifically
excluding general overhead expenses of the Borrower or any other Loan Party and
any property management fees) minus (c) the Reserve for Replacements for such
Property as of the end of such period minus (d) the greater of (i) the actual
property management fee paid during such period and (ii) an imputed management
fee in the amount of three and one-half of one percent (3.5%) of the gross
revenues for such Property for such period.
"Net Worth" means, for any Person and as of a given date, such Person's
total consolidated stockholders' equity plus, in the case of the Parent and its
Consolidated Subsidiaries, increases in accumulated depreciation accrued after
the Agreement Date minus (to the extent reflected in determining stockholders'
equity of such Person): (a) the amount of any write-up in the book value of any
assets contained in any balance sheet resulting from revaluation thereof or any
write-up in excess of the cost of such assets acquired, and (b) the aggregate of
all amounts appearing on the assets side of any such balance sheet for
franchises, licenses, permits, patents, patent applications, copyrights,
trademarks, trade names, goodwill, treasury stock, experimental or
organizational expenses and other like assets which would be classified as
intangible assets under GAAP, all determined on a consolidated basis.
"Non-ERISA Plan" means any Plan subject to Section 4975 of the Internal
Revenue Code.
"Non-Guarantor Entity" means: (a) any Subsidiary that is not required
to become a party to the Guaranty under Section 8.22.(a); (b) any Unconsolidated
Affiliate of the Parent or the Borrower; and (c) any other Affiliate of the
Parent or the Borrower in which the Parent or the Borrower holds an Investment.
"Nonrecourse Indebtedness" means, with respect to a Person,
Indebtedness for borrowed money in respect of which recourse for payment (except
for customary exceptions for fraud, environmental matters, waste, misapplication
of insurance proceeds, and other similar exceptions acceptable to the Agent in
its sole discretion) is contractually limited to specific assets of such Person
encumbered by a Lien securing such Indebtedness.
"Note" means a Revolving Note, a Bid Rate Note or a Swingline Note.
"Notice of Borrowing" means a notice in the form of Exhibit E to be
delivered to the Agent pursuant to Section 2.1. evidencing the Borrower's
request for a borrowing of Revolving Loans.
"Notice of Continuation" means a notice in the form of Exhibit F to be
delivered to the Agent pursuant to Section 2.5. evidencing the Borrower's
request for the Continuation of a borrowing of Revolving Loans.
- 16 -
"Notice of Conversion" means a notice in the form of Exhibit G to be
delivered to the Agent pursuant to Section 2.6. evidencing the Borrower's
request for the Conversion of a borrowing of Revolving Loans.
"Notice of Swingline Borrowing" means a notice in the form of Exhibit H
to be delivered to the Swingline Lender pursuant to Section 2.3.(b) evidencing
the Borrower's request for a Swingline Loan.
"Obligations" means, individually and collectively: (a) the aggregate
principal balance of, and all accrued and unpaid interest on, all Loans; (b) all
Reimbursement Obligations and all other Letter of Credit Liabilities; (c) any
and all renewals and extensions of any of the foregoing and (d) all other
indebtedness, liabilities, obligations, covenants and duties of the Borrower
owing to the Agent and/or the Lenders and/or the Swingline Lender of every kind,
nature and description, under or in respect of this Agreement or any of the
other Loan Documents, whether direct or indirect, absolute or contingent, due or
not due, contractual or tortious, liquidated or unliquidated, and whether or not
evidenced by any promissory note.
"Occupancy Rate" means, with respect to a Property at any time, the
ratio, expressed as a percentage, of (a) the net rentable square footage of such
Property leased to tenants paying rent pursuant to binding leases as to which no
monetary default has occurred and is continuing to (b) the aggregate net
rentable square footage of such Property. For the avoidance of doubt, when
determining the Occupancy Rate of a Side Shop Center, the stand-alone grocery
store associated with such Side Shop Center shall be excluded from such
determination.
"Off-Balance Sheet Obligations" means liabilities and obligations of
the Borrower, any Subsidiary or any other Person in respect of "off-balance
sheet arrangements" (as defined in the SEC Off-Balance Sheet Rules) which the
Borrower would be required to disclose in the "Management's Discussion and
Analysis of Financial Condition and Results of Operations" section of the
Borrower's report on Form 10-Q or Form 10-K (or their equivalents) which the
Borrower is required to file with the Securities and Exchange Commission (or any
Governmental Authority substituted therefor). As used in this definition, the
term "SEC Off-Balance Sheet Rules" means the Disclosure in Management's
Discussion and Analysis About Off-Balance Sheet Arrangements, Securities Act
Release No. 33-8182, 68 Fed. Reg. 5982 (Feb. 5, 2003) (codified at 17 CFR pts.
228, 229 and 249).
"Ownership Share" means, with respect to any Subsidiary of a Person
that is not a Wholly Owned Subsidiary, and any Unconsolidated Affiliate of a
Person, the greater of (a) such Person's relative nominal direct and indirect
ownership interest (expressed as a percentage) in such Subsidiary or
Unconsolidated Affiliate or (b) subject to compliance with Section 8.1.(r), such
Person's relative direct and indirect economic interest (calculated as a
percentage) in such Subsidiary or Unconsolidated Affiliate determined in
accordance with the applicable provisions of the declaration of trust, articles
or certificate of incorporation, articles of organization, partnership
agreement, joint venture agreement or other applicable organizational document
of such Subsidiary or Unconsolidated Affiliate.
- 17 -
"Parent" means Regency Centers Corporation, a Florida corporation
formerly known as Regency Realty Corporation, together with its successors and
assigns.
"Participant" has the meaning given that term in Section 12.8.(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Liens" means (a) pledges or deposits made to secure payment
of worker's compensation (or to participate in any fund in connection with
worker's compensation insurance), unemployment insurance, pensions or social
security programs; (b) encumbrances consisting of zoning restrictions,
easements, or other restrictions on the use of real property, provided that such
items do not materially impair the use of such property for the purposes
intended and none of which is violated in any material respect by existing or
proposed structures or land use; (c) the following to the extent no Lien has
been filed in any jurisdiction or agreed to: (i) Liens for taxes not yet due and
payable; or (ii) Liens imposed by mandatory provisions of Applicable Law such as
for materialmen's, mechanic's, warehousemen's and other like Liens arising in
the ordinary course of business, securing payment of Indebtedness the payment of
which is not yet due; (d) Liens for taxes, assessments and governmental charges
or assessments that are being contested in good faith by appropriate proceedings
diligently conducted, and in which reserves acceptable to the Agent have been
provided; (e) Liens expressly permitted under the terms of the Loan Documents;
(f) Liens granted pursuant to any Loan Document; and (g) any extension, renewal
or replacement of the foregoing to the extent such Lien as so extended, renewed
or replaced would otherwise be permitted hereunder.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Plan" means at any time an employee pension benefit plan which is
covered by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Internal Revenue Code.
"Preferred Stock" means, with respect to any Person, shares of capital
stock of, or other equity interests in, such Person which are entitled to
preference or priority over any other capital stock of, or other equity interest
in, such Person in respect of the payment of dividends or distribution of assets
upon liquidation or both.
"Pre-Stabilized Retail Operating Property" means an Eligible Property
which satisfies all of the requirements in order to be a Stabilized Retail
Operating Property except that it has an Occupancy Rate which is less than 80%.
For purposes of this definition only, when determining the Occupancy Rate for a
given Eligible Property which is a retail shopping center, an anchor tenant who
has vacated its space shall nonetheless be deemed to occupy such space if such
tenant is continuing to pay all rental payments when due under its lease and
either of the following two conditions apply, as the case may be: (i) if such
Eligible Property has two or more anchor tenants and the other anchor tenants
still actually occupy their respective spaces or (ii) such space is
- 18 -
undergoing construction to meet the specific needs of a new anchor tenant who
has either subleased the space from the existing tenant or who is obligated to
lease such space upon substantial completion of such construction.
"Principal Office" means the office of the Agent located at 2120 E.
Park Place, Suite 100, El Segundo, California 90245, or such other office of the
Agent as the Agent may designate from time to time.
"Pro Rata Share" means, as to each Lender, the ratio, expressed as a
percentage, of (a) the amount of such Lender's Commitment to (b) the aggregate
amount of the Commitments of all Lenders hereunder; provided, however, that if
at the time of determination the Commitments have terminated or been reduced to
zero, the "Pro Rata Share" of each Lender shall be the Pro Rata Share of such
Lender in effect immediately prior to such termination or reduction.
"Property" means, with respect to any Person, any parcel of real
property, together with any building, facility, structure, equipment or other
asset located on such parcel of real property, in each case owned by such
Person.
"Qualified Development Property" means an Eligible Property which
satisfies all of the following requirements: (a) such Eligible Property is
either (i) unimproved real estate and in the process of being developed or (ii)
a Property on which the Borrower or a Subsidiary of the Borrower, as the case
may be, has begun to (A) partially or completely demolish and redevelop the
improvements on such Property, (B) substantially reconfigure the existing
improvements on such Property or (C) increase materially the rentable square
footage of such Property and (b) will, upon completion, be developed for an
Eligible Use.
"Rating Agencies" means any two nationally recognized securities rating
agencies designated by the Borrower and acceptable to the Agent. One of such
ratings agencies must be either (a) Moody's or (b) S&P, but if both such
corporations cease to act as a securities rating agency or cease to provide
ratings with respect to the senior long-term unsecured debt obligations of the
Borrower, the Borrower may designate as a replacement Rating Agency any
nationally recognized securities rating agency acceptable to the Agent.
"Real Estate Revenue" means, with respect to a Person and for a given
period, the sum of the following: (a) minimum base rent revenue and percentage
rent revenue; (b) Property-level operating expense recoveries; and (c)
miscellaneous tenant related revenue.
"Regency Texas" means Regency Centers Texas, LLC, a Florida limited
liability company, together with its successors and assigns.
"Regulations U and X" means Regulations U and X of the Board of
Governors of the Federal Reserve System, as in effect from time to time.
"Regulatory Change" means, with respect to any Lender, any change
effective after the Agreement Date in Applicable Law (including without
limitation, Regulation D of the Board of Governors of the Federal Reserve
System) or the adoption or making after such date of any interpretation,
directive or request applying to a class of banks, including such Lender, of or
- 19 -
under any Applicable Law (whether or not having the force of law and whether or
not failure to comply therewith would be unlawful) by any Governmental Authority
or monetary authority charged with the interpretation or administration thereof
or compliance by any Lender with any request or directive regarding capital
adequacy.
"Reimbursement Obligation" means the absolute, unconditional and
irrevocable obligation of the Borrower to reimburse the Agent for any drawing
honored by the Agent under a Letter of Credit.
"REIT" means a Person qualifying for treatment as a "real estate
investment trust" under the Internal Revenue Code.
"Reportable Event" has the meaning set forth in Section 4043(b) of
ERISA, but shall not include a Reportable Event as to which the provision for 30
days' notice to the PBGC is waived under applicable regulations.
"Requisite Lenders" means, as of any date, Lenders having at least
66-2/3% of the aggregate amount of the Commitments, or, if the Commitments have
been terminated or reduced to zero, Lenders holding at least 66-2/3% of the
aggregate outstanding principal amount of the Loans and Letter of Credit
Liabilities.
"Reserve for Replacements" means, for any period and with respect to
any Property, an amount equal to (a)(i) the aggregate square footage of all
completed space of such Property if such Property is owned by the Parent or any
of its Subsidiaries or (ii) the Parent's or such Subsidiary's Ownership Share of
the aggregate square footage of all completed space of such Property if such
Property is owned by an Unconsolidated Affiliate times (b) $0.15 times (c) the
number of days in such period divided by (d) 365.
"Restricted Payment" means, with respect to a Person: (a) any dividend
or other distribution, direct or indirect, on account of any shares or other
equity units of any class of stock, partnership interest or other equity
interest, as applicable, of such Person now or hereafter outstanding, except a
dividend payable solely in shares or other equity units of that class of stock,
partnership interest or other equity interest, as applicable, to the holders of
that class; (b) any redemption, conversion, exchange, retirement, sinking fund
or similar payment, purchase or other acquisition for value, direct or indirect,
of any shares or other equity units of any class of stock, partnership interests
or other equity interests, as applicable, of such Person now or hereafter
outstanding, except, in the case of the Borrower, for any conversion or exchange
of partnership units in the Borrower solely for shares of capital stock of the
Parent; and (c) any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares or other equity
units of any class of stock, partnership interests or other equity interests, as
applicable, of such Person now or hereafter outstanding.
"Revolving Loan" means a loan made by a Lender under Section 2.1.
- 20 -
"Revolving Note" means a promissory note of the Borrower substantially
in the form of Exhibit I, payable to the order of a Lender in a principal amount
equal to the amount of such Lender's Commitment as originally in effect and
otherwise duly completed.
"Secured Indebtedness" means, with respect to any Person, any
Indebtedness of such Person that is secured in any manner by any Lien on any
real property and shall include such Person's Ownership Share of the Secured
Indebtedness of any of such Person's Unconsolidated Affiliates.
"Securities Act" means the Securities Act of 1933, as amended, and all
rules and regulations issued pursuant thereto.
"Side Shop Center" means a Property developed as a "side shop center"
located on real property adjacent to a third-party-owned, stand-alone grocery
store.
"Solvent" means, when used with respect to any Person, that (a) the
fair value and the fair salable value of its assets (excluding any Indebtedness
due from any Affiliate of such Person) are each in excess of the fair valuation
of its total liabilities (including all contingent liabilities); and (b) such
Person is able to pay its debts or other obligations in the ordinary course as
they mature and (c) that the Person has capital not unreasonably small to carry
on its business and all business in which it proposes to be engaged.
"S&P" means Standard & Poor's Rating Group, a division of The
McGraw-Hill Companies, Inc.
"Stabilized Retail Operating Property" means an Eligible Property which
satisfies both of the following requirements: (a) such Eligible Property is not
a Development Property and has an Occupancy Rate which equals or exceeds 80% and
(b) such Eligible Property is developed for an Eligible Use.
"Stated Amount" means the amount available to be drawn by a beneficiary
under a Letter of Credit from time to time, as such amount may be increased or
reduced from time to time in accordance with the terms of such Letter of Credit.
"Stein Parties" means (a) (i) Joan Newton, Richard Stein, Robert Stein
and Martin E. Stein, Jr., (ii) any of their immediate family members consisting
of spouses and lineal descendants (whether natural or adopted) and (iii) any
trusts established for the benefit of any of the foregoing and (b) The Regency
Group, Inc., The Regency Group II, Ltd. and Regency Square II but only so long
as the foregoing individuals or such trusts own, directly or indirectly, all of
the capital stock of any such entity.
"Subsidiary" means, for any Person, any corporation, partnership or
other entity of which at least a majority of the securities or other ownership
interests having by the terms thereof ordinary voting power to elect a majority
of the board of directors or other persons performing similar functions of such
corporation, partnership or other entity (without regard to the occurrence of
any contingency) is at the time directly or indirectly owned or controlled by
such
- 21 -
Person or one or more Subsidiaries of such Person or by such Person and one
or more Subsidiaries of such Person.
"Swingline Commitment" means the Swingline Lender's obligation to make
Swingline Loans pursuant to Section 2.3. in an amount up to, but not exceeding
the amount set forth in Section 2.3.(a), as such amount may be reduced from time
to time in accordance with the terms hereof.
"Swingline Lender" means Wells Fargo Bank, National Association,
together with its respective successors and assigns.
"Swingline Loan" means a loan made by the Swingline Lender to the
Borrower pursuant to Section 2.3.(a).
"Swingline Note" means a promissory note of the Borrower substantially
in the form of Exhibit J, payable to the order of the Swingline Lender in a
principal amount equal to the amount of the Swingline Commitment as originally
in effect and otherwise duly completed.
"Swingline Termination Date" means the date which is seven Business
Days prior to the Termination Date.
"Taxes" has the meaning given that term in Section 3.10.
"Termination Date" means March 25, 2007, or such later date to which
such date may be extended in accordance with Section 2.10.
"Termination Event" means (a) a Reportable Event; (b) the filing of a
notice of intent to terminate a Plan or the treatment of a Plan amendment as a
termination under Section 4041 of ERISA or (c) the institution of proceedings to
terminate a Plan by the PBGC under Section 4042 of ERISA, or the appointment of
a trustee to administer any Plan.
"Third Party Net Revenue" means, with respect to a Person and for a
given period: (a) net income accrued by such Person during such period from
fees, commissions and other compensation derived from (i) managing and/or
leasing properties owned by third parties; (ii) developing properties for third
parties; (iii) arranging for property acquisitions by third parties; (iv)
arranging financing for third parties and (v) consulting and business services
performed for third parties; plus (minus) (b) gains (losses) during such period
from the sale of (i) outparcels of Properties and (ii) Properties developed for
the purpose of sale; minus (c) taxes paid or accrued in accordance with GAAP
during such period by any "taxable REIT subsidiary" (as defined in Sec. 856(l)
of the Internal Revenue Code) of such Person or any of its Subsidiaries.
"Total Liabilities" means, as to any Person as of a given date, all
liabilities which would, in conformity with GAAP (except for intangible
liabilities as listed on such Person's consolidated balance sheet in accordance
with Statements of Financial Accounting Standards No. 141), be properly
classified as a liability on the consolidated balance sheet of such Person as of
such date, and in any event shall include (without duplication): (a) all
Indebtedness of such
- 22 -
Person; (b) all accounts payable of such Person; (c) all purchase and repurchase
obligations and forward commitments of such Person to the extent such
obligations or commitments are evidenced by a binding purchase agreement
(forward commitments shall include without limitation (i) forward equity
commitments and (ii) commitments to purchase any real property under
development, redevelopment or renovation); (d) all unfunded obligations of such
Person; (e) all lease obligations of such Person (including ground leases) to
the extent required under GAAP to be classified as a liability on the balance
sheet of such Person; (f) all Contingent Obligations of such Person including,
without limitation, all Guarantees of Indebtedness by such Person; and (g) all
liabilities of any Unconsolidated Affiliate of such Person, which liabilities
such Person has Guaranteed or is otherwise obligated on a recourse basis. For
purposes of clauses (c) and (d) of this definition, the amount of Total
Liabilities of a Person at any given time in respect of a contract to purchase
or otherwise acquire unimproved or fully developed real property shall be equal
to (i) the total purchase price payable by such Person under the contract if, at
such time, the seller of such real property would be entitled to specifically
enforce the contract against such Person, otherwise, (ii) the aggregate amount
of due diligence deposits, earnest money payments and other similar payments
made by such Person under the contract which, at such time, would be subject to
forfeiture upon termination of the contract. For purposes of clauses (c) and (d)
of this definition, the amount of Total Liabilities of a Person at any given
time in respect of a contract relating to the acquisition of real property which
the seller is required to develop or renovate prior to, and as a condition
precedent to, such acquisition shall equal the maximum amount reasonably
estimated to be payable by such Person under the contract assuming performance
by the seller of its obligations under the contract which amount shall include,
without limitation, any amounts payable after consummation of such acquisition
which may be based on certain performance levels or other related criteria.
"Type" with respect to any Revolving Loan, refers to whether such Loan
is a LIBOR Loan or a Base Rate Loan, or in the case of a Bid Rate Loan only, an
Absolute Rate Loan or a LIBOR Margin Loan.
"Unconsolidated Affiliate" shall mean, with respect to any Person, any
other Person in whom such Person holds an Investment, which Investment is
accounted for in the financial statements of such Person on an equity basis of
accounting and whose financial results would not be consolidated under GAAP with
the financial results of such Person on the consolidated financial statements of
such Person.
"Unencumbered NOI" means, for any period, the aggregate Net Operating
Income for such period of Unencumbered Pool Properties and any other Property
which satisfies the following requirements: (a) such Property is owned in fee
simple by only the Parent or a Subsidiary; (b) neither such Property, nor any
interest of the Parent or such Subsidiary therein, is subject to any Lien other
than Permitted Liens or to any agreement (other than this Agreement or any other
Loan Document) that prohibits the creation of any Lien thereon as security for
Indebtedness; (c) if such Property is owned by a Subsidiary, (i) none of the
Parent's direct or indirect ownership interest in such Subsidiary is subject to
any Lien other than Permitted Liens or to any agreement (other than this
Agreement or any other Loan Document) that prohibits the creation of any Lien
thereon as security for Indebtedness and (ii) the Parent directly, or indirectly
through a Subsidiary, has the right to take the following actions without the
need to obtain the
- 23 -
consent of any Person: (A) to create Lien on such Property as security for
Indebtedness of the Parent or such Subsidiary, as applicable and (B) to sell,
transfer or otherwise dispose of such Property; and (d) such Property is free of
all structural defects, title defects, environmental conditions (except in the
case of an Environmentally Impacted Property) or other adverse matters except
for defects, conditions or matters individually or collectively which are not
material to the profitable operation of such Property.
"Unencumbered Pool Certificate" means a report, certified by the chief
financial officer of the Borrower in the manner provided for in Exhibit K,
setting forth the calculations required to establish the Borrowing Base as of a
specified date, all in form and detail satisfactory to the Agent.
"Unencumbered Pool Properties" means those Eligible Properties that,
pursuant to the terms of this Agreement, are to be included when calculating the
Maximum Loan Availability.
"Unencumbered Pool Value" means, at any time, the following amount as
determined for an Unencumbered Pool Property: if such Unencumbered Pool Property
is (a) a Stabilized Retail Operating Property, (i) the Net Operating Income of
such Unencumbered Pool Property for the fiscal quarter most recently ended times
(ii) 4 and divided by (iii) 8.50%; (b) a Pre-Stabilized Retail Operating
Property, (i) from the date such Unencumbered Pool Property is first included as
Unencumbered Pool Property pursuant to Section 4.1. through the last day of the
twelfth full calendar month thereafter, the book value of such Unencumbered Pool
Property, and (ii) from and after that time: (A) the Net Operating Income of
such Unencumbered Pool Property for the fiscal quarter most recently ended times
(B) 4 and divided by (C) 8.50%; and (c) a Qualified Development Property, the
book value of Construction in Process for such Unencumbered Pool Property.
Notwithstanding the foregoing, (x) if an Unencumbered Pool Property shall cease
to qualify as an Eligible Property, then the Unencumbered Pool Value of such
Property shall be $0 and (y) if upon the sale or settlement of the ownership of
an Unencumbered Pool Property, the Borrower or any Subsidiary would be obligated
to pay to the Person from whom the Borrower or such Subsidiary acquired such
Unencumbered Pool Property (including the assignee of a purchase and sale
agreement with respect to such land) an amount determined by reference to the
sale price of such Unencumbered Pool Property, then the Unencumbered Pool Value
of such Unencumbered Pool Property shall be equal to the lower of (I) the book
value of such Unencumbered Pool Property or (II) the value of such Unencumbered
Pool Property determined in accordance with this definition without regard to
this clause (y).
"Unsecured Indebtedness" means, with respect to a Person, all
Indebtedness of such Person that is not Secured Indebtedness.
"Unsecured Interest Expense" means, with respect to a Person and for a
given period, all Interest Expense for such period attributable the Unsecured
Indebtedness of such Person.
"Unsecured Liabilities" means, as to any Person as of a given date, (a)
all liabilities which would, in conformity with GAAP (except for intangible
liabilities as listed on such Person's consolidated balance sheet in accordance
with Statements of Financial Accounting Standards No. 141), be properly
classified as a liability on the consolidated balance sheet of such Person as at
- 24 -
such date plus (b) all Indebtedness of such Person (to the extent not included
in the preceding clause (a)) minus (c) all Secured Indebtedness of such Person.
When determining the Unsecured Liabilities of the Parent and its Subsidiaries:
(i) the following (to the extent not in excess of $10,000,000 in the aggregate)
shall be excluded: (A) any amounts related to contributions by the Borrower paid
in the Borrower's capital stock to the 401(k) plan maintained by the Borrower
and (B) contributions paid by the Borrower to the Borrower's Long-term Omnibus
Plan; (ii) accounts payable and accrued dividends payable shall be included only
to the extent the aggregate amount thereof exceeds the aggregate amount of
unrestricted cash then reportable on a consolidated balance sheet of the
Borrower; and (iii) accrued property taxes in respect of real property shall be
included only to the extent the aggregate amount thereof exceeds the aggregate
amount of cash held by the Borrower and its Subsidiaries in escrow for the
payment of such taxes at such time.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such Person, even if the right so
to vote has been suspended by the happening of such a contingency
"Wells Fargo" means Wells Fargo Bank, National Association, together
with its successors and assigns.
"Wholly Owned Subsidiary" means any Subsidiary of a Person in respect
of which all of the equity securities or other ownership interests (other than,
in the case of a corporation, directors' qualifying shares) are at the time
directly or indirectly owned or controlled by such Person or one or more other
Wholly Owned Subsidiaries of such Person or by such Person and one or more other
Wholly Owned Subsidiaries of such Person.
SECTION 1.2. General; References to Time.
Unless otherwise indicated, all accounting terms, ratios and
measurements shall be interpreted or determined in accordance with, and all
financial statements required to be delivered under any Loan Document shall be
prepared in accordance with, GAAP. With respect to any Property which has not
been owned by a Loan Party for a full fiscal quarter, financial amounts with
respect to such Property shall be adjusted appropriately to account for such
lesser period of ownership unless specifically provided otherwise herein.
References in this Agreement to "Sections", "Articles", "Exhibits" and
"Schedules" are to sections, articles, exhibits and schedules herein and hereto
unless otherwise indicated. references in this Agreement to any document,
instrument or agreement (a) shall include all exhibits, schedules and other
attachments thereto, (b) shall include all documents, instruments or agreements
issued or executed in replacement thereof, and (c) shall mean such document,
instrument or agreement, or replacement or predecessor thereto, as amended,
supplemented, restated or otherwise modified from time to time and in effect at
any given time. Wherever from the context it appears appropriate, each term
stated in either the singular or plural shall include the singular and plural,
and pronouns stated in the masculine, feminine or neuter gender shall include
the masculine, the feminine and the neuter. Unless explicitly set forth to the
contrary, a reference to "Subsidiary" means a Subsidiary of the Parent or a
Subsidiary of such Subsidiary and a reference to an "Affiliate" means a
- 25 -
reference to an Affiliate of the Borrower. Unless otherwise indicated, all
references to time are references to San Francisco, California time.
ARTICLE II. CREDIT FACILITY
SECTION 2.1. Revolving Loans.
(a) Making of Revolving Loans. Subject to the terms and conditions
set forth in this Agreement and the limitations set forth in Section 2.13., each
Lender severally and not jointly agrees to make Revolving Loans during the
period from and including the Effective Date to but excluding the Termination
Date, to the Borrower in an aggregate principal amount at any one time
outstanding up to, but not exceeding, such Lender's Pro Rata Share of the
Maximum Loan Availability (but in no event in excess of such Lender's
Commitment). Each borrowing of Revolving Loans hereunder shall be in an
aggregate principal amount of $1,000,000 and integral multiples of $100,000 in
excess of that amount (except that any such borrowing of Revolving Loans may be
in the aggregate amount of the unused Commitments, which Revolving Loans, if
less than $1,000,000, must be Base Rate Loans). Within the foregoing limits and
subject to the other terms of this Agreement, the Borrower may borrow, repay and
reborrow Revolving Loans.
(b) Requests for Revolving Loans. Not later than 9:00 a.m. San
Francisco time at least two Business Days prior to a borrowing of Base Rate
Loans and not later than 9:00 a.m. San Francisco time at least three Business
Days prior to a borrowing of LIBOR Loans, the Borrower shall deliver to the
Agent a Notice of Borrowing. Each Notice of Borrowing shall specify the
principal amount of the Revolving Loan to be borrowed, the date such Revolving
Loan is to be borrowed (which must be a Business Day), the use of the proceeds
of such Revolving Loan, the Type of the requested Revolving Loan and if such
Revolving Loan is to be a LIBOR Loan, the initial Interest Period for such
Revolving Loan. Each Notice of Borrowing shall be irrevocable once given and
binding on the Borrower. Prior to delivering a Notice of Borrowing, the Borrower
may (without specifying whether a Revolving Loan will be a Base Rate Loan or a
LIBOR Loan) request that the Agent provide the Borrower with the most recent
LIBO Rate available to the Agent. The Agent shall provide such quoted rate to
the Borrower and to the Lenders on the date of such request or as soon as
possible thereafter.
(c) Funding of Revolving Loans. Promptly after receipt of a Notice
of Borrowing under Section 2.1.(b), the Agent shall notify each Lender by telex
or telecopy, or other similar form of transmission of the proposed borrowing.
Each Lender shall deposit an amount equal to the Revolving Loan to be made by
such Lender to the Borrower with the Agent at the Principal Office, in
immediately available funds not later than 9:00 a.m. San Francisco time on the
date of such proposed Revolving Loans. Subject to fulfillment of all applicable
conditions set forth herein, the Agent shall make available to the Borrower at
the Principal Office, not later than 12:00 noon San Francisco time on the date
of the requested borrowing of Revolving Loans, the proceeds of such amounts
received by the Agent. No Lender shall be responsible for the failure of any
other Lender to make a Loan or to perform any other obligation to be made or
performed by such other Lender hereunder, and the failure of any Lender to make
a Loan or to perform any other obligation to be made or performed by it
hereunder shall not relieve the obligation of any
- 26 -
other Lender to make any Loan or to perform any other obligation to be made or
performed by such other Lender.
(d) Assumptions Regarding Funding by Lenders. With respect to
Revolving Loans to be made after the Effective Date, unless the Agent shall have
been notified by any Lender that such Lender will not make available to the
Agent a Revolving Loan to be made by such Lender, the Agent may assume that such
Lender will make the proceeds of such Revolving Loan available to the Agent in
accordance with this Section and the Agent may (but shall not be obligated to),
in reliance upon such assumption, make available to the Borrower the amount of
such Revolving Loan to be provided by such Lender.
(e) Reallocation of Existing Revolving Loans. Upon the Effective
Date, all Revolving Loans (as defined under the Existing Credit Agreement)
outstanding under the Existing Credit Agreement shall be deemed to be Revolving
Loans outstanding hereunder being of the same Types, and in the case of LIBOR
Loans, having the same Interest Periods. As of the Effective Date, such
Revolving Loans shall be allocated among the Lenders in accordance with their
respective Pro Rata Shares. Each Lender agrees to make such payments to the
other Lenders and any Person who ceased to be a "Lender" under the Existing
Credit Agreement upon the Effective Date in such amounts as are necessary to
effect such allocation. All such payments shall be made to the Agent for the
account of the Person to be paid. The Borrower shall pay any amounts payable to
any Lenders under Section 5.4. as a result of such allocation.
SECTION 2.2. Bid Rate Loans.
