<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
DECEMBER 19, 1997
BRADLEY REAL ESTATE, INC.
(Exact name of Registrant as specified in its charter)
MARYLAND 1-10328 04-6034603
(State or other jurisdiction (Commission File (I.R.S. Employer
of incorporation) Number) Identification No.)
40 SKOKIE BOULEVARD, NORTHBROOK, ILLINOIS 60062
(Address of principal executive offices and zip code)
Registrant's telephone number, including area code:
(847) 272-9800
<PAGE> 2
Item 5. Other Events.
Bradley Real Estate, Inc. (the "Company") files this Form 8-K report
that contains a combined financial statement for certain acquisition properties,
consistent with Regulation S-X, Rule 3-14. This combined financial statement,
along with the combined financial statements filed by the Company on Form 8-K
dated September 30, 1997 accounts for over 50% of the aggregate acquisition
costs of a series of properties acquired ("Acquisition Properties") during the
period January 1, 1997 through December 19, 1997 or which it is probable that
the Company will acquire. (See Item 7.)
During this period, 20 shopping centers were acquired for a total
acquisition price of approximately $150.9 million. In addition, as of December
19, 1997, the Company has entered into contracts for the purchase of an
additional six shopping centers in separate transactions for an estimated total
acquisition price of approximately $44,722,000. Although the Company deems such
acquisitions as probable, there can be no assurance that the acquisition of any
of such properties will be consummated, or that the acquisition price will
approximate those currently estimated. No one acquisition or group of related
acquisitions was in itself significant, but in the aggregate such acquisition
costs exceeded 10% of the total assets of the Company and its subsidiaries
consolidated at December 31, 1996. Consideration paid for such acquisitions
included cash (provided primarily from the Company's bank line of credit),
assumption of mortgage indebtedness and the issuance of Limited Partner Units in
Bradley Limited Operating Partnership (the "Operating Partnership") of which the
Company is the sole general partner. Also, during the period, three shopping
centers were sold.
The dates, shopping centers acquired or disposed of and the approximate
acquisition cost or net sales proceeds for the respective centers are as
follows:
Acquisitions:
<TABLE>
<CAPTION>
DATE PROPERTY APPROXIMATE ACQUISITION COST
<S> <C> <C>
January 1, 1997 Martin's Bittersweet Plaza, Mishawaka, IN $ 4,831,000
January 1, 1997 *Roseville Center, Roseville, MN 5,439,000
January 21, 1997 *Warren Plaza, Dubuque, IA 5,989,000
April 28, 1997 *Spring Village, Davenport, IA 4,561,000
June 19, 1997 Davenport Retail, Davenport, IA 5,625,000
July 1, 1997 *Fairhills Shopping Center, Springfield, IL 6,991,000
July 1, 1997 *Parkway Pointe, Springfield, IL 3,996,000
July 1, 1997 *Sangamon Center North, Springfield, IL 9,761,000
July 1, 1997 *Burlington Plaza West, Burlington, IA 5,296,000
July 1, 1997 *Holiday Plaza, Cedar Falls, IA 2,775,000
July 31, 1997 *County Line Mall, Indianapolis, IN 16,310,000
August 1, 1997 Parkwood Plaza, Urbandale, IA 8,648,000
August 25, 1997 Madison Plaza, Madison, WI 8,306,000
August 29, 1997 Liberty Corners, Liberty, MO 7,107,000
October 31, 1997 *Westchester Square, Lenexa, KS 13,115,000
November 14, 1997 Sterling Bazaar, Peoria, IL 6,600,000
November 14, 1997 Wardcliffe Center, Peoria, IL 2,319,000
December 10, 1997 *Elk Park, Elk River, MN 15,952,000
December 10, 1997 *Central Valu, Columbia Heights, MN 8,542,000
December 10, 1997 *Westview Valu, St. Paul, MN 8,762,000
-------------
$150,925,000
=============
</TABLE>
1
<PAGE> 3
Probable Acquisitions:
<TABLE>
<CAPTION>
PROPERTY ESTIMATED ACQUISITION COST
<S> <C>
Baken Plaza, Rapid City, SD $9,486,000
Mid State Plaza, Salina, KS 5,406,000
Rainbow, Rochester, MN 4,539,000
Sagamore Park, West Lafayette, IN 7,446,000
Southgate Shopping Center, Des Moines, IA 4,692,000
Spring Mall, Greenfield, WI 13,153,000
-----------
$44,722,000
===========
</TABLE>
Dispositions:
<TABLE>
<CAPTION>
DATE PROPERTY APPROXIMATE SALES PROCEEDS
<S> <C> <C>
March 13, 1997 Hood Commons, Derry, NH $ 11,300,000
August 8, 1997 Meadows Town Mall, Rolling Meadows, IL 5,900,000
October 1, 1997 Augusta Plaza, Augusta, ME 2,400,000
--------------
$ 19,600,000
==============
</TABLE>
Properties designated with an asterisk (*) are properties included
within the Acquisition Properties for which the combined financial statement
accompanies this report or was included in a Form 8-K dated September 30, 1997.
Additionally, Acquisition Properties include Santa Fe Square in Olathe, Kansas,
which was acquired for $9,099,000 on December 27, 1996. None of such Acquisition
Properties was acquired from a related party of the Company or its consolidated
subsidiaries. Factors considered by the Company in assessing the acquisition
price for each of the properties included its location and tenant mix, including
opportunities for retenanting and remodeling consistent with the Company's
experience as a shopping center operator; its current net operating income and
the prospect for increased income in the short and long range future;
capitalization rates for shopping center properties of the type acquired, in the
Midwest area of the United States generally and in the locality in which the
property is located; current operating costs and the possibility of effecting
property-level operating efficiencies as a result of the Company's ownership of
a significant number of shopping centers in the Midwest; and the differential
between the Company's cost of capital in acquiring the property and the
property's current and potential net operating income. After reasonable inquiry,
the Company is not aware of any material factors relating to any specific
property included within the Acquisition Properties other than those discussed
in the preceding sentence that would cause the reported financial information
not to be necessarily indicative of future operating results.
Senior Notes Offering
On November 24, 1997, the Operating Partnership issued $100 million,
7%, seven-year senior unsecured notes maturing on November 15, 2004. The
effective rate of the offering, reflecting costs associated with certain hedging
transactions, is approximately 7.18%. The proceeds from the offering were used
to prepay the $100 million REMIC financing originally made to Tucker Properties
Corporation and assumed by the Company as part of its acquisition of Tucker in
March 1996.
New Line of Credit Facility
On December 23, 1997, the Operating Partnership entered into a new $200
million unsecured revolving credit facility with a syndicate of banks lead by
The First National Bank of Chicago and BankBoston N.A., replacing the previous
$150 million unsecured line of credit. The new line bears interest at a rate
equal to the lower of (i) the base rate, (ii) a spread over the London Interbank
Offering Rate ("LIBOR") ranging from 0.70% to 1.25% depending on the credit
rating assigned by national credit rating agencies, or (iii) a competitive bid
rate solicited from the syndicate of banks. Based on the Operating Partnership's
current credit ratings assigned by Standard & Poor's Investment Services
("Standard & Poor's") and Moody's Investors Service ("Moody's"), the spread over
LIBOR is 1.00%. Additionally, there is a facility fee currently equal to
$300,000 per annum. In the event the current credit ratings were downgraded by
either Standard & Poor's or Moody's, the facility fee would increase to $500,000
per annum, and the spread over
2
<PAGE> 4
the base rate would increase by 0.25% and the spread over LIBOR would increase
to 1.25%. The new line of credit is guaranteed by the Company, and matures in
December 2000. The facility is available for the acquisition, development,
renovation and expansion of new and existing properties, working capital and
general business purposes.
The line of credit contains certain financial and operational covenants
that, among other provisions, limit the amount of secured and unsecured
indebtedness the Company may have outstanding at any time, and provide for the
maintenance of certain financial tests including minimum net worth and debt
service coverage requirements. The Company believes that such covenants will not
adversely affect the Company's business or the operation of its properties.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
The following financial statements and pro forma financial information
accompany this report.
(a) Financial Statements - Certain Acquisition Properties (as defined)
Independent Auditors' Report
For the Period January 1, 1997 through September 30, 1997
(unaudited) and for the Year Ended December 31, 1996
Combined Statement of Revenues and Certain Expenses
Notes to Combined Statement of Revenues and Certain
Expenses
(b) Pro Forma Financial Information - Bradley Real Estate, Inc.
Pro Forma Condensed Consolidated Balance Sheet
September 30, 1997 (unaudited)
Pro Forma Condensed Consolidated Statements of Income
For the nine months ended September 30, 1997
(unaudited)
For the year ended December 31, 1996 (unaudited)
(c) Exhibits
23.1 Consent of KPMG Peat Marwick LLP
99.1 Unsecured Revolving Credit Agreement dated as of December
23, 1997 among Bradley Operating Limited Partnership ("BOLP"),
as Borrower and The First National Bank of Chicago,
BankBoston, N.A.. and certain other banks, as Lenders, and The
First National Bank of Chicago, as Administrative Agent and
BankBoston, N.A., as Documentation Agent and Bank of America
National Trust & Savings Association and Fleet National Bank
as Co-Agents.