(a) Bid Rate Loans. In addition to borrowings of Revolving Loans, at
any time during the period from the Effective Date to but excluding the
Termination Date, and so long as the Borrower or the Parent, as the case may be,
continues to maintain an Investment Grade Rating from both S&P and Moody's, the
Borrower may, as set forth in this Section, request the Lenders to make offers
to make Bid Rate Loans to the Borrower in Dollars. The Lenders may, but shall
have no obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this Section.
(b) Requests for Bid Rate Loans. When the Borrower wishes to request
from the Lenders offers to make Bid Rate Loans, it shall give the Agent notice
(a "Bid Rate Quote Request") so as to be received no later than 9:00 a.m. San
Francisco time on (x) the Business Day immediately preceding the date of
borrowing proposed therein, in the case of an Absolute Rate Auction and (y) on
the date four Business Days prior to the proposed date of borrowing, in the case
of a LIBOR Auction. The Agent shall deliver to each Lender a copy of each Bid
Rate Quote Request promptly upon receipt thereof by the Agent. The Borrower may
request offers to make Bid Rate Loans for up to 3 different Interest Periods in
each Bid Rate Quote Request (for which purpose Interest Periods in different
lettered clauses of the definition of the term "Interest Period" shall be deemed
to be different Interest Periods even if they are coterminous); provided that
the request for each separate Interest Period shall be deemed to be a separate
Bid Rate Quote Request for a separate borrowing (a "Bid Rate Borrowing"). Each
Bid Rate Quote Request shall be substantially in the form of Exhibit L and shall
specify as to each Bid Rate Borrowing all of the following:
- 27 -
(i) the proposed date of such borrowing, which shall be a
Business Day;
(ii) the aggregate amount of such Bid Rate Borrowing which
shall be in a minimum amount of $15,000,000 and integral multiples of
$1,000,000 in excess thereof which shall not cause any of the limits
specified in Section 2.13. to be violated;
(iii) whether the Bid Rate Quote Request is for LIBOR Margin
Loans or Absolute Rate Loans; and
(iv) the duration of the Interest Period applicable thereto,
which shall not extend beyond the Termination Date.
The Borrower shall not deliver any Bid Rate Quote Request within five
Business Days of the giving of any other Bid Rate Quote Request.
(c) Bid Rate Quotes.
(i) Each Lender may submit one or more Bid Rate Quotes, each
containing an offer to make a Bid Rate Loan in response to any Bid Rate
Quote Request; provided that, if the Borrower's request under Section
2.2.(b) specified more than one Interest Period, such Lender may make a
single submission containing only one Bid Rate Quote for each such
Interest Period. Each Bid Rate Quote must be submitted to the Agent not
later than 7:30 a.m. San Francisco time (x) on the proposed date of
borrowing, in the case of an Absolute Rate Auction and (y) on the date
three Business Days prior to the proposed date of borrowing, in the
case of a LIBOR Auction, and in either case the Agent shall disregard
any Bid Rate Quote received after such time; provided that the Lender
then acting as the Agent may submit a Bid Rate Quote only if it
notifies the Borrower of the terms of the offer contained therein not
later than 30 minutes prior to the latest time by which the Lenders
must submit applicable Bid Rate Quotes. Subject to Articles VI. and X.,
any Bid Rate Quote so made shall be irrevocable. Such Bid Rate Loans
may be funded by a Lender's Designated Lender (if any) as provided in
Section 12.8.(d), however such Lender shall not be required to specify
in its Bid Rate Quote whether such Bid Rate Loan will be funded by such
Designated Lender.
(ii) Each Bid Rate Quote shall be substantially in the form
of Exhibit M and shall specify:
(A) the proposed date of borrowing and the Interest
Period therefor;
(B) the principal amount of the Bid Rate Loan for
which each such offer is being made; provided that the
aggregate principal amount of all Bid Rate Loans for which a
Lender submits Bid Rate Quotes (x) may be greater or less than
the Commitment of such Lender but (y) shall not exceed the
principal amount of the Bid Rate Borrowing for a particular
Interest Period for which offers were requested;
- 28 -
(C) in the case of an Absolute Rate Auction, the
rate of interest per annum (rounded upwards, if necessary, to
the nearest 1/1,000th of 1%) offered for each such Absolute Rate
Loan (the "Absolute Rate");
(D) in the case of a LIBOR Auction, the margin above
or below the applicable LIBO Rate (the "LIBOR Margin") offered
for each such LIBOR Margin Loan, expressed as a percentage
(rounded upwards, if necessary, to the nearest 1/1,000th of
1%) to be added to (or subtracted from) the applicable LIBO
Rate;
(E) the identity of the quoting Lender; and
(F) any Bid Rate Quote shall be in a minimum amount
of $5,000,000 and integral multiples of $1,000,000 in excess
thereof.
No Bid Rate Quote shall contain qualifying, conditional or
similar language or propose terms other than or in addition to those
set forth in the applicable Bid Rate Quote Request and, in particular,
no Bid Rate Quote may be conditioned upon acceptance by the applicable
Borrower of all (or some specified minimum) of the principal amount of
the Bid Rate Loan for which such Bid Rate Quote is being made.
(d) Notification by Agent. The Agent shall, as promptly as
practicable after the Bid Rate Quotes are submitted (but in any event not later
than 8:30 a.m. San Francisco time (x) on the proposed date of borrowing, in the
case of an Absolute Rate Auction and (y) on the date three Business Days prior
to the proposed date of borrowing, in the case of a LIBOR Auction), notify the
Borrower of the terms (i) of any Bid Rate Quote submitted by a Lender that is in
accordance with Section 2.2.(c) and (ii) of any Bid Rate Quote that amends,
modifies or is otherwise inconsistent with a previous Bid Rate Quote submitted
by such Lender with respect to the same Bid Rate Quote Request. Any such
subsequent Bid Rate Quote shall be disregarded by the Agent unless such
subsequent Bid Rate Quote is submitted solely to correct a manifest error in
such former Bid Rate Quote. The Agent's notice to the Borrower shall specify (A)
the aggregate principal amount of the Bid Rate Borrowing for which offers have
been received and (B) the principal amounts and Absolute Rates or LIBOR Margins,
as applicable, so offered by each Lender.
(e) Acceptance by Borrower.
(i) Not later than 9:30 a.m. San Francisco time (x) on the
proposed date of borrowing, in the case of an Absolute Rate Auction and
(y) on the date three Business Days prior to the proposed date of
borrowing, in the case of LIBOR Auction, the Borrower shall notify the
Agent of its acceptance or nonacceptance of the offers so notified to
it pursuant to Section 2.2.(d) which notice shall be in the form of
Exhibit N. In the case of acceptance, such notice shall specify the
aggregate principal amount of offers for each Interest Period that are
accepted. The failure of the Borrower to give such notice by such time
shall constitute nonacceptance. The Borrower may accept any Bid Rate
Quote in whole or in part; provided that:
- 29 -
(A) the aggregate principal amount of each Bid Rate
Borrowing may not exceed the applicable amount set forth in
the related Bid Rate Quote Request;
(B) the aggregate principal amount of each Bid Rate
Borrowing shall comply with the provisions of Section
2.2.(b)(ii) but shall not cause the limits specified in
Section 2.13.
to be violated;
(C) acceptance of offers may be made only in
ascending order of Absolute Rates or LIBOR Margins, as
applicable, in each case beginning with the lowest rate so
offered;
(D) any acceptance in part by the Borrower shall be
in a minimum amount of $5,000,000 and integral multiples of
$1,000,000 in excess thereof; and
(E) the Borrower may not accept any offer that fails
to comply with Section 2.2.(c) or otherwise fails to comply
with the requirements of this Agreement.
(ii) If offers are made by two or more Lenders with the same
Absolute Rates or LIBOR Margins, as applicable, for a greater aggregate
principal amount than the amount in respect of which offers are
accepted for the related Interest Period, the principal amount of Bid
Rate Loans in respect of which such offers are accepted shall be
allocated by the Agent among such Lenders in proportion to the
aggregate principal amount of such offers. Determinations by the Agent
of the amounts of Bid Rate Loans shall be conclusive in the absence of
manifest error.
(f) Obligation to Make Bid Rate Loans. The Agent shall promptly (and
in any event not later than (x) 10:00 a.m. San Francisco time on the proposed
date of borrowing of Absolute Rate Loans and (y) on the date three Business Days
prior to the proposed date of borrowing of LIBOR Margin Loans) notify each
Lender that submitted a Bid Rate Quote as to whose Bid Rate Quote has been
accepted and the amount and rate thereof. A Lender who is notified that it has
been selected to make a Bid Rate Loan may designate its Designated Lender (if
any) to fund such Bid Rate Loan on its behalf, as described in Section 12.8. Any
Designated Lender which funds a Bid Rate Loan shall on and after the time of
such funding become the obligee under such Bid Rate Loan and be entitled to
receive payment thereof when due. No Lender shall be relieved of its obligation
to fund a Bid Rate Loan, and no Designated Lender shall assume such obligation,
prior to the time the applicable Bid Rate Loan is funded. Any Lender whose offer
to make any Bid Rate Loan has been accepted shall, not later than 11:00 a.m. San
Francisco time on the date specified for the making of such Loan, make the
amount of such Loan available to the Agent at its Principal Office in
immediately available funds, for the account of the Borrower. The amount so
received by the Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Borrower not later than 12:00 noon on such
date by depositing the same, in immediately available funds, in an account of
the Borrower designated by the Borrower.
- 30 -
(g) No Effect on Commitment. Except for the purpose and to the
extent expressly stated in Section 2.9., the amount of any Bid Rate Loan made by
any Lender shall not constitute a utilization of such Lender's Commitment.
SECTION 2.3. Swingline Loans.
(a) Swingline Loans. Subject to the terms and conditions hereof,
including, without limitation Section 2.13., the Swingline Lender agrees to make
Swingline Loans to the Borrower, during the period from the Effective Date to
but excluding the Swingline Termination Date, in an aggregate principal amount
at any one time outstanding up to, but not exceeding, $50,000,000, as such
amount may be reduced from time to time in accordance with the terms hereof. If
at any time the aggregate principal amount of the Swingline Loans outstanding at
such time exceeds the Swingline Commitment in effect at such time, the Borrower
shall immediately pay the Agent for the account of the Swingline Lender the
amount of such excess. Subject to the terms and conditions of this Agreement,
the Borrower may borrow, repay and reborrow Swingline Loans hereunder.
(b) Procedure for Borrowing Swingline Loans. The Borrower shall give
the Agent and the Swingline Lender notice pursuant to a Notice of Swingline
Borrowing delivered to the Swingline Lender no later than 9:00 a.m. San
Francisco time on the proposed date of such borrowing. Any such telephonic
notice shall include all information to be specified in a written Notice of
Swingline Borrowing. Not later than 11:00 a.m. San Francisco time on the date of
the requested Swingline Loan and subject to satisfaction of the applicable
conditions set forth in Article VI. for such borrowing, the Swingline Lender
will make the proceeds of such Swingline Loan available to the Borrower in
Dollars, in immediately available funds, at the account specified by the
Borrower in the Notice of Swingline Borrowing.
(c) Interest. Swingline Loans shall bear interest at a per annum
rate equal to the Base Rate as in effect from time to time or at such other rate
or rates as the Borrower and the Swingline Lender may agree from time to time in
writing. Interest payable on Swingline Loans is solely for the account of the
Swingline Lender. All accrued and unpaid interest on Swingline Loans shall be
payable on the dates and in the manner provided in Section 2.8. with respect to
interest on Base Rate Loans (except as the Swingline Lender and the Borrower may
otherwise agree in writing in connection with any particular Swingline Loan).
(d) Swingline Loan Amounts, Etc. Each Swingline Loan shall be in the
minimum amount of $1,000,000 and integral multiples of $100,000 in excess
thereof, or such other minimum amounts agreed to by the Swingline Lender and the
Borrower. Any voluntary prepayment of a Swingline Loan must be in integral
multiples of $100,000 or the aggregate principal amount of all outstanding
Swingline Loans (or such other minimum amounts upon which the Swingline Lender
and the Borrower may agree) and in connection with any such prepayment, the
Borrower must give the Swingline Lender prior written notice thereof no later
than 10:00 a.m. San Francisco time on the day prior to the date of such
prepayment. The Swingline Loans shall, in addition to this Agreement, be
evidenced by the Swingline Note.
- 31 -
(e) Repayment and Participations of Swingline Loans. The Borrower
agrees to repay each Swingline Loan within one Business Day of demand therefor
by the Swingline Lender and in any event, within 7 Business Days after the date
such Swingline Loan was made. Notwithstanding the foregoing, the Borrower shall
repay the entire outstanding principal amount of, and all accrued but unpaid
interest on, the Swingline Loans on the Swingline Termination Date (or such
earlier date as the Swingline Lender and the Borrower may agree in writing). In
lieu of demanding repayment of any outstanding Swingline Loan from the Borrower,
the Swingline Lender may, on behalf of the Borrower (which hereby irrevocably
directs the Swingline Lender to act on its behalf), request a borrowing of Base
Rate Loans from the Lenders in an amount equal to the principal balance of such
Swingline Loan. The amount limitations contained in the second sentence of
Section 2.1.(a) shall not apply to any borrowing of Base Rate Loans made
pursuant to this subsection. The Swingline Lender shall give notice to the Agent
of any such borrowing of Base Rate Loans not later than 9:00 a.m. San Francisco
time at least one Business Day prior to the proposed date of such borrowing.
Each Lender will make available to the Agent at the Principal Office for the
account of Swingline Lender, in immediately available funds, the proceeds of the
Base Rate Loan to be made by such Lender. The Agent shall pay the proceeds of
such Base Rate Loans to the Swingline Lender, which shall apply such proceeds to
repay such Swingline Loan. If the Lenders are prohibited from making Loans
required to be made under this subsection for any reason whatsoever, including
without limitation, the occurrence of any of the Defaults or Events of Default
described in Sections 10.1.(g) or 10.1.(h), each Lender shall purchase from the
Swingline Lender, without recourse or warranty, an undivided interest and
participation to the extent of such Lender's Pro Rata Share of such Swingline
Loan, by directly purchasing a participation in such Swingline Loan in such
amount and paying the proceeds thereof to the Agent for the account of the
Swingline Lender in Dollars and in immediately available funds. A Lender's
obligation to purchase such a participation in a Swingline Loan shall be
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including without limitation, (i) any claim of setoff, counterclaim,
recoupment, defense or other right which such Lender or any other Person may
have or claim against the Agent, the Swingline Lender or any other Person
whatsoever, (ii) the occurrence or continuation of a Default or Event of Default
(including without limitation, any of the Defaults or Events of Default
described in Sections 10.1.(g) or 10.1.(h)) or the termination of any Lender's
Commitment, (iii) the existence (or alleged existence) of an event of condition
which has had or could have a Materially Adverse Effect, (iv) any breach of any
Loan Document by the Agent, any Lender or the Borrower or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing. If such amount is not in fact made available to the Swingline
Lender by any Lender, the Swingline Lender shall be entitled to recover such
amount on demand from such Lender, together with accrued interest thereon for
each day from the date of demand thereof, at the Federal Funds Rate. If such
Lender does not pay such amount forthwith upon the Swingline Lender's demand
therefor, and until such time as such Lender makes the required payment, the
Swingline Lender shall be deemed to continue to have outstanding Swingline Loans
in the amount of such unpaid participation obligation for all purposes of the
Loan Documents (other than those provisions requiring the other Lenders to
purchase a participation therein). Further, such Lender shall be deemed to have
assigned any and all payments made of principal and interest on its Loans, and
any other amounts due to it hereunder, to the Swingline Lender to fund Swingline
Loans in the amount of the participation in
- 32 -
Swingline Loans that such Lender failed to purchase pursuant to this Section
until such amount has been purchased (as a result of such assignment or
otherwise).
SECTION 2.4. Number of Interest Periods.
Anything herein to the contrary notwithstanding, there may be no more
than 8 different Interest Periods with respect to the LIBOR Loans and Bid Rate
Loans on a collective basis outstanding at the same time.
SECTION 2.5. Continuation.
So long as no Default or Event of Default shall have occurred and be
continuing, the Borrower may on any Business Day, with respect to any LIBOR
Loan, elect to maintain such LIBOR Loan or any portion thereof as a LIBOR Loan
by selecting a new Interest Period for such LIBOR Loan. Each new Interest Period
selected under this Section shall commence on the last day of the immediately
preceding Interest Period. Each selection of a new Interest Period shall be made
by the Borrower's giving of a Notice of Continuation not later than 9:00 a.m. on
the third Business Day prior to the date of any such Continuation by the
Borrower to the Agent. Promptly after receipt of a Notice of Continuation, the
Agent shall notify each Lender by telex or telecopy, or other similar form of
transmission of the proposed Continuation. Such notice by the Borrower of a
Continuation shall be by telephone or telecopy, confirmed immediately in writing
if by telephone, in the form of a Notice of Continuation, specifying (a) the
date of such Continuation, (b) the LIBOR Loan and portion thereof subject to
such Continuation and (c) the duration of the selected Interest Period, all of
which shall be specified in such manner as is necessary to comply with all
limitations on Loans outstanding hereunder. Each Notice of Continuation shall be
irrevocable by and binding on the Borrower once given. If the Borrower shall
fail to select in a timely manner a new Interest Period for any LIBOR Loan in
accordance with this Section, such Loan will automatically, on the last day of
the current Interest Period therefore, Convert into a Base Rate Loan
notwithstanding failure of the Borrower to comply with Section 2.6. In the case
of the Continuation of only a portion of a LIBOR Loan, such portion shall be in
the aggregate amount for all of the Lenders of $1,000,000 or integral multiples
of $100,000 in excess of that amount.
SECTION 2.6. Conversion.
So long as no Default or Event of Default shall have occurred and be
continuing, the Borrower may on any Business Day, upon the Borrower's giving of
a Notice of Conversion to the Agent, Convert the entire amount of all or a
portion of a Revolving Loan of one Type into a Revolving Loan of another Type;
provided, however, any Conversion of a LIBOR Loan into a Base Rate Loan shall be
made on, and only on, the last day of an Interest Period for such LIBOR Loan.
Promptly after receipt of a Notice of Conversion, the Agent shall notify each
Lender by telex or telecopy, or other similar form of transmission of the
proposed Conversion. Each such Notice of Conversion shall be given not later
than 9:00 a.m. on the Business Day prior to the date of any proposed Conversion
into Base Rate Loans and on the third Business Day prior to the date of any
proposed Conversion into LIBOR Loans. Subject to the restrictions specified
above, each Notice of Conversion shall be by telephone or telecopy confirmed
immediately in writing if by
- 33 -
telephone in the form of a Notice of Conversion specifying (a) the requested
date of such Conversion, (b) the Type of Revolving Loan to be Converted, (c) the
portion of such Type of Revolving Loan to be Converted, (d) the Type of
Revolving Loan such Revolving Loan is to be Converted into and (e) if such
Conversion is into a LIBOR Loan, the requested duration of the Interest Period
of such Revolving Loan. Each Notice of Conversion shall be irrevocable by and
binding on the Borrower once given. Each Conversion from a Base Rate Loan to a
LIBOR Loan shall be in an aggregate amount for the Revolving Loans of all the
Lenders of not less than $1,000,000 or integral multiples of $100,000 in excess
of that amount.
SECTION 2.7. Interest Rate.
(a) All Loans. The unpaid principal of each Base Rate Loan shall
bear interest from the date of the making of such Loan to but not including the
date of repayment thereof at a rate per annum equal to the Base Rate in effect
from day to day plus the Applicable Margin. The unpaid principal of each LIBOR
Loan shall bear interest from the date of the making of such Loan to but not
including the date of repayment thereof at a rate per annum equal to the LIBO
Rate for such Loan for the Interest Period therefor plus the Applicable Margin.
The unpaid principal of each Absolute Rate Loan shall bear interest at the
Absolute Rate for such Loan for the Interest Period therefor quoted by the
Lender making such Loan in accordance with Section 2.2. The unpaid principal of
each LIBOR Margin Loan shall bear interest at the LIBO Rate for such Loan for
the Interest Period therefor plus the LIBOR Margin quoted by the Lender making
such Loan in accordance with Section 2.2.
(b) Default Rate. All past-due principal of, and to the extent
permitted by Applicable Law, interest on, the Loans and all Reimbursement
Obligations shall bear interest until paid at the Base Rate from time to time in
effect plus four percent (4%).
SECTION 2.8. Repayment of Loans.
(a) Payment of Interest. All accrued and unpaid interest on the
unpaid principal amount of each Loan shall be payable (i) in the case of a Base
Rate Loan or a LIBOR Loan, monthly in arrears on the first day of each month,
commencing with the first full calendar month occurring after the Effective
Date, (ii) in the case of a Bid Rate Loan, on the last day of each Interest
Period therefor and, if such Interest Period is longer than a month, monthly in
arrears on the first day of each month, commencing with the first full calendar
month following the first day of such Interest Period, and (iii) for all Loans,
(A) on the Termination Date and (B) on any date on which the principal balance
of such Loan is due and payable in full.
(b) Payment of Principal of Revolving Loans. The Borrower shall
repay the aggregate outstanding principal balance of all Revolving Loans in full
on the Termination Date.
(c) Bid Rate Loans. The Borrower shall repay the entire outstanding
principal amount of each Bid Rate Loan on the last day of the Interest Period of
such Bid Rate Loan.
(d) Optional Prepayments. The Borrower may, upon at least one
Business Day's prior notice to the Agent, prepay any Revolving Loan in whole at
any time, or from time to time
- 34 -
in part in an amount equal to $500,000 or integral multiples of $100,000 in
excess of that amount, by paying the principal amount to be prepaid. If the
Borrower shall prepay the principal of any LIBOR Loan on any date other than the
last day of the Interest Period applicable thereto, the Borrower shall pay the
amounts, if any, due under Section 5.4. Bid Rate Loans may not be prepaid at the
option of the Borrower.
(e) Mandatory Prepayments.
(i) If at any time the aggregate outstanding principal
balance of Loans and the aggregate amount of Letter of Credit
Liabilities exceeds the Maximum Loan Availability, then the Borrower
shall, within 15 days of obtaining actual knowledge of the occurrence
of such excess, deliver to the Agent and each Lender a written plan
acceptable to the Lenders to eliminate such excess, whether by the
designation of additional Properties as Unencumbered Pool Properties,
by repaying an appropriate amount of Loans, or otherwise. If such
excess is not eliminated within 45 days of the Borrower obtaining
actual knowledge of the occurrence thereof, then the entire outstanding
principal balance of all Loans, together with all accrued interest
thereon, and an amount equal to all Letter of Credit Liabilities for
deposit into the Collateral Account, shall be immediately due and
payable in full.
(ii) If at any time the aggregate principal amount of all
outstanding Bid Rate Loans exceeds one-half of the aggregate amount of
all Commitments at such time, then the Borrower shall immediately pay
to the Agent for the accounts of the applicable Lenders the amount of
such excess. Such payment shall be applied as provided in Section
3.3.(f).
(f) General Provisions as to Payments. Except to the extent
otherwise provided herein, all payments of principal, interest and other amounts
to be made by the Borrower under this Agreement, the Notes or any other Loan
Document shall be made in Dollars, in immediately available funds, without
setoff, deduction or counterclaim, to the Agent at the Principal Office, not
later than 11:00 a.m. San Francisco time on the date on which such payment shall
become due (each such payment made after such time on such due date to be deemed
to have been made on the next succeeding Business Day). The Borrower shall, at
the time of making each payment under this Agreement or any other Loan Document,
specify to the Agent the amounts payable by the Borrower hereunder to which such
payment is to be applied. Each payment received by the Agent for the account of
a Lender under this Agreement or any Note shall be paid to such Lender (i) on
the date of receipt by the Agent if received not later than 11:00 a.m. San
Francisco time on the due date of such payment or (ii) not later than the
Business Day immediately following the date of receipt by the Agent if received
after 11:00 a.m. San Francisco time on the due date of such payment. Such
payments by the Agent shall be paid to a Lender by wire transfer of immediately
available funds in accordance with the wiring instructions provided by such
Lender to the Agent from time to time, for the account of such Lender at the
applicable Lending Office of such Lender. In the event the Agent fails to pay
such amounts to such Lender within the time period provided in the immediately
preceding clause (i) or (ii), as applicable, the Agent shall pay interest on
such amount at a rate per annum equal to the Federal Funds Rate from time to
time in effect. If the due date of any payment under this Agreement or any other
Loan Document would
- 35 -
otherwise fall on a day which is not a Business Day such date shall be extended
to the next succeeding Business Day and interest shall continue to accrue at the
rate, if any, applicable to such payment for the period of such extension.
SECTION 2.9. Voluntary Reductions of the Commitments.
The Borrower may terminate or reduce the amount of the Commitments (for
which purpose use of the Commitments shall be deemed to include the aggregate
principal amount of all outstanding Bid Rate Loans and Swingline Loans and the
aggregate amount of all Letter of Credit Liabilities) at any time and from time
to time without penalty or premium upon not less than five Business Days prior
notice to the Agent of each such termination or reduction, which notice shall
specify the effective date thereof and the amount of any such reduction (which
in the case of any partial reduction of the Commitments shall not be less than
$5,000,000 and integral multiples of $5,000,000 in excess of that amount in the
aggregate) and shall be irrevocable once given and effective only upon receipt
by the Agent ("Prepayment Notice"). Promptly after receipt of a Prepayment
Notice the Agent shall notify each Lender by telecopy, or other similar form of
transmission of the proposed Commitment termination or reduction. The
Commitments, once reduced pursuant to this Section, may not be increased. The
Borrower shall pay all interest and fees on the Revolving Loans accrued to the
date of such reduction or termination of the Commitments to the Agent for the
account of the Lenders, including but not limited to any applicable compensation
due to each Lender in accordance with Section 5.4. of this Agreement. Any
reduction in the aggregate amount of the Commitments shall result in a
proportionate reduction (rounded to the next lowest integral multiple of
multiple of $100,000) in the Swingline Commitment and the L/C Commitment Amount.
SECTION 2.10. Extension of Termination Date.
The Borrower may request that the Agent and the Lenders extend the
current Termination Date by one year by executing and delivering to the Agent at
least 90 days but not more than 120 days prior to the current Termination Date,
a written request for such extension (an "Extension Request"). The Agent shall
forward to each Lender a copy of any such request delivered to the Agent
promptly upon receipt thereof. Subject to satisfaction of the following
conditions, the Termination Date shall be extended for one year: (a) immediately
prior to such extension and immediately after giving effect thereto, no Default
or Event of Default shall have occurred and be continuing and (b) the Borrower
shall have paid the Fees payable under Section 3.1.(b). The Termination Date may
be extended only one time pursuant to this Section.
SECTION 2.11. Notes.
The Revolving Loans made by each Lender shall, in addition to this
Agreement, also be evidenced by a Revolving Note, payable to the order of such
Lender in a principal amount equal to the amount of its Commitment as originally
in effect and otherwise duly completed. The Bid Rate Loans made by any Lender to
the Borrower shall, in addition to this Agreement, also be evidenced by a Bid
Rate Note payable to the order of such Lender. The Swingline Loans made by the
Swingline Lender to the Borrower shall, in addition to this Agreement, also be
evidenced by a Swingline Note payable to the order of the Swingline Lender.
- 36 -
SECTION 2.12. Option to Replace Lenders.
If any Lender, other than the Agent in its capacity as such, shall:
(a) have notified Agent of a determination under Section 5.1.(a) or
become subject to the provisions of Section 5.3.; or
(b) make any demand for payment or reimbursement pursuant to Section
5.1.(c) or Section 5.4.;
then, provided that (x) there does not then exist any Default or Event of
Default and (y) the circumstances resulting in such demand for payment or
reimbursement under Section 5.1.(c) or Section 5.4. or the applicability of
Section 5.1.(a) or Section 5.3. are not applicable to the Requisite Lenders
generally, the Borrower may either (x) demand that such Lender, and upon such
demand such Lender shall promptly, assign its respective Commitment to an
Eligible Assignee subject to and in accordance with the provisions of Section
12.8.(c) for a purchase price equal to the aggregate principal balance of Loans
then outstanding and owing to such Lender plus any accrued but unpaid interest
thereon and accrued but unpaid fees owing to such Lender, any such assignment to
be completed within 30 days after the making by such Lender of such
determination or demand for payment or (y) within 30 days after the making by
such Lender of such determination or demand for payment, pay to Agent, for
deposit into the Collateral Account, an amount equal to such Lender's Pro Rata
Share of all outstanding Letter of Credit Liabilities and pay to such Lender the
aggregate principal balance of Loans then outstanding and owing to such Lender
plus any accrued but unpaid interest thereon and accrued but unpaid fees owing
to such Lender, whereupon such Lender's Commitment shall terminate, and such
Lender shall no longer be a party hereto or have any rights or obligations
hereunder or under any of the other Loan Documents. None of the Agent, such
Lender, or any other Lender shall be obligated in any way whatsoever to initiate
any such replacement or to assist in finding an Assignee.
SECTION 2.13. Amount Limitations.
Notwithstanding any other term of this Agreement or any other Loan
Document, (a) no Lender shall be required to make any Loan, and the Agent shall
not be required to issue any Letter of Credit if, immediately after the making
of such Loan or issuance of such Letter of Credit the aggregate principal amount
of all outstanding Loans, together with the aggregate amount of all Letter of
Credit Liabilities, would exceed either (i) the aggregate amount of the
Commitments or (ii) the Maximum Loan Availability and (b) the aggregate
principal amount of all outstanding Bid Rate Loans shall not exceed one-half of
the aggregate amount of all Commitments at such time.
SECTION 2.14. Increase in Commitments.
The Borrower shall have the right to request increases in the aggregate
amount of the Commitments within twenty four months following the Agreement Date
by providing written notice to the Agent, which notice shall be irrevocable once
given; provided, however, that after giving effect to any such increases the
aggregate amount of the Commitments shall not exceed
- 37 -
$650,000,000. Each such increase in the Commitments must be an aggregate minimum
amount of $10,000,000 and integral multiples of $5,000,000 in excess thereof.