99.2 Form of Note dated December 23, 1997 issued by BOLP.
99.3 Form of Competitive Bid Note dated December 23, 1997
issued by BOLP.
99.4 Form of Guaranty made as of December 23, 1997 by Bradley
Financing Partnership and Bradley Real Estate, Inc. for the
benefit of The First National Bank of Chicago.
3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BRADLEY REAL ESTATE, INC.
(Registrant)
By: /s/ Irving E. Lingo, Jr.
--------------------------
Date: December 19, 1997 Irving E. Lingo, Jr.
Chief Financial Officer
4
<PAGE> 6
INDEPENDENT AUDITORS' REPORT
The Board of Directors
Bradley Real Estate, Inc.:
We have audited the accompanying combined statement of revenues and certain
expenses (defined as operating revenues less direct operating expenses) of
Certain Acquisition Properties (as defined) for the year ended December 31,
1996. This combined financial statement is the responsibility of the
Company's management. Our responsibility is to express an opinion on this
combined financial statement based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the combined statement of
revenues and certain expenses is free of material misstatement. An audit
includes examining, on a test basis, evidence supporting the amounts and
disclosures in the combined statement of revenues and certain expenses. An
audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
presentation of the combined statement of revenues and certain expenses. We
believe that our audit provides a reasonable basis for our opinion.
The accompanying combined statement of revenues and certain expenses was
prepared for the purpose of complying with the rules and regulations of the
Securities and Exchange Commission and for inclusion in a Form 8-K of
Bradley Real Estate, Inc. as described in note 2. The presentation is not
intended to be a complete presentation of Certain Acquisition Properties'
(as defined) revenues and expenses.
In our opinion, the combined statement of revenues and certain expenses
presents fairly, in all material respects, the combined revenues and
certain expenses, as described in note 2, of Certain Acquisition Properties
(as defined) for the year ended December 31, 1996, in conformity with
generally accepted accounting principles.
KPMG Peat Marwick LLP
Chicago, Illinois
December 15, 1997
F-1
<PAGE> 7
CERTAIN ACQUISITION PROPERTIES (AS DEFINED)
Combined Statement of Revenues and Certain Expenses
Nine Months ended September 30, 1997 (unaudited) and Year ended
December 31, 1996 (audited)
<TABLE>
<CAPTION>
Nine Months
Ended Year
September 30, 1997 Ended
(unaudited) December 31, 1996
------------------ ------------------
<S> <C> <C>
Revenues:
Base rental income $3,167,899 3,893,110
Operating expense and real estate tax recoveries 1,434,486 1,587,894
Other income 127,410 35,481
- -------------------------------------------------------------------------------------------
Total revenues 4,729,795 5,516,485
- -------------------------------------------------------------------------------------------
Certain expenses:
Real estate taxes 1,143,803 1,202,219
Operating expenses 467,318 561,151
Utilities 82,589 84,303
Insurance 74,963 73,856
- -------------------------------------------------------------------------------------------
Total expenses 1,768,673 1,921,529
- -------------------------------------------------------------------------------------------
Excess of revenues over certain expenses $2,961,122 3,594,956
===========================================================================================
</TABLE>
See accompanying notes to combined statement of revenues and certain expenses.
F-2
<PAGE> 8
(1) BACKGROUND
The Combined Statement of Revenues and Certain Expenses (Combined
Statement) has been included for certain properties (Certain Acquisition
Properties) which were acquired by Bradley Real Estate, Inc. The
properties are as follows:
Property Date Acquired
-------- -------------
Westchester Square October 31, 1997
Westview Valu Center December 10, 1997
Central Valu Center December 10, 1997
Elk Park December 10, 1997
Westchester is located in Lenexa, Kansas. It consists of approximately
159,000 square feet of gross leasable area and was approximately 92%
occupied at December 31, 1996.
Westview Valu Center is located in St. Paul, Minnesota. It consists of
approximately 163,000 square feet of gross leasable area and was
approximately 90% occupied at December 31, 1996.
Central Valu Center is located in Columbia Heights, Minnesota. It
consists of approximately 123,000 square feet of gross leasable area and
was 100% occupied at December 31, 1996.
Elk Park is located in Elk River, Minnesota. It consists of
approximately 155,000 square feet of gross leasable area and was 88%
occupied at December 31, 1996.
(2) BASIS OF PRESENTATION
The Combined Statement has been prepared for the purpose of complying
with Rule 3.14 of the Securities and Exchange Commission Regulation S-X
and for inclusion in the Form 8-K of Bradley Real Estate, Inc. and is
not intended to be a complete presentation of Certain Acquisition
Properties' revenues and expenses. The Combined Statement has been
prepared on the accrual basis of accounting and requires management of
Certain Acquisition Properties to make estimates and assumptions that
affect the reported amounts of the revenues and expenses during the
reporting period. Actual results may differ from those estimates.
Certain expenses which may not be comparable to the expenses expected to
be incurred in the proposed future operations of the properties have
been excluded. Expenses excluded consist of interest, depreciation and
amortization, professional fees, and management fees.
(3) REVENUES
Each property leases retail space under various lease agreements with
its tenants. All leases are accounted for as operating leases. Certain
of the leases include provisions under which the property is reimbursed
for certain common area, real estate, and insurance costs. Operating
expenses and real estate tax recoveries reflected in the combined
statement of revenues and certain expenses include amounts due for 1996
expenses for which the tenants have not yet been billed. In addition,
certain leases provide for payment of contingent rentals based on a
percentage applied to the amount by which the tenant's sales, as
defined, exceed predetermined levels. Certain leases contain renewal
options for various periods at various rental rates.
Base rentals are reported as income over the lease term as they become
receivable under the provisions of the leases. However, when rentals
vary from a straight-line basis due to short-term rent abatements or
escalating rents during the lease term, the income is
F-3
<PAGE> 9
recognized based on effective rental rates. Related adjustments
increased base rental income by approximately $100,000 for the year
ended December 31, 1996.
Minimum rents to be received from tenants under operating leases in
effect at December 31, 1996 are approximately as follows:
<TABLE>
<CAPTION>
================================================================================
Year Amount
- --------------------------------------------------------------------------------
<S> <C>
1997 $ 3,791,000
1998 3,733,000
1999 3,140,000
2000 2,075,000
2001 1,885,000
Thereafter 12,974,000
================================================================================
</TABLE>
F-4
<PAGE> 10
BRADLEY REAL ESTATE, INC.
PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET
SEPTEMBER 30, 1997
(UNAUDITED)
Subsequent to September 30, 1997, the Company sold a shopping center,
utilizing the proceeds to pay-down the line of credit, and acquired six shopping
centers, including a portfolio of three shopping centers from one seller for
approximately $33,256,000 with cash provided by the line of credit, the
assumption of a $9,800,000 non-recourse mortgage note, and the issuance of a
$930,000 (net of a $70,000 discount) promissory note. The remaining three
shopping centers were funded with cash provided by the line of credit, for an
aggregate purchase price of approximately $22,034,000. In addition, as of
December 19, 1997, the Company has entered into contracts for the purchase of an
additional six shopping centers in separate transactions for an estimated total
acquisition price of approximately $44,722,000. Two of the six shopping centers
are expected to be purchased for approximately $22,639,000 through the issuance
of limited partner units ("LP Units"), the assumption of a $8,735,000
non-recourse mortgage note, and the payoff at closing of a mortgage note in the
amount of $2,471,000 with cash provided by the line of credit. Another of the
six shopping centers is expected to be purchased for approximately $4,692,000
with cash provided by the line of credit and the assumption of a $2,958,000
non-recourse mortgage note. The remaining three shopping centers are expected to
be purchased for approximately $17,391,000 with cash provided by the line of
credit. Although the Company deems such acquisitions as probable, there can be
no assurance that the acquisition of any of such properties will be consummated,
or that the acquisition price will approximate those currently estimated.
Further, there can be no assurance that the method of financing such
acquisitions will be as currently estimated.
On December 1, 1997, and December 10, 1997, the Company completed the
public offerings of 990,000 shares and 300,000 shares of Common Stock,
respectively, at prices to the public of $20.375 per share and $20.50 per share,
respectively (together, the "December 1997 Offerings"). Net proceeds of
approximately $25,200,000 (net of offering costs of $237,000) were used to
reduce outstanding borrowings under the line of credit.
This unaudited Pro Forma Condensed Consolidated Balance Sheet is
presented as if the acquisitions, including the probable acquisitions, the
disposition and the December 1997 Offerings occurring subsequent to September
30, 1997, had been completed on September 30, 1997. In the opinion of
management, all adjustments necessary to reflect the effects of these
transactions have been made.
This unaudited Pro Forma Condensed Consolidated Balance Sheet is
prepared for comparative purposes only and is not necessarily indicative of what
the actual financial position of the Company would have been at September 30,
1997, nor does it purport to represent the future financial position of the
Company. This unaudited Pro Forma Condensed Consolidated Balance Sheet should be
read in conjunction with, and is qualified in its entirety by, the respective
historical financial statements and notes thereto of the Company.
F-5
<PAGE> 11
BRADLEY REAL ESTATE, INC.
PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET
SEPTEMBER 30, 1997
(UNAUDITED)
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
Property Adjustments
Acquisition Disposition December 1997
Historical Adjustments(A) Adjustments(A) Offerings(B) Pro Forma
---------- -------------- -------------- ------------ ---------
ASSETS
- ------
<S> <C> <C> <C> <C> <C>
Real estate investments - at cost ................. $ 575,599 $100,012 $ -- $ -- $ 675,611
Accumulated depreciation and amortization ......... (38,533) -- -- -- (38,533)
--------- -------- ------- --------- ---------
Net real estate investments ....................... 537,066 100,012 -- 637,078
Real estate investments held for sale ............. 10,005 -- (1,564) -- 8,441
Other assets:
Cash and cash equivalents ...................... 4,404 -- (48) -- 4,356
Rents and other receivables, net of allowance
for doubtful accounts of $2,437 .............. 12,249 -- (1) -- 12,248
Deferred charges, net and other assets ......... 14,146 -- (28) -- 14,118
--------- -------- ------- --------- ---------
Total assets ................................. 577,870 100,012 (1,641) -- 676,241
========= ========= ======= ========= =========
LIABILITIES AND SHARE OWNERS' EQUITY
Mortgage loans .................................... 128,711 21,493 -- -- 150,204
Line of credit .................................... 121,800 66,156 (2,481) (25,200) 160,275
Accounts payable, accrued expenses
and other liabilities ........................... 19,898 930 16 -- 20,844
--------- -------- ------- --------- ---------
Total liabilities ............................ 270,409 88,579 (2,465) (25,200) 331,323
--------- -------- ------- --------- ---------
Minority interest ................................. 14,472 11,433 -- -- 25,905
--------- -------- ------- --------- ---------
Shares of common stock ............................ 217 -- -- 13 230
Additional paid-in capital ........................ 303,080 -- -- 25,187 328,267
Distributions in excess of accumulated earnings ... (10,308) -- 824 -- (9,484)
--------- --------- ------- --------- ---------
Total share owners' equity ................... 292,989 -- 824 25,200 319,013
--------- --------- ------- --------- ---------
Total liabilities and share owners' equity ... $ 577,870 $ 100,012 $(1,641) $ -- $ 676,241
========= ========= ======= ========= =========
</TABLE>
EXPLANATORY NOTES
(A) Adjustments represent acquisitions and dispositions of properties
subsequent to September 30, 1997 that have been completed, or that are
probable of completion.
(B) Adjustments represent the issuances of 990,000 and 300,000 shares of
common stock subsequent to September 30, 1997, and the application of
the net proceeds to reduce outstanding borrowings on the line of credit.
F-6
<PAGE> 12
BRADLEY REAL ESTATE, INC.
PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF INCOME
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1997
(UNAUDITED)
During the period from January 1, 1997 to September 30, 1997, the
Company sold two shopping centers, utilizing the net proceeds to pay-down the
line of credit, and acquired fourteen shopping centers. Eleven shopping centers
were acquired for a total purchase price of approximately $69.1 million with
cash provided by the bank line of credit. One shopping center was acquired for
approximately $4.8 million with cash provided by the line of credit and the
assumption of a $3.8 million non-recourse mortgage note. One shopping center was
acquired for approximately $5.4 million via the issuance of 281,300 limited
partnership units ("LP Units") in Bradley Operating Limited Partnership, and
another shopping center was purchased for approximately $16.3 million through
the issuance of 478,619 LP Units and the assumption of a $6.9 million
non-recourse mortgage note which was paid-off in full at closing with cash drawn
from the line of credit.
Between September 30, 1997 and December 19, 1997, the Company sold an
additional shopping center, utilizing the proceeds to pay-down the line of
credit, and acquired six shopping centers, including a portfolio of three
shopping centers from one seller for approximately $33,300,000 with cash
provided by the line of credit, the assumption of a $9,800,000 non-recourse
mortgage note, and the issuance of a $1,000,000 promissory note. The remaining
three shopping centers were funded with cash provided by the line of credit, for
an aggregate purchase price of approximately $22,000,000. In addition, as of
December 19, 1997, the Company has entered into contracts for the purchase of an
additional six shopping centers in separate transactions for an estimated total
acquisition price of approximately $44,722,000. Two of the six shopping centers
are expected to be purchased for approximately $22,639,000 through the issuance
of LP Units, the assumption of a $8,735,000 non-recourse mortgage note, and the
payoff at closing of a mortgage note in the amount of approximately $2,471,000
with cash provided by the line of credit. Another of the six shopping centers is
expected to be purchased for approximately $4,692,000 with cash provided by the
line of credit and the assumption of a $2,958,000 non-recourse mortgage note.
The remaining three shopping centers are expected to be purchased for
approximately $17,391,000 with cash provided by the line of credit. Although the
Company deems such acquisitions as probable, there can be no assurance that the
acquisition of any of such properties will be consummated, or that the
acquisition price will approximate those currently estimated. Further, there can
be no assurance that the method of financing such acquisitions will be as
currently estimated.
On December 1, 1997, and December 10, 1997, the Company completed the
public offerings of 990,000 shares and 300,000 shares of Common Stock,
respectively, at prices to the public of $20.375 per share and $20.50 per share,
respectively (together, the "December 1997 Offerings"). Net proceeds of
approximately $25,200,000 (net of offering costs of $237,000) were used to
reduce outstanding borrowings under the line of credit.
The unaudited Pro Forma Condensed Consolidated Statement of Income is
presented as if the acquisitions, the dispositions and the December 1997
Offerings described above had been consummated on January 1, 1996, and with the
Company qualifying as a real estate investment trust ("REIT") distributing all
of its taxable income and, therefore, incurring no federal income tax expense
during the period January 1, 1997 through September 30, 1997. In the opinion of
management, all adjustments necessary to reflect the effects of these
transactions have been made.
For purposes of this unaudited Pro Forma Condensed Consolidated
Statement of Income, "Certain Acquisition Properties" represents those
properties for which the Company has furnished a Combined Statement of Revenues
and Certain Expenses in accordance with Rule 3.14 of the Securities and Exchange
Commission Regulation S-X.
F-7
<PAGE> 13
This unaudited Pro Forma Condensed Consolidated Statement of Income is
presented for comparative purposes only and is not necessarily indicative of
what the actual results of operations of the Company would have been for the
period presented, nor does it purport to represent the results to be achieved in
future periods. This unaudited Pro Forma Condensed Consolidated Statement of
Income should be read in conjunction with, and is qualified in its entirety by,
the respective historical financial statements and notes thereto of the Company.
F-8
<PAGE> 14
BRADLEY REAL ESTATE, INC.
PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF INCOME
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1997
(UNAUDITED)
(Dollars in thousands, except per share data)
<TABLE>
<CAPTION>
Acquisition Properties
----------------------
Prior Current Disposition Other
Historical Report(A) Report(B) Properties(C) Adjustments Pro Forma
---------- --------- --------- ------------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C>
Revenues:
Rental income ....................... $ 69,922 $5,917 $10,507 $(2,101) $ -- $ 84,245
Other income ........................ 1,093 5 143 (11) -- 1,230
-------- ------ ------- ------- ------- --------
Total revenue ..................... 71,015 5,922 10,650 (2,112) -- 85,475
-------- ------ ------- ------- ------- --------
Expenses:
Operations, maintenance and
management ........................ 10,478 814 1,695 (513) -- 12,474
Real estate taxes ................... 13,652 851 1,990 (536) 15,957
Mortgage and other interest ......... 11,593 -- -- -- 5,484(D) 17,077
Administrative and general .......... 3,795 -- -- -- -- 3,795
Depreciation and amortization ....... 12,099 -- -- -- 2,160(E) 14,259
-------- ------ ------- ------- ------- --------
Total expenses .................... 51,617 1,665 3,685 (1,049) 7,644 63,562
-------- ------ ------- ------- ------- --------
Income before gain on sale and
provision for loss on real
estate investments .................. 19,398 4,257 6,965 (1,063) (7,644) 21,913
Gain on sale of property ............... 3,073 -- -- (3,073) -- --
Provision for loss on real estate
investment .......................... (1,300) -- -- 1,300 -- --
-------- ------ ------- ------- ------- --------
Income before allocation to
minority interest ................... 21,171 4,257 6,965 (2,836) (7,644) 21,913
Income allocated to minority
interest ............................ (658) -- -- -- (796)(F) (1,454)
-------- ------ ------- ------- ------- --------
Net income ............................. $ 20,513 $4,257 $ 6,965 $(2,836) $(8,440) $ 20,459
======== ====== ======= ======= ======= ========
Net income per weighted average
share outstanding ................... $ 0.95 $ 0.89
======== ========
Weighted average shares
outstanding ......................... 21,671,144 22,961,144
</TABLE>
Explanatory Notes
(A) Increase represents historical operating revenues and expenses on
properties acquired in 1997, or probable of acquisition subsequent to
September 30, 1997, as previously reported by the Company on Form 8-K
dated September 30, 1997, updated for the period from January 1, 1997
to the earlier of the respective dates of acquisition or September 30,
1997.
(B) Increase represents historical operating revenues and expenses on
properties acquired in 1997, or probable of acquisition subsequent to
September 30, 1997, reported in this Form 8-K for the period from
January 1, 1997 to the earlier of the respective dates of acquisition
or September 30, 1997.