The Agent shall promptly notify each Lender of any such request. No Lender shall
be obligated in any way whatsoever to increase its Commitment. If a new Lender
becomes a party to this Agreement, or if any existing Lender agrees to increase
its Commitment, such Lender shall on the date it becomes a Lender hereunder (or
in the case of an existing Lender, increases its Commitment) (and as a condition
thereto) purchase from the other Lenders its Pro Rata Share (determined with
respect to the Lenders' relative Commitments and after giving effect to the
increase of Commitments) of any outstanding Loans, by making available to the
Agent for the account of such other Lenders, in same day funds, an amount equal
to the sum of (A) the portion of the outstanding principal amount of such Loans
to be purchased by such Lender plus (B) interest accrued and unpaid to and as of
such date on such portion of the outstanding principal amount of such Loans. The
Borrower shall pay to the Lenders amounts payable, if any, to such Lenders under
Section 5.4. as a result of the prepayment of any such Loans. No increase of the
Commitments may be effected under this Section if either (x) a Default or Event
of Default shall be in existence on the effective date of such increase or would
occur after giving effect to such increase or (y) any representation or warranty
made or deemed made by the Borrower or any other Loan Party in any Loan Document
to which such Loan Party is a party is not (or would not be) true or correct in
all material respects on the effective date of such increase except to the
extent that such representations and warranties expressly relate solely to an
earlier date (in which case such representations and warranties shall have been
true and accurate on and as of such earlier date) and except for changes in
factual circumstances specifically and expressly permitted hereunder. In
connection with any increase in the aggregate amount of the Commitments pursuant
to this Section (a) any Lender becoming a party hereto shall execute such
documents and agreements as the Agent may reasonably request and (b) the
Borrower shall make appropriate arrangements so that each new Lender, and any
existing Lender increasing its Commitment, receives a new or replacement Note,
as appropriate, in the amount of such Lender's Commitment at the time of the
effectiveness of the applicable increase in the aggregate amount of Commitments.
SECTION 2.15. Letters of Credit.
(a) Letters of Credit. Subject to the terms and conditions of this
Agreement including, without limitation, Section 2.13., the Agent, on behalf of
Lenders, agrees to issue for the account of the Borrower during the period from
and including the Effective Date to, but excluding, the Termination Date one or
more letters of credit (each a "Letter of Credit") in such form and containing
such terms as may be requested from time to time by the Borrower and acceptable
to the Agent, up to a maximum aggregate Stated Amount at any one time
outstanding not to exceed $25,000,000 as such amount may be reduced from time to
time in accordance with the terms hereof (the "L/C Commitment Amount"). The
parties agree that the letters of credit listed on Schedule 2.15.(a) shall be
deemed to be Letters of Credit issued hereunder.
(b) Terms of Letters of Credit. At the time of issuance, the amount,
terms and conditions of each Letter of Credit, and of any drafts or acceptances
thereunder, shall be subject to approval by the Agent and the Borrower.
Notwithstanding the foregoing, in no event may (i) the expiration date of any
Letter of Credit extend beyond March 25, 2008; provided, however, the expiration
date of a Letter of Credit may not extend beyond March 25, 2007 if at the time
of
- 38 -
the issuance of such Letter of Credit the Borrower would not have the right to
extend the Termination Date under the terms of Section 2.10., (ii) any Letter
of Credit have an initial duration in excess of one year or (iii) a Letter of
Credit be issued within 30 days of the Termination Date. The initial Stated
Amount of each Letter of Credit shall be at least $25,000.
(c) Requests for Issuance of Letters of Credit. In connection with
the proposed issuance of a Letter of Credit, the Borrower shall give Agent
written notice (or telephonic notice promptly confirmed in writing) at least 5
days prior to the requested date of issuance of a Letter of Credit, such notice
to describe in reasonable detail the proposed terms of such Letter of Credit and
the nature of the transactions or obligations proposed to be supported by such
Letter of Credit, and in any event shall set forth with respect to such Letter
of Credit, (i) the proposed initial Stated Amount, (ii) the beneficiary, (iii)
whether such Letter of Credit is a commercial or standby letter of credit and
(iv) the proposed expiration date. The Borrower shall also execute and deliver
such customary applications and agreements for standby letters of credit,
standby letter of credit agreements, applications for amendment to letter of
credit, and other forms as requested from time to time by the Agent. Provided
the Borrower has given the notice prescribed by the first sentence of this
subsection and the Borrower has executed and delivered to the Agent the
agreements, applications and other forms as required by the immediately
preceding sentence of this subsection, and subject to the terms and conditions
of this Agreement, including the satisfaction of any applicable conditions
precedent set forth in Article VI., the Agent agrees to issue the requested
Letter of Credit on the requested date of issuance for the benefit of the
stipulated beneficiary but in no event prior to the date 5 Business Days
following the date after which the Agent received the items required to be
delivered to it under this subsection. Upon the written request of the Borrower,
the Agent shall deliver to the Borrower a copy of (i) any Letter of Credit
proposed to be issued hereunder prior to the issuance thereof and (ii) each
issued Letter of Credit within a reasonable time after the date of issuance
thereof. To the extent any term of a Letter of Credit Document is inconsistent
with a term of any Loan Document, the term of the Letter of Credit Document
shall control.
(d) Reimbursement Obligations. Upon receipt by the Agent from the
beneficiary of a Letter of Credit of any demand for payment under such Letter of
Credit, the Agent shall promptly notify the Borrower of the amount to be paid by
the Agent as a result of such demand and the date on which payment is to be made
by the Agent to such beneficiary in respect of such demand. The Borrower hereby
absolutely, unconditionally and irrevocably agrees to pay and reimburse the
Agent for the amount of each demand for payment under each Letter of Credit at
or prior to the date on which payment is to be made by the Agent to the
beneficiary thereunder, without presentment, demand, protest or other
formalities of any kind. Upon receipt by the Agent of any payment in respect of
any Reimbursement Obligation, the Agent shall promptly pay to each Lender that
has acquired a participation therein under the second sentence of the
immediately following subsection (f) such Lender's Pro Rata Share of such
payment.
(e) Manner of Reimbursement. Upon its receipt of a notice referred
to in the immediately preceding subsection (d), the Borrower shall advise the
Agent whether or not the Borrower intends to borrow hereunder to finance its
obligation to reimburse the Agent for the amount of the related demand for
payment and, if it does, the Borrower shall submit a timely request for such
borrowing as provided in the applicable provisions of this Agreement. If the
- 39 -
Borrower fails to so advise the Agent, or if the Borrower fails to reimburse the
Agent for a demand for payment under a Letter of Credit by the date of such
payment, the Agent shall give each Lender prompt notice thereof and of the
amount of the demand for payment, specifying such Lender's Pro Rata Share of the
amount of the related demand for payment and the provisions of subsection (g) of
this Section shall apply.
(f) Lenders' Participation in Letters of Credit. Immediately upon
the issuance by the Agent of any Letter of Credit each Lender shall be deemed to
have absolutely, irrevocably and unconditionally purchased and received from the
Agent, without recourse or warranty, an undivided interest and participation to
the extent of such Lender's Pro Rata Share of the liability of the Agent with
respect to such Letter of Credit and each Lender thereby shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as surety,
and shall be unconditionally obligated to the Agent to pay and discharge when
due, such Lender's Pro Rata Share of the Agent's liability under such Letter of
Credit. In addition, upon the making of each payment by a Lender to the Agent in
respect of any Letter of Credit pursuant to the immediately following subsection
(g), such Lender shall, automatically and without any further action on the part
of the Agent or such Lender, acquire (i) a participation in an amount equal to
such payment in the Reimbursement Obligation owing to the Agent by the Borrower
in respect of such Letter of Credit and (ii) a participation in a percentage
equal to such Lender's Pro Rata Share in any interest or other amounts payable
by the Borrower in respect of such Reimbursement Obligation (other than fees
owing only to the Agent).
(g) Payment Obligation of Lenders. Each Lender severally agrees to
pay to the Agent on demand in immediately available funds in Dollars the amount
of such Lender's Pro Rata Share of each drawing paid by the Agent under each
Letter of Credit to the extent such amount is not reimbursed by the Borrower
pursuant to the immediately preceding subsections (d) and (e); provided,
however, that in respect of any drawing under any Letter of Credit, the maximum
amount that any Lender shall be required to fund, whether as a Revolving Loan or
as a participation, shall not exceed such Lender's Pro Rata Share of such
drawing. Each Lender's obligation to make such payments to the Agent under this
subsection, and the Agent's right to receive the same, shall be absolute,
irrevocable and unconditional and shall not be affected in any way by any
circumstance whatsoever, including without limitation, (i) the failure of any
other Lender to make its payment under this subsection, (ii) the financial
condition of the Borrower or any other Loan Party, (iii) the existence of any
Default or Event of Default, including any Event of Default described in Section
10.1.(g) or (h) or (iv) the termination of the Commitments. Each such payment to
the Agent shall be made without any offset, abatement, withholding or deduction
whatsoever.
(h) Agent's Duties Regarding Letters of Credit; Unconditional Nature
of Reimbursement Obligation. In examining documents presented in connection with
drawings under Letters of Credit and making payments under such Letters of
Credit against such documents, the Agent shall only be required to use the same
standard of care as it uses in connection with examining documents presented in
connection with drawings under letters of credit in which it has not sold
participations and making payments under such letters of credit. The Borrower
assumes all risks of the acts and omissions of, or misuse of the Letters of
Credit by, the respective beneficiaries of such Letters of Credit. In
furtherance and not in limitation of
- 40 -
the foregoing, neither the Agent nor any of the Lenders shall be responsible for
(i) the form, validity, sufficiency, accuracy, genuineness or legal effects of
any document submitted by any party in connection with the application for and
issuance of or any drawing honored under any Letter of Credit even if such
document should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (ii) the validity or sufficiency
of any instrument transferring or assigning or purporting to transfer or assign
any Letter of Credit, or the rights or benefits thereunder or proceeds thereof,
in whole or in part, which may prove to be invalid or ineffective for any
reason; (iii) failure of the beneficiary of any Letter of Credit to comply fully
with conditions required in order to draw upon such Letter of Credit; (iv)
errors, omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telex, telecopy or otherwise, whether or not they be
in cipher; (v) errors in interpretation of technical terms; (vi) any loss or
delay in the transmission or otherwise of any document required in order to make
a drawing under any Letter of Credit, or of the proceeds thereof; (vii) the
misapplication by the beneficiary of any Letter of Credit, or of the proceeds of
any drawing under any Letter of Credit; or (viii) any consequences arising from
causes beyond the control of the Agent or the Lenders. None of the above shall
affect, impair or prevent the vesting of any of the Agent's rights or powers
hereunder. Any action taken or omitted to be taken by the Agent under or in
connection with any Letter of Credit, if taken or omitted in the absence of
gross negligence or willful misconduct, shall not create against the Agent any
liability to the Borrower or any Lender. In this connection, the obligation of
the Borrower to reimburse the Agent for any drawing made under any Letter of
Credit shall be absolute, unconditional and irrevocable and shall be paid
strictly in accordance with the terms of this Agreement or any other applicable
Letter of Credit Document under all circumstances whatsoever, including without
limitation, the following circumstances: (A) any lack of validity or
enforceability of any Letter of Credit Document or any term or provisions
therein; (B) any amendment or waiver of or any consent to departure from all or
any of the Letter of Credit Documents; (C) the existence of any claim, setoff,
defense or other right which the Borrower may have at any time against the
Agent, any Lender, any beneficiary of a Letter of Credit or any other Person,
whether in connection with this Agreement, the transactions contemplated hereby
or in the Letter of Credit Documents or any unrelated transaction; (D) any
breach of contract or dispute between the Borrower, the Agent, any Lender or any
other Person; (E) any demand, statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein or made in connection therewith being
untrue or inaccurate in any respect whatsoever; (F) any non-application or
misapplication by the beneficiary of a Letter of Credit or of the proceeds of
any drawing under such Letter of Credit; (G) payment by the Agent under the
Letter of Credit against presentation of a draft or certificate which does not
strictly comply with the terms of the Letter of Credit; and (H) any other act,
omission to act, delay or circumstance whatsoever that might, but for the
provisions of this Section, constitute a legal or equitable defense to or
discharge of the Borrower's Reimbursement Obligations.
(i) Amendments, Etc. The issuance by the Agent of any amendment,
supplement or other modification to any Letter of Credit shall be subject to the
same conditions applicable under this Agreement to the issuance of new Letters
of Credit (including, without limitation, that the request therefore be made
through the Agent), and no such amendment, supplement or other modification
shall be issued unless either (i) the respective Letter of Credit affected
thereby
- 41 -
would have complied with such conditions had it originally been issued
hereunder in such amended, supplemented or modified form or (ii) the Requisite
Lenders shall have consented thereto. In connection with any such amendment,
supplement or other modification, the Borrower shall pay the fees, if any,
payable under the last sentence of Section 3.1.
(j) Information to Lenders. Promptly following any change in Letters
of Credit outstanding, the Agent shall deliver to each Lender and the Borrower a
notice describing the aggregate amount of all Letters of Credit outstanding at
such time. Upon the request of any Lender from time to time, the Agent shall
deliver any other information reasonably requested by such Lender with respect
to each Letter of Credit then outstanding. Other than as set forth in this
subsection, the Agent shall have no duty to notify the Lenders regarding the
issuance or other matters regarding Letters of Credit issued hereunder. The
failure of the Agent to perform its requirements under this subsection shall not
relieve any Lender from its obligations under the immediately preceding
subsection (g).
(k) Effect of Letters of Credit on Commitments. Upon the issuance by
the Agent of any Letter of Credit and until such Letter of Credit shall have
expired or been terminated, the Commitment of each Lender shall be deemed to be
utilized for all purposes of this Agreement in an amount equal to the product of
(i) such Lender's Pro Rata Share and (ii) the sum of (A) the Stated Amount of
such Letter of Credit plus (B) any related Reimbursement Obligations then
outstanding.
(l) Termination of Agreement Prior to Expiration of Letters of
Credit; Letter of Credit Liabilities in Excess of L/C Commitment Amount. If on
the date (the "Facility Termination Date") this Agreement is terminated (whether
voluntarily, by reason of the occurrence of an Event of Default or otherwise)
any Letters of Credit are outstanding, the Borrower shall, on the Facility
Termination Date, pay to the Agent an amount of money equal to the Stated Amount
of such Letter(s) of Credit, together with the amount of any fees which would
otherwise be payable by the Borrower to the Agent or the Lenders in respect of
such Letters of Credit but for the occurrence of the Facility Termination Date
for deposit into the Collateral Account. If at any time the aggregate Stated
Amount of all outstanding Letters of Credit shall exceed the L/C Commitment
Amount then in effect, the Borrower shall pay on demand to the Agent for deposit
into the Collateral Account an amount equal to such excess. If a drawing
pursuant to any such Letter of Credit occurs on or prior to the expiration date
of such Letter of Credit, the Borrower authorizes the Agent to disburse the
monies deposited in the Collateral Account to make payment to the beneficiary
with respect to such drawing. If no drawing occurs on or prior to the expiration
date of any such Letter of Credit, the Agent shall return to the Borrower the
monies deposited in the Collateral Account with respect to such outstanding
Letter of Credit on or before the date 30 Business Days after the expiration
date with respect to such Letter of Credit.
(m) Additional Costs in Respect of Letters of Credit. Without
limiting the obligations of the Borrower under Section 5.1. (but without
duplication), if as a result of any Regulatory Change or any risk-based capital
guideline or other requirement heretofore or hereafter issued by any
Governmental Authority there shall be imposed, modified or deemed applicable any
tax, reserve, special deposit, capital adequacy or similar requirement against
or with respect to or
- 42 -
measured by reference to Letters of Credit and the result shall be to increase
the cost to the Agent of issuing (or any Lender of purchasing participations in)
or maintaining its obligation hereunder to issue (or purchase participations in)
any Letter of Credit or reduce any amount receivable by the Agent or any Lender
hereunder in respect of any Letter of Credit, then, upon demand by the Agent or
such Lender, the Borrower shall pay immediately to the Agent for its account or
the account of such Lender, as applicable, from time to time as specified by the
Agent or a Lender, such additional amounts as shall be sufficient to compensate
the Agent or such Lender for such increased costs or reductions in amount.
ARTICLE III. GENERAL LOAN PROVISIONS
SECTION 3.1. Fees.
(a) Facility Fee. During the period commencing on the Agreement Date
to but excluding the Termination Date, the Borrower agrees to pay the Agent for
the account of the Lenders a facility fee equal to the daily aggregate amount of
the Commitments (whether or not utilized) times a rate per annum equal to the
Applicable Facility Fee. Such fee shall accrue through the last day of each
calendar quarter and shall be payable in arrears on the fifth day following the
end of such calendar quarter. The Borrower acknowledges that the fee payable
hereunder is a bona fide commitment fee and is intended as reasonable
compensation to the Lenders for committing to make funds available to the
Borrower as described herein and for no other purposes.
(b) Extension Fee. If, pursuant to Section 2.10., the Borrower
exercises its right to extend the Termination Date, the Borrower agrees to pay
to the Agent for the account of each Lender an extension fee equal to one fifth
of one percent (0.20%) of the amount of such Lender's Commitment at such time.
Such fee shall be paid to the Agent prior to, and as a condition to, such
extension.
(c) Bid Rate Loan Fees. The Borrower agrees to pay to the Agent such
fees for services rendered by the Agent in connection with the Bid Rate Loans as
shall be separately agreed upon between the Borrower and the Agent.
(d) Agent's Fees. The Borrower agrees to pay to the Agent such fees
for services rendered by the Agent as shall be separately agreed upon between
the Borrower and the Agent.
(e) Letter of Credit Fees. The Borrower agrees to pay to the Agent
for account of each Lender and the Agent a letter of credit fee at a rate per
annum equal to the Applicable Margin for LIBOR Loans multiplied by the Stated
Amount of each Letter of Credit, on the date of issuance of such Letter of
Credit and on each annual anniversary of the date of issuance thereof until such
Letter of Credit has expired. The fee provided for in the immediately preceding
sentence shall be nonrefundable. The Agent shall be entitled to deduct from such
Letter of Credit fees, and retain for its own account, an amount equal to one-
eighth of one percent (0.125%) of the Stated Amount of each Letter of Credit.
The Borrower shall also directly pay to the Agent all commissions, charges,
costs and expenses in the amounts customarily
- 43 -
charged by the Agent from time to time in like circumstances with respect to the
issuance of each Letter of Credit, drawings, amendments and other transactions
relating thereto.
SECTION 3.2. Computation of Interest and Fees.
Unless set forth to the contrary herein, accrued interest on the Loans
and the Letter of Credit Liabilities and all fees due hereunder shall be
computed on the basis of a year of 360 days and paid for the actual number of
days elapsed (including the first day but excluding the last day of a period).
SECTION 3.3. Pro Rata Treatment.
Except to the extent otherwise provided herein: (a) each borrowing from
Lenders under Section 2.1.(a) shall be made from the Lenders, each payment of
the fees under Sections 3.1.(a) and (b) and the first sentence of Section
3.1.(e) shall be made for the account of the Lenders, and each termination or
reduction of the amount of the Commitments under Section 2.9. or otherwise
pursuant to this Agreement shall be applied to the respective Commitments of the
Lenders, pro rata according to the amounts of their respective Commitments; (b)
each payment or prepayment of principal of Revolving Loans by the Borrower shall
be made for the account of the Lenders pro rata in accordance with the
respective unpaid principal amounts of the Revolving Loans held by them,
provided that if immediately prior to giving effect to any such payment in
respect of any Revolving Loans the outstanding principal amount of the Revolving
Loans shall not be held by the Lenders pro rata in accordance with their
respective Commitments in effect at the time such Loans were made, then such
payment shall be applied to the Revolving Loans in such manner as shall result,
as nearly as is practicable, in the outstanding principal amount of the
Revolving Loans being held by the Lenders pro rata in accordance with their
respective Commitments; (c) each payment of interest on Revolving Loans by the
Borrower shall be made for the account of the Lenders pro rata in accordance
with the unpaid principal amounts of interest on such Loans then due and payable
to the respective Lenders; (d) the Conversion and Continuation of Revolving
Loans of a particular Type (other than Conversions provided for by Section 5.5.)
shall be made pro rata among the Lenders according to the amounts of their
respective Revolving Loans and the then current Interest Period for each
Lender's portion of each Revolving Loan of such Type shall be coterminous; (e)
each prepayment of principal of Bid Rate Loans by the Borrower pursuant to
Section 2.8.(f) shall be made for account of the Lenders then owed Bid Rate
Loans pro rata in accordance with the respective unpaid principal amounts of the
Bid Rate Loans then owing to each such Lender; (f) the Lenders' participation
in, and payment obligations in respect of, Swingline Loans under Section 2.3.,
shall be in accordance with their respective Pro Rata Shares; and (g) the
Lenders' participation in, and payment obligations in respect of, Letters of
Credit under Section 2.15., shall be pro rata in accordance with their
respective Commitments. All payments of principal, interest, fees and other
amounts in respect of the Swingline Loans shall be for the account of the
Swingline Lender only (except to the extent any Lender shall have acquired a
participating interest in any such Swingline Loan pursuant to Section 2.3.(e)).
- 44 -
SECTION 3.4. Sharing of Payments, Etc.
If a Lender shall obtain payment of any principal of, or interest on,
any Loan under this Agreement or shall obtain payment on any other Obligation
owing by the Borrower or any other Loan Party through the exercise of any right
of set-off, banker's lien or counterclaim or similar right or otherwise or
through voluntary prepayments directly to a Lender or other payments made by the
Borrower or any other Loan Party to a Lender not in accordance with the terms of
this Agreement and such payment should be distributed to the Lenders in
accordance with Section 3.3. or Section 10.3., such Lender shall promptly either
(i) remit such amounts received to the Agent for distribution to the Lenders in
accordance with Section 3.3. or Section 10.3. or (ii) purchase from such other
Lenders participations in (or, if and to the extent specified by such Lender,
direct interests in) the Loans made by the other Lenders or other Obligations
owed to such other Lenders in such amounts, and make such other adjustments from
time to time as shall be equitable, to the end that all the Lenders shall share
the benefit of such payment (net of any reasonable expenses which may actually
be incurred by such Lender in obtaining or preserving such benefit) in
accordance with the requirements of Section 3.3. or Section 10.3., as
applicable. To such end, all the Lenders shall make appropriate adjustments
among themselves (by the resale of participations sold or otherwise) if such
payment is rescinded or must otherwise be restored. The Borrower agrees that any
Lender so purchasing a participation (or direct interest) in the Loans or other
Obligations owed to such other Lenders may exercise all rights of set-off,
banker's lien, counterclaim or similar rights with the respect to such
participation as fully as if such Lender were a direct holder of Loans in the
amount of such participation. Nothing contained herein shall require any Lender
to exercise any such right or shall affect the right of any Lender to exercise
and retain the benefits of exercising, any such right with respect to any other
indebtedness or obligation of the Borrower.
SECTION 3.5. Defaulting Lenders.
If for any reason any Lender (a "Defaulting Lender") shall fail or
refuse to perform any of its obligations under this Agreement or any other Loan
Document to which it is a party within the time period specified for performance
of such obligation or, if no time period is specified, if such failure or
refusal continues for a period of 5 Business Days after notice from the Agent,
then, in addition to the rights and remedies that may be available to the Agent
or the Borrower under this Agreement or Applicable Law, such Defaulting Lender's
right to participate in the administration of the Loans, this Agreement and the
other Loan Documents, including without limitation, any right to vote in respect
of, to consent to or to direct any action or inaction of the Agent or to be
taken into account in the calculation of Requisite Lenders, shall be suspended
during the pendency of such failure or refusal. If for any reason a Lender fails
to make timely payment to the Agent of any amount required to be paid to the
Agent hereunder (without giving effect to any notice or cure periods), in
addition to other rights and remedies which the Agent or the Borrower may have
under the immediately preceding provisions or otherwise, the Agent shall be
entitled (i) to collect interest from such Defaulting Lender on such delinquent
payment for the period from the date on which the payment was due until the date
on which the payment is made at the Federal Funds Rate, (ii) to withhold or
setoff and to apply in satisfaction of the defaulted payment and any related
interest, any amounts otherwise payable to such Defaulting Lender under this
Agreement or any other Loan Document and (iii) to bring an action or suit
against such
- 45 -
Defaulting Lender in a court of competent jurisdiction to recover the defaulted
amount and any related interest. Any amounts received by the Agent in respect of
a Defaulting Lender's Loans shall not be paid to such Defaulting Lender and
shall be held by the Agent and paid to such Defaulting Lender upon the
Defaulting Lender's curing of its default.
SECTION 3.6. Usury.
In no event shall the amount of interest due or payable on the Loans
exceed the maximum rate of interest allowed by Applicable Law and, in the event
any such payment is paid by the Borrower or received by any Lender, then such
excess sum shall be credited as a payment of principal. It is the express intent
of the parties hereto that the Borrower not pay and the Lenders not receive,
directly or indirectly, in any manner whatsoever, interest in excess of that
which may be lawfully paid by the Borrower under Applicable Law.
SECTION 3.7. Agreement Regarding Interest and Charges.
THE PARTIES HERETO HEREBY AGREE AND STIPULATE THAT THE ONLY CHARGE
IMPOSED UPON THE BORROWER FOR THE USE OF MONEY IN CONNECTION WITH THIS AGREEMENT
IS AND SHALL BE THE INTEREST DESCRIBED IN SECTION 2.7.(A) AND WITH RESPECT TO
SWINGLINE LOANS, IN SECTION 2.3.(C). THE PARTIES HERETO FURTHER AGREE AND
STIPULATE THAT ALL OTHER CHARGES IMPOSED BY LENDERS AND THE AGENT ON THE
BORROWER IN CONNECTION WITH THIS AGREEMENT, INCLUDING ALL AGENCY FEES,
COMMITMENT FEES, FACILITY FEES, UNUSED FACILITY FEES, EXTENSION FEES,
UNDERWRITING FEES, LETTER OF CREDIT FEES, DEFAULT CHARGES, LATE CHARGES,
ATTORNEYS' FEES AND REIMBURSEMENT FOR COSTS AND EXPENSES PAID BY THE AGENT OR
ANY LENDER TO THIRD PARTIES OR FOR DAMAGES INCURRED BY THE AGENT OR ANY LENDER,
ARE CHARGES MADE TO COMPENSATE THE AGENT OR ANY SUCH LENDER FOR UNDERWRITING OR
ADMINISTRATIVE SERVICES AND COSTS OR LOSSES PERFORMED OR INCURRED, AND TO BE
PERFORMED OR INCURRED, BY THE AGENT AND LENDERS IN CONNECTION WITH THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS AND SHALL UNDER NO CIRCUMSTANCES BE
DEEMED TO BE CHARGES FOR THE USE OF MONEY PURSUANT TO OFFICIAL CODE OF GEORGIA
ANNOTATED SECTION 7-4-2 OR 7-4-18. ALL CHARGES OTHER THAN CHARGES FOR THE USE OF
MONEY SHALL BE FULLY EARNED AND NONREFUNDABLE WHEN DUE.
SECTION 3.8. Statements of Account.
The Agent will account to the Borrower monthly with a statement of
Loans, Letters of Credit, charges and payments made pursuant to this Agreement
and the other Loan Documents, and such account rendered by the Agent shall be
deemed final, binding and conclusive on the Borrower absent demonstrable error.
The failure of the Agent or any Lender to maintain or deliver such a statement
of accounts shall not relieve or discharge the Borrower from its obligations
hereunder.
- 46 -
SECTION 3.9. Reliance.
Neither the Agent nor any Lender shall incur any liability to the
Borrower for acting upon any telephonic notice permitted under this Agreement
which the Agent or such Lender believes reasonably and in good faith to have
been given by an individual authorized to deliver a Notice of Borrowing, Notice
of Conversion, Notice of Continuation, Extension Request or a request for
issuance of a Letter of Credit on behalf of the Borrower.
SECTION 3.10. Taxes.
(a) Taxes Generally. All payments by the Borrower of principal of,
and interest on, the Loans and all other Obligations shall be made free and
clear of and without deduction for any present or future excise, stamp or other
taxes, fees, duties, levies, imposts, charges, deductions, withholdings or other
charges of any nature whatsoever imposed by any taxing authority, but excluding
(i) franchise taxes, (ii) any taxes (other than withholding taxes) that would
not be imposed but for a connection between the Agent or a Lender and the
jurisdiction imposing such taxes (other than a connection arising solely by
virtue of the activities of the Agent or such Lender pursuant to or in respect
of this Agreement or any other Loan Document), (iii) any taxes imposed on or
measured by any Lender's assets, net income, receipts or branch profits and (iv)
any taxes arising after the Agreement Date solely as a result of or attributable
to a Lender changing its designated Lending Office after the date such Lender
becomes a party hereto (such non-excluded items being collectively called
"Taxes"). If any withholding or deduction from any payment to be made by the
Borrower hereunder is required in respect of any Taxes pursuant to any
Applicable Law, then the Borrower will:
(i) pay directly to the relevant Governmental Authority the
full amount required to be so withheld or deducted;
(ii) promptly forward to the Agent an official receipt or
other documentation satisfactory to the Agent evidencing such payment
to such Governmental Authority; and
(iii) pay to the Agent for its account or the account of the
applicable Lender, as the case may be, such additional amount or
amounts as is necessary to ensure that the net amount actually received
by the Agent or such Lender will equal the full amount that the Agent
or such Lender would have received had no such withholding or deduction
been required.
(b) Tax Indemnification. If the Borrower fails to pay any Taxes when
due to the appropriate Governmental Authority or fails to remit to the Agent,
for its account or the account of the respective Lender, as the case may be, the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Agent and the Lenders for any incremental Taxes, interest or
penalties that may become payable by the Agent or any Lender as a result of any
such failure. For purposes of this Section, a distribution hereunder by the
Agent or any Lender to or for the account of any Lender shall be deemed a
payment by the Borrower.
- 47 -
(c) Tax Forms. Prior to the date that any Lender or Participant
organized under the laws of a jurisdiction outside the United States of America
becomes a party hereto, such Person shall deliver to the Borrower and the Agent
such certificates, documents or other evidence, as required by the Internal
Revenue Code or Treasury Regulations issued pursuant thereto (including Internal
Revenue Service Forms W-8ECI and W-8BEN, as applicable, or appropriate successor
forms), properly completed, currently effective and duly executed by such Lender
or Participant establishing that payments to it hereunder and under the Notes
are (i) not subject to United States Federal backup withholding tax and (ii) not
subject to United States Federal withholding tax under the Code. Each such
Lender or Participant shall (x) deliver further copies of such forms or other
appropriate certifications on or before the date that any such forms expire or
become obsolete and after the occurrence of any event requiring a change in the
most recent form delivered to the Borrower and (y) obtain such extensions of the
time for filing, and renew such forms and certifications thereof, as may be
reasonably requested by the Borrower or the Agent. The Borrower shall not be
required to pay any amount pursuant to last sentence of subsection (a) above to
any Lender or Participant that is organized under the laws of a jurisdiction
outside of the United States of America or the Agent, if it is organized under
the laws of a jurisdiction outside of the United States of America, if such
Lender, Participant or the Agent, as applicable, fails to comply with the
requirements of this subsection. If any such Lender or Participant fails to
deliver the above forms or other documentation, then the Agent may withhold from
such payment to such Lender such amounts as are required by the Code. If any
Governmental Authority asserts that the Agent did not properly withhold or
backup withhold, as the case may be, any tax or other amount from payments made
to or for the account of any Lender, such Lender shall indemnify the Agent
therefor, including all penalties and interest, any taxes imposed by any
jurisdiction on the amounts payable to the Agent under this Section, and costs
and expenses (including all fees and disbursements of any law firm or other
external counsel and the allocated cost of internal legal services and all
disbursements of internal counsel) of the Agent. The obligation of the Lenders
under this Section shall survive the termination of the Commitments, repayment
of all Obligations and the resignation or replacement of the Agent.