F-9
<PAGE> 15
<TABLE>
<CAPTION>
Operations, Real
Rental Other Maintenance Estate
Income Income and Management Taxes
------- ------- -------------- ------
<S> <C> <C> <C> <C>
Certain Acqusition
Properties $ 4,602 $127 $625 $1,144
Other Properties 5,905 16 1,070 846
------- ------- ------- ------
$10,507 $143 $1,695 $1,990
======= ======= ======= ======
</TABLE>
(C) Decrease represents the elimination of historical operating revenues
and expenses, gains and provision for loss for the nine months ended
September 30, 1997 for the properties disposed during 1997 for the
period during which the Company owned such properties.
(D) Mortgage and other interest has been increased to reflect the pro forma
borrowings for property acquisitions for the period during
which the Company did not own such properties, net of the reduction for
the application of net proceeds from property dispositions and the
December 1997 Offerings to pay down the line of credit for the period
during which the Company owned such properties, and for the period
preceding the December 1997 Offerings, at an interest rate of 7.000%,
which was the Company's approximate borrowing rate at December 19,
1997. A 0.125% change in the variable rate would result in a change in
the pro forma interest adjustment of approximately $87,000.
Increase in interest expense attributable
to acquisition activities $ 7,335
Decrease in interest expense attributable
to disposition activities (528)
Decrease in interest expense attributable
to the December 1997 Offerings (1,323)
--------
Pro forma adjustment $ 5,484
========
(E) Depreciation and amortization has been increased to give effect to
recording the property acquisitions (including probable acqusitions)
over a depreciable life of 39 years, for the period which the Company
did not own such properties, net of the reduction for properties
disposed for the period which the Company owned such properties, as
follows:
F-10
<PAGE> 16
Increase in depreciation and amortization
attributable to acquisition activities $ 2,281
Decrease in depreciation and amortization
attributable to disposition activities (121)
--------
Pro forma adjustment $ 2,160
========
(F) Increase in the income allocated to minority interest reflects the pro
forma issuance of 1,321,048 LP Units during the period (using the
December 19, 1997 stock price of $20.375 for two probable acquisitions)
in connection with the acquisitions of four properties as if such
acquisitions occurred as of the beginning of the period presented.
Pro forma weighted average shares 22,961,144
Pro forma weighted average LP Units 1,632,049
-----------
Total pro forma shares & LP Units 24,593,193
==========
Pro forma income before allocation
to minority interest $21,913,000
-----------
Pro forma income allocated to minority
interest (1,454,000)
Historical income allocated to minority
interest 658,000
-----------
Pro forma adjustment $ (796,000)
===========
F-11
<PAGE> 17
BRADLEY REAL ESTATE, INC.
PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1996
(UNAUDITED)
During the period from January 1, 1996 to September 30, 1997, the
Company acquired sixteen shopping centers and sold two shopping centers and a
ground lease. Twelve of the sixteen shopping centers were acquired for cash with
financing provided by the bank line of credit. One shopping center was acquired
with cash provided by the line of credit and the assumption of a $3,800,000
non-recourse mortgage note, and two shopping centers were acquired via the
issuance of 281,300 and 478,619 limited partner units ("LP Units") each. The
sale of its interest in a ground lease was structured as a "like-kind" exchange
for federal income tax purposes, acquiring a shopping center as a replacement
property in the exchange. Since the net proceeds from the sale were greater than
the net purchase price of the property acquired, the excess proceeds were used
to pay down the line of credit. The net sales price for the two shopping centers
sold were also used to pay down the line of credit.
On March 15, 1996, the Company completed the acquisition of Tucker
Properties Corporation (the "Tucker Acquisition"). The acquisition was
consummated through the issuance of approximately 7.4 million shares of Company
Common Stock valued at $13.96 per share, and was accounted for using the
purchase method of accounting. Tucker held title to all of its properties
through two partnerships; eight properties through Tucker Operating Limited
Partnership ("TOP"), in which Tucker had a 95.9% general partnership interest,
and six properties through Tucker Financing Partnership ("TFP"), a general
partnership of which TOP owned 99% and a wholly-owned Tucker corporate
subsidiary owned the remaining 1%. Upon the acquisition of Tucker, the Company
succeeded to Tucker's interest in TOP, TFP and the wholly-owned Tucker corporate
subsidiary, and the name "Bradley" was substituted for "Tucker" in each
subsidiary and partnership.
In November 1996, the Company completed a public offering of 2,875,000
shares of Common Stock (including shares issued pursuant to the exercise of the
underwriter overallotment option) at a price of $16.50 per share (the "November
1996 Offering"). Net proceeds from the November 1996 Offering, approximately
$44,851,000 (net of offering costs of $2,618,000), were used to reduce
outstanding borrowings under the line of credit. On December 1, 1997, and
December 10, 1997, the Company completed the public offerings of 990,000 shares
and 300,000 shares of Common Stock, respectively, at prices to the public of
$20.375 per share and $20.50 per share, respectively (together, the "December
1997 Offerings"). Net proceeds of approximately $25,200,000 (net of offering
costs of $237,000) were used to reduce outstanding borrowings under the line of
credit.
During the period from January 1, 1997 to September 30, 1997, the
Company sold two shopping centers, utilizing the net proceeds to pay-down the
line of credit, and acquired fourteen shopping centers. Eleven shopping centers
were acquired for a total purchase price of approximately $69.1 million with
cash provided by the bank line of credit. One shopping center was acquired for
approximately $4.8 million with cash provided by the line of credit and the
assumption of a $3.8 million non-recourse mortgage note. One shopping center was
acquired for approximately $5.4 million via the issuance of 281,300 LP Units in
Bradley Operating Limited Partnership, and another shopping center was purchased
for approximately $16.3 million through the issuance of 478,619 LP Units and the
assumption of a $6.9 million non-recourse mortgage note which was paid-off in
full at close with cash drawn from the line of credit.
Between September 30, 1997 and December 19, 1997, the Company sold an
additional shopping center, utilizing the proceeds to pay-down the line of
credit, and acquired six shopping centers, including a portfolio of three
shopping centers from one seller for approximately $33.3 million with cash
provided by the line of credit, the assumption of a $9.8 million non-recourse
mortgage note, and the issuance of a $1.0 million promissory note. The remaining
three shopping centers were funded with cash provided by the line of credit, for
an aggregate purchase price of approximately $22.0 million.
In addition, as of December 19, 1997, the Company has entered into
contracts for the purchase of an additional six shopping centers in separate
transactions for an estimated total acquisition price of
F-12
<PAGE> 18
approximately $44,722,000. Two of the six shopping centers are expected to be
purchased for approximately $22,639,000 through the issuance of LP Units, the
assumption of a $8,735,000 non-recourse mortgage note, and the payoff at closing
of a mortgage note in the amount of approximately $2,471,000 with cash provided
by the line of credit. Another of the six shopping centers is expected to be
purchased for approximately $4,692,000 with cash provided by the line of credit
and the assumption of a $2,958,000 non-recourse mortgage note. The remaining
three shopping centers are expected to be purchased for approximately
$17,391,000 with cash provided by the line of credit. Although the Company deems
such acquisitions as probable, there can be no assurance that the acquisition of
any of such properties will be consummated, or that the acquisition price will
approximate those currently estimated. Further there can be no assurance that
the method of financing such acquisitions will be as currently estimated.
The unaudited Pro Forma Condensed Consolidated Statement of Income is
presented as if the November 1996 Offering, the December 1997 Offerings, the
acquisitions, the dispositions, and the "like-kind" exchange described above had
been consummated on January 1, 1996, and as if the Tucker Acquisition had
occurred on January 1, 1996, and with the Company qualifying as a REIT
distributing all of its taxable income and, therefore, incurring no federal
income tax expense during the period January 1, 1996 through June 30, 1997. In
the opinion of management, all adjustments necessary to reflect the effects of
these transactions have been made.
For purposes of this unaudited Pro Forma Condensed Consolidated
Statement of Income, "Certain Acquisition Properties" represents those
properties for which the Company has furnished a Combined Statement of Revenues
and Certain Expenses in accordance with Rule 3.14 of the Securities and Exchange
Commission Regulation S-X.
This unaudited Pro Forma Condensed Consolidated Statement of Income is
presented for comparative purposes only and is not necessarily indicative of
what the actual results of operations of the Company would have been for the
period presented, nor does it purport to represent the results to be achieved in
future periods. This unaudited Pro Forma Condensed Consolidated Statement of
Income should be read in conjunction with, and is qualified in its entirety by,
the respective historical financial statements and notes thereto of the Company.
F-13
<PAGE> 19
BRADLEY REAL ESTATE, INC.
PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF INCOME
FOR THE YEAR ENDED DECEMBER 31, 1996
(UNAUDITED)
(Dollars in thousands, except per share data)
<TABLE>
<CAPTION>
Acquisition Properties
Tucker Prior Current Disposition Other
Historical Acquisition(A) Report(B) Report(C) Properties(D) Adjustments Pro Forma
---------- -------------- --------- --------- ------------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Revenues:
Rental income $ 77,512 $8,075 $14,518 $12,483 $ (5,300) $ -- $ 107,288
Other income 1,327 146 26 79 (62) -- 1,516
-------- ------ ------- ------- -------- -------- ---------
Total revenue 78,839 8,221 14,544 12,562 (5,362) -- 108,804
-------- ------ ------- ------- -------- -------- ---------
Expenses:
Operations, maintenance and
management 12,949 1,491 1,814 1,837 (1,062) -- 17,029
Real estate taxes 16,787 1,993 2,413 2,124 (1,151) -- 22,166
Mortgage and other interest 13,404 2,574 -- -- -- 6,667(E) 22,645
Administrative and general 3,532 -- -- -- -- -- 3,532
Corporate office relocation 409 -- -- -- -- -- 409
Write-off of deferred financing
and acquisition costs 344 -- -- -- -- -- 344
Depreciation and amortization 13,286 1,336 -- -- -- 3,688(F) 18,310
-------- ------ ------- ------- -------- -------- ---------
Total expenses 60,711 7,394 4,227 3,961 (2,213) 10,355 84,435
-------- ------ ------- ------- -------- -------- ---------
Income before gain on sale of
property 18,128 827 10,317 8,601 (3,149) (10,355) 24,369
Gain on sale of property 9,379 -- -- -- (9,379) -- --
-------- ------ ------- ------- -------- -------- ---------
Income before allocation to
minority interest 27,507 827 10,317 8,601 (12,528) (10,355) 24,369
Income allocated to minority
interest (285) -- -- -- -- (1,339)(G) (1,624)
-------- ------ ------- ------- -------- -------- ---------
Net income $ 27,222 $ 827 $10,317 $ 8,601 $(12,528) $(11,694) $ 22,745
======== ====== ======= ======= ======== ======== =========
Net income per weighted average
share outstanding $ 1.54 $ 1.00
======== =========
Weighted average shares
outstanding 17,619,546 22,855,207
</TABLE>
Explanatory Notes
(A) Increase represents historical operating revenues and expenses for the
year ended December 31, 1996 for Tucker for the period preceding the
Tucker Acquisition.
(B) Increase represents historical operating revenues and expenses on
properties acquired in 1996 or 1997, or probable of acquisition
subsequent to September 30, 1997, as previously reported by the Company
on Form 8-K dated September 30, 1997, for the period from January 1,
1996 to December 31, 1996, for the period during which the Company did
not own such properties.
(C) Increase represents historical operating revenues and expenses on
properties acquired in 1997, or probable of acquisition subsequent to
September 30, 1997, reported in this Form 8-K for the period from
January 1, 1996 to December 31, 1996.
F-14
<PAGE> 20
<TABLE>
<CAPTION>
Operations,
Rental Other Maintenance Real Estate
Income Income and Management Taxes
---------- -------- ------------------- -------------
<S> <C> <C> <C> <C>
Certain Acqusition
Properties $ 5,481 $35 $ 719 $1,202
Other Properties 7,002 44 1,118 922
---------- -------- ----------- ------------
$12,483 $79 $1,837 $2,124
========== ======== ============ ============
</TABLE>
(D) Decrease represents the elimination of historical operating revenues
and expenses, gains and provision for loss for the year ended December
31, 1996 for the properties disposed during 1996 and 1997 for the
period during which the Company owned such properties.
(E) Mortgage and other interest has been increased to reflect the
borrowings estimated for property acquisitions and probable
acquisitions during 1997 and 1996 for the period which the Company did
not own such properties, net of the reduction for the application of
net proceeds from property dispositions during 1997 and 1996 and the
December 1997 Offerings and the November 1996 Offering to pay down the
line of credit, for the period during which the Company owned such
properties, and for the period preceding the December 1997 Offerings
and the November 1996 Offering at an interest rate of 7.000%, which was
the Company's approximate borrowing rate at December 19, 1997. A 0.125%
change in the variable rate would result in a change in the pro forma
interest adjustment of approximately $104,000.
Increase in interest expense attributable
to acquisition activities $ 12,509
Decrease in interest expense attributable
to disposition activities (1,437)
Decrease in interest expense attributable
to the December 1997 Offerings and the
November 1996 Offering (4,405)
--------
Pro forma adjustment $ 6,667
========
(F) Depreciation and amortization has been increased to give effect to
recording the property acquisitions during 1997 (including probable
acquisitons) and 1996 using a depreciable life of 39 years for the
period which the Company did not own such properties, net of the
reduction for properties disposed during 1997 and 1996 for the period
which the Company owned such properties as follows:
Increase in depreciation and amortization
attributable to acquisition activities $ 4,008
Decrease in depreciation and amortization
attributable to disposition activities (320)
--------
Pro forma adjustment $ 3,688
========
F-15
<PAGE> 21
(G) Increase in the income allocated to minority interest reflects the pro
forma issuance of 1,632,049 LP Units since January 1, 1996 (using the
December 19, 1997 stock price of $20.375 for two probable
acquisitions) in connection with the acquisitions of five properties
as if such acquisitions occurred as of the beginning of the period
presented.
Pro forma weighted average shares 22,855,207
Pro forma weighted average LP Units 1,632,049
----------
Total pro forma shares & LP Units 24,487,256
==========
Pro forma income before allocation
to minority interest $ 24,369,000
------------
Pro forma income allocated to minority
interest (1,624,000)
Historical income allocated to minority
interest 285,000
------------
Pro forma adjustment $ (1,339,000)
============
F-16
<PAGE> 1
EXHIBIT 23.1
The Board of Directors of Bradley Real Estate, Inc.:
We consent to theuse of our report dated December 15, 1997 related tot he
combined statement of revenues and certain expenses of Certain Acquisition
Properties (as defined) for the year ended December 31, 1996 contained in the
Form 8-K dated December 30, 1997, incorporated by reference in the registration
statements (Nos. 333-30587, 33-34884 and 33-65180) on Form S-8 filed by the
Company and the registration statement (No. 333-36577) on Amendment No. 3 to
Form S-3 filed by Bradley Operating Limited Partnership.
KPMG PEAT MARWICK LLP
Chicago, Illinois
December 30, 1997
<PAGE> 1
EXHIBIT 99.1
UNSECURED REVOLVING CREDIT AGREEMENT
DATED AS OF DECEMBER 23, 1997
AMONG
BRADLEY OPERATING LIMITED PARTNERSHIP, AS BORROWER
AND
THE FIRST NATIONAL BANK OF CHICAGO,
BANKBOSTON, N.A.
AND
CERTAIN OTHER BANKS,
AS LENDERS
AND
THE FIRST NATIONAL BANK OF CHICAGO,
AS ADMINISTRATIVE AGENT
AND
BANKBOSTON, N.A.,
AS DOCUMENTATION AGENT
AND
BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION
AND
FLEET NATIONAL BANK,
AS CO-AGENTS
<PAGE> 2
UNSECURED REVOLVING CREDIT AGREEMENT
THIS UNSECURED REVOLVING CREDIT AGREEMENT is entered into as of December
23, 1997, by and among the following:
BRADLEY OPERATING LIMITED PARTNERSHIP, a Delaware limited partnership
having its principal place of business c/o Bradley Real Estate, Inc., 400 Skokie
Boulevard, Suite 600, Northbrook, Illinois 60062 ("Borrower"), the general
partner of which is Bradley Real Estate, Inc.;
THE FIRST NATIONAL BANK OF CHICAGO ("First Chicago"), a national bank
organized under the laws of the United States of America having an office at One
First National Plaza, Chicago, Illinois 60670;
BANKBOSTON, N.A. ("BankBoston"), a national banking association
organized under the laws of the United States of America having an office at 100
Federal Street, Boston, Massachusetts 02110;
First Chicago, as Administrative Agent ("Administrative Agent") for the
Lenders (as defined below);
BankBoston, as Documentation Agent for the Lenders; and
The Lenders identified on the signature pages to this Agreement.
RECITALS
A. Borrower is primarily engaged in the business of acquiring,
developing, rehabilitating, owning and operating shopping center properties and
matters related thereto.
B. The Borrower has requested that the Lenders make loans available to
the Borrower in the maximum aggregate principal amount of $200,000,000
outstanding from time to time pursuant to the terms of this Agreement (the
"Facility") and that the Administrative Agent and Documentation Agent act as
agents for the Lenders. The Administrative Agent, the Documentation Agent and
the Lenders have agreed to do so.
<PAGE> 3
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1 Definitions. As used in this Agreement, the following terms have the
meanings set forth below:
"ABR Applicable Margin" means, as of any date with respect to any
Adjusted Alternate Base Rate Advance, the Applicable Margin in effect for such
Adjusted Alternate Base Rate Advance as determined in accordance with Section
2.6 hereof.
"Absolute Interest Period" means, with respect to a Competitive Bid Loan
made at an Absolute Rate, a period of not less than 7 or more than 90 days as
requested by Borrower in a Competitive Bid Quote Request and confirmed by a
Lender in a Competitive Bid Quote but in no event extending beyond the Maturity
Date. If an Absolute Interest Period would end on a day which is not a Business
Day, such Absolute Interest Period shall end on the next succeeding Business
Day.