(d) Refunds. If the Agent or any Lender shall become aware that it
is entitled to a refund in respect of Taxes for which it has been indemnified by
the Borrower pursuant to this Section, the Agent or such Lender shall promptly
notify the Borrower of the availability of such refund and shall, within 30 days
after receipt of a written request by the Borrower, apply for such refund at the
Borrower's sole cost and expense. So long as no Event of Default shall have
occurred and be continuing, if the Agent or any Lender shall receive a refund in
respect of any such Taxes as to which it has been indemnified by the Borrower
pursuant to this Section, the Agent or such Lender shall promptly notify the
Borrower of such refund and shall, within 30 days of receipt, pay such refund
(to the extent of amounts that have been paid by the Borrower under this Section
with respect to such refund and not previously reimbursed) to the Borrower, net
of all reasonable out-of-pocket expenses of such Lender or the Agent and without
interest (other than the interest, if any, included in such refund).
- 48 -
ARTICLE IV. UNENCUMBERED POOL PROPERTIES
SECTION 4.1. Inclusion of Unencumbered Pool Properties.
(a) Existing Unencumbered Pool Properties. Subject to compliance
with the terms and conditions of Section 6.1. and subject to any limitations set
forth on Schedule 4.1., as of the Effective Date the parties hereto acknowledge
and agree that the Properties listed on Schedule 4.1. are Unencumbered Pool
Properties. Schedule 4.1 designates as to each such Unencumbered Pool Property,
the owner of such Property and whether such Unencumbered Pool Property is a
Qualified Development Property, Stabilized Retail Operating Property,
Pre-Stabilized Retail Operating Property and/or an Environmentally Impacted
Property.
(b) Additional Unencumbered Pool Properties. If the Borrower desires
that an additional Eligible Property be included as an Unencumbered Pool
Property after the Effective Date, the Borrower shall deliver to the Agent an
Unencumbered Pool Certificate setting forth the information required to be
contained therein and assuming that such Eligible Property is included as an
Unencumbered Pool Property. The Borrower shall not submit an Unencumbered Pool
Certificate under this Section more than once per calendar month or during any
calendar month in which an Unencumbered Pool Certificate was delivered pursuant
to Section 8.1.(d). Subject to the terms and conditions of this Agreement, upon
the Agent's receipt of such certificate, such Eligible Property shall be
included as an Unencumbered Pool Property. If such Eligible Property is owned
(or is being acquired) by a Subsidiary of the Borrower that is not yet a party
to the Guaranty and such Subsidiary has incurred, acquired or suffered to exist
any Indebtedness other than Nonrecourse Indebtedness, such Eligible Property
shall not become an Unencumbered Pool Property unless and until an Accession
Agreement executed by such Subsidiary, all other items required to be delivered
under Section 8.22. and such other items as the Agent may reasonably request
have all been executed and delivered to the Agent.
SECTION 4.2. Termination of Designation as Unencumbered Pool
Property.
Any Property previously included as an Unencumbered Pool Property but
which is not included in an Unencumbered Pool Certificate subsequently submitted
pursuant to this Agreement shall no longer be included as an Unencumbered Pool
Property (effective as of the date of receipt by the Agent of such Unencumbered
Pool Certificate) so long as no Default or Event of Default shall have occurred
and be continuing or would exist immediately after such Property is no longer
included as an Unencumbered Pool Property.
SECTION 4.3. Additional Requirements of Unencumbered Pool Properties.
The ratio (expressed as a percentage) of (a) the net rentable square
footage of all Unencumbered Pool Properties which are Stabilized Retail
Operating Properties actually occupied by tenants paying rent pursuant to
binding leases as to which no monetary default has occurred and is continuing to
(b) the aggregate net rentable square footage of all Unencumbered Pool
Properties which are Stabilized Retail Operating Properties shall at all times
equal or exceed 90%.
- 49 -
ARTICLE V. YIELD PROTECTION, ETC.
SECTION 5.1. Additional Costs; Capital Adequacy.
(a) Additional Costs. The Borrower shall promptly pay to the Agent
for the account of a Lender from time to time such amounts as such Lender may
determine to be necessary to compensate such Lender for any costs incurred by
such Lender that it determines are attributable to its making or maintaining of
any LIBOR Loans or its obligation to make any LIBOR Loans hereunder, any
reduction in any amount receivable by such Lender under this Agreement or any of
the other Loan Documents in respect of any of such LIBOR Loans or such
obligation or the maintenance by such Lender of capital in respect of its LIBOR
Loans or its Commitment (such increases in costs and reductions in amounts
receivable being herein called "Additional Costs"), resulting from any
Regulatory Change that: (i) changes the basis of taxation of any amounts payable
to such Lender under this Agreement or any of the other Loan Documents in
respect of any of such LIBOR Loans or its Commitment (other than taxes imposed
on or measured by the overall net income of such Lender or of its Lending Office
for any of such LIBOR Loans by the jurisdiction in which such Lender has its
principal office or such Lending Office), or (ii) imposes or modifies any
reserve, special deposit or similar requirements (including without limitation,
Regulation D of the Board of Governors of the Federal Reserve System or other
similar reserve requirement applicable to any other category of liabilities or
category of extensions of credit or other assets by reference to which the
interest rate on LIBOR Loans is determined) relating to any extensions of credit
or other assets of, or any deposits with or other liabilities of, or other
credit extended by, or any other acquisition of funds by such Lender (or its
parent corporation), or any commitment of such Lender (including, without
limitation, the Commitment of such Lender hereunder) or (iii) has or would have
the effect of reducing the rate of return on capital of such Lender to a level
below that which such Lender could have achieved but for such Regulatory Change
(taking into consideration such Lender's policies with respect to capital
adequacy).
(b) Lender's Suspension of LIBOR Loans. Without limiting the effect
of the provisions of the immediately preceding subsection (a), if by reason of
any Regulatory Change, any Lender either (i) incurs Additional Costs based on or
measured by the excess above a specified level of the amount of a category of
deposits or other liabilities of such Lender that includes deposits by reference
to which the interest rate on LIBOR Loans is determined as provided in this
Agreement or a category of extensions of credit or other assets of such Lender
that includes LIBOR Loans or (ii) becomes subject to restrictions on the amount
of such a category of liabilities or assets that it may hold, then, if such
Lender so elects by notice to the Borrower (with a copy to the Agent), the
obligation of such Lender to make or Continue, or to Convert Base Rate Loans
into, LIBOR Loans hereunder shall be suspended until such Regulatory Change
ceases to be in effect (in which case the provisions of Section 5.5. shall
apply).
(c) Notification and Determination of Additional Costs. Each of the
Agent and each Lender, as the case may be, agrees to notify the Borrower of any
event occurring after the Agreement Date entitling the Agent or such Lender to
compensation under any of the preceding subsections of this Section as promptly
as practicable; provided, however, that the failure of the Agent or any Lender
to give such notice shall not release the Borrower from any of its obligations
hereunder. The Agent and each Lender, as the case may be, agrees to furnish to
the
- 50 -
Borrower (and in the case of a Lender to the Agent as well) a certificate
setting forth the basis and amount of each request for compensation under this
Section. Determinations by the Agent or such Lender, as the case may be, of the
effect of any Regulatory Change shall be conclusive, provided that such
determinations are made on a reasonable basis and in good faith.
SECTION 5.2. Suspension of LIBOR Loans.
Anything herein to the contrary notwithstanding, if, on or prior to the
determination of any LIBO Rate for any Interest Period:
(a) the Agent reasonably determines (which determination
shall be conclusive) that quotations of interest rates for the relevant
deposits referred to in the definition of LIBO Rate are not being
provided in the relevant amounts or for the relevant maturities for
purposes of determining rates of interest for LIBOR Loans as provided
herein or is otherwise unable to determine LIBO Rate; or
(b) the Agent reasonably determines (which determination
shall be conclusive) that the relevant rates of interest referred to in
the definition of LIBO Rate upon the basis of which the rate of
interest for LIBOR Loans for such Interest Period is to be determined
are not likely to adequately cover the cost to any Lender of making or
maintaining LIBOR Loans for such Interest Period; or
(c) any Lender that has outstanding a Bid Rate Quote with
respect to a LIBOR Margin Loan reasonably determines (which
determination shall be conclusive) that LIBO Rate will not adequately
and fairly reflect the cost to such Lender of making or maintaining
such LIBOR Margin Loan;
then the Agent shall give the Borrower and each Lender prompt notice
thereof and, so long as such condition remains in effect, (i) in the case of
clause (a) or (b) above, the Lenders shall be under no obligation to, and shall
not, make additional LIBOR Loans, Continue LIBOR Loans or Convert Loans into
LIBOR Loans and the Borrower shall, on the last day of each current Interest
Period for each outstanding LIBOR Loan, either prepay such Loan or Convert such
Loan into a Base Rate Loan and (ii) in the case of clause (c) above, no Lender
that has outstanding a Bid Rate Quote with respect to a LIBOR Margin Loan shall
be under any obligation to make such Loan.
SECTION 5.3. Illegality.
Notwithstanding any other provision of this Agreement, if any Lender
shall determine (which determination shall be conclusive and binding) that it is
unlawful for such Lender to honor its obligation to make or maintain LIBOR Loans
hereunder, then such Lender shall promptly notify the Borrower thereof (with a
copy of such notice to the Agent) and such Lender's obligation to make or
Continue, or to Convert Revolving Loans of any other Type into, LIBOR Loans
shall be suspended until such time as such Lender may again make and maintain
LIBOR Loans (in which case the provisions of Section 5.5. shall be applicable).
- 51 -
SECTION 5.4. Compensation.
The Borrower shall pay to the Agent for account of a Lender, upon the
request of such Lender through the Agent, such amount or amounts as shall be
sufficient to compensate such Lender for any loss, cost or expense that such
Lender reasonably determines is attributable to:
(a) any payment or prepayment (whether mandatory or
optional) of a LIBOR Loan or Bid Rate Loan, or Conversion of a LIBOR
Loan, made by such Lender for any reason (including, without
limitation, acceleration) on a date other than the last day of the
Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including,
without limitation, the failure of any of the applicable conditions
precedent specified in Article VI. to be satisfied) to borrow a LIBOR
Loan or Bid Rate Loan from such Lender on the date for such borrowing,
or to Convert a Base Rate Loan into a LIBOR Loan or Continue a LIBOR
Loan on the requested date of such Conversion or Continuation.
Not in limitation of the foregoing, such compensation shall include,
without limitation; (i) in the case of a LIBOR Loan, an amount equal to the then
present value of (A) the amount of interest that would have accrued on such
LIBOR Loan for the remainder of the Interest Period at the rate applicable to
such LIBOR Loan, less (B) the amount of interest that would accrue on the same
LIBOR Loan for the same period if the LIBO Rate were set on the date on which
such LIBOR Loan was repaid, prepaid or Converted or the date on which the
Borrower failed to borrow, Convert or Continue such LIBOR Loan, as applicable,
calculating present value by using as a discount rate the LIBO Rate quoted on
such date and (ii) in the case of a Bid Rate Loan, the sum of such losses and
expenses as the Lender or Designated Lender who made such Bid Rate Loan may
reasonably incur by reason of such prepayment, including without limitation any
losses or expenses incurred in obtaining, liquidating or employing deposits from
third parties. Upon Borrower's request (made through the Agent), any Lender
seeking compensation under this Section shall provide the Borrower with a
statement setting forth the basis for requesting such compensation and the
method for determining the amount thereof. Any such statement shall be
conclusive absent manifest error.
SECTION 5.5. Treatment of Affected Loans.
If the obligation of any Lender to make LIBOR Loans or to Continue, or
to Convert Base Rate Loans into, LIBOR Loans shall be suspended pursuant to
Section 5.1.(b) or Section 5.3., then such Lender's LIBOR Loans shall be
automatically Converted into Base Rate Loans on the last day(s) of the then
current Interest Period(s) for LIBOR Loans (or, in the case of a Conversion
required by Section 5.1.(b) or Section 5.3., on such earlier date as such Lender
may specify to the Borrower with a copy to the Agent) and, unless and until such
Lender gives notice as provided below that the circumstances specified in
Section 5.1. or Section 5.3. that gave rise to such Conversion no longer exist:
- 52 -
(a) to the extent that such Lender's LIBOR Loans have been so
Converted, all payments and prepayments of principal that would otherwise be
applied to such Lender's LIBOR Loans shall be applied instead to its Base Rate
Loans; and
(b) all Revolving Loans that would otherwise be made or Continued by
such Lender as LIBOR Loans shall be made or Continued instead as Base Rate
Loans, and all Base Rate Loans of such Lender that would otherwise be Converted
into LIBOR Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent)
that the circumstances specified in Section 5.1. or 5.3. that gave rise to the
Conversion of such Lender's LIBOR Loans pursuant to this Section no longer exist
(which such Lender agrees to do promptly upon such circumstances ceasing to
exist) at a time when LIBOR Loans made by other Lenders are outstanding, then
such Lender's Base Rate Loans shall be automatically Converted, on the first
day(s) of the next succeeding Interest Period(s) for such outstanding LIBOR
Loans, to the extent necessary so that, after giving effect thereto, all Loans
held by the Lenders holding LIBOR Loans and by such Lender are held pro rata (as
to principal amounts, Types and Interest Periods) in accordance with their
respective Commitments.
SECTION 5.6. Change of Lending Office.
Each Lender agrees that it will use reasonable efforts to designate an
alternate Lending Office with respect to any of its Loans affected by the
matters or circumstances described in Sections 3.10., 5.1. or 5.3. to reduce the
liability of the Borrower or avoid the results provided thereunder, so long as
such designation is not disadvantageous to such Lender as determined by such
Lender in its sole discretion, except that such Lender shall have no obligation
to designate a Lending Office located in the United States of America.
ARTICLE VI. CONDITIONS
SECTION 6.1. Effectiveness.
The obligations of the Lenders to make any Revolving Loans, of the
Swingline Lender to make any Swingline Loans, and of the Agent to issue Letters
of Credit, to or for the account of the Borrower in accordance with the terms
hereof, are subject to the condition precedent that the Borrower deliver to the
Agent each of the following, each of which shall be in form and substance
satisfactory to the Agent:
(a) counterparts of this Agreement executed by each of the parties
hereto;
(b) Revolving Notes and Bid Rate Notes executed by the Borrower,
payable to the order of each Lender in accordance with Section 2.11 or any
Designated Lender, if applicable, and the Swingline Note executed by the
Borrower;
(c) the Guaranty executed by the Parent and any other Person that
would be required under Section 8.22.(a) to become a party to the Guaranty as of
the Effective Date;
- 53 -
(d) an opinion of Foley & Lardner, counsel to the Borrower, the
Parent and the other Guarantors, and addressed to the Agent and the Lenders in
substantially the form of Exhibit O;
(e) an opinion of Alston & Bird LLP, counsel to the Agent, and
addressed to the Agent and the Lenders in substantially the form of Exhibit P;
(f) an Unencumbered Pool Certificate dated the Agreement Date;
(g) the certificate of limited partnership of the Borrower certified
as of a recent date by the Secretary of State of the State of Delaware;
(h) a Certificate of Good Standing issued as of a recent date by the
Secretary of State of the State of Delaware and certificates of qualification to
transact business or other comparable certificates issued by each Secretary of
State (and any state department of taxation, as applicable) of each state in
which the Borrower is required to be so qualified;
(i) a certificate of incumbency signed by the Secretary or Assistant
Secretary of the general partner of the Borrower with respect to each of the
officers of the general partner of the Borrower authorized to execute and
deliver the Loan Documents to which the Borrower is a party;
(j) certified copies (certified by the Secretary or Assistant
Secretary of the general partner of the Borrower) of the partnership agreement
of the Borrower and of all necessary action taken by the Borrower (and any of
the partners of the Borrower) to authorize the execution, delivery and
performance of the Loan Documents to which it is a party;
(k) the articles of incorporation, articles of organization,
certificate of limited partnership or other comparable organizational instrument
(if any) of each Guarantor certified as of a recent date by the respective
Secretary of State of the State of formation of such Person;
(l) a Certificate of Good Standing or certificate of similar meaning
with respect to each Guarantor issued as of a recent date by the respective
Secretary of State of the State of formation of each such Person, as the case
may be, and certificates of qualification to transact business or other
comparable certificates issued by each Secretary of State (and any state
department of taxation, as applicable) of each state in which such Person is
required to be so qualified;
(m) a certificate of incumbency signed by the Secretary or Assistant
Secretary (or other individual performing similar functions) of each Guarantor
with respect to each of the officers of such Person, authorized to execute and
deliver the Loan Documents to which such Person is a party;
(n) copies certified by the Secretary or Assistant Secretary of each
Guarantor (or other individual performing similar functions) of (i) the by-laws
of such Person, if a corporation, the operating agreement, if a limited
liability company, the partnership agreement, if a limited or general
partnership, or other comparable document in the case of any other form of legal
entity
- 54 -
and (ii) all corporate, partnership, member or other necessary action taken by
such Person to authorize the execution, delivery and performance of the Loan
Documents to which it is a party;
(o) all loan closing fees and any other fees then due and payable to
the Agent and the Lenders in connection with this Agreement; and
(p) such other documents, instruments and agreements as the Agent or
any Lender may reasonably request.
SECTION 6.2. Conditions to All Loans and Letters of Credit.
The obligation of the Lenders to make any Revolving Loans, and of the
Swingline Lender to make any Swingline Loans, and of the Agent to issue Letters
of Credit is subject to the condition precedent that the following conditions be
satisfied in the judgment of the Agent:
(a) in the case of a Revolving Loan, timely receipt by the Agent of
a Notice of Borrowing, or in the case of a Swingline Loan, timely receipt by the
Swingline Lender of a Notice of Swingline Borrowing;
(b) the proposed use of proceeds of such Loan or Letter of Credit,
as the case may be, set forth in the Notice of Borrowing or Notice of Swingline
Borrowing, as the case may be, is consistent with the provisions of Section
8.13.;
(c) immediately before and after the making of such Loan or the
issuance of such Letter of Credit, no Default (including without limitation, the
existence of the condition described in Section 2.8.(f)) or Event of Default
shall have occurred and be continuing; and
(d) the representations and warranties of the Borrower and the
Guarantors contained in the Loan Documents shall be true in all material
respects on and as of the date of such Loan or issuance of such Letter of
Credit, as applicable, except to the extent such representations or warranties
specifically relate to an earlier date or such representations or warranties
become untrue by reason of events or conditions otherwise permitted hereunder
and the other Loan Documents.
The delivery of each Notice of Borrowing and each Notice of Swingline Borrowing
and the making of each Loan and the issuance of each Letter of Credit shall
constitute a certification by the Borrower to the Agent and the Lenders that the
statements in the immediately preceding clauses (b) through (d) are true.
ARTICLE VII. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Agent and the Lenders as
follows:
SECTION 7.1. Existence and Power.
Each of the Loan Parties and their respective Subsidiaries is a
corporation, partnership or other legal entity, duly organized, validly existing
and in good standing under the laws of the
- 55 -
jurisdiction of its organization, and has all requisite power and authority and
all governmental licenses, authorizations, consents and approvals required to
carry on its business as now conducted and is duly qualified and is in good
standing, authorized to do business, in each jurisdiction in which the character
of its properties or the nature of its business requires such qualification or
authorization and where the failure to be so qualified or authorized could
reasonably be expected to have a Materially Adverse Effect.
SECTION 7.2. Ownership Structure.
Part I of Schedule 7.2. is, as of the Agreement Date, a complete and
correct list of all Subsidiaries of the Parent (including all Subsidiaries of
the Borrower), setting forth for each such Subsidiary, (a) the jurisdiction of
organization of such Subsidiary, (b) each Person holding ownership interests in
such Subsidiary, (c) the nature of the ownership interests held by each such
Person and (d) the percentage of ownership of such Subsidiary represented by
such ownership interests. Except as disclosed in such Schedule (i) each of the
Parent and its Subsidiaries owns, free and clear of all Liens, and has the
unencumbered right to vote, all outstanding ownership interests in each Person
shown to be held by it on such Schedule, (ii) all of the issued and outstanding
capital stock of each such Person organized as a corporation is validly issued,
fully paid and nonassessable and (iii) there are no outstanding subscriptions,
options, warrants, commitments, preemptive rights or agreements of any kind
(including, without limitation, any stockholders' or voting trust agreements)
for the issuance, sale, registration or voting of, or outstanding securities
convertible into, any additional shares of capital stock of any class, or
partnership or other ownership interests of any type in, any such Person. Part
II of Schedule 7.2. correctly sets forth all Unconsolidated Affiliates of the
Parent, including the correct legal name of such Person, the type of legal
entity which each such Person is, and all ownership interests in such Person
held directly or indirectly by the Parent.
SECTION 7.3. Authorization of Agreement, Notes, Loan Documents and
Borrowings.
Each Loan Party has the right and power, and has taken all necessary
action to authorize it, to borrow hereunder (in the case of the Borrower) and to
execute, deliver and perform this Agreement, the Notes and the other Loan
Documents to which it is a party in accordance with their respective terms and
to consummate the transactions contemplated hereby and thereby, as the case may
be. This Agreement, the Notes and each of the other Loan Documents to which any
Loan Party is a party have been duly executed and delivered by such Loan Party
and each is a legal, valid and binding obligation of such Loan Party enforceable
against such Loan Party in accordance with its respective terms, except as the
same may be limited by bankruptcy, insolvency, and other similar laws affecting
the rights of creditors generally and the availability of equitable remedies for
the enforcement of certain obligations (other than the payment of principal)
contained herein or therein may be limited by equitable principles generally.
SECTION 7.4. Compliance of Agreement, Notes, Loan Documents and
Borrowing with Laws, etc.
The execution, delivery and performance of this Agreement, the Notes
and the other Loan Documents to which any Loan Party is a party in accordance
with their respective terms and the
- 56 -
borrowing of Loans hereunder do not and will not, by the passage of time, the
giving of notice or otherwise (a) require any Governmental Approval or violate
any Applicable Law relating to any Loan Party the failure to possess or to
comply with which would have a Materially Adverse Effect; (b) conflict with,
result in a breach of or constitute a default under the articles of
incorporation, bylaws, operating agreement, partnership agreement or other
organizational or constituent documents of any Loan Party, or any indenture,
agreement or other instrument to which any Loan Party is a party or by which it
or any of its respective properties may be bound and the violation of which
would have a Materially Adverse Effect; or (c) result in or require the creation
or imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by any Loan Party other than Permitted Liens.
SECTION 7.5. Compliance with Law; Governmental Approvals.
Each of the Loan Parties is in compliance with each Governmental
Approval applicable to it and in compliance with all other Applicable Law
relating to it, except for noncompliances which, and Governmental Approvals the
failure to possess which, would not, singly or in the aggregate, cause a Default
or Event of Default or have a Materially Adverse Effect and in respect of which
(if the Borrower has actual knowledge of such Applicable Law or Governmental
Approval) adequate reserves have been established on the books of such Loan
Party.
SECTION 7.6. Existing Indebtedness.
Other than the Indebtedness hereunder and as set forth on Schedule
7.6., neither the Borrower, any Guarantor, any of the Parent's or the Borrower's
other Subsidiaries or any Non-Guarantor Entity has any Indebtedness as of the
Agreement Date. The Borrower, each Guarantor, each of the other Subsidiaries of
the Parent or of the Borrower and each Non-Guarantor Entity have performed and
are in compliance with all of the terms of such Indebtedness and all instruments
and agreements relating thereto, and no default or event of default, or event or
condition which with the giving of notice, the lapse of time, a determination of
materiality, the satisfaction of any other condition or any combination of the
foregoing, would constitute such a default or event of default, exists with
respect to any such Indebtedness.
SECTION 7.7. Unencumbered Pool Properties.
Each of the Unencumbered Pool Properties qualifies as an Eligible
Property. Each of the Stabilized Retail Operating Properties, Qualified
Development Properties and Pre-Stabilized Retail Operating Properties satisfies
all of the requirements of a Stabilized Retail Operating Property, Qualified
Development Property and Pre-Stabilized Retail Operating Property, respectively.
SECTION 7.8. Margin Stock.
Neither the Borrower, any Guarantor or any other Subsidiary of the
Parent is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose, whether immediate, incidental or
ultimate, of buying or carrying "margin stock" within
- 57 -
the meaning of Regulations U and X, and no part of the proceeds of any extension
of credit hereunder will be used to buy or carry any such "margin stock."
SECTION 7.9. Transactions with Affiliates.
Except as set forth on Schedule 7.9., none of the Borrower, any
Guarantor or any other Subsidiary of the Parent is a party to any transaction
with any Affiliate which is in violation of Section 8.18.
SECTION 7.10. Absence of Defaults.
None of the Borrower, any Guarantor or any other Subsidiary of the
Parent is in default under its articles of incorporation, bylaws, operating
agreement, partnership agreement or other organizational or constituent
document, and no event has occurred, which has not been remedied, cured or
waived (a) which constitutes a Default or an Event of Default; or (b) which
constitutes, or which with the passage of time, the giving of notice or
otherwise, would constitute, a default or event of default any such Person under
any judgment, decree or order to which any such Person is a party or by which it
or any of its properties may be bound.
SECTION 7.11. Financial Information.
The Borrower and the Parent have furnished to each Lender copies of
their respective (i) audited consolidated balance sheets dated December 31, 2001
and December 31, 2002, and the related consolidated related statements of
operations, stockholders' equity and cash flows for the periods then ended and
(ii) the unaudited consolidated balance sheet for the fiscal quarter ending
September 30, 2003, and the related consolidated statements of operations,
shareholders' equity and cash flows of the Parent and its consolidated
Subsidiaries for the three fiscal quarter period ending on such date (the
"Financial Statements"). The chief financial officer of the Parent has certified
that the Financial Statements have been prepared in accordance with GAAP, are
complete and correct and present fairly the financial position of the Borrower
and the Parent as of their respective dates. Each of the operating statements
pertaining to each of the Unencumbered Pool Properties delivered by the Borrower
to the Agent was prepared in accordance with GAAP and fairly presents the Net
Operating Income of such Unencumbered Pool Property for the period then ended.
Each of the financial projections delivered, or required to be delivered, by the
Borrower to the Agent or any Lender, whether prior to, on or after the date
hereof (a) has been, or will be, as applicable, prepared for each Unencumbered
Pool Property in light of the past business and performance of such Unencumbered
Pool Property and (b) represents or will represent, as of the date thereof, the
reasonable good faith estimates of the Borrower's financial performance. None of
the Borrower, the Parent or any of its Consolidated Subsidiaries has on the
Agreement Date any material contingent liabilities, liabilities, liabilities for
taxes, unusual or long-term commitments or unrealized or forward anticipated
losses from any unfavorable commitments, except as referred to or reflected or
provided for in said financial statements. Since September 30, 2003, there has
been no material adverse change in the financial condition, operations, business
or prospects of the Parent or any of its Subsidiaries. Each of the Parent, the
Borrower, the other Guarantors and the other Subsidiaries is Solvent.
- 58 -
SECTION 7.12. Litigation.
Except as set forth on Schedule 7.12., there are no actions, suits or
proceedings pending against, or to the knowledge of the Parent threatened
against or affecting, the Borrower, any Guarantor or of any other Subsidiary of
the Parent before any court or arbitrator or any governmental body, agency or
official (a) which could reasonably be expected to have a Materially Adverse
Effect or (b) which in any manner draws into question the validity or
enforceability of any Loan Document.
SECTION 7.13. ERISA.
(a) Existing Plans. Except for Plans as set forth on Schedule 7.13.,
neither the Borrower nor any Guarantor maintains, nor has the Borrower or any
Guarantor at any time maintained, any Plan subject to the provisions of ERISA.
Neither the Borrower nor any Guarantor is, nor has at any time been, a member of
any ERISA Group with any Person that has at any time maintained any such Plan.
(b) ERISA and Internal Revenue Code Compliance and Liability. Each
of the Borrower and the Guarantors is in compliance with all applicable
provisions of ERISA and the regulations and published interpretations thereunder
with respect to all Plans except where failure to comply would not result in a
Materially Adverse Effect and except for any required amendments for which the
remedial amendment period as defined in Section 401(b) of the Code has not yet
expired. Each Plan that is intended to be qualified under Section 401(a) of the
Internal Revenue Code has been determined by the Internal Revenue Service to be
so qualified, and each trust related to such plan has been determined to be
exempt under Section 501(a) of the Internal Revenue Code. No material liability
has been incurred by the Borrower or any Guarantor which remains unsatisfied for
any taxes or penalties with respect to any Plan or any Multiemployer Plan.
(c) Funding. No Plan has been terminated, nor has any accumulated
funding deficiency (as defined in Section 412 of the Internal Revenue Code) been
incurred (without regard to any waiver granted under Section 412 of the Internal
Revenue Code), nor has any funding waiver from the IRS been received or
requested with respect to any Plan, nor has the Borrower or any Guarantor failed
to make any contributions or to pay any amounts due and owing as required by
Section 412 of the Internal Revenue Code, Section 302 of ERISA or the terms of
any Plan prior to the due dates of such contributions under Section 412 of the
Internal Revenue Code or Section 302 of ERISA, nor has there been any event
requiring any disclosure under Section 4041(c)(3)(C), 4063(a) or 4068(f) of
ERISA with respect to any Plan.
(d) Prohibited Transactions and Payments. Neither the Borrower nor
any Guarantor has: (1) engaged in a nonexempt prohibited transaction described
in Section 406 of ERISA or Section 4975 of the Internal Revenue Code; (2)
incurred any liability to the PBGC which remains outstanding other than the
payment of premiums and there are no prepayments which are due and unpaid; (3)
failed to make a required contribution or payment to a Multiemployer Plan; or
(4) failed to make a required installment or other required payment under
Section 412 of the Internal Revenue Code.
- 59 -
(e) No ERISA Termination Event. No Termination Event has occurred or
is reasonably expected to occur.
(f) ERISA Litigation. No material proceeding, claim, lawsuit and/or
investigation is existing or, to the best knowledge of the Borrower after due
inquiry, threatened concerning or involving any (1) employee welfare benefit
plan (as defined in Section 3(1) of ERISA) currently maintained or contributed
to by the Borrower, (2) Plan or (3) Multiemployer Plan.