"Absolute Rate" means a fixed rate of interest (rounded to the nearest
1/100 of 1%) for an Absolute Interest Period with respect to a Competitive Bid
Loan offered by a Lender and accepted by the Borrower at such rate under Section
2.16.
"Adjusted Alternate Base Rate" means a floating interest rate equal to
the Alternate Base Rate plus ABR Applicable Margin changing when and as the
Alternate Base Rate and ABR Applicable Margin changes.
"Adjusted Alternate Base Rate Advance" means an Advance that bears
interest at the Adjusted Alternate Base Rate.
"Adjusted LIBOR Rate" means, with respect to a LIBOR Advance for the
relevant LIBOR Interest Period, a per annum rate equal to the sum of (i) the
quotient of (a) the Base LIBOR Rate applicable to such LIBOR Interest Period,
divided by (b) one minus the Reserve Requirement (expressed as a decimal)
applicable to such LIBOR Interest Period, plus (ii) in the case of ratable LIBOR
Advances, the LIBOR Applicable Margin in effect from time to time during such
LIBOR Interest Period, or in the case of LIBOR
<PAGE> 4
Advances made as Competitive Bid Loans, the Competitive LIBOR Margin established
in the Competitive Bid Quote applicable to each such Competitive Bid Loan.
"Administrative Agent" means First Chicago, acting as agent for the
Lenders pursuant to Article XII in connection with the transactions contemplated
by this Agreement, and its successors in such capacity appointed pursuant to
Article XII.
"Advance" means a Loan to the Borrower hereunder by one or more of the
Lenders pursuant to Section 2.1(a) hereof (including Swingline Loans and
Competitive Bid Loans), including the initial Advance and all subsequent
Advances, whether such Advances are from time to time, Adjusted Alternate Base
Rate Advances, LIBOR Advances, Swingline Loans or Competitive Bid Loans.
"Affiliate" means any Person directly or indirectly controlling,
controlled by or under direct or indirect common control with any other Person.
A Person shall be deemed to control another Person if the controlling Person
owns ten percent (10%) or more of any class of voting securities of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Aggregate Commitment" means, as of any date, the sum of all of the
Lenders' then-current Commitments, which shall initially be $200,000,000,
subject to the Borrower's right to increase the Aggregate Commitment up to
$250,000,000 as described in Section 2.18 hereof and the Borrower's right to
reduce the Aggregate Commitment pursuant to Section 2.20 hereof.
"Agreement" means this Unsecured Revolving Credit Agreement, as it may
be amended or modified and in effect from time to time.
"Agreement Execution Date" shall mean December 23, 1997, the effective
date of this Agreement.
"Allocated Facility Amount" means, at any time, the sum of all then
outstanding Advances (including all Swingline Loans and Competitive Bid Loans),
and the then Facility Letter of Credit Obligations.
-3-
<PAGE> 5
"Alternate Base Rate" means, with respect to any day, a floating, per
annum interest rate equal to the greater of (i) the Corporate Base Rate for such
day and (ii) the sum of (A) the Federal Funds Effective Rate most recently
determined by the Administrative Agent to such day plus (B) 0.50% per annum.
"Applicable Margin" means the applicable margins set forth in the table
in Section 2.6 used in calculating the interest rate applicable to the various
types of Advances, which shall vary from time to time in accordance with the
long term, senior unsecured debt ratings of Borrower or General Partner in the
manner set forth in Section 2.6.
"Arranger" means First Chicago Capital Markets, Inc. and BancBoston
Securities, Inc., collectively.
"Base LIBOR Rate" means, with respect to a LIBOR Advance for the
relevant LIBOR Interest Period, the rate determined by the Administrative Agent
to be the rate at which deposits in immediately available funds in Dollars are
offered by the Administrative Agent to first-class banks in the London interbank
eurodollar market at approximately 11:00 a.m. London time two Business Days
prior to the first day of such LIBOR Interest Period, in the approximate amount
of the relevant LIBOR Advance and having a maturity approximately equal to such
LIBOR Interest Period.
"Borrower" means Bradley Operating Limited Partnership, along with its
permitted successors and assigns.
"Borrowing Date" means a Business Day on which an Advance is made to the
Borrower.
"Borrowing Notice" is defined in Section 2.11(a) hereof.
"Business Day" means a day, other than a Saturday, Sunday or holiday, on
which banks are open for the conduct of substantially all of their commercial
lending activities in Chicago, Illinois and, where such term is used in
reference to the selection or determination of the Adjusted LIBOR Rate, in
London, England.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership
-4-
<PAGE> 6
interests in a Person which is not a corporation and any and all vested warrants
or options to purchase any of the foregoing.
"Capitalization Value" means, as of any date, the sum of (i) the
quotient of (x) the Combined Operating EBITDA during the most recent full fiscal
quarter for which financial results have been reported to the Lenders multiplied
by four (4), divided by (y) 10.25% plus (ii) an amount equal to 100% of the book
value of all unrestricted cash and unrestricted Cash Equivalents owned by the
Consolidated Group as of the last day of such quarter. For purposes of computing
Capitalization Value, (A) Properties which were acquired during such quarter
will be included in the calculation of Capitalization Value using pro forma
budgeted Combined Operating EBITDA attributable thereto (as reasonably approved
by the Administrative Agent) for the entire quarter and (B) Combined Operating
EBITDA attributable to Properties which were sold either during such quarter or
after such quarter through the date of determination will be excluded from the
calculation of Capitalization Value for such quarter.
"Cash Equivalents" shall mean (i) short-term obligations of, or fully
guaranteed by, the United States of America, (ii) commercial paper rated A-1 or
better by Standard and Poor's Corporation or P-1 or better by Moody's Investors
Service, Inc., or (iii) certificates of deposit issued by and time deposits with
commercial banks (whether domestic or foreign) having capital and surplus in
excess of $100,000,000.
"Code" means the Internal Revenue Code of 1986 as amended from time to
time, or any replacement or successor statute, and the regulations promulgated
thereunder from time to time.
"Collateral Letter of Credit" means any irrevocable unconditional Letter
of Credit issued in the name of the Administrative Agent for the benefit of the
Lenders in form and substance satisfactory to the Administrative Agent and drawn
on a bank having a rating of at least A by S&P and otherwise reasonably
satisfactory to the Administrative Agent.
"Combined Operating EBITDA" means income before extraordinary items and
after adjustment to eliminate the effect of any gains or losses from sales of
assets (reduced to eliminate interest income and any income from Investment
Affiliates), as reported by the Consolidated Group in accordance with GAAP, plus
interest
-5-
<PAGE> 7
expense, depreciation, amortization and income tax (if any) expense plus the
Consolidated Group Pro Rata Share of such income (adjusted as described above)
of any Investment Affiliate (provided that no item of income or expense shall be
included more than once in such calculation even if it falls within more than
one of the foregoing categories).
"Commitment" means the obligation of each Lender to make Advances
(including Advances to repay draws under Facility Letters of Credit Obligations)
not exceeding in the aggregate the amount set forth opposite its signature
below, or the amount stated in any subsequent amendment hereto, as such amount
may be modified from time to time pursuant to the terms hereof.
"Competitive Bid Borrowing Notice" is defined in Section 2.16(f).
"Competitive Bid Lender" means a Lender which has a Competitive Bid Loan
outstanding.
"Competitive Bid Loan" is a Loan made pursuant to Section 2.16 hereof.
"Competitive Bid Note" means the promissory note payable to the order of
each Lender in the form attached hereto as Exhibit B-2 to be used to evidence
any Competitive Bid Loans which such Lender elects to make (collectively, the
"Competitive Bid Notes").
"Competitive Bid Quote" means a response submitted by a Lender in the
form attached as Exhibit C-3 to the Administrative Agent with respect to a
Competitive Bid Quote Request.
"Competitive Bid Quote Request" means a written request from Borrower to
Administrative Agent in the form attached as Exhibit C-1.
"Competitive LIBOR Margin" means, with respect to any Competitive Bid
Loan for a LIBOR Interest Period, the percentage established in the applicable
Competitive Bid Quote which is to be used to determine the interest rate
applicable to such Competitive Bid Loan.
-6-
<PAGE> 8
"Consolidated Group" means the Borrower, the Financing Partnership, the
General Partner and any other subsidiary partnerships or entities of any of them
which are required under GAAP to be consolidated with the Borrower, the
Financing Partnership and the General Partner for financial reporting purposes.
"Consolidated Group Pro Rata Share" means with respect to any Investment
Affiliate, the percentage of the total equity ownership interests held by the
Consolidated Group in the aggregate, in such Investment Affiliate, determined by
calculating the greater of (i) the percentage of the issued and outstanding
stock, partnership interests or membership interests in such Investment
Affiliate held by the Consolidated Group in the aggregate and (ii) the
percentage of the total book value of such Investment Affiliate that would be
received by the Consolidated Group in the aggregate, upon liquidation of such
Investment Affiliate after repayment in full of all Indebtedness of such
Investment Affiliate.
"Consolidated Secured Debt" means as of any date of determination, the
aggregate principal amount of all Consolidated Total Indebtedness outstanding at
such date which is secured by a Lien on any asset of the obligor thereunder (or,
but without duplication, with respect to members of the Consolidated Group other
than the Borrower and the Guarantors, on the Capital Stock of the obligor
thereunder), including without limitation loans secured by mortgages, stock, or
partnership interests.