SECTION 7.14. Environmental Matters.
Each of the Borrower, the Guarantors and the other Subsidiaries of the
Parent has obtained all Governmental Approvals which are required under
Environmental Laws and is in compliance in all material respects with all terms
and conditions of such Governmental Approvals and all such Environmental Laws
which the failure to obtain or to comply with could reasonably be expected to
have a Materially Adverse Effect. Except for any of the following matters that
could not be reasonably expected to have a Materially Adverse Effect, (i) the
Parent is not aware of, and has not received notice of, any past, present, or
future events, conditions, circumstances, activities, practices, incidents,
actions, or plans which, with respect to the Borrower, the Guarantors or any of
the other Subsidiaries of the Parent, may interfere with or prevent compliance
or continued compliance with Environmental Laws, or may give rise to any
common-law or legal liability, or otherwise form the basis of any claim, action,
demand, suit, proceeding, hearing, study, or investigation, based on or related
to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling or the emission, discharge, release or threatened release
into the environment, of any pollutant, contaminant, chemical, or industrial,
toxic, or other Hazardous Material and (ii) there is no civil, criminal, or
administrative action, suit, demand, claim, hearing, notice, or demand letter,
notice of violation, investigation, or proceeding pending or, to the Parent's
knowledge, threatened, against the Borrower, any Guarantor or any other
Subsidiary of the Parent relating in any way to Environmental Laws.
SECTION 7.15. Taxes.
All federal, state and other tax returns of the Borrower, the
Guarantors and the other Subsidiaries of the Parent required by Applicable Law
to be filed have been duly filed, and all federal, state and other taxes,
assessments and other governmental charges or levies upon the Borrower, any
Guarantor or any other Subsidiary of the Parent and their respective properties,
income, profits and assets which are due and payable have been paid, except any
such nonpayment which is at the time permitted under Section 8.3. None of the
United States income tax returns of the Borrower, any Guarantor or any other
Subsidiary of the Parent are under audit. No tax liens have been filed and no
claims are being asserted with respect to any such taxes. All charges, accruals
and reserves on the books of the Borrower, each Guarantor or each other
Subsidiary of the Parent in respect of any taxes or other governmental charges
are in accordance with GAAP.
- 60 -
SECTION 7.16. Investment Company; Public Utility Holding Company.
None of the Borrower, any Guarantor or any other Subsidiary of the
Parent is (i) an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, (ii) a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended, or (iii) subject to any other Applicable Law which
purports to regulate or restrict its ability to borrow money or to consummate
the transactions contemplated by this Agreement or to perform its obligations
under any Loan Document to which it is a party.
SECTION 7.17. Full Disclosure.
All written information furnished by or on behalf of the Borrower, any
Guarantor or any other Subsidiary of the Parent to the Agent and the Lenders for
purposes of or in connection with this Agreement and the other Loan Documents or
any transaction contemplated hereby is, and all such information hereafter
furnished by or on behalf of the Borrower, any Guarantor or any other Subsidiary
of the Parent to the Agent or any of the Lenders will be true and accurate in
all material respects on the date as of which such information is stated or
certified and does not, and will not, fail to state any material facts necessary
to make the statements contained therein not misleading. The Parent has
disclosed to the Agent in writing any and all facts known to the Parent which
materially and adversely affect or may affect (to the extent the Parent can now
reasonably foresee), the business, operations or financial condition of the
Borrower, each Guarantor and each of the other Subsidiaries or the ability of
the Borrower or any Guarantor to perform its obligations under the Loan
Documents to which it is a party.
SECTION 7.18. Not Plan Assets.
None of the assets of the Borrower or any Guarantor constitute, nor
will constitute, plan assets, within the meaning of ERISA, the Internal Revenue
Code and the respective regulations promulgated thereunder, of any ERISA Plan or
Non-ERISA Plan. The execution, delivery and performance of this Agreement, and
the borrowing and repayment of amounts thereunder, do not and will not
constitute "prohibited transactions" under ERISA or the Internal Revenue Code.
SECTION 7.19. Business.
The Parent and its Subsidiaries and the Borrower and its Subsidiaries
are engaged in the business of owning, managing and developing community and
neighborhood shopping centers and other activities incidental thereto.
SECTION 7.20. Title to Properties; Necessary Agreements, Licenses,
Permits; Adverse Contracts.
Each of the Borrower, the Guarantors and the other Subsidiaries of the
Parent (i) has good and marketable title to, or a valid leasehold interest in,
its assets and properties except as disclosed in the consolidated financial
statements of the Parent delivered to the Agent and the Lenders, (ii) is in
compliance with all real and personal property leases where the failure to so be
- 61 -
in compliance would have a Materially Adverse Effect, (iii) possess all
necessary and appropriate agreements, contracts, franchise arrangements,
patents, trademarks, licenses, permits and other intellectual property rights
free from burdensome or undue restriction and (iv) has not infringed upon or
otherwise violated any trademark, patent, license or other intellectual property
agreement where such infringement would have a Materially Adverse Effect. None
of such Persons has assumed liability under or is a party to nor is it or any of
its property subject to or bound by any forward purchase contract, futures
contract, covenant not to compete, unconditional purchase, take or pay or other
agreement which restricts its ability to conduct its business or, either
individually or in the aggregate, has a Materially Adverse Effect or could
reasonably be expected to have a Materially Adverse Effect.
SECTION 7.21. Non-Guarantor Entities; Regency Texas.
Schedule 7.21. is as of the date hereof a complete and correct list of
all Non-Guarantor Entities, setting forth for each such Person, the correct
legal name of such Person, the type of legal entity which each such Person is,
and all equity interests in such Person held directly or indirectly by the
Parent. No Non-Guarantor Entity satisfies any condition contained in clause (i)
of Section 8.22.(a). As of the Agreement Date, Regency Texas does not satisfy
any condition contained in clause (iii) of such Section.
SECTION 7.22. Tax Shelter Regulations.
None of the Borrower, any other Loan Party nor any other Subsidiary of
the Parent intends to treat the Loans or the transactions contemplated by this
Agreement and the other Loan Documents as being a "reportable transaction"
(within the meaning of Treasury Regulation Section 1.6011-4). If the Borrower,
any other Loan Party or any other Subsidiary of the Parent determines to take
any action inconsistent with such intention, the Borrower will promptly notify
the Agent thereof. If the Borrower so notifies the Agent, the Borrower
acknowledges that one or more of the Lenders may treat its Loans as part of a
transaction that is subject to Treasury Regulation Section 301.6112-1, and such
Lender or Lenders, as applicable, will maintain the lists and other records,
including the identity of the applicable Loan Parties, all as required by such
Treasury Regulation.
ARTICLE VIII. COVENANTS
SECTION 8.1. Information.
The Borrower and the Parent, as applicable, will deliver to the Agent:
(a) as soon as available and in any event within 5 days after the
same is required to be filed with the Securities and Exchange Commission (but in
no event later than 100 days after the end of each fiscal year of the Parent),
the audited consolidated balance sheet of the Parent and its Consolidated
Subsidiaries, and of the Borrower and its Consolidated Subsidiaries, as of the
end of such fiscal year and the related consolidated statements of operations,
stockholders' equity and cash flows of the Parent and its Consolidated
Subsidiaries, and of the Borrower and its Consolidated Subsidiaries, for such
fiscal year (the "Annual Financial Statements"), setting forth in comparative
form the figures as of the end of and for the previous fiscal year. The chief
- 62 -
financial officer of the Parent shall certify that the Annual Financial
Statements have been prepared in accordance with GAAP and present fairly the
financial position of the Parent and its Consolidated Subsidiaries, and of the
Borrower and its Consolidated Subsidiaries, as the case may be, as of the date
thereof. The audit of the Annual Financial Statements shall be performed by
independent certified public accountants of recognized national standing
acceptable to the Agent;
(b) as soon as available and in any event within 5 days after the
same is required to be filed with the Securities and Exchange Commission (but in
no event later than 50 days after the end of each of the first, second and third
fiscal quarters of the Parent), the unaudited consolidated balance sheet of the
Parent and its Consolidated Subsidiaries as of the end of such period and the
related consolidated statements of operations, stockholders' equity and cash
flows of the Parent and its Consolidated Subsidiaries, and of the Borrower and
its Consolidated Subsidiaries, for such period (the "Quarterly Financial
Statements"), setting forth in each case in comparative form the figures for the
corresponding periods of the previous fiscal year. The chief financial officer
of the Parent shall certify that the Quarterly Financial Statements have been
prepared in accordance with GAAP and present fairly the financial position of
the Parent and its Consolidated Subsidiaries, and of the Borrower and its
Consolidated Subsidiaries, as the case may be, as of the date thereof;
(c) simultaneously with the delivery of each set of financial
statements of the Parent referred to in the immediately preceding clauses (a)
and (b), a certificate of the chief financial officer of the Parent
substantially in the form of Exhibit Q (i) setting forth in reasonable detail
the calculations required to establish whether the Parent was in compliance with
the requirements of Sections 8.11., 8.21., 8.23. and Article IX. on the date of
such financial statements, (ii) setting forth a schedule of all current
Contingent Obligations of the Parent, the Borrower, all Subsidiaries of the
Parent or the Borrower and all Unconsolidated Affiliates and (iii) stating
whether any Default or Event of Default exists on the date of such certificate
and, if any Default or Event of Default then exists, setting forth the details
thereof and the action which the Parent and the Borrower are taking or proposes
to take with respect thereto;
(d) as soon as available and in any event within 50 days after the
end of each fiscal quarter of the Borrower, an Unencumbered Pool Certificate
setting forth the information to be contained therein as of the last day of such
fiscal quarter;
(e) simultaneously with the delivery of each set of financial
statements referred to in the immediately preceding clauses (a) and (b), a
report of "funding capacity" of the Parent, certified by the chief financial
officer of the Parent, projecting the sources and uses of cash, including the
costs to complete developments in process, under contract and approved by the
Parent's capital allocation committee, and loans maturing during the next 12
months, and any other significant capital commitments;
(f) as soon as available and in any event within 50 days after the
end of the fourth fiscal quarter of the Borrower, the annual plan of the Parent
and its Consolidated Subsidiaries which plan shall at least include capital and
operating expense budgets, projections of sources and applications of funds, a
projected balance sheet, profit and loss projections of the Parent and
- 63 -
its Consolidated Subsidiaries for each quarter of the next succeeding fiscal
year and a update copy of Schedule 7.6., all itemized in reasonable detail and
shall also set forth the pro forma calculations required (including any
assumptions, where appropriate) to establish whether or not the Parent, and when
appropriate its Consolidated Subsidiaries, will be in compliance with the
covenants contained in Sections 8.11., 8.21., 8.23. and Article IX. at the end
of each fiscal quarter of the next succeeding fiscal year;
(g) promptly upon receipt thereof, copies of all reports submitted
to the Borrower or the Parent or the Board of Directors of the Parent or the
Borrower by its independent public accountants, including without limitation,
any management report;
(h) within five days after any executive officer of the Borrower or
the Parent obtains knowledge of any Default or Event of Default, a certificate
of the president or chief financial officer of the Borrower or Parent, as
applicable, setting forth the details thereof and the action which the Borrower
or Parent is taking or proposes to take with respect thereto;
(i) promptly upon the mailing thereof to the shareholders of the
Parent generally, copies of all financial statements, reports, offering
memoranda and proxy statements so mailed;
(j) within 10 days of the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent), reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) and all other periodic reports which the Parent or the Borrower
shall file with the Securities and Exchange Commission (or any Governmental
Authority substituted therefor) or any national securities exchange;
(k) promptly upon obtaining knowledge thereof, a description in
reasonable detail of any action, suit or proceeding commenced or threatened
against the Borrower, any Guarantor, any other Subsidiary of the Parent or any
Unencumbered Pool Property which is reasonably likely to have a Materially
Adverse Effect;
(l) promptly upon the occurrence thereof, written notice of any
material change in the senior management of the Borrower or the Parent;
(m) promptly upon the occurrence thereof, a copy of any amendment to
the articles of incorporation, bylaws, operating agreement, partnership
agreement or other organizational or constituent document of the Parent, the
Borrower or any Guarantor;
(n) upon request by the Agent, all financial information maintained
on the Parent, the Borrower or any Guarantor and the individual real estate
projects owned by the Parent, the Borrower or any Guarantor, including, but not
limited to, property cash flow reports, property budgets, operating statements,
leasing status reports (both actual occupancy and leased occupancy), contingent
liability summary, note receivable summary, summary of cash and cash equivalents
and overhead and capital improvement budgets;
(o) written notice not later than public disclosure of any material
Investments, material acquisitions, dispositions, disposals, divestitures or
similar transactions involving
- 64 -
Property, the raising of additional equity or the incurring or repayment of
material Indebtedness, by or with the Parent, the Borrower or any Guarantor or
any other Subsidiary of the Parent;
(p) promptly upon the request of the Agent, evidence of the
Borrower's calculation of the Ownership Share with respect to a Subsidiary or an
Unconsolidated Affiliate, such evidence to be in form and detail satisfactory to
the Agent and the Requisite Lenders; and
(q) from time to time and promptly upon each request, such data,
certificates, reports, statements, opinions of counsel, documents or further
information regarding the business, assets, liabilities, financial condition,
results of operations or business prospects of the Parent, the Borrower, any
Guarantor or any other Subsidiary of the Parent as the Agent or any Lender may
reasonably request.
SECTION 8.2. ERISA Reporting.
The Borrower shall deliver to the Agent as soon as possible, and in any
event within 10 Business Days after the Borrower knows that any of the events or
conditions specified below with respect to any Plan or Multiemployer Plan has
occurred or exists, a statement signed by the chief financial officer of the
Borrower setting forth details respecting such event or condition and the
action, if any, that the Borrower or its ERISA Affiliate proposes to take with
respect thereto (and a copy of any report or notice required to be filed with or
given to PBGC by the Borrower or an ERISA Affiliate with respect to such event
or condition):
(a) any reportable event, as defined in Section 4043(b) of ERISA and
the regulations issued thereunder, with respect to a Plan, as to which PBGC has
not by regulation waived the requirement of Section 4043(a) of ERISA that it be
notified within 30 days of the occurrence of such event (provided that a failure
to meet the minimum funding standard of Section 412 of the Internal Revenue Code
or Section 302 of ERISA, including, without limitation, the failure to make on
or before its due date a required installment under Section 412(m) of the
Internal Revenue Code or Section 302(e) of ERISA, shall be a reportable event
regardless of the issuance of any waivers in accordance with Section 412(d) of
the Internal Revenue Code); and any request for a waiver under Section 412(d) of
the Internal Revenue Code for any Plan;
(b) the distribution under Section 4041 of ERISA of a notice of
intent to terminate any Plan or any action taken by the Borrower or an ERISA
Affiliate to terminate any Plan;
(c) the institution by PBGC of proceedings under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer, any
Plan, or the receipt by the Borrower or any ERISA Affiliate of a notice from a
Multiemployer Plan that such action has been taken by PBGC with respect to such
Multiemployer Plan;
(d) the complete or partial withdrawal from a Multiemployer Plan by
the Borrower or any ERISA Affiliate that results in liability under Section 4201
or 4204 of ERISA (including the obligation to satisfy secondary liability as a
result of a purchaser default) or the receipt by the Borrower or any ERISA
Affiliate of notice from a Multiemployer Plan that it is in reorganization
- 65 -
or insolvency pursuant to Section 4241 or 4245 of ERISA or that it intends to
terminate or has terminated under Section 4041A of ERISA;
(e) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against the Borrower or any ERISA Affiliate to enforce
Section 515 of ERISA, which proceeding is not dismissed within 30 days; and
(f) the adoption of an amendment to any Plan that, pursuant to
Section 401 (a)(29) of the Internal Revenue Code or Section 307 of ERISA, would
result in the loss of tax-exempt status of the trust of which such Plan is a
part if the Borrower or an ERISA Affiliate fails to timely provide security to
the Plan in accordance with the provisions of said Sections.
SECTION 8.3. Payment of Obligations.
The Borrower and the Parent will pay and discharge, and will cause each
Guarantor and each other Subsidiary of the Parent to pay and discharge, at or
before maturity, all their respective material obligations and liabilities,
including, without limitation, tax liabilities, except where the same may be
contested in good faith by appropriate proceedings unless the contest thereof
would have a Materially Adverse Effect, and will maintain, and will cause each
Guarantor and each other Subsidiary of the Parent to maintain, in accordance
with GAAP, appropriate reserves for the accrual of any of the same.
SECTION 8.4. Preservation of Existence and Similar Matters.
Except as otherwise permitted under Section 8.13., the Borrower and the
Parent shall preserve and maintain, and cause each Guarantor and each other
Subsidiary of the Parent to preserve and maintain, its respective existence,
rights, franchises, licenses and privileges in the jurisdiction of its formation
and qualify and remain qualified and authorized to do business in each
jurisdiction in which the character of its properties or the nature of its
business requires such qualification and authorization and where the failure to
be so authorized and qualified would have a Materially Adverse Effect.
SECTION 8.5. Maintenance of Property.
The Borrower and the Parent shall, and shall cause each other Guarantor
and each other Subsidiary of the Parent to, (a) protect and preserve all of its
material properties, including without limitation, all Unencumbered Pool
Properties, and maintain in good repair, working order and condition all
tangible properties, and (b) from time to time make or cause to be made all
needed and appropriate repairs, renewals, replacements and additions to such
properties.
SECTION 8.6. Conduct of Business.
The Borrower and the Parent shall at all times carry on, and cause each
other Guarantor and each other Subsidiary of the Parent at all times to carry
on, its respective businesses in the same fields as engaged in on the Agreement
Date and not enter, and not permit any other Guarantor or any other Subsidiary
of the Parent to enter, into any line of business not otherwise engaged in by
such Person as of the Agreement Date.
- 66 -
SECTION 8.7. Insurance.
The Borrower and the Parent shall maintain, and cause each other
Guarantor and each other Subsidiary of the Borrower to maintain, insurance with
financially sound and reputable insurance companies against such risks and in
such amounts as is customarily maintained by similar businesses or as may be
required by Applicable Law. Such insurance shall, in any event, include fire and
extended coverage, public liability, property damage, workers' compensation and
flood insurance (if required under Applicable Law). The Borrower and the Parent
shall from time to time deliver to the Agent or any Lender upon its request a
detailed list, together with copies of all policies of the insurance then in
effect, stating the names of the insurance companies, the amounts and rates of
the insurance, the dates of the expiration thereof and the properties and risks
covered thereby.
SECTION 8.8. Environmental Laws.
The Borrower and the Parent shall comply, and cause all other
Guarantors and all other Subsidiaries of the Parent to comply, in all material
respects, with all Environmental Laws the failure with which to comply could
reasonably be expected to have a Materially Adverse Effect. If the Parent, the
Borrower, any other Guarantor or any other such Subsidiary shall (a) receive
notice that any violation of any Environmental Law may have been committed or is
about to be committed by such Person, (b) receive notice that any administrative
or judicial complaint or order has been filed or is about to be filed against
any such Person alleging violations of any Environmental Law or requiring any
such Person to take any action in connection with the release of Hazardous
Materials or (c) receive any notice from a Governmental Authority or private
party alleging that any such Person may be liable or responsible for costs
associated with a response to or cleanup of a release of Hazardous Materials or
any damages caused thereby, and the events or matters that are the subject of
such notices, individually or in the aggregate, could reasonably be expected to
have a Materially Adverse Effect, the Parent shall promptly provide the Agent
with a copy of such notice and in any event within 10 days after the receipt
thereof by any such Person. The Borrower and the Parent shall, and shall cause
each other Guarantor and each other Subsidiary of the Parent to, promptly take
all actions necessary to prevent the imposition of any Liens on any of their
respective properties arising out of or related to any Environmental Laws.
SECTION 8.9. Compliance with Laws.
The Borrower and the Parent will comply, and cause each other Guarantor
and each other Subsidiary of the Parent to comply, with all Applicable Laws,
except where the failure to so comply would not have a Materially Adverse
Effect.
SECTION 8.10. Inspection of Property, Books and Records.
The Borrower and the Parent will keep, and will cause each other
Guarantor and each other Subsidiary of the Parent to keep, proper books of
record and account in which full, true and correct entries shall be made of all
dealings and transactions in relation to its business and activities; and will
permit, and will cause each other Guarantor and each other Subsidiary of the
- 67 -
Parent to permit, representatives of the Agent or any Lender to visit and
inspect any of their respective properties, to examine and make abstracts from
any of their respective books and records and to discuss their respective
affairs, finances and accounts with their respective officers, employees and
independent public accountants in the Parent's presence prior to an Event of
Default, all at such reasonable times during business hours and as often as may
reasonably be desired and with reasonable notice so long as no Event of Default
shall have occurred and be continuing.
SECTION 8.11. Indebtedness; Total Liabilities.
The Borrower and the Parent will not, and will not permit any other
Guarantor or any other Subsidiary of the Parent to, incur, assume or suffer to
exist any Indebtedness other than:
(a) Indebtedness under this Agreement;
(b) Indebtedness set forth in Schedule 7.6.;
(c) Indebtedness represented by declared but unpaid dividends; and
(d) other Indebtedness so long as (i) no Default or Event of Default
shall have occurred and be continuing and (ii) the incurrence of such
Indebtedness would not cause the occurrence of a Default or Event of Default,
including without limitation, a Default or Event of Default resulting from a
violation of Section 9.2. or 9.3.
SECTION 8.12. Consolidations, Mergers and Sales of Assets.
The Borrower and the Parent shall not, and shall not permit any other
Loan Party or other Subsidiary to: (i) enter into any transaction of merger or
consolidation; (ii) liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution); or (iii) convey, sell, lease, sublease, transfer or
otherwise dispose of, in one transaction or a series of transactions, all or any
substantial part of its business or assets, whether now owned or hereafter
acquired; provided, however, that:
(a) any of the actions described in the immediately preceding
clauses (i) through (iii) may be taken with respect to any Subsidiary or any
other Loan Party (other than the Borrower or the Parent) so long as immediately
prior to the taking of such action, and immediately thereafter and after giving
effect thereto, no Default or Event of Default is or would be in existence;
notwithstanding the foregoing, any such Loan Party may enter into a transaction
of merger pursuant to which such Loan Party is not the survivor of such merger
only if (i) the Borrower shall have given the Agent and the Lenders at least 10
Business Days' prior written notice of such merger; (ii) if the surviving entity
is a Subsidiary and is required under Section 8.22. to become a Guarantor,
within 5 Business Days of consummation of such merger (x) the survivor entity
(if not already a Guarantor) shall have executed and delivered to the Agent an
Accession Agreement, the other items required to be delivered under such
Section, copies of all documents entered into by such Loan Party or the
surviving entity to effectuate the consummation of such merger, including, but
not limited to, articles of merger and the plan of merger, copies of any filings
with the Securities and Exchange Commission in connection with such merger; and
- 68 -
(y) such Loan Party and the surviving entity each takes such other action and
delivers such other documents, instruments, opinions and agreements as the Agent
may reasonably request;
(b) the Parent, the Borrower, the other Loan Parties and the other
Subsidiaries may lease and sublease their respective assets, as lessor or
sublessor (as the case may be), in the ordinary course of their business;
(c) a Person may merge with and into the Parent or the Borrower so
long as (i) the Parent or the Borrower, as the case may be, is the survivor of
such merger, (ii) immediately prior to such merger, and immediately thereafter
and after giving effect thereto, no Default or Event of Default is or would be
in existence, (iii) the Borrower shall have given the Agent and the Lenders at
least 10 Business Days' prior written notice of such merger (except that such
prior notice shall not be required in the case of the merger of a Subsidiary
with and into the Borrower) and (iv) the Borrower shall have delivered to the
Agent such data, certificates, reports, statements, opinions of counsel,
documents or further information as the Agent or any Lender may reasonably
request; and
(d) the Parent, the Borrower, the other Loan Parties and the other
Subsidiaries may sell, transfer or dispose of assets among themselves.
SECTION 8.13. Use of Proceeds and Letters of Credit.
The Borrower will only use the proceeds of the Loans for
pre-development costs, development costs, acquisitions, capital expenditures,
working capital and general corporate purposes, equity investments, repayment of
Indebtedness or scheduled amortization payments on Indebtedness, financing loans
to Subsidiaries, Unconsolidated Affiliates and other Affiliates of the Borrower
for development activities, and for no other purposes. The Borrower may not use
any proceeds of the Loans for the purpose of purchasing or carrying any "margin
stock" within the meaning of Regulations U and X. The Borrower may use the
Letters of Credit only for the same purposes for which it may use the proceeds
of Loans.
SECTION 8.14. Acquisitions.
The Borrower and the Parent shall not, and shall not permit any
Subsidiary of the Parent to, make any Acquisition in which the consideration
paid (whether by way of payment of cash, issuance of capital stock, assumption
of Indebtedness, or otherwise) by the Borrower, the Parent, or such Subsidiary,
as applicable, equals or exceeds 35% of the sum of (a) total consolidated assets
of the Parent plus (b) consolidated accumulated depreciation of the Parent
unless (i) no Default or Event of Default shall have occurred and be continuing,
(ii) the Parent shall have given the Agent and the Lenders at least 5 days prior
written notice of such Acquisition and (iii) the Parent shall have delivered to
the Agent and the Lenders a Compliance Certificate, calculated on a pro forma
basis, evidencing the Borrower's and Parent's continued compliance with the
terms and conditions of this Agreement and the other Loan Documents, including
without limitation, the financial covenants contained in Article IX., after
giving effect to such Acquisition.
- 69 -
SECTION 8.15. Exchange Listing.
The Parent shall cause its common stock to be listed for trading on
either the New York Stock Exchange or the American Stock Exchange.
SECTION 8.16. REIT Status.
Parent will at all times maintain its status as a REIT.
SECTION 8.17. Negative Pledge; Restriction on Distribution Rights.
The Borrower and Parent shall not, and shall not permit any other
Guarantor or any other Subsidiary of the Parent to, (a) create, assume, incur or
permit or suffer to exist any Lien upon any of the Unencumbered Pool Properties
or any direct or indirect ownership interest of the Borrower in any Guarantor
owning any Unencumbered Pool Property, other than Permitted Liens; or (b) create
or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any Subsidiary to: (i)
pay dividends or make any other distribution on any of such Subsidiary's capital
stock or other equity interest owned by the Parent, the Borrower or any other
Subsidiary of the Parent or the Borrower; (ii) pay any Indebtedness owed to any
such Person; (iii) make loans or advances to any such Person; or (iv) transfer
any of its property or assets to any such Person.
SECTION 8.18. Agreements with Affiliates.
The Borrower and the Parent shall not, and shall not permit any other
Guarantor or any other Subsidiary of the Parent to, enter into any transaction
requiring such Person to pay any amounts to or otherwise transfer property to,
or pay any management or other fees to, any Affiliate other than on terms and
conditions substantially as favorable to such Person as would be obtainable at
the time in a comparable arm's-length transaction with a Person not an
Affiliate.
SECTION 8.19. ERISA Exemptions.
The Borrower and the Parent shall not, and shall not permit any other
Guarantor or any other Subsidiary of the Parent to, permit any of its respective
assets to become or be deemed to be "plan assets" within the meaning of ERISA,
the Internal Revenue Code and the respective regulations promulgated thereunder,
of any ERISA Plan or any Non-ERISA Plan.
SECTION 8.20. Compliance with and Amendment of Charter or Bylaws.
The Borrower and the Parent will, and will cause each other Guarantor
to (a) comply with the terms of its articles of incorporation, bylaws, operating
agreement, partnership agreement or other organizational or constituent document
and (b) not amend, supplement, restate or otherwise modify its articles of
incorporation, by-laws, operating agreement, partnership agreement or other
organizational or constituent document without the prior written consent of the
Requisite Lenders if such amendment, supplement, restatement or other
modification could reasonably be expected to have a Materially Adverse Effect.
- 70 -
SECTION 8.21. Distributions.
If no Event of Default shall have occurred and be continuing, none of
the Parent, the Borrower or any other Subsidiary of the Borrower (other than
Wholly Owned Subsidiaries) shall directly or indirectly declare or make, or
incur any liability to make, any Restricted Payments other than:
(a) (i) distributions to its shareholders, partners or members, as
applicable, and (ii) payments made by the Parent or the Borrower to purchase (A)
outstanding shares of the common stock of the Parent (other than payments
described in clause (b) below) or (B) outstanding units of preferred partnership
interests of the Borrower, which distributions and payments in the aggregate
shall not exceed 95% of Funds From Operations as of the end of each fiscal
quarter for the four fiscal quarter period then ending; provided, however, that
any payments made pursuant to clause (ii) above shall not exceed 10% of Funds
From Operations for such four quarter period;
(b) other payments made by the Parent or the Borrower to purchase
outstanding shares of the Preferred Stock or common stock of the Parent up to an
amount equal to the aggregate net proceeds received by the Parent or the
Borrower in connection any issuance by the Parent or the Borrower of Preferred
Stock or common stock (or its equivalent) (which payments may be made with
proceeds of Loans to the extent net proceeds of such Preferred Stock or common
stock issuance were used to make an optional prepayment of outstanding Loans);
provided, however, that any such payments made pursuant to this clause (b) must
be made within twelve months after the date of issuance of such Preferred Stock
or common stock; and
(c) distributions of capital gains resulting from certain asset
sales to the extent necessary to maintain compliance with Section 8.16.
If an Event of Default under Section 10.1.(a) shall have occurred and be
continuing as a result of the Borrower's failure to pay any principal of or
interest on any of the Obligations, none of the Parent, the Borrower or any
other Subsidiary (other than Wholly Owned Subsidiaries) shall directly or
indirectly declare or make, or incur any liability to make, any Restricted
Payments. If any other Event of Default shall have occurred and be continuing,
none of such Persons shall directly or indirectly declare or make, or incur any
liability to make, any Restricted Payments except that the Parent may make
distributions to its shareholders in the minimum amount necessary to maintain
compliance with Section 8.16.
SECTION 8.22. New Guarantors; Release.
(a) Generally. The Parent shall cause any Subsidiary and any
Unconsolidated Affiliate that is not already a Guarantor and to which any of the
following conditions apply (each a "New Guarantor") to execute and deliver to
the Agent an Accession Agreement, together with the other items required to be
delivered under the subsection (c) below:
(i) such Person Guarantees, or otherwise becomes obligated
in respect of, any Indebtedness of (1) the Parent; (2) the Borrower;
(3) any other Subsidiary of the Parent or
- 71 -
the Borrower; or (4) any Non-Guarantor Entity (except in the case of an
Unconsolidated Affiliate Guaranteeing, or otherwise becoming obligated
in respect of, any Indebtedness of another Unconsolidated Affiliate);
(ii) such Person owns an Unencumbered Pool Property and has
incurred, acquired or suffered to exist any Indebtedness other than
Nonrecourse Indebtedness; or
(iii) in the case of Regency Texas, it shall (1) own assets
(other than equity interests in the Borrower) having an aggregate book
value in excess of $5,000,000 or (2) be obligated in respect of any
Total Liabilities in excess of $25,000 in the aggregate.