"Consolidated Unsecured Debt" means as of any date of determination, the
aggregate principal amount of all Consolidated Total Indebtedness outstanding at
such date other than Consolidated Secured Debt.
"Consolidated Total Indebtedness" means as of any date of determination,
the sum of (i) all Indebtedness of the Consolidated Group outstanding at such
date, after eliminating intercompany items among members of the Consolidated
Group plus (ii) without duplication, the Consolidated Group Pro Rata Share of
all Indebtedness of Investment Affiliates outstanding at such date; provided
that for purposes of defining "Consolidated Total Indebtedness" the term
"Indebtedness" shall not include any short term debt, such as accounts payable
or short term expenses, of the Consolidated Group or any Investment Affiliate.
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"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with all or any of the entities in the
Consolidated Group, are treated as a single employer under Sections 414(b) or
414(c) of the Code.
"Corporate Base Rate" means a rate per annum equal to the corporate base
rate of interest announced by First Chicago from time to time, changing when and
as such corporate base rate changes.
"Default" means an event which, with notice or lapse of time or both,
would become an Event of Default.
"Default Rate" means with respect to any Advance, a rate equal to the
interest rate applicable to such Advance plus three percent (3%) per annum.
"Defaulting Lender" means any Lender which fails or refuses to perform
its obligations under this Agreement within the time period specified for
performance of such obligation, or, if no time frame is specified, if such
failure or refusal continues for a period of five Business Days after written
notice from the Administrative Agent; provided that if such Lender cures such
failure or refusal, such Lender shall cease to be a Defaulting Lender.
"Designated Lender" means any Person who has been designated by a Lender
to fund Competitive Bid Loans and has been approved by the Borrower and the
Administrative Agent pursuant to a Designation Agreement in the form attached
hereto as Exhibit K.
"Dollars" and "$" mean United States Dollars.
"Duff & Phelps" means Duff & Phelps Credit Rating Company.
"Effective Date" means each Borrowing Date and, if no Borrowing Date has
occurred in the preceding calendar month, the first Business Day of each
calendar month.
"Environmental Laws" means any and all Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental
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Authority having jurisdiction over the Consolidated Group, the Investment
Affiliates or their respective assets, and regulating or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect, in each case to the extent the
foregoing are applicable to the operations of the Consolidated Group, the
Investment Affiliates, as applicable, their respective assets or Properties.
"Equity Value" is defined in Section 10.10 hereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and regulations promulgated thereunder from time to time.
"Event of Default" means any event set forth in Article X hereof.
"Facility" means the unsecured revolving credit facility described in
Section 2.1.
"Facility Fee" and "Facility Fee Rate" are defined in Section 2.7.
"Facility Letter of Credit" means a Letter of Credit issued hereunder.
"Facility Letter of Credit Fee" is defined in Section 3.8.
"Facility Letter of Credit Obligations" means, as at the time of
determination thereof, all liabilities, whether actual or contingent, without
duplication, of the Borrower with respect to Facility Letters of Credit,
including the aggregate undrawn face amount of the then outstanding Facility
Letters of Credit, but not including Reimbursement Obligations.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum 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 for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the
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quotations at approximately 10 a.m. (Chicago time) on such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by the Administrative Agent in its sole
discretion.
"Financeable Ground Lease" means, a ground lease satisfactory to the
Required Lenders and the Administrative Agent's counsel in their reasonable
discretion, which must provide protections for a potential leasehold mortgagee
("Mortgagee") which include, among other things (i) a remaining term of no less
than 25 years from the Agreement Execution Date, (ii) that the lease will not be
terminated until the Mortgagee has received notice of a default, has had a
reasonable opportunity to cure or complete foreclosure, and has failed to do so,
(iii) a new lease on the same terms to the Mortgagee as tenant if the ground
lease is terminated for any reason, (iv) non-merger of the fee and leasehold
estates, (v) free transferability of the tenant's interest under the ground
lease and (vi) that insurance proceeds and condemnation awards (from the fee
interest as well as the leasehold interest) will be applied pursuant to the
terms of the applicable leasehold mortgage.
"Financing Partnership" means Bradley Financing Partnership, a Delaware
general partnership, the managing general partner of which is Bradley Financing
Corp., a Delaware corporation and the other general partner of which is the
Borrower.
"First Chicago" means The First National Bank of Chicago, in its
individual capacity.
"Fitch" means Fitch Investors Service, L.P.
"Funded Percentage" means, with respect to any Lender at any time, a
percentage equal to a fraction the numerator of which is the amount of the
Aggregate Commitment actually disbursed and outstanding to Borrower by such
Lender at such time, and the denominator of which is the total amount of the
Aggregate Commitment disbursed and outstanding to Borrower by all of the Lenders
at such time.
"Funds From Operations" shall mean "funds from operations" as such term
is defined from time to time by The National Association of Real Estate
Investment Trusts.
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"GAAP" means generally accepted accounting principles in the United
States of America consistent with those utilized in preparing the audited
financial statements of the Consolidated Group required hereunder.
"General Partner" means Bradley Real Estate, Inc.
"Guarantee Obligation" means as to any Person (the "guaranteeing
person"), any obligation (determined without duplication) of the guaranteeing
person (or any other Person [including, without limitation, any bank under any
letter of credit] if the guaranteeing person has issued a reimbursement, counter
indemnity or similar obligation in favor of such other Person) guaranteeing or
in effect guaranteeing any Indebtedness, leases, dividends or other obligations
(the "primary obligations") of any other third Person (the "primary obligor") in
any manner, whether directly or indirectly, including, without limitation, any
obligation of the guaranteeing person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the purchase
or payment of any such primary obligation or (2) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed to be the amount
of the primary outstanding obligation as of the applicable date of determination
relating to such Guarantee Obligation (or, if less, the maximum stated liability
set forth in the instrument embodying such Guarantee Obligation), provided, that
in the absence of any such stated amount or stated liability, the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in good
faith.
"Guarantors" means Bradley Real Estate, Inc. and Bradley Financing
Partnership, jointly and severally.
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"Guaranty" means the Guaranty executed by the Guarantors in the form
attached hereto as Exhibit D.
"Indebtedness" of any Person at any date means without duplication, (a)
all indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of property or services (other than
current trade liabilities and other accounts payable, and accrued expenses
incurred in the ordinary course of business and payable in accordance with
customary practices), to the extent such obligations constitute indebtedness for
the purposes of GAAP, (c) any other indebtedness of such Person which is
evidenced by a note, bond, debenture or similar instrument, (d) all obligations
of such Person under financing leases and capital leases, (e) all obligations of
such Person in respect of acceptances issued or created for the account of such
Person, (f) all Guarantee Obligations of such Person (excluding in any
calculation of consolidated indebtedness of the Consolidated Group, Guarantee
Obligations of any member of the Consolidated Group in respect of primary
obligations of any other member of the Consolidated Group so as to avoid
double-counting), (g) any repurchase obligation or liability of such Person or
any of its Subsidiaries with respect to accounts or notes receivable sold by
such Person or any of its Subsidiaries, and (h) such Person's pro rata share of
debt for borrowed money of Investment Affiliates and any loans where such Person
is liable as a general partner.
"Initial Advance" means the initial funding on the first Borrowing Date
to the Borrower which shall not exceed the Aggregate Commitment.
"Insolvency" or "Insolvent" when used with respect to a Person, shall
refer to a Person who would fail to meet the test set forth in Section 6.5
hereof.
"Interest Expense" means all interest expense of the Consolidated Group
determined in accordance with GAAP plus (i) capitalized interest, plus (ii) the
allocable portion (based on liability) of any accrued or paid interest incurred
on any obligation for which the Consolidated Group is wholly or partially liable
under repayment, interest carry, or performance guarantees, or other relevant
liabilities, plus (iii) the Consolidated Group Pro Rata Share of any accrued or
paid interest
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incurred on any Indebtedness of any Investment Affiliate, whether recourse or
non-recourse, provided that no expense shall be included more than once in such
calculation even if it falls within more than one of the foregoing categories.
"Interest Period" means either an Absolute Interest Period or a LIBOR
Interest Period. Such Interest Period shall end on the day which corresponds
numerically to such date one, two, three or six months thereafter, provided,
however, that if there is no such numerically corresponding day in such next,
second, third or sixth succeeding month, such Interest Period shall end on the
last Business Day of such next, second, third or sixth succeeding month. If an
Interest Period would otherwise end on a day which is not a Business Day, such
Interest Period shall end on the next succeeding Business Day, provided,
however, that if said next succeeding Business Day falls in a new calendar
month, such Interest Period shall end on the immediately preceding Business Day.
"Investment Affiliate" means any Person in which the Consolidated Group,
directly or indirectly, has an ownership interest, whose financial results are
not consolidated under GAAP with the financial results of the Consolidated Group
on the consolidated financial statements of the Consolidated Group.
"Invitation for Competitive Bid Quotes" means a written notice in the
form attached as Exhibit C-2 hereto to the Lenders from the Administrative Agent
with respect to a Competitive Bid Quote Request.
"Issuance Date" is defined in Section 3.4(a)(2).
"Issuance Notice" is defined in Section 3.4(c).