Any such Accession Agreement and the other items required under
subsection (c) below must be delivered to the Agent no later than 10 days
following the date on which any of the above conditions first applies to a
Subsidiary.
(b) Other Guarantors. The Parent may, at its option, cause any other
Person that is not already a Guarantor to become a New Guarantor by executing
and delivering to the Agent an Accession Agreement, together with the other
items required to be delivered under the subsection (c) below.
(c) Required Deliveries. Each Accession Agreement delivered by a New
Guarantor under the immediately preceding subsections (a) or (b) shall be
accompanied by all of the following items, each in form and substance
satisfactory to the Agent:
(i) the articles of incorporation, articles of organization,
certificate of limited partnership or other comparable organizational
instrument (if any) of such New Guarantor certified as of a recent date
by the Secretary of State of the State of formation of such New
Guarantor;
(ii) a Certificate of Good Standing or certificate of similar
meaning with respect to such New Guarantor issued as of a recent date
by the Secretary of State of the State of formation of such New
Guarantor and certificates of qualification to transact business or
other comparable certificates issued by each Secretary of State (and
any state department of taxation, as applicable) of each state in which
such New Guarantor is required to be so qualified;
(iii) a certificate of incumbency signed by the Secretary or
Assistant Secretary (or other individual performing similar functions)
of such New Guarantor with respect to each of the officers of such New
Guarantor authorized to execute and deliver the Loan Documents to which
such New Guarantor is a party;
(iv) copies certified by the Secretary or Assistant Secretary
of such New Guarantor (or other individual performing similar
functions) of (1) the by-laws of such New Guarantor, if a corporation,
the operating agreement, if a limited liability company, the
partnership agreement, if a limited or general partnership, or other
comparable document in the case of any other form of legal entity and
(2) all corporate, partnership,
- 72 -
member or other necessary action taken by such New Guarantor to
authorize the execution, delivery and performance of the Loan Documents
to which it is a party;
(v) an opinion of counsel to the Borrower and such New
Guarantor, addressed to the Agent and Lenders, and regarding, among
other things, the authority of such New Guarantor to execute, deliver
and perform the Guaranty, and such other matters as the Agent or its
counsel may request; and
(vi) such other documents and instruments as the Agent may
reasonably request.
(d) Release of Guarantor. The Borrower may request in writing that
the Agent release, and upon receipt of such request the Agent shall release, a
Guarantor from the Guaranty so long as: (i) such Guarantor is not the Parent;
(ii) such Guarantor owns no Unencumbered Pool Property, nor any direct or
indirect equity interest in any Subsidiary that does own an Unencumbered Pool
Property; (iii) such Guarantor is not otherwise required to be a party to the
Guaranty under this Section; and (iv) no Default or Event of Default shall then
be in existence or would occur as a result of such release.
SECTION 8.23. Asset Value of Non-Guarantor Entities.
At no time shall the aggregate Asset Value of the Non-Guarantor
Entities obligated in respect of any Indebtedness other than Nonrecourse
Indebtedness exceed 10% of the Gross Asset Value of the Parent and its
Consolidated Subsidiaries.
SECTION 8.24. Hedging Agreements.
The Borrower and the Parent shall not, and shall not permit any
Subsidiary of the Parent to, create, incur or suffer to exist any obligations in
respect of Hedging Agreements other than (a) Hedging Agreements existing on the
date hereof and described in Schedule 8.24.; (b) interest rate cap agreements
and (c) interest rate Hedging Agreements (excluding interest rate cap
agreements) entered into from time to time after the date hereof with
counterparties that are nationally recognized, investment grade financial
institutions in an aggregate notional amount not to exceed the aggregate amount
of the Commitments at any time outstanding; provided that, no Hedging Agreement
otherwise permitted hereunder may be speculative in nature.
Article IX. Financial Covenants
SECTION 9.1. Minimum Net Worth.
The Parent shall not at any time permit its Net Worth determined on a
consolidated basis to be less than an amount equal to the greater of (a)(i) 90%
of the tangible Net Worth of the Parent determined on a consolidated basis as of
September 30, 2003 plus (ii) 90% of the sum of (x) the amount of proceeds (net
of transaction costs) received by the Parent from the sale or issuance of
shares, options, warrants or other equity securities of any class or character
of the Parent after September 30, 2003 which affect the Net Worth of the Parent
plus (y) any positive change in the Parent's Net Worth occurring upon the
issuance of any shares of the Parent in
- 73 -
exchange for the limited partnership units held by the limited partners of the
Borrower minus (iii) the aggregate amount paid by the Parent to purchase or
redeem any equity securities of the Parent (to the extent such payments are
permitted by Section 8.21.) or (b) $1,000,000,000.
SECTION 9.2. Ratio of Total Liabilities to Gross Asset Value.
The Parent shall not at any time permit the ratio of Total Liabilities
of the Parent and its Consolidated Subsidiaries to Gross Asset Value of the
Parent and its Consolidated Subsidiaries to exceed 0.55 to 1.00 at any time.
SECTION 9.3. Ratio of Secured Indebtedness to Gross Asset Value.
The Parent shall not at any time permit the ratio of Secured
Indebtedness of the Parent and its Consolidated Subsidiaries to Gross Asset
Value of the Parent and its Consolidated Subsidiaries to exceed 0.35 to 1.00 at
any time.
SECTION 9.4. Ratio of EBITDA to Interest Expense.
The Parent shall not permit the ratio of EBITDA of the Parent and its
Consolidated Subsidiaries for the four fiscal-quarter period most recently ended
to Interest Expense of the Parent and its Consolidated Subsidiaries for such
four-quarter period to be less than 2.0 to 1.0 at the end of each fiscal
quarter.
SECTION 9.5. Ratio of EBITDA to Debt Service, Preferred Stock
Distributions and Reserve for Replacements.
The Parent shall not permit the ratio of (i) EBITDA of the Parent and
its Consolidated Subsidiaries for the four fiscal-quarter period most recently
ended to (ii) the sum of each of the following for such four-quarter period (A)
Debt Service of the Parent and its Consolidated Subsidiaries plus (B) any
distributions by the Parent or any Subsidiary to the holders of Preferred Stock
issued by the Parent or any such Subsidiary (excluding any such distributions
made to the Parent or any Subsidiary) plus (C) Reserve for Replacements for all
of the Properties of the Parent and its Consolidated Subsidiaries to be less
than 1.65 to 1.00 at the end of each fiscal quarter.
SECTION 9.6. Unsecured Interest Expense Coverage.
The Parent shall not permit the ratio of Unencumbered NOI to Interest
Expense on Unsecured Indebtedness of the Parent and its Consolidated
Subsidiaries for any fiscal quarter to be less than 1.75 to 1.00 for such fiscal
quarter.
SECTION 9.7. Permitted Investments.
(a) The Parent and the Borrower shall not, and shall not permit any
Guarantor or any other Subsidiary of the Parent to, make an Investment in or
otherwise own, the following items which would cause the aggregate value of such
holdings of such Persons to exceed the following percentages of the Parent's
Gross Asset Value:
- 74 -
(i) unimproved real estate, such that the aggregate book
value of all such unimproved real estate exceeds 10% of the Parent's
Gross Asset Value;
(ii) Common stock, preferred stock, other capital stock,
beneficial interest in trust, membership interest in limited liability
companies and other equity interests in Persons (other than
Consolidated Subsidiaries and Unconsolidated Affiliates), such that the
aggregate value of such interests calculated on the basis of the lower
of cost or market, exceeds 5% of the Parent's Gross Asset Value;
(iii) Mortgages in favor of the Parent, the Borrower
or other Subsidiary of the Parent, such that the aggregate book value
of Indebtedness secured by such Mortgages exceeds 5% of the Parent's
Gross Asset Value;
(iv) Investments in Consolidated Subsidiaries that are not
Wholly Owned Subsidiaries and in Unconsolidated Affiliates, such that
the sum of (x) the Capitalized EBITDA of such Consolidated Subsidiaries
plus (y) the aggregate value of such Investments in Unconsolidated
Affiliates, exceeds 25% of the Parent's Gross Asset Value. For purposes
of this clause (iv), the "value" of any such Investment in an
Unconsolidated Affiliate shall equal (1) with respect to any of such
Unconsolidated Affiliate's Properties under construction, the Parent's
Ownership Share of the book value of Construction in Process for such
Property as of the date of determination and (2) with respect to any of
such Unconsolidated Affiliate's Properties which have been completed,
the Parent's Ownership Share of Capitalized EBITDA of such
Unconsolidated Affiliate attributable to such Properties; and
In addition to the foregoing limitations, the aggregate value of the
Investments subject to the limitations in the preceding clauses (i) through (iv)
shall not exceed 30% of the Parent's Gross Asset Value.
Additionally, the aggregate amount of the Construction Budgets for
Development Properties in which the Parent either has a direct or indirect
ownership interest shall not exceed 20% of the Parent's Gross Asset Value. If a
Development Property is owned by an Unconsolidated Affiliate of the Parent, the
Borrower, or any other Subsidiary, then the greater of (1) the product of (A)
the Parent's, the Borrower's, or such Subsidiary's Ownership Share in such
Unconsolidated Affiliate and (B) the amount of the Construction Budget for such
Development Property or (2) the recourse obligations of the Parent, the Borrower
or such Subsidiary relating to the Indebtedness of such Unconsolidated
Affiliate, shall be used in calculating such investment limitation.
ARTICLE X. DEFAULTS
SECTION 10.1. Events of Default.
If one or more of the following events shall have occurred and be
continuing:
(a) Default in Payment. The Borrower shall fail to pay (i) the
principal amount of any Loan or any Reimbursement Obligation when due or (ii)
any interest on any Loan or other
- 75 -
Obligation, or any fees or other Obligations, owing by it, solely in the case of
this clause (ii), within 5 Business Days of the due date thereof;
(b) Default in Performance. The Parent or Borrower shall fail to
observe or perform any covenant or agreement contained in Section 8.11., Section
8.12. or Section 8.17. on its part to be performed;
(c) Default in Performance-Cure. The Parent or the Borrower shall
fail to observe or perform any covenant or agreement contained in this Agreement
(other than those covered by the immediately preceding subsections (a) or (b))
for a period of 30 days after written notice thereof has been given to the
Borrower or the Parent, as applicable, by the Agent;
(d) Other Loan Documents. An Event of Default under and as defined
in any Loan Document shall occur and be continuing or any Loan Party shall fail
to observe or perform any covenant or agreement contained in any of the Loan
Documents to which it is a party and such failure shall continue beyond any
applicable period of grace;
(e) Misrepresentations. Any written statement, representation or
warranty made or deemed made by or on behalf of the Parent, the Borrower, any
Guarantor or any other Loan Party under this Agreement or under any other Loan
Document, or any amendment hereto or thereto, or in any other writing or
statement at any time furnished or made or deemed made by or on behalf of the
Parent, the Borrower, any Guarantor or any other Loan Party to the Agent or any
Lender, shall at any time prove to have been incorrect or misleading in any
material respect when furnished or made.
(f) Indebtedness Cross-Default.
(i) The Parent, the Borrower, any Guarantor, any other Loan
Party or any other Subsidiary of the Parent shall fail to pay when due
and payable the principal of, or interest (x) on any Indebtedness
(other than the Loans or Nonrecourse Indebtedness) or any Contingent
Obligations, which Indebtedness or Contingent Obligations have an
aggregate outstanding principal amount of $10,000,000 or more or (y) on
any Nonrecourse Indebtedness, which Indebtedness have an aggregate
outstanding principal amount of $20,000,000 or more;
(ii) Any such Indebtedness or Contingent Obligations shall
have (x) been accelerated in accordance with the provisions of any
indenture, contract or instrument evidencing, providing for the
creation of or otherwise concerning such Indebtedness or (y) been
required to be prepaid prior to the stated maturity thereof;
(iii) Any other event shall have occurred and be continuing
which, with or without the passage of time, the giving of notice, a
determination of materiality, the satisfaction of any condition or any
combination of the foregoing, would permit any holder or holders of
such Indebtedness or Contingent Obligations, any trustee or agent
acting on behalf of such holder or holders or any other Person, to
accelerate the maturity
- 76 -
of any such Indebtedness or Contingent Obligations or require any such
Indebtedness or Contingent Obligations to be prepaid prior to its
stated maturity; or
(iv) there occurs under any Hedging Agreement in effect
between any Loan Party and any Lender (or affiliate of a Lender) an
Early Termination Date (as defined in such Hedging Agreement) resulting
from (A) any event of default under such Hedging Agreement as to which
any Loan Party is the Defaulting Party (as defined in such Hedging
Agreement) or (B) any Termination Event (as so defined) under such
Hedging Agreement as to which any Loan Party is an Affected Party (as
so defined).
(g) Voluntary Bankruptcy Proceeding. The Parent, the Borrower, any
Guarantor, any other Loan Party or any other Affiliates shall: (i) commence a
voluntary case under the Bankruptcy Code of 1978, as amended or other federal
bankruptcy laws (as now or hereafter in effect); (ii) file a petition seeking to
take advantage of any other Applicable Laws, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment
of debts; (iii) consent to, or fail to contest in a timely and appropriate
manner, any petition filed against it in an involuntary case under such
bankruptcy laws or other Applicable Laws or consent to any proceeding or action
described in the immediately following subsection; (iv) apply for or consent to,
or fail to contest in a timely and appropriate manner, the appointment of, or
the taking of possession by, a receiver, custodian, trustee, or liquidator of
itself or of a substantial part of its property, domestic or foreign; (v) admit
in writing its inability to pay its debts as they become due; (vi) make a
general assignment for the benefit of creditors; (vii) make a conveyance
fraudulent as to creditors under any Applicable Law; or (viii) take any
corporate or partnership action for the purpose of effecting any of the
foregoing.
(h) Involuntary Bankruptcy Proceeding. A case or other proceeding
shall be commenced against the Parent, the Borrower, any Guarantor, any other
Loan Party or any other Affiliates, in any court of competent jurisdiction
seeking: (i) relief under the Bankruptcy Code of 1978, as amended or other
federal bankruptcy laws (as now or hereafter in effect) or under any other
Applicable Laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts; or (ii) the
appointment of a trustee, receiver, custodian, liquidator or the like of such
Person, or of all or any substantial part of the assets, domestic or foreign, of
such Person, and such case or proceeding shall continue undismissed or unstayed
for a period of 60 consecutive calendar days, or an order granting the relief
requested in such case or proceeding against such Person (including, but not
limited to, an order for relief under such Bankruptcy Code or such other federal
bankruptcy laws) shall be entered.
(i) Change of Control/Change in Management.
(x) (A) Any Person (or two or more Persons acting in
concert) (other than the Stein Parties) shall acquire "beneficial
ownership" within the meaning of Rule 13d-3 of the Securities and
Exchange Act of 1934, as amended, of the capital stock or securities of
the Parent representing 20% or more of the aggregate voting power of
all classes of capital stock and securities of the Parent entitled to
vote for the election of directors or (B) during any twelve-month
period (commencing both before and after the Agreement Date),
individuals who at the beginning of such period were directors of the
Parent shall
- 77 -
cease for any reason (other than death or mental or physical
disability) to constitute a majority of the board of directors of the
Parent;
(y) the general partner of the Borrower shall cease to be
the Parent; or
(z) any two of Martin E. Stein, Jr., Mary Lou Fiala and
Bruce M. Johnson shall cease for any reason (including death or
disability) to occupy the positions of Chairman, President, Chief
Executive Officer or Chief Financial Officer (or other more senior
office) of the Parent, or shall otherwise cease to be principally
involved in the senior management of the Parent on a full-time basis,
and such individuals shall not have been replaced within 120 days
following the date on which such condition first existed with other
individuals reasonably acceptable to the Requisite Lenders (which must
include the Lender then acting as Agent).
(j) ERISA. The assets of the Parent, the Borrower, any Guarantor or
any other Loan Party at any time constitute assets, within the meaning of ERISA,
the Internal Revenue Code and the respective regulations promulgated thereunder,
of any ERISA Plan or Non-ERISA Plan;
(k) Litigation. The Parent, the Borrower, any Guarantor or any other
Loan Party shall disavow, revoke or terminate any Loan Document to which it is a
party or shall otherwise challenge or contest in any action, suit or proceeding
in any court or before any Governmental Authority the validity or enforceability
of this Agreement, any Note or any other Loan Document.
(l) Judgment. A judgment or order for the payment of money (not
adequately covered by insurance as to which the insurance company has
acknowledged coverage in writing) shall be entered against the Parent, the
Borrower, any Subsidiary of the Parent, or any other Loan Party by any court or
other tribunal which exceeds, individually or together with all other such
judgments or orders entered against such Person, $5,000,000 in amount (or which
could otherwise have a Materially Adverse Effect) and such judgment or order
shall continue for a period of 30 days without being stayed or dismissed through
appropriate appellate proceedings.
(m) Attachment. A warrant, writ of attachment, execution or similar
process shall be issued against any property of the Parent, the Borrower, any
Subsidiary of the Parent, or any other Loan Party which exceeds, individually or
together with all other such warrants, writs, executions and processes,
$5,000,000 in amount and such warrant, writ, execution or process shall not be
discharged, vacated, stayed or bonded for a period of 30 days.
(n) Damage; Strike; Casualty. Any material damage to, or loss, theft
or destruction of, any Property, whether or not insured, or any strike, lockout,
labor dispute, embargo, condemnation, act of God or public enemy, or other
casualty which causes, for more than 30 consecutive days beyond the coverage
period of any applicable business interruption insurance, the cessation or
substantial curtailment of revenue producing activities of the Parent, the
Borrower, any Guarantor, any other Loan Party or any other Subsidiary of the
Parent if any such event or circumstance could reasonably be expected to have a
Materially Adverse Effect.
- 78 -
(o) Guarantors. Any Guarantor shall fail to comply with any term,
covenant, condition or agreement contained in the Guaranty, or any Guarantor
shall disavow, revoke or terminate or attempt to do any of the foregoing with
respect to the Guaranty.
SECTION 10.2. Remedies.
Upon the occurrence of an Event of Default, and in every such event,
the Agent shall, upon the direction of the Requisite Lenders, (i) by notice to
the Borrower terminate the Commitments, which shall thereupon terminate, and
(ii) by notice to the Borrower declare the Loans and all other Obligations and
an amount equal to the Stated Amount of all Letters of Credit then outstanding
to be, and the Loans and all other Obligations and an amount equal to the Stated
Amount of all Letters of Credit then outstanding for deposit into the Collateral
Account shall thereupon become, immediately due and payable without presentment,
demand, protest or notice of intention to accelerate, all of which are hereby
waived by the Borrower. If the Agent has exercised any of the rights provided
under the preceding sentence, the Swingline Lender shall: (I) declare the
principal of, and accrued interest on, the Swingline Loans and the Swingline
Note at the time outstanding, and all of the other Obligations owing to the
Swingline Lender, to be forthwith due and payable, whereupon the same shall
immediately become due and payable without presentment, demand, protest or other
notice of any kind, all of which are expressly waived by the Borrower and (II)
terminate the Swingline Commitment and the obligation of the Swingline Lender to
make Swingline Loans. Notwithstanding the foregoing, upon the occurrence of any
of the Events of Default specified in Section 10.1.(g) or (h) above, without any
notice to the Borrower or any other act by the Agent, the Commitments and the
Swingline Commitment shall thereupon immediately and automatically terminate and
the Loans and all other Obligations and an amount equal to the Stated Amount of
all Letters of Credit then outstanding for deposit into the Collateral Account
shall become immediately due and payable without presentment, demand, protest,
notice of intention to accelerate or notice of acceleration, or other notice of
any kind, all of which are hereby waived by the Borrower. Upon the occurrence
and during the continuance of a Default under Section 10.1.(h) or Section
10.1.(i)(y), the right of the Borrower to request Revolving Loans and Swingline
Loans shall be suspended.
SECTION 10.3. Allocation of Proceeds.
If an Event of Default shall have occurred and be continuing and the
maturity of the Notes has been accelerated, all payments received by the Agent
under any of the Loan Documents, in respect of any principal of or interest on
the Obligations or any other amounts payable by the Borrower hereunder or
thereunder, shall be applied by the Agent in the following order and priority:
(a) amounts due to the Agent and the Lenders in respect of
fees and expenses due under Section 12.3.;
(b) payments of interest on Swingline Loans;
(c) payments of interest on all other Loans and
Reimbursement Obligations, to be applied for the ratable benefit of the
Lenders;
- 79 -
(d) payments of principal of Swingline Loans;
(e) payments of principal of all other Loans and
Reimbursement Obligations, to be applied for the ratable benefit of the
Lenders;
(f) amounts to be deposited into the Collateral Account in
respect of Letters of Credit;
(g) amounts due to the Agent and the Lenders pursuant to
Sections 11.6. and 12.5.;
(h) payments of all other amounts due and owing by the
Borrower under any of the Loan Documents, if any, to be applied for the
ratable benefit of the Lenders; and
(i) any amount remaining after application as provided
above, shall be paid to the Borrower or whomever else may be legally
entitled thereto.
SECTION 10.4. Rights Cumulative.
The rights and remedies of the Agent and the Lenders under this
Agreement and each of the other Loan Documents shall be cumulative and not
exclusive of any rights or remedies which any of them may otherwise have under
Applicable Law. In exercising their respective rights and remedies the Agent and
the Lenders may be selective and no failure or delay by the Agent or any of the
Lenders in exercising any right shall operate as a waiver of it, nor shall any
single or partial exercise of any power or right preclude its other or further
exercise or the exercise of any other power or right.
SECTION 10.5. Rescission of Acceleration by Requisite Lenders.
If at any time after acceleration of the maturity of the Loans and the
other Obligations, the Borrower shall pay all arrears of interest and all
payments on account of principal of the Obligations which shall have become due
otherwise than by acceleration (with interest on principal and, to the extent
permitted by Applicable Law, on overdue interest, at the rates specified in this
Agreement) and all Events of Default and Defaults (other than nonpayment of
principal of and accrued interest on the Obligations due and payable solely by
virtue of acceleration) shall become remedied or waived to the satisfaction of
the Requisite Lenders, then by written notice to the Borrower, the Requisite
Lenders may elect, in the sole discretion of such Requisite Lenders, to rescind
and annul the acceleration and its consequences. The provisions of the preceding
sentence are intended merely to bind all of the Lenders to a decision which may
be made at the election of the Requisite Lenders, and are not intended to
benefit the Borrower and do not give the Borrower the right to require the
Lenders to rescind or annul any acceleration hereunder, even if the conditions
set forth herein are satisfied.
SECTION 10.6. Collateral Account.
(a) As collateral security for the prompt payment in full when due
of all Letter of Credit Liabilities, the Borrower hereby pledges and grants to
the Agent, for the ratable benefit of
- 80 -
the Lenders as provided herein, a security interest in all of the Borrower's
right, title and interest in and to the Collateral Account and the balances from
time to time in the Collateral Account (including the investments and
reinvestments therein provided for below). The balances from time to time in the
Collateral Account shall not constitute payment of any Letter of Credit
Liabilities until applied by the Agent as provided herein. Anything in this
Agreement to the contrary notwithstanding, funds held in the Collateral Account
shall be subject to withdrawal only as provided in this Section.
(b) Amounts on deposit in the Collateral Account shall be invested
and reinvested by the Agent in such investments as the Agent shall determine in
its sole discretion. All such investments and reinvestments shall be held in the
name of and be under the sole dominion and control of the Agent. The Agent shall
exercise reasonable care in the custody and preservation of any funds held in
the Collateral Account and shall be deemed to have exercised such care if such
funds are accorded treatment substantially equivalent to that which the Agent
accords other funds deposited with the Agent, it being understood that the Agent
shall not have any responsibility for taking any necessary steps to preserve
rights against any parties with respect to any funds held in the Collateral
Account.
(c) If an Event of Default shall have occurred and be continuing,
the Agent may (and, if instructed by the Requisite Lenders, shall) in its (or
their) discretion at any time and from time to time elect to liquidate any such
investments and reinvestments and credit the proceeds thereof to the Collateral
Account and apply or cause to be applied such proceeds and any other balances in
the Collateral Account to the payment of any of the Letter of Credit Liabilities
then due and payable.
(d) When all of the Obligations shall have been indefeasibly paid in
full and no Letters of Credit remain outstanding, the Agent shall promptly
deliver to the Borrower, against receipt but without any recourse, warranty or
representation whatsoever, the balances remaining in the Collateral Account.
(e) The Borrower shall pay to the Agent from time to time such fees
as the Agent normally charges for similar services in connection with the
Agent's administration of the Collateral Account and investments and
reinvestments of funds therein.
ARTICLE XI. THE AGENT
SECTION 11.1. Appointment and Authorization.
Each Lender hereby irrevocably appoints and authorizes the Agent to
take such action as contractual representative on such Lender's behalf and to
exercise such powers under this Agreement and the other Loan Documents as are
specifically delegated to the Agent by the terms hereof and thereof, together
with such powers as are reasonably incidental thereto. Not in limitation of the
foregoing, each Lender authorizes and directs the Agent to enter into the Loan
Documents for the benefit of the Lenders. Each Lender hereby agrees that, except
as otherwise set forth herein, any action taken by the Requisite Lenders in
accordance with the provisions of this Agreement or the Loan Documents, and the
exercise by the Requisite Lenders of the powers
- 81 -
set forth herein or therein, together with such other powers as are reasonably
incidental thereto, shall be authorized and binding upon all of the Lenders.
Nothing herein shall be construed to deem the Agent a trustee or fiduciary for
any Lender or to impose on the Agent duties or obligations other than those
expressly provided for herein. Without limiting the generality of the foregoing,
the use of the terms "Agent", "agent" and similar terms in the Loan Documents
with reference to the Agent is not intended to connote any fiduciary or other
implied (or express) obligations arising under agency doctrine of any Applicable
Law. Instead, use of such terms is merely a matter of market custom, and is
intended to create or reflect only an administrative relationship between
independent contracting parties. The Agent shall deliver to each Lender,
promptly upon receipt thereof by the Agent, copies of each of the financial
statements, certificates, notices and other documents delivered to the Agent
pursuant to Section 8.1. The Agent will also furnish to any Lender, upon the
request of such Lender, a copy (or, where appropriate, an original) of any
document, instrument, agreement, certificate or notice furnished to the Agent by
the Borrower, any Loan Party or any other Affiliate of the Borrower, pursuant to
this Agreement or any other Loan Document not already delivered to such Lender
pursuant to the terms of this Agreement or any such other Loan Document. As to
any matters not expressly provided for by the Loan Documents (including, without
limitation, enforcement or collection of any of the Obligations), the Agent
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Requisite Lenders
(or all of the Lenders if explicitly required under any other provision of this
Agreement), and such instructions shall be binding upon all Lenders and all
holders of any of the Obligations; provided, however, that, notwithstanding
anything in this Agreement to the contrary, the Agent shall not be required to
take any action which exposes the Agent to personal liability or which is
contrary to this Agreement or any other Loan Document or Applicable Law. Not in
limitation of the foregoing, the Agent shall not exercise any right or remedy it
or the Lenders may have under any Loan Document upon the occurrence of a Default
or an Event of Default unless the Requisite Lenders have directed the Agent to
exercise such right or remedy. Without limiting the foregoing, no Lender shall
have any right of action whatsoever against the Agent as a result of the Agent
acting or refraining from acting under this Agreement or any of the other Loan
Documents in accordance with the instructions of the Requisite Lenders, or where
applicable, all the Lenders.
SECTION 11.2. Wells Fargo as Lender.
Wells Fargo, as a Lender, shall have the same rights and powers under
this Agreement and any other Loan Document as any other Lender and may exercise
the same as though it were not the Agent; and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include Wells Fargo in each case in
its individual capacity. Wells Fargo and its affiliates may each accept deposits
from, maintain deposits or credit balances for, invest in, lend money to, act as
trustee under indentures of, serve as financial advisor to, and generally engage
in any kind of business with the Borrower, any other Loan Party or any other
affiliate thereof as if it were any other bank and without any duty to account
therefor to the other Lenders. Further, the Agent and any affiliate may accept
fees and other consideration from the Borrower for services in connection with
this Agreement and otherwise without having to account for the same to the other
Lenders except as expressly stated otherwise herein. The Lenders acknowledge
that, pursuant to such activities, Wells Fargo or its affiliates may receive
information regarding the
- 82 -
Borrower, other Loan Parties, other Subsidiaries and other Affiliates (including
information that may be subject to confidentiality obligations in favor of such
Person) and acknowledge that the Agent shall be under no obligation to provide
such information to them.
SECTION 11.3. Approvals of the Lenders.
All communications from the Agent to any Lender requesting such
Lender's determination, consent, approval or disapproval (a) shall be given in
the form of a written notice to such Lender, (b) shall be accompanied by a
description of the matter or issue as to which such determination, approval,
consent or disapproval is requested, or shall advise such Lender where
information, if any, regarding such matter or issue may be inspected, or shall
otherwise describe the matter or issue to be resolved, (c) shall include, if
reasonably requested by such Lender and to the extent not previously provided to
such Lender, written materials and a summary of all oral information provided to
the Agent by the Borrower in respect of the matter or issue to be resolved, and
(d) shall include the Agent's recommended course of action or determination in
respect thereof. Unless a Lender shall give written notice to the Agent that it
specifically objects to the recommendation or determination of the Agent
(together with a reasonable written explanation of the reasons behind such
objection) within 10 Business Days (or such lesser or greater period as may be
specifically required under the express terms of the Loan Documents) of receipt
of such communication, such Lender shall be deemed to have conclusively approved
of or consented to such recommendation or determination.
SECTION 11.4. Notice of Defaults.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of a Default or Event of Default unless the Agent has received notice
from a Lender or the Borrower referring to this Agreement, describing with
reasonable specificity such Default or Event of Default and stating that such
notice is a "notice of default." If any Lender (excluding the Lender which is
also serving as the Agent) becomes aware of any Default or Event of Default, it
shall promptly send to the Agent such a "notice of default". Further, if the
Agent receives such a "notice of default," the Agent shall give prompt notice
thereof to the Lenders.
SECTION 11.5. Agent's Reliance, Etc.
Notwithstanding any other provisions of this Agreement or any other
Loan Documents, neither the Agent nor any of its directors, officers, agents,
employees or counsel shall be liable for any action taken or not taken by it
under or in connection with this Agreement or any other Loan Document, except
for its or their own gross negligence or willful misconduct in connection with
its duties expressly set forth herein or therein. Without limiting the
generality of the foregoing, the Agent: may consult with legal counsel
(including its own counsel or counsel for the Borrower or any other Loan Party),
independent public accountants and other experts selected by it with reasonable
care and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts. Neither the Agent nor any of its directors, officers, agents, employees
or counsel: (a) makes any warranty or representation to any Lender or any other
Person and shall be responsible to any Lender or any other Person for any
statement, warranty or representation made or deemed made by the
- 83 -
Borrower, any other Loan Party or any other Person in or in connection with this
Agreement or any other Loan Document; (b) shall have any duty to ascertain or to
inquire as to the performance or observance of any of the terms, covenants or
conditions of this Agreement or any other Loan Document or the satisfaction of
any conditions precedent under this Agreement or any Loan Document on the part
of the Borrower or other Persons or inspect the property, books or records of
the Borrower or any other Person; (c) shall be responsible to any Lender for the
due execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other Loan Document, any other instrument or
document furnished pursuant thereto or any collateral covered thereby or the
perfection or priority of any Lien in favor of the Agent on behalf of the
Lenders in any such collateral; (d) shall have any liability in respect of any
recitals, statements, certifications, representations or warranties contained in
any of the Loan Documents or any other document, instrument, agreement,
certificate or statement delivered in connection therewith; and (e) shall incur
any liability under or in respect of this Agreement or any other Loan Document
by acting upon any notice, consent, certificate or other instrument or writing
(which may be by telephone, telecopy or electronic mail) believed by it to be
genuine and signed, sent or given by the proper party or parties. The Agent may
execute any of its duties under the Loan Documents by or through agents,
employees or attorneys-in-fact and shall not be responsible for the negligence
or misconduct of any agent or attorney-in-fact that it selects in the absence of
gross negligence or willful misconduct.
SECTION 11.6. Indemnification of the Agent.
Regardless of whether the transactions contemplated by this Agreement
and the other Loan Documents are consummated, each Lender severally agrees to
indemnify the Agent (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so) pro rata in accordance with
such Lender's respective Pro Rata Share, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may at
any time be imposed on, incurred by, or asserted against the Agent (in its
capacity as Agent but not as a "Lender") in any way relating to or arising out
of the Loan Documents, any transaction contemplated hereby or thereby or any
action taken or omitted by the Agent under the Loan Documents (collectively,
"Indemnifiable Amounts"); provided, however, that no Lender shall be liable for
any portion of such Indemnifiable Amounts to the extent resulting from the
Agent's gross negligence or willful misconduct as determined by a court of
competent jurisdiction in a final, non-appealable judgment provided, however,
that no action taken in accordance with the directions of the Requisite Lenders
shall be deemed to constitute gross negligence or willful misconduct for
purposes of this Section. Without limiting the generality of the foregoing, each
Lender severally agrees to reimburse the Agent (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so)
promptly upon demand for its ratable share of any out-of-pocket expenses
(including the reasonable fees and expenses of the counsel to the Agent)
actually incurred by the Agent in connection with the preparation, negotiation,
execution, administration, or enforcement (whether through negotiations, legal
proceedings, or otherwise) of, or legal advice with respect to the rights or
responsibilities of the parties under, the Loan Documents, any suit or action
brought by the Agent to enforce the terms of the Loan Documents and/or collect
any Obligations, any "lender liability" suit or claim brought against the Agent
and/or the Lenders, and any claim or suit brought against the Agent and/or the
Lenders arising
- 84 -
under any Environmental Laws. Such out-of-pocket expenses (including counsel
fees) shall be advanced by the Lenders on the request of the Agent
notwithstanding any claim or assertion that the Agent is not entitled to
indemnification hereunder upon receipt of an undertaking by the Agent that the
Agent will reimburse the Lenders if it is actually and finally determined by a
court of competent jurisdiction that the Agent is not so entitled to
indemnification. The agreements in this Section shall survive the payment of the
Loans and all other amounts payable hereunder or under the other Loan Documents
and the termination of this Agreement. If the Borrower shall reimburse the Agent
for any Indemnifiable Amount following payment by any Lender to the Agent in
respect of such Indemnifiable Amount pursuant to this Section, the Agent shall
share such reimbursement on a ratable basis with each Lender making any such
payment.
SECTION 11.7. Lender Credit Decision, Etc.
Each Lender expressly acknowledges that neither the Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or other
affiliates has made any representations or warranties to such Lender and that no
act by the Agent hereinafter taken, including any review of the affairs of the
Borrower, the Guarantors, the other Loan Parties and their affiliates, shall be
deemed to constitute any representation or warranty by the Agent to any Lender.
Each Lender acknowledges that it has, independently and without reliance upon
the Agent, any other Lender or counsel to the Agent, and based on the financial
statements of the Borrower, the Guarantors, the other Loan Parties and their
affiliates, its review of the Loan Documents, the legal opinions required to be
delivered to it hereunder, the advice of its own counsel and such other
documents and information as it has deemed appropriate, made its own credit and
legal analysis and decision to enter into this Agreement and the transaction
contemplated hereby. Each Lender also acknowledges that it will, independently
and without reliance upon the Agent, any other Lender or counsel to the Agent,
and based on such review, advice, documents and information as it shall deem
appropriate at the time, continue to make its own decisions in taking or not
taking action under the Loan Documents. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the Agent
hereunder, the Agent shall have no duty or responsibility to provide any Lender
with any credit or other information concerning the business, operations,
property, financial and other condition or creditworthiness of the Borrower, any
Guarantor, any other Loan Party or any other Affiliate which may come into
possession of the Agent or any of its officers, directors, employees, the
Agents, attorneys-in-fact or other affiliates. Each Lender acknowledges that the
Agent's legal counsel in connection with the transactions contemplated by this
Agreement is only acting as counsel to the Agent and is not acting as counsel to
such Lender.
SECTION 11.8. Successor Agent.
The Agent may resign at any time as Agent under the Loan
Documents by giving written notice thereof to the Lenders and the Borrower. The
Agent may be removed as Agent under the Loan Documents for gross negligence or
wilfull misconduct by all Lenders (other than the Lender then acting as Agent)
upon 30-day's prior notice. Upon any such resignation or removal, the Requisite
Lenders (which, in the case of the removal of the Agent as provided in the
immediately preceding sentence, shall be determined without regard to the
Commitment of the Lender then acting as Agent) shall have the right to appoint a
successor Agent which
- 85 -
appointment shall, provided no Default or Event of Default exists, be subject to
the Borrower's approval, which approval shall not be unreasonably withheld or
delayed (except that the Borrower shall, in all events, be deemed to have
approved each Lender and any of its affiliates as a successor Agent). If no
successor Agent shall have been so appointed in accordance with the immediately
preceding sentence, and shall have accepted such appointment, within 30 days
after the current Agent's giving of notice of resignation or the Lenders'
removal of the current Agent, then the current Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be a Lender, if any Lender
shall be willing to serve, and otherwise shall be an Eligible Assignee. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the current Agent, and the current
Agent shall be discharged from its duties and obligations under the Loan
Documents. After any Agent's resignation or removal hereunder as Agent, the
provisions of this Article shall continue to inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under the Loan
Documents. Notwithstanding anything contained herein to the contrary, the Agent
may assign its rights and duties under the Loan Documents to any of its
affiliates by giving the Borrower and each Lender prior written notice.
SECTION 11.9. Titled Agents.
Each of the Documentation Agents, the Syndication Agent, the Managing
Agents and the Sole Lead Arranger (each a "Titled Agent") in each such
respective capacity, assumes no responsibility or obligation hereunder,
including, without limitation, for servicing, enforcement or collection of any
of the Loans, nor any duties as an agent hereunder for the Lenders. The titles
given to the Titled Agents are solely honorific and imply no fiduciary
responsibility on the part of the Titled Agents to the Agent, any Lender, the
Borrower or any other Loan Party and the use of such titles does not impose on
the Titled Agents any duties or obligations greater than those of any other
Lender or entitle the Titled Agents to any rights other than those to which any
other Lender is entitled.
ARTICLE XII. MISCELLANEOUS
SECTION 12.1. Notices.
All notices, requests and other communications to any party under the
Loan Documents shall be in writing (including bank wire, facsimile transmission
or similar writing) and shall be given to such party as follows:
If to the Borrower:
Regency Centers Corporation
121 West Forsyth Street, Suite 200
Jacksonville, Florida 32202
Attention: Chief Financial Officer
Telecopier: (904) 634-3428
Telephone: (904) 356-7000
- 86 -
If to a Lender or the Agent:
To such Lender's or the Agent's Lending Office
or as to each party at such other address as such party shall designate in a
written notice to the other parties. Each such notice, request or other
communication shall be effective (a) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (b) if given by any other means (including facsimile),
when delivered at the applicable address provided for in this Section; provided
that notices to the Agent under Article II., and any notice of a change of
address for notices, shall not be effective until received. In addition to the
Agent's Lending Office, the Borrower shall send copies of the information
described in Section 8.1. to the following address of the Agent:
Wells Fargo Bank, National Association
Real Estate Group
Koll Center
2030 Main Street, Suite 800
Irvine, California 92714
Attention: Ms. Rita Swayne
SECTION 12.2. No Waivers.
No failure or delay by the Agent or any Lender in exercising any right,
power or privilege under any Loan Document shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies provided in the Loan Documents shall be cumulative and not
exclusive of any rights or remedies provided by law.
SECTION 12.3. Expenses.
The Borrower agrees to pay on demand all present and future reasonable
expenses of:
(a) the Agent in connection with the negotiation, preparation,
execution and delivery (including reasonable out-of-pocket costs and expenses
incurred in connection with the assignment of Commitments pursuant to Section
12.8.) of this Agreement, the Notes and each of the other Loan Documents,
whenever the same shall be executed and delivered, including appraisers' fees,
search fees, recording fees and the reasonable fees and disbursements of: (i)
Alston & Bird LLP, counsel for the Agent, and (ii) each local counsel retained
by the Agent;
(b) the Agent in connection with the negotiation, preparation,
execution and delivery of any waiver, amendment or consent by the Agent or any
Lender relating to this Agreement, the Notes or any of the other Loan Documents
or sales of participations in any Lender's Commitment, including the reasonable
fees and disbursements of counsel to the Agent;
(c) the Agent and each of the Lenders in connection with any
restructuring, refinancing or "workout" of the transactions contemplated by this
Agreement, the Notes and the
- 87 -
other Loan Documents, including the reasonable fees and disbursements of counsel
to the Agent actually incurred;
(d) the Agent and each of the Lenders, after the occurrence of a
Default or Event of Default, in connection with the collection or enforcement of
the obligations of the Borrower under this Agreement, the Notes or any other
Loan Document, including the reasonable fees and disbursements of counsel to the
Agent or to any Lender actually incurred if such collection or enforcement is
done by or through an attorney;
(e) subject to any limitation contained in Section 12.5., the Agent
and each of the Lenders in connection with prosecuting or defending any claim in
any way arising out of, related to, or connected with this Agreement, the Notes
or any of the other Loan Documents, including the reasonable fees and
disbursements of counsel to the Agent or any Lender actually incurred and of
experts and other consultants retained by the Agent or any Lender in connection
therewith;
(f) the Agent and each of the Lenders, after the occurrence of a
Default or Event of Default, in connection with the exercise by the Agent or any
Lender of any right or remedy granted to it under this Agreement, the Notes or
any of the other Loan Documents including the reasonable fees and disbursements
of counsel to the Agent or any Lender actually incurred;
(g) the Agent in connection with costs and expenses incurred by the
Agent in gaining possession of, maintaining, appraising, selling, preparing for
sale and advertising to sell any collateral security, whether or not a sale is
consummated; and
(h) the Agent and each of the Lenders, to the extent not already
covered by any of the preceding subsections, in connection with any bankruptcy
or other proceeding of the type described in Sections 10.1.(g) or (h), and the
reasonable fees and disbursements of counsel to the Agent and any Lender
actually incurred in connection with the representation of the Agent or such
Lender in any matter relating to or arising out of any such proceeding,
including without limitation (i) any motion for relief from any stay or similar
order, (ii) the negotiation, preparation, execution and delivery of any document
relating to the Agent or such Lender and (iii) the negotiation and preparation
of any plan of reorganization of the Borrower, whether proposed by the Borrower,
the Lenders or any other Person, and whether such fees and expenses are incurred
prior to, during or after the commencement of such proceeding or the
confirmation or conclusion of any such proceeding.
SECTION 12.4. Stamp, Intangible and Recording Taxes.
The Borrower agrees to pay any and all stamp, intangible, registration,
recordation and similar taxes, fees or charges and shall indemnify the Agent and
each Lender against any and all liabilities with respect to or resulting from
any delay in the payment or omission to pay any such taxes, fees or charges,
which may be payable or determined to be payable in connection with the
execution, delivery, recording, performance or enforcement of this Agreement,
the Notes and any of the other Loan Documents or the perfection of any rights or
Liens thereunder.
- 88 -
SECTION 12.5. Indemnification.
The Borrower shall and hereby agrees to indemnify, defend and hold
harmless the Agent and each of the Lenders and their respective directors,
officers, the agents and employees from and against (a) any and all losses,
claims, damages, liabilities, deficiencies, judgments or expenses incurred by
any of them (except to the extent that it results from their own gross
negligence or willful misconduct) arising out of or by reason of any litigation,
investigations, claims or proceedings which arise out of or are in any way
related to: (i) this Agreement or the transactions contemplated thereby; (ii)
the making of Loans or issuance of Letters of Credit; (iii) any actual or
proposed use by the Borrower of the proceeds of the Loans or of Letters of
Credit; or (iv) the Agent's or the Lenders' entering into this Agreement, the
other Loan Documents or any other agreements and documents relating hereto,
including, without limitation, amounts paid in settlement, court costs and the
reasonable fees and disbursements of counsel incurred in connection with any
such litigation, investigation, claim or proceeding or any advice rendered in
connection with any of the foregoing and (b) any such losses, claims, damages,
liabilities, deficiencies, judgments or expenses incurred in connection with any
remedial or other similar action taken by the Borrower, the Agent or any of the
Lenders in connection with the required compliance by the Borrower or any of the
Subsidiaries, or any of their respective properties, with any federal, state or
local Environmental Laws or other material environmental rules, regulations,
orders, directions, ordinances, criteria or guidelines. If and to the extent
that the obligations of the Borrower hereunder are unenforceable for any reason,
the Borrower hereby agrees to make the maximum contribution to the payment and
satisfaction of such obligations which is permissible under Applicable Law. The
Borrower's obligations hereunder shall survive any termination of this Agreement
and the other Loan Documents and the payment in full of the Obligations, and are
in addition to, and not in substitution of, any other of its other obligations
set forth in this Agreement and the other Loan Documents.
SECTION 12.6. Setoff.
Subject to Section 3.4. and in addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
the Agent, each Lender and each Participant is hereby authorized by the
Borrower, at any time or from time to time while an Event of Default exists,
without notice to the Borrower or to any other Person, any such notice being
hereby expressly waived, but in the case of a Lender or a Participant subject to
receipt of the prior written consent of the Agent exercised in its sole
discretion, to set off and to appropriate and to apply any and all deposits
(general or special, including, but not limited to, indebtedness evidenced by
certificates of deposit, whether matured or unmatured) and any other
indebtedness at any time held or owing by the Agent, such Lender or any
affiliate of the Agent or such Lender, to or for the credit or the account of
the Borrower against and on account of any of the Obligations, irrespective of
whether or not any or all of the Loans and all other Obligations have been
declared to be, or have otherwise become, due and payable as permitted by
Section 10.2., and although such obligations shall be contingent or unmatured.
- 89 -
SECTION 12.7. Amendments and Waivers.
(a) Generally. Except as otherwise expressly provided in this
Agreement, (i) any consent or approval required or permitted by this Agreement
or in any Loan Document to be given by the Lenders may be given, (ii) any term
of this Agreement or of any other Loan Document (other than any fee letter
solely between the Borrower and the Agent) may be amended, (iii) the performance
or observance by the Borrower or any other Loan Party of any terms of this
Agreement or such other Loan Document (other than any fee letter solely between
the Borrower and the Agent) may be waived, and (iv) the continuance of any
Default or Event of Default may be waived (either generally or in a particular
instance and either retroactively or prospectively) with, but only with, the
written consent of the Requisite Lenders (or the Agent at the written direction
of the Requisite Lenders), and, in the case of an amendment to any Loan
Document, the written consent of each Loan Party which is party thereto.
(b) Certain Requisite Lender Consents. Notwithstanding the
foregoing, no amendment, waiver or consent shall, unless in writing, and signed
by the Requisite Lenders (which must include the Lender then acting as Agent) or
the Agent at the written direction of such Requisite Lenders, do any of the
following:
(i) amend Section 9.2. or 9.7. or waive any Default or Event
of Default occurring under Section 10.1. resulting from a violation of
either such Section; or
(ii) modify the definitions of the terms "Borrowing Base",
"Total Liabilities", "Gross Asset Value", "Unencumbered Pool Value",
"Unencumbered NOI" or "Indebtedness" (or the definitions used in such
definition or the percentages or rates used in the calculation
thereof).
(c) Unanimous Consent. Notwithstanding the foregoing, no amendment,
waiver or consent shall, unless in writing, and signed by all of the Lenders (or
the Agent at the written direction of all of the Lenders), do any of the
following:
(i) increase the Commitments of the Lenders (excluding any
increase as a result of an assignment of Commitments permitted under
Section 12.8.) or subject the Lenders to any additional obligations
except for any increases effected pursuant to Section 2.14.;
(ii) reduce the principal of, or interest rates that have
accrued or that will be charged on the outstanding principal amount of,
any Loans or other Obligations;
(iii) reduce the amount of any Fees payable to the Lenders
hereunder;
(iv) postpone any date fixed for any payment of principal of,
or interest on, any Loans or for the payment of Fees or any other
Obligations, or extend the expiration date of any Letter of Credit
beyond the Termination Date (except as otherwise contemplated in
Section 2.15.(b)(i));
- 90 -
(v) change the Pro Rata Shares (excluding any change as a
result of an assignment of Commitments permitted under Section 12.8. or
an increase of Commitments effected pursuant to Section 2.14.;);
(vi) amend this Section or amend the definitions of the terms
used in this Agreement or the other Loan Documents insofar as such
definitions affect the substance of this Section;
(vii) modify the definition of the term "Requisite Lenders" or
modify in any other manner the number or percentage of the Lenders
required to make any determinations or waive any rights hereunder or to
modify any provision hereof;
(viii) release any Guarantor from its obligations under the
Guaranty except as contemplated under Section 8.22.(d);
(ix) waive a Default or Event of Default under Section
10.1.(a); or
(x) amend, or waive the Borrower's compliance with, Section
2.13.
(d) Amendment of Agent's Duties, Etc. No amendment, waiver or
consent unless in writing and signed by the Agent, in addition to the Lenders
required hereinabove to take such action, shall affect the rights or duties of
the Agent under this Agreement or any of the other Loan Documents. Any
amendment, waiver or consent relating to Section 2.3. or the obligations of the
Swingline Lender under this Agreement or any other Loan Document shall, in
addition to the Lenders required hereinabove to take such action, require the
written consent of the Swingline Lender. No waiver shall extend to or affect any
obligation not expressly waived or impair any right consequent thereon and any
amendment, waiver or consent shall be effective only in the specific instance
and for the specific purpose set forth therein. No course of dealing or delay or
omission on the part of the Agent or any Lender in exercising any right shall
operate as a waiver thereof or otherwise be prejudicial thereto. Any Event of
Default occurring hereunder shall continue to exist until such time as such
Event of Default is waived in writing in accordance with the terms of this
Section, notwithstanding any attempted cure or other action by the Borrower, any
other Loan Party or any other Person subsequent to the occurrence of such Event
of Default. Except as otherwise explicitly provided for herein or in any other
Loan Document, no notice to or demand upon the Borrower shall entitle the
Borrower to other or further notice or demand in similar or other circumstances.
SECTION 12.8. Successors and Assigns.
(a) Generally. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Borrower may not assign or otherwise
transfer any of its rights under this Agreement without the prior written
consent of all the Lenders (and any such assignment or transfer to which all of
the Lenders have not consented shall be void).
(b) Participations. Any Lender may at any time grant to an affiliate
of such Lender, or one or more banks or other financial institutions (each a
"Participant") participating interests in
- 91 -
its Commitment or the Obligations owing to such Lender. Except as otherwise
provided in Section 12.6., no Participant shall have any rights or benefits
under this Agreement or any other Loan Document. In the event of any such grant
by a Lender of a participating interest to a Participant, such Lender shall
remain responsible for the performance of its obligations hereunder, and the
Borrower and the Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement pursuant to which any Lender may grant such a
participating interest shall provide that such Lender shall retain the sole
right and responsibility to enforce the obligations of the Borrower hereunder
including, without limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement; provided however, such Lender may
agree with the Participant that it will not, without the consent of the
Participant, agree to (i) increase such Lender's Commitment, (ii) extend the
date fixed for the payment of principal on the Loans or portions thereof owing
to such Lender, or (iii) reduce the rate at which interest is payable thereon.
An assignment or other transfer which is not permitted by subsection (c) or (d)
below shall be given effect for purposes of this Agreement only to the extent of
a participating interest granted in accordance with this subsection (b).
(c) Assignments. Any Lender may with the prior written consent of
the Agent and the Borrower (which consent in each case, shall not be
unreasonably withheld) at any time assign to one or more Eligible Assignees
(each an "Assignee") all or a portion of its rights and obligations under this
Agreement and the Notes; provided, however, (i) no such consent by the Borrower
shall be required (x) if a Default or Event of Default shall exist or (y) in the
case of an assignment to another Lender or an affiliate of another Lender; (ii)
any partial assignment shall be in an amount at least equal to $10,000,000 and
after giving effect to such assignment the assigning Lender retains a
Commitment, or if the Commitments have been terminated, holds Notes having an
aggregate outstanding principal balance, of at least $10,000,000; (iii) after
giving effect to any such assignment by the Agent, the Agent in its capacity as
a Lender shall retain a Commitment, or if the Commitments have been terminated,
hold Notes having an aggregate outstanding principal balance, greater than or
equal to the Commitment of each other Lender (other than any Lender whose
Commitment has increased as a result of a merger or combination with another
Lender); and (iv) each such assignment shall be effected by means of an
Assignment and Acceptance Agreement. Upon execution and delivery of such
instrument and payment by such Assignee to such transferor Lender of an amount
equal to the purchase price agreed between such transferor Lender and such
Assignee, such Assignee shall be deemed to be a Lender party to this Agreement
and shall have all the rights and obligations of a Lender with a Commitment as
set forth in such Assignment and Acceptance Agreement, and the transferor Lender
shall be released from its obligations hereunder to a corresponding extent, and
no further consent or action by any party shall be required. Upon the
consummation of any assignment pursuant to this subsection (c), the transferor
Lender, the Agent and the Borrower shall make appropriate arrangement so the new
Notes are issued to the Assignee and such transferor Lender, as appropriate. In
connection with any such assignment, the transferor Lender shall pay to the
Agent an administrative fee for processing such assignment in the amount of
$3,000. Anything in this Section to the contrary notwithstanding, no Lender may
assign or participate any interest in any Loan held by it hereunder to the
Borrower, the Parent or any of their respective affiliates or Subsidiaries.
- 92 -
(d) Designated Lenders. Any Lender (each, a "Designating Lender")
may at any time while the Borrower or the Parent, as the case may be, has been
assigned an Investment Grade Rating from either S&P or Moody's designate one
Designated Lender to fund Bid Rate Loans on behalf of such Designating Lender
subject to the terms of this subsection (d) and the provisions in the
immediately preceding subsections (b) and (c) shall not apply to such
designation. No Lender may designate more than one Designated Lender. The
parties to each such designation shall execute and deliver to the Agent for its
acceptance a Designation Agreement. Upon such receipt of an appropriately
completed Designation Agreement executed by a Designating Lender and a designee
representing that it is a Designated Lender, the Agent will accept such
Designation Agreement and give prompt notice thereof to the Borrower, whereupon,
(i) the Borrower shall execute and deliver to the Designating Lender a
Designated Lender Note payable to the order of the Designated Lender, (ii) from
and after the effective date specified in the Designation Agreement, the
Designated Lender shall become a party to this Agreement with a right to make
Bid Rate Loans on behalf of its Designating Lender pursuant to Section 2.2.
after the Borrower has accepted a Bid Rate Loan (or portion thereof) of the
Designating Lender, and (iii) the Designated Lender shall not be required to
make payments with respect to any obligations in this Agreement except to the
extent of excess cash flow of such Designated Lender which is not otherwise
required to repay obligations of such Designated Lender which are then due and
payable; provided, however, that regardless of such designation and assumption
by the Designated Lender, the Designating Lender shall be and remain obligated
to the Borrower, the Agent and the Lenders for each and every of the obligations
of the Designating Lender and its related Designated Lender with respect to this
Agreement, including, without limitation, any indemnification obligations under
Section 12.5. and any sums otherwise payable to the Borrower by the Designated
Lender. Each Designating Lender shall serve as the Agent of the Designated
Lender and shall on behalf of, and to the exclusion of, the Designated Lender:
(i) receive any and all payments made for the benefit of the Designated Lender
and (ii) give and receive all communications and notices and take all actions
hereunder, including, without limitation, votes, approvals, waivers, consents
and amendments under or relating to this Agreement and the other Loan Documents.
Any such notice, communication, vote, approval, waiver, consent or amendment
shall be signed by the Designating Lender as Agent for the Designated Lender and
shall not be signed by the Designated Lender on its own behalf and shall be
binding on the Designated Lender to the same extent as if signed by the
Designated Lender on its own behalf. The Borrower, the Agent and the Lenders may
rely thereon without any requirement that the Designated Lender sign or
acknowledge the same. No Designated Lender may assign or transfer all or any
portion of its interest hereunder or under any other Loan Document, other than
assignments to the Designating Lender which originally designated such
Designated Lender. The Borrower, the Lenders and the Agent each hereby agrees
that it will not institute against any Designated Lender or join any other
Person in instituting against any Designated Lender any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding under any
federal or state bankruptcy or similar law, until the later to occur of (x) one
year and one day after the payment in full of the latest maturing commercial
paper note issued by such Designated Lender and (y) the Termination Date. In
connection with any such designation the Designating Lender shall pay to the
Agent an administrative fee for processing such designation in the amount of
$2,000.
- 93 -
(e) Federal Reserve Bank Assignments. In addition to the assignments
and participations permitted under the foregoing provisions of the Section, and
without the need to comply with any of the formal or procedural requirements of
this Section, any Lender may at any time and from time to time, pledge and
assign all or any portion of its rights under all or any of the Loan Documents
to a Federal Reserve Bank; provided that no such pledge of assignment shall
release such Lender from its obligation thereunder. To facilitate any such
pledge or assignment, Agent shall, at the request of such Lender, enter into a
letter agreement with the Federal Reserve Bank in, or substantially in, the form
of the exhibit to Appendix C to the Federal Reserve Bank of New York Operating
Circular No 10, as amended from time to time. No such pledge or assignment shall
release the assigning Lender from its obligations hereunder.
(f) Information to Assignee, Etc. A Lender may furnish any
information concerning the Borrower, any Subsidiary or any other Loan Party in
the possession of such Lender from time to time to Assignees and Participants
(including prospective Assignees and Participants).
SECTION 12.9. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF GEORGIA APPLICABLE TO CONTACTS EXECUTED, AND TO BE
FULLY PERFORMED, IN SUCH STATE.
SECTION 12.10. Litigation.
(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY
BETWEEN OR AMONG THE BORROWER, THE AGENT OR ANY OF LENDERS WOULD BE BASED ON
DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND THAT A TRIAL BY JURY COULD
RESULT IN SIGNIFICANT DELAY AND EXPENSE. ACCORDINGLY, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, EACH OF LENDERS, THE AGENT AND THE BORROWER HEREBY
WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY
COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST THE BORROWER
ARISING OUT OF THIS AGREEMENT, THE NOTES OR ANY OTHER LOAN DOCUMENT OR BY REASON
OF ANY OTHER CAUSE OR DISPUTE WHATSOEVER BETWEEN OR AMONG THE BORROWER, THE
AGENT OR ANY OF LENDERS OF ANY KIND OR NATURE RELATING IN ANY WAY TO THE LOAN
DOCUMENTS.
(b) EACH PARTY HERETO HEREBY AGREES THAT THE FEDERAL DISTRICT COURT
OF THE NORTHERN DISTRICT OF GEORGIA OR, AT THE OPTION OF THE AGENT, ANY STATE
COURT LOCATED IN FULTON COUNTY, GEORGIA, SHALL HAVE NON-EXCLUSIVE JURISDICTION
TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG THE BORROWER, THE
AGENT OR ANY OF LENDERS, PERTAINING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT,
THE NOTES OR ANY OTHER LOAN DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR
THEREFROM. THE BORROWER AND THE PARENT EACH EXPRESSLY SUBMITS AND CONSENTS IN
ADVANCE TO SUCH JURISDICTION IN
- 94 -
ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS. THE CHOICE OF FORUM SET FORTH
IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY
THE AGENT OR ANY LENDER OR THE ENFORCEMENT BY THE AGENT OR ANY LENDER OF ANY
JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE JURISDICTION. further,
the Borrower AND THE PARENT EACH irrevocably waives, to the fullest extent
permitted by APPLICABLE law, any objection which it may now or hereafter have to
the laying of the venue of any such proceeding brought in such a court and any
claim that any such proceeding brought in such a court has been brought in an
inconvenient forum.
(c) THE FOREGOING WAIVERS HAVE BEEN MADE WITH THE ADVICE OF COUNSEL
AND WITH A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF, AND SHALL
SURVIVE THE PAYMENT OF THE LOANS AND ALL OTHER AMOUNTS PAYABLE HEREUNDER OR
UNDER THE OTHER LOAN DOCUMENTS AND THE TERMINATION OF THIS AGREEMENT.
SECTION 12.11. Confidentiality.
Except as otherwise provided by Applicable Law, the Agent and each
Lender shall utilize all non-public information obtained pursuant to the
requirements of this Agreement in accordance with its customary procedure for
handling confidential information of this nature and in accordance with safe and
sound banking practices but in any event may make disclosure: (a) to any of
their respective affiliates (provided they shall agree to keep such information
confidential in accordance with the terms of this Section); (b) as reasonably
required by any bona fide Assignee, Participant or other transferee in
connection with the contemplated transfer of any Commitment or participations
therein as permitted hereunder (provided they shall agree to keep such
information confidential in accordance with the terms of this Section); (c) as
required by any Governmental Authority or representative thereof or pursuant to
legal process; (d) to the Agent's or such Lender's independent auditors and
other professional advisors (provided they shall be notified of the confidential
nature of the information); and (e) after the happening and during the
continuance of an Event of Default, to any other Person, in connection with the
exercise by the Agent or the Lenders of rights hereunder or under any of the
other Loan Documents.
SECTION 12.12. Counterparts; Integration.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Agreement, together with the
other Loan Documents, constitutes the entire agreement and understanding among
the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof.
- 95 -
SECTION 12.13. Invalid Provisions.
Any provision of this Agreement or any other Loan Document held by a
court of competent jurisdiction to be illegal, invalid or unenforceable shall
not invalidate the remaining provisions of such Loan Document which shall remain
in full force and effect and the effect thereof shall be confined to the
provision held invalid or illegal.
SECTION 12.14. No Novation.
THE PARTIES HERETO HAVE ENTERED INTO THIS AGREEMENT SOLELY TO AMEND AND
RESTATE THE TERMS OF THE EXISTING CREDIT AGREEMENT. THE PARTIES DO NOT INTEND
THIS AGREEMENT NOR THE TRANSACTIONS CONTEMPLATED HEREBY TO BE, AND THIS
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL NOT BE CONSTRUED TO BE,
A NOVATION OF ANY OF THE OBLIGATIONS OWING BY THE BORROWER UNDER OR IN
CONNECTION WITH THE EXISTING CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS
(AS DEFINED IN THE EXISTING CREDIT AGREEMENT).
[Signatures on Next Page]
- 96 -
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Credit Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
REGENCY CENTERS, L.P.
By: Regency Centers Corporation, its
sole general partner
By: /s/ J. Christian Leavitt
--------------------------------------
Name: J. Christian Leavitt
Title: Senior Vice President and
Secretary
REGENCY CENTERS CORPORATION
By: /s/ J. Christian Leavitt
--------------------------------------
Name: J. Christian Leavitt
Title: Senior Vice President and
Secretary
[Signatures Continued on Next Page]
[Signature Page to Amended and Restated Credit
Agreement dated as of March 26, 2004 with
Regency Centers, L.P.]
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as the Agent, as the Swingline Lender
and as a Lender
By: /s/ John S. Misiura
-------------------------------------
Name: John S. Misiura
Title: Vice President
Lending Office (all Types of Loans):
--------------
Wells Fargo Bank, National Association
2859 Paces Ferry Road, Suite 1805
Atlanta, Georgia 30339
Attention: Sam Wammock or Jack Misiura
Telecopier: (770) 435-2262
Telephone: (770) 435-3800
Commitment Amount:
-----------------
$80,000,000.00
[Signatures Continued on Next Page]
[Signature Page to Amended and Restated Credit
Agreement dated as of March 26, 2004
with Regency Centers, L.P.]
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Cathy A. Casey
-------------------------------------
Name: Cathy A. Casey
Title: Director
Lending Office (all Types of Loans):
--------------
201 S. College Street, 16th Floor
CPA NC-1183
Charlotte, NC 28288
Attention: Sharon Gibson
Telecopier: (704) 715-0094
Telephone: (704) 715-7608
Commitment Amount:
-----------------
$60,000,000.00
[Signatures Continued on Next Page]
[Signature Page to Amended and Restated Credit
Agreement dated as of March 26, 2004
with Regency Centers, L.P.]
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Wayne Robertson
-------------------------------------
Name: Wayne Robertson
Title: Senior Vice President
Lending Office (all Types of Loans):
--------------
One PNC Plaza 19th Floor
MS# P1-P0PP-19-2
Pittsburgh, PA 15222
Attention: Colleen Choff
Telecopier: (412) 768-3930
Telephone: (412) 762-6092
Commitment Amount:
-----------------
$40,000,000.00
[Signatures Continued on Next Page]
[Signature Page to Amended and Restated Credit
Agreement dated as of March 26, 2004
with Regency Centers, L.P.]
JPMORGAN CHASE BANK
By: /s/ Susan M. Tate
-------------------------------------
Name: Susan M. Tate
Title: Vice President
Lending Office (all Types of Loans):
--------------
1111 Fannin Street, 10th Floor
Houston, TX 77002
Attention: Angelynn Johnson
Telecopier: (713) 750-2892
Telephone: (713) 750-2351
Commitment Amount:
-----------------
$40,000,000.00
[Signatures Continued on Next Page]
[Signature Page to Amended and Restated Credit
Agreement dated as of March 26, 2004
with Regency Centers, L.P.]
SUNTRUST BANK
By: /s/ Nancy B. Richards
-------------------------------------
Name: Nancy B. Richards
Title: Vice President
Lending Office (all Types of Loans):
--------------
8245 Boone Boulevard
8th Floor
Vienna, VA 22182
Attention: Nancy B. Richards
Telecopier: (703) 902-9245
Telephone: (703) 902-9039
Commitment Amount:
-----------------
$40,000,000.00
[Signatures Continued on Next Page]
[Signature Page to Amended and Restated Credit
Agreement dated as of March 26, 2004
with Regency Centers, L.P.]
COMMERZBANK AG, NEW YORK BRANCH,
By: /s/ E. Marcus Perry
-------------------------------------
Name: E. Marcus Perry
Title: Assistant Vice President
By: /s/ R. William Knickerbocker
-------------------------------------
Name: R. William Knickerbocker
Title: Vice President
Lending Office (all Types of Loans):
--------------
2 World Financial Center
New York, NY 10281
Attention: David Schwarz
Telecopier: (212) 266-7565
Telephone: (212) 266-7632
Commitment Amount:
-----------------
$29,000,000.00
[Signatures Continued on Next Page]
[Signature Page to Amended and Restated Credit
Agreement dated as of March 26, 2004
with Regency Centers, L.P.]
AMSOUTH BANK
By: /s/ Lee Surtees
-------------------------------------
Name: Lee Surtees
Title: Officer
Lending Office (all Types of Loans):
--------------
1900 5th Avenue, N-BAC 15
Birmingham, AL 35203
Attention: Lee Surtees
Telecopier: (205) 326-4075
Telephone: (205) 801-0621
Commitment Amount:
-----------------
$29,000,000.00
[Signatures Continued on Next Page]
[Signature Page to Amended and Restated Credit
Agreement dated as of March 26, 2004
with Regency Centers, L.P.]
SOUTHTRUST BANK
By: /s/ Lisa S. Smith
-------------------------------------
Name: Lisa S. Smith
Title: Vice President
Lending Office (all Types of Loans):
--------------
6434 1st Avenue North
Birmingham, AL 35212
Attention: Natalie Horton-Johnson
Telecopier: (205) 599-4350
Telephone: (205) 599-5416
Commitment Amount:
-----------------
$29,000,000.00
[Signatures Continued on Next Page]
[Signature Page to Amended and Restated Credit
Agreement dated as of March 26, 2004
with Regency Centers, L.P.]
ING REAL ESTATE FINANCE (USA) LLC
By: /s/ David A. Mazujian
---------------------------------
Name: David A. Mazujian
Title: Managing Director
Lending Office (all Types of Loans):
--------------
1325 Avenue of the Americas
New York, NY 10019
Attention: Mark LaGreca
Telecopier: (646) 424-8251
Telephone: (646) 424-8234
Commitment Amount:
-----------------
$29,000,000.00
[Signatures Continued on Next Page]
[Signature Page to Amended and Restated Credit
Agreement dated as of March 26, 2004
with Regency Centers, L.P.]
U.S. BANK, NATIONAL ASSOCIATION
By: /s/ Bryan Jacobs
-------------------------------------
Name: Bryan Jacobs
Title: Vice President
Lending Office (all Types of Loans):
--------------
150 Fourth Avenue North
CN-TN-PL02
Nashville, TN 37219
Attention: Bryan Jacobs
Telecopier: (615) 251-9242
Telephone: (615) 251-9250
Commitment Amount:
-----------------
$20,000,000.00
[Signatures Continued on Next Page]
[Signature Page to Amended and Restated Credit
Agreement dated as of March 26, 2004
with Regency Centers, L.P.]
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ David A. Buck
---------------------------------
Name: David A. Buck
Title: Senior Vice President
Lending Office (all Types of Loans):
--------------
277 Park Avenue
New York, NY 10172
Attention: Maria Villaverde
Telecopier: (212) 224-4391
Telephone: (212) 224-4334
Commitment Amount:
-----------------
$20,000,000.00
[Signatures Continued on Next Page]
[Signature Page to Amended and Restated Credit
Agreement dated as of March 26, 2004
with Regency Centers, L.P.]
CHEVY CHASE BANK, F.S.B.
By: /s/ Frederick H. Denecke
-------------------------------------
Name: Frederick H. Denecke
Title: Vice President
Lending Office (all Types of Loans):
--------------
7501 Wisconsin Avenue
12th Floor
Real Estate Banking Group
Bethesda, MD 20814-6519
Attention: Frederick H. Denecke
Telecopier: (240) 497-7714
Telephone: (301) 497-7735
Commitment Amount:
-----------------
$17,500,000.00
[Signatures Continued on Next Page]
[Signature Page to Amended and Restated Credit
Agreement dated as of March 26, 2004
with Regency Centers, L.P.]
COMPASS BANK, an Alabama banking
corporation
By: /s/ Johanna Duke Paley
-------------------------------------
Name: Johanna Duke Paley
Title: Senior Vice President
Lending Office (all Types of Loans):
--------------
15 So. 20th Street, 15th Floor
Birmingham, AL 35233
Attention: Rosie Fletcher
Telecopier: (205) 297-7994
Telephone: (205) 297-3282
Commitment Amount:
-----------------
$17,500,000.00
[Signatures Continued on Next Page]
[Signature Page to Amended and Restated Credit
Agreement dated as of March 26, 2004
with Regency Centers, L.P.]
COMMERCEBANK, N. A.
By: /s/ Alan Hills
-------------------------------------
Name: Alan Hills
Title: Vice President
Lending Office (all Types of Loans):
--------------
220 Alhambra Circle, 11th Floor
Coral Gables, FL 33134
Attention: Tammy Lobet / Marie Rosales
Telecopier: (305) 460-8637
Telephone: (305) 460-8722
Commitment Amount:
-----------------
$11,000,000.00
[Signatures Continued on Next Page]
[Signature Page to Amended and Restated Credit
Agreement dated as of March 26, 2004
with Regency Centers, L.P.]
FIRST HORIZON BANK, a division of
First Tennessee Bank, N.A.
By: /s/ J. Jordan O'Neill
-------------------------------------
Name: J. Jordan O'Neill
Title: Senior Vice President
Lending Office (all Types of Loans):
--------------
1650 Tysons Blvd, #1150
McLean, VA 22102
Attention: Liz Mckissick
Telecopier: (703) 734-1843
Telephone: (703) 394-2533
Commitment Amount:
----------------
$11,000,000.00
[Signatures Continued on Next Page]
[Signature Page to Amended and Restated Credit
Agreement dated as of March 26, 2004
with Regency Centers, L.P.]
ISRAEL DISCOUNT BANK OF NEW YORK
By: /s/ Marc G. Cooper
-------------------------------------
Name: Marc G. Cooper
Title: First Vice President
By: /s/ Chet Davis
-------------------------------------
Name: Chet Davis
Title: Senior Vice President - 1
Lending Office (all Types of Loans):
--------------
511 Fifth Avenue
New York, NY 10017
Attention: Laury M. Quiles
Telecopier: (212) 551-8872
Telephone: (212) 551-8596
Commitment Amount:
-----------------
$9,000,000.00
[Signatures Continued on Next Page]
[Signature Page to Amended and Restated Credit
Agreement dated as of March 26, 2004
with Regency Centers, L.P.]
CHANG HWA COMMERCIAL BANK, LTD.,
NEW YORK BRANCH
By: /s/ Ming-Hsien Lin
-------------------------------------
Name: Ming-Hsien Lin
Title: SVP & General Manager
Lending Office (all Types of Loans):
--------------
685 Third Avenue, 29th Floor
New York, NY 10017
Attention: Sarah Chow
Telecopier: (212) 651-9785
Telephone: (212) 651-9770 Ext 31
Commitment Amount:
-----------------
$9,000,000.00
[Signatures Continued on Next Page]
[Signature Page to Amended and Restated Credit
Agreement dated as of March 26, 2004
with Regency Centers, L.P.]
COMERICA BANK
By: /s/ Casey L. Ostrander
-------------------------------------
Name: Casey L. Ostrander
Title: Vice President
Lending Office (all Types of Loans):
--------------
P.O. Box 75000 Detroit, MI
48275-3256 Attention: Betsy Branson
Telecopier: (313) 222-3697
Telephone: (313) 222-5878
Commitment Amount:
-----------------
$9,000,000.00
EXECUTION COPY
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
March 26, 2004
among
REGENCY CENTERS, L.P.,
as Borrower,
REgency CENTERS corpoRation,
as Parent,
The financial institutions party hereto and their
assignees under Section 12.8. hereof,
as Lenders,
each of
PNC BANK, NATIONAL ASSOCIATION,
JPMORGAN CHASE BANK,
and
SUNTRUST BANK,
as Documentation Agent,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Syndication Agent,
each of
COMMERZBANK AG NEW YORK BRANCH,
AMSOUTH BANK,
SOUTHTRUST BANK,
and
ING REAL ESTATE FINANCE (USA) LLC,
as Managing Agent,
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Sole Lead Arranger
and
as Administrative Agent
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS ....................................................1
SECTION 1.1. Definitions...........................................1
-----------
SECTION 1.2. General; References to Time..........................25
---------------------------
ARTICLE II. CREDIT FACILITY ...............................................26
SECTION 2.1. Revolving Loans......................................26
SECTION 2.2. Bid Rate Loans.......................................27
SECTION 2.3. Swingline Loans......................................31
SECTION 2.4. Number of Interest Periods...........................33
SECTION 2.5. Continuation.........................................33
SECTION 2.6. Conversion...........................................33
SECTION 2.7. Interest Rate........................................34
SECTION 2.8. Repayment of Loans...................................34
SECTION 2.9. Voluntary Reductions of the Commitments..............36
SECTION 2.10. Extension of Termination Date.......................36
SECTION 2.11. Notes. 36
SECTION 2.12. Option to Replace Lenders...........................37
SECTION 2.13. Amount Limitations..................................37
SECTION 2.14. Increase in Commitments.............................37
SECTION 2.15. Letters of Credit...................................38
ARTICLE III. GENERAL LOAN PROVISIONS.......................................43
SECTION 3.1. Fees.................................................43
SECTION 3.2. Computation of Interest and Fees.....................44
SECTION 3.3. Pro Rata Treatment...................................44
SECTION 3.4. Sharing of Payments, Etc.............................45
SECTION 3.5. Defaulting Lenders...................................45
SECTION 3.6. Usury................................................46
SECTION 3.7. Agreement Regarding Interest and Charges.............46
SECTION 3.8. Statements of Account................................46
SECTION 3.9. Reliance.............................................47
SECTION 3.10. Taxes...............................................47
ARTICLE IV. UNENCUMBERED POOL PROPERTIES...................................49
SECTION 4.1. Inclusion of Unencumbered Pool Properties............49
SECTION 4.2. Termination of Designation as Unencumbered Pool
Property.............................................49
SECTION 4.3. Additional Requirements of Unencumbered Pool
Properties...........................................49
ARTICLE V. YIELD PROTECTION, ETC...........................................50
SECTION 5.1. Additional Costs; Capital Adequacy...................50
SECTION 5.2. Suspension of LIBOR Loans............................51
-i-
SECTION 5.3. Illegality...........................................51
SECTION 5.4. Compensation.........................................52
SECTION 5.5. Treatment of Affected Loans..........................52
SECTION 5.6. Change of Lending Office.............................53
ARTICLE VI. CONDITIONS ....................................................53
SECTION 6.1. Effectiveness........................................53
SECTION 6.2. Conditions to All Loans and Letters of Credit........55
ARTICLE VII. REPRESENTATIONS AND WARRANTIES................................55
SECTION 7.1. Existence and Power..................................55
SECTION 7.2. Ownership Structure..................................56
SECTION 7.3. Authorization of Agreement, Notes, Loan Documents
and Borrowings.......................................56
SECTION 7.4. Compliance of Agreement, Notes, Loan Documents and
Borrowing with Laws, etc.............................56
SECTION 7.5. Compliance with Law; Governmental Approvals..........57
SECTION 7.6. Existing Indebtedness................................57
SECTION 7.7. Unencumbered Pool Properties.........................57
SECTION 7.8. Margin Stock.........................................57
SECTION 7.9. Transactions with Affiliates.........................58
SECTION 7.10. Absence of Defaults.................................58
SECTION 7.11. Financial Information...............................58
SECTION 7.12. Litigation..........................................59
SECTION 7.13. ERISA...............................................59
SECTION 7.14. Environmental Matters...............................60
SECTION 7.15. Taxes...............................................60
SECTION 7.16. Investment Company; Public Utility Holding Company..61
SECTION 7.17. Full Disclosure.....................................61
SECTION 7.18. Not Plan Assets.....................................61
SECTION 7.19. Business............................................61
SECTION 7.20. Title to Properties; Necessary Agreements, Licenses,
Permits; Adverse Contracts..........................61
SECTION 7.21. Non-Guarantor Entities; Regency Texas...............62
SECTION 7.22. Tax Shelter Regulations.............................62
ARTICLE VIII. COVENANTS ...................................................62
SECTION 8.1. Information..........................................62
SECTION 8.2. ERISA Reporting......................................65
SECTION 8.3. Payment of Obligations...............................66
SECTION 8.4. Preservation of Existence and Similar Matters........66
SECTION 8.5. Maintenance of Property..............................66
SECTION 8.6. Conduct of Business..................................66
SECTION 8.7. Insurance............................................67
SECTION 8.8. Environmental Laws...................................67
SECTION 8.9. Compliance with Laws.................................67
-ii-
SECTION 8.10. Inspection of Property, Books and Records...........67
SECTION 8.11. Indebtedness; Total Liabilities.....................68
SECTION 8.12. Consolidations, Mergers and Sales of Assets.........68
SECTION 8.13. Use of Proceeds and Letters of Credit...............69
SECTION 8.14. Acquisitions........................................69
SECTION 8.15. Exchange Listing....................................70
SECTION 8.16. REIT Status.........................................70
SECTION 8.17. Negative Pledge; Restriction on Distribution Rights.70
SECTION 8.18. Agreements with Affiliates..........................70
SECTION 8.19. ERISA Exemptions....................................70
SECTION 8.20. Compliance with and Amendment of Charter or Bylaws..70
SECTION 8.21. Distributions.......................................71
SECTION 8.22. New Guarantors; Release.............................71
SECTION 8.23. Asset Value of Non-Guarantor Entities...............73
SECTION 8.24. Hedging Agreements..................................73
Article IX. Financial Covenants............................................73
SECTION 9.1. Minimum Net Worth....................................73
SECTION 9.2. Ratio of Total Liabilities to Gross Asset Value......74
SECTION 9.3. Ratio of Secured Indebtedness to Gross Asset Value...74
SECTION 9.4. Ratio of EBITDA to Interest Expense..................74
SECTION 9.5. Ratio of EBITDA to Debt Service, Preferred Stock
Distributions and Reserve for Replacements..........74
SECTION 9.6. Unsecured Interest Expense Coverage..................74
SECTION 9.7. Permitted Investments................................74
ARTICLE X. DEFAULTS ......................................................75
SECTION 10.1. Events of Default...................................75
SECTION 10.2. Remedies............................................79
SECTION 10.3. Allocation of Proceeds..............................79
SECTION 10.4. Rights Cumulative...................................80
SECTION 10.5. Rescission of Acceleration by Requisite Lenders.....80
SECTION 10.6. Collateral Account..................................80
ARTICLE XI. THE AGENT .....................................................81
SECTION 11.1. Appointment and Authorization.......................81
SECTION 11.2. Wells Fargo as Lender...............................82
SECTION 11.3. Approvals of the Lenders............................83
SECTION 11.4. Notice of Defaults..................................83
SECTION 11.5. Agent's Reliance, Etc...............................83
SECTION 11.6. Indemnification of the Agent........................84
SECTION 11.7. Lender Credit Decision, Etc.........................85
SECTION 11.8. Successor Agent.....................................85
SECTION 11.9. Titled Agents.......................................86
-iii-
ARTICLE XII. MISCELLANEOUS ...............................................86
SECTION 12.1. Notices.............................................86
SECTION 12.2. No Waivers..........................................87
SECTION 12.3. Expenses............................................87
SECTION 12.4. Stamp, Intangible and Recording Taxes...............88
SECTION 12.5. Indemnification.....................................89
SECTION 12.6. Setoff..............................................89
SECTION 12.7. Amendments and Waivers..............................90
SECTION 12.8. Successors and Assigns..............................91
SECTION 12.9. Governing Law.......................................94
SECTION 12.10. Litigation.........................................94
SECTION 12.11. Confidentiality....................................95
SECTION 12.12. Counterparts; Integration..........................95
SECTION 12.13. Invalid Provisions.................................96
SECTION 12.14. No Novation........................................96
Exhibit A Form of Assignment and Acceptance Agreement
Exhibit B Form of Bid Rate Note
Exhibit C Form of Designation Agreement
Exhibit D Form of Guaranty
Exhibit E Form of Notice of Borrowing
Exhibit F Form of Notice of Continuation
Exhibit G Form of Notice of Conversion
Exhibit H Form of Notice of Swingline Borrowing
Exhibit I Form of Revolving Note
Exhibit J Form of Swingline Note
Exhibit K Form of Unencumbered Pool Certificate
Exhibit L Form of Bid Rate Quote Request
Exhibit M Form of Bid Rate Quote
Exhibit N Form of Bid Rate Quote Acceptance
Exhibit O Form of Opinion of Counsel to the Loan Parties
Exhibit P Form of Opinion of Counsel to the Agent
Exhibit Q Form of Compliance Certificate
Schedule 2.15.(a) Existing Letters of Credit
Schedule 4.1. Unencumbered Pool Properties
Schedule 7.2. Ownership Structure
Schedule 7.6. Existing Indebtedness
Schedule 7.9. Transactions with Affiliates
Schedule 7.12. Litigation
Schedule 7.13. ERISA
Schedule 7.21. Non-Guarantor Entities
Schedule 8.24. Hedging Agreements
-iv-
Schedule 2.15(a)
Existing Letters of Credit
L/C Number Issue Date Expiration Date Beneficiary L/C Amount
- -------------------- -------------------- ---------------------- --------------------------------- -------------------
385841 02/28/2001 02/28/2005 City of Los Angeles, CA 100,000.00
489182 07/17/2003 07/17/2004 LaSalle Bank National 550,000.00
Association
489303 07/17/2003 07/17/2004 LaSalle Bank National 109,320.00
Association
495647 09/15/2003 09/15/2004 Charter Township of Independence 2,993,193.75
507614 12/18/2003 12/18/2004 City of Alameda, CA 1,750,000.00
Total Amount Outstanding: $5,502,513.75
Exhibit 31.1
Certification of Chief Executive Officer
Pursuant to Section 302 of the Sarbanes-Oxley Act and Rule 13a-14(a)
or 15d-14(a) under the Securities Exchange Act of 1934
I, Martin E. Stein, Jr., certify that:
1. I have reviewed this Quarterly Report on Form 10-Q of Regency Centers
Corporation ("registrant");
2. Based on my knowledge, this report does not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which
such statements were made, not misleading with respect to the period
covered by this report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows
of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e) for the
registrant and have:
(a) Designed such disclosure controls and procedures, or caused
such disclosure controls and procedures to be designed under
our supervision, to ensure that material information relating
to the registrant, including its consolidated subsidiaries, is
made known to us by others within those entities, particularly
during the period in which this report is being prepared;
(b) Evaluated the effectiveness of the registrant's disclosure
controls and procedures and presented in this report our
conclusions about the effectiveness of the disclosure controls
and procedures, as of the end of the period covered by this
report based on such evaluation; and
(c) Disclosed in this report any change in the registrant's internal
control over financial reporting that occurred during the
registrant's most recent fiscal quarter (the registrant's fourth
fiscal quarter in the case of an annual report) that has
materially affected, or is reasonably likely to materially affect,
the registrant's internal control over financial reporting; and
5. The registrant's other certifying officers and I have disclosed, based
on our most recent evaluation of internal control over financial
reporting, to the registrant's auditors and the audit committee of the
registrant's board of directors (or persons performing the equivalent
functions):
(a) All significant deficiencies and material weaknesses in the
design or operation of internal control over financial
reporting which are reasonably likely to adversely affect the
registrant's ability to record, process, summarize and report
financial information; and
(b) Any fraud, whether or not material, that involves management
or other employees who have a significant role in the
registrant's internal control over financial reporting.
Date: May 6, 2004
/s/ Martin E. Stein, Jr.
- --------------------------------
Martin E. Stein, Jr.
Chief Executive Officer
Exhibit 31.2
Certification of Chief Financial Officer
Pursuant to Section 302 of the Sarbanes-Oxley Act and Rule 13a-14(a)
or 15d-14(a) under the Securities Exchange Act of 1934
I, Bruce M. Johnson, certify that:
1. I have reviewed this Quarterly Report on Form 10-Q of Regency Centers
Corporation ("registrant");
2. Based on my knowledge, this report does not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which
such statements were made, not misleading with respect to the period
covered by this report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows
of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e) for the
registrant and have:
(a) Designed such disclosure controls and procedures, or caused
such disclosure controls and procedures to be designed under
our supervision, to ensure that material information relating
to the registrant, including its consolidated subsidiaries, is
made known to us by others within those entities, particularly
during the period in which this report is being prepared;
(b) Evaluated the effectiveness of the registrant's disclosure
controls and procedures and presented in this report our
conclusions about the effectiveness of the disclosure controls
and procedures, as of the end of the period covered by this
report based on such evaluation; and
(c) Disclosed in this report any change in the registrant's
internal control over financial reporting that occurred during
the registrant's most recent fiscal quarter (the registrant's
fourth fiscal quarter in the case of an annual report) that
has materially affected, or is reasonably likely to materially
affect, the registrant's internal control over financial
reporting; and
5. The registrant's other certifying officers and I have disclosed, based
on our most recent evaluation of internal control over financial
reporting, to the registrant's auditors and the audit committee of the
registrant's board of directors (or persons performing the equivalent
functions):
(a) All significant deficiencies and material weaknesses in the
design or operation of internal control over financial
reporting which are reasonably likely to adversely affect the
registrant's ability to record, process, summarize and report
financial information; and
(b) Any fraud, whether or not material, that involves management
or other employees who have a significant role in the
registrant's internal control over financial reporting.
Date: May 6, 2004
/s/ Bruce M. Johnson
- --------------------
Bruce M. Johnson
Chief Financial Officer
Exhibit 31.3
Certification of Chief Operating Officer
Pursuant to Section 302 of the Sarbanes-Oxley Act and Rule 13a-14(a)
or 15d-14(a) under the Securities Exchange Act of 1934
I, Mary Lou Fiala, certify that:
1. I have reviewed this Quarterly Report on Form 10-Q of Regency Centers
Corporation ("registrant");
2. Based on my knowledge, this report does not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements made, in light of the circumstances under which
such statements were made, not misleading with respect to the period
covered by this report;
3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows
of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officers and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e) for the
registrant and have:
(a) Designed such disclosure controls and procedures, or caused
such disclosure controls and procedures to be designed under
our supervision, to ensure that material information relating
to the registrant, including its consolidated subsidiaries, is
made known to us by others within those entities, particularly
during the period in which this report is being prepared;
(b) Evaluated the effectiveness of the registrant's disclosure
controls and procedures and presented in this report our
conclusions about the effectiveness of the disclosure controls
and procedures, as of the end of the period covered by this
report based on such evaluation; and
(c) Disclosed in this report any change in the registrant's
internal control over financial reporting that occurred during
the registrant's most recent fiscal quarter (the registrant's
fourth fiscal quarter in the case of an annual report) that
has materially affected, or is reasonably likely to materially
affect, the registrant's internal control over financial
reporting; and
5. The registrant's other certifying officers and I have disclosed, based
on our most recent evaluation of internal control over financial
reporting, to the registrant's auditors and the audit committee of the
registrant's board of directors (or persons performing the equivalent
functions):
(a) All significant deficiencies and material weaknesses in the
design or operation of internal control over financial
reporting which are reasonably likely to adversely affect the
registrant's ability to record, process, summarize and report
financial information; and
(b) Any fraud, whether or not material, that involves management
or other employees who have a significant role in the
registrant's internal control over financial reporting.
Date: May 6, 2004
/s/ Mary Lou Fiala
- --------------------------
Mary Lou Fiala
Chief Operating Officer
EXHIBIT 32.1
Written Statement of the Chief Executive Officer
Pursuant to 18 U.S.C. ss.1350
Solely for the purposes of complying with 18 U.S.C. ss.1350, I, the undersigned
Chairman and Chief Executive Officer of Regency Centers Corporation (the
"Company"), hereby certify, based on my knowledge, that the Quarterly Report on
Form 10-Q of the Company for the quarter ended March 31, 2004 (the "Report")
fully complies with the requirements of Section 13(a) of the Securities Exchange
Act of 1934 and that information contained in the Report fairly presents, in all
material respects, the financial condition and results of operations of the
Company.
Date: May 6, 2004
/s/ Martin E. Stein, Jr.
- -------------------------
Martin E. Stein, Jr.
Chief Executive Officer
Exhibit 32.2
Written Statement of the Chief Financial Officer
Pursuant to 18 U.S.C. ss.1350
Solely for the purposes of complying with 18 U.S.C. ss.1350, I, the undersigned
Managing Director and Chief Financial Officer of Regency Centers Corporation
(the "Company"), hereby certify, based on my knowledge, that the Quarterly
Report on Form 10-Q of the Company for the quarter ended March 31, 2004 (the
"Report") fully complies with the requirements of Section 13(a) of the
Securities Exchange Act of 1934 and that information contained in the Report
fairly presents, in all material respects, the financial condition and results
of operations of the Company.
Date: May 6, 2004
/s/ Bruce M. Johnson
- ------------------------------
Bruce M. Johnson
Chief Financial Officer
Exhibit 32.3
Written Statement of the Chief Operating Officer
Pursuant to 18 U.S.C. ss.1350
Solely for the purposes of complying with 18 U.S.C. ss.1350, I, the undersigned
President and Chief Operating Officer of Regency Centers Corporation (the
"Company"), hereby certify, based on my knowledge, that the Quarterly Report on
Form 10-Q of the Company for the quarter ended March 31, 2004 (the "Report")
fully complies with the requirements of Section 13(a) of the Securities Exchange
Act of 1934 and that information contained in the Report fairly presents, in all
material respects, the financial condition and results of operations of the
Company.
Date: May 6, 2004
/s/ Mary Lou Fiala
- -----------------------------
Mary Lou Fiala
Chief Operating Officer