"Issuing Bank" means, with respect to each Facility Letter of Credit,
the Lender which issues such Facility Letter of Credit. The Administrative Agent
shall be the sole Issuing Bank, provided that, if the Administrative Agent is
unable to issue Facility Letters of Credit as a result of Section 3.2(i) or
Section 3.3(ii) hereof, the Borrower may select another Lender to act as the
Issuing Bank by written notice to the Administrative Agent and with the approval
of such other Lender.
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"Known Default" means a Default which is actually known by any executive
officer of the General Partner to have occurred.
"Lenders" means, collectively, First Chicago, BankBoston and the other
Persons executing this Agreement in such capacity, or any Person which
subsequently executes and delivers any amendment hereto and becomes a party
hereto in such capacity in accordance with the terms and conditions of this
Agreement and each of their respective permitted successors and assigns. Where
reference is made to "the Lenders" in any Loan Document it shall be read to mean
"all of the Lenders".
"Lending Installation" means any continental U.S. office of any Lender
authorized to make loans similar to the Advances described herein.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Letter of Credit Collateral Account" is defined in Section 3.9.
"Letter of Credit Request" is defined in Section 3.4(a).
"LIBOR Advance" means an Advance that bears interest at the Adjusted
LIBOR Rate, whether a ratable Advance based on the LIBOR Applicable Margin or a
Competitive Bid Loan based on a Competitive LIBOR Margin.
"LIBOR Applicable Margin" means, as of any date with respect to any
ratable LIBOR Advance, the Applicable Margin in effect for such LIBOR Advance as
determined in accordance with Section 2.6 hereof.
"LIBOR Interest Period" means, with respect to a LIBOR Advance, a period
of one, two, three or six months, as selected in advance by the Borrower.
"Lien" means any mortgage, pledge, negative pledge, security interest,
encumbrance, lien or charge of any kind (including, without limitation, any
conditional sale or other title retention agreement or lease in the nature
thereof, any filing of a financing statement as debtor under the Uniform
Commercial Code
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on any property leased to any Person under a lease which is not in the nature of
a conditional sale or title retention agreement).
"Loan" means, with respect to a Lender, such Lender's portion of any
Advance.
"Loan Documents" means this Agreement, the Notes, the Guaranty and any
and all other agreements or instruments now or hereafter required by Lenders
hereunder and executed and delivered by the Borrower or any Guarantor from time
to time and evidencing, securing or guaranteeing the Obligations, as any of the
foregoing may be amended from time to time.
"Margin Stock" has the meaning ascribed to it in Regulation U of the
Board of Governors of the Federal Reserve System.
"Material Adverse Effect" means, with respect to any matter, that such
matter in the Required Lenders' good faith judgment may (x) materially and
adversely affect the business, properties, condition or results of operations of
the Consolidated Group taken as a whole, or (y) constitute a non-frivolous
challenge to the validity or enforceability of any material provision of and
have a material adverse effect on, any Loan Document against any obligor party
thereto.
"Material Adverse Financial Change" shall be deemed to have occurred if
the Required Lenders, in their good faith judgment, determine that a material
adverse financial change has occurred which may reasonably be expected to
prevent timely repayment of any Advance hereunder or materially impair
Borrower's or either Guarantor's ability to perform their respective material
obligations under any of the Loan Documents.
"Material Subsidiary" is defined in Section 10.10 hereof.
"Materials of Environmental Concern" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including, without limitation, asbestos,
radon, polychlorinated biphenyls and urea-formaldehyde insulation.
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"Maturity Date" means the earliest to occur of (i) December 22, 2000, or
(ii) such other date on which the Advances become due and payable pursuant to
the terms of this Agreement.
"Monetary Default" means any Default involving Borrower's failure to pay
any of the Obligations when due.
"Moody's" means Moody's Investors Service, Inc. and its successors.
"Note" means the promissory note payable to the order of each Lender in
the amount of such Lender's Commitment in the form attached hereto as Exhibit
B-1 (collectively, the "Notes"), together with any extension, modification,
amendment or replacement thereof.
"Obligations" means the outstanding aggregate principal balance of all
Loans hereunder, all accrued and unpaid interest and fees and all other
obligations of Borrower to the Administrative Agent or any or all of the Lenders
arising under this Agreement or any of the other Loan Documents.
"Operating Partnership" means the Borrower.
"Participants" is defined in Section 13.2.1 hereof.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Percentage" means, with respect to each Lender, the applicable
percentage of the then-current Aggregate Commitment represented by such Lender's
then-current Commitment.
"Permitted Liens" are defined in Section 9.6 hereof.
"Person" means an individual, a corporation, a limited or general
partnership, a limited liability company, a trust, an association, a joint
venture or any other entity or organization, including a governmental or
political subdivision or an agent or instrumentality thereof.
"Plan" means an employee benefit plan as defined in Section 3(3) of
ERISA, whether or not terminated, as to which the
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Borrower or any member of the Controlled Group may have any liability.
"Project" means any improved real property owned in fee simple or ground
leased by the Consolidated Group.
"Projects Under Development" means as of any date of determination, any
Project which is under construction and then treated as an asset under
development under GAAP, both such land and improvements under construction to be
valued for purposes of this Agreement at then-current book value, as determined
in accordance with GAAP.
"Property" means each parcel of real property owned in fee simple,
ground leased or operated from time to time by the Consolidated Group or any
Investment Affiliate.
"Property Operating Income" means, with respect to any Property, for any
period, revenues from rental operations net of operating expenses (computed in
accordance with GAAP but without deduction for reserves) attributable to such
Property plus depreciation, amortization and interest expense with respect to
such Property for such period, and, if such period is less than a year, adjusted
by straight lining various ordinary operating expenses which are payable less
frequently than once during every such period (e.g. real estate taxes and
insurance). At the request of either Borrower or the Administrative Agent, the
earnings from rental operations reported for the immediately preceding fiscal
quarter shall be adjusted to include budgeted pro forma earnings (as
substantiated to the reasonable satisfaction of the Administrative Agent) for an
entire quarter for any Property acquired or placed in service during the
then-current fiscal quarter and to exclude earnings with respect to such
immediately preceding fiscal quarter from any Property not owned as of the date
of determination.
"Purchasers" is defined in Section 13.3.1 hereof.
"Qualified Lender" is defined in Section 13.3.1 hereof.
"Qualified Officer" means, with respect to any entity, the chief
financial officer, chief accounting officer or controller of such entity if it
is a corporation or of such entity's general partner if it is a partnership.
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"Rate Option" means the Adjusted Alternate Base Rate or the Adjusted
LIBOR Rate or the Absolute Rate (only as applicable to Competitive Bid Loans).
The Rate Option in effect on any date shall always be the Adjusted Alternate
Base Rate unless the Borrower has properly selected the Adjusted LIBOR Rate
pursuant to Section 2.11 hereof or a Competitive Bid Loan pursuant to Section
2.16 hereof.
"Rating Period" means any period during the term of the Facility during
which the Borrower's or General Partner's long-term, senior unsecured debt has
been rated by at least two of S&P, Moody's, Fitch and Duff & Phelps (at least
one of which is S&P or Moody's) and the lower of the highest two ratings (at
least one of which is from S&P or Moody's) is at least BBB- (S&P) or Baa3
(Moody's) or an equivalent rating from Fitch or Duff & Phelps.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to
reserve requirements applicable to member banks of the Federal Reserve System.
"Reimbursement Obligations" means at any time, the aggregate of those
Obligations of the Borrower to the Lenders, the Issuing Bank and the
Administrative Agent in respect of all unreimbursed payments or disbursements
made by the Lenders, the Issuing Bank and the Administrative Agent under or in
respect of the Facility Letters of Credit.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC 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 Code and of Section 302 of ERISA shall be
a Reportable Event regardless of the issuance of any such waivers in accordance
with either Section 4043(a) of ERISA or Section 412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having in excess of
60% of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding
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in excess of 60% of the aggregate unpaid principal amount of the outstanding
Advances.
"Reserve Requirement" means, with respect to a LIBOR Interest Period,
the maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities, which requirement is currently zero.
"S&P" means Standard & Poor's Ratings Group and its successors.
"Subsidiary" means as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having ordinary
voting power (other than stock or such other ownership interests having such
power only by reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person, and provided such corporation, partnership or other entity is
consolidated with such Person for financial reporting purposes under GAAP.
"Swingline Advances" means, as of any date, collectively, all Swingline
Loans then outstanding under this Facility.
"Swingline Commitment" means the obligation of the Swingline Lender to
make Swingline Loans not exceeding $20,000,000 in the aggregate outstanding from
time to time.
"Swingline Lender" shall mean Administrative Agent, in its capacity as a
Lender.
"Swingline Loan" means a Loan made by the Swingline Lender under the
special availability provisions described in Sections 2.17 hereof.
"Transferee" is defined in Section 13.4 hereof.
"Unencumbered Asset" means any Project 100% of which is owned or ground
leased by the Borrower, one of the Guarantors or a Wholly-Owned Subsidiary, or
any combination of them (provided
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that a Project which is ground leased shall be included as an Unencumbered Asset
only if such ground lease is a Financeable Ground Lease) which, as of any date
of determination, (a) is not subject to any Liens other than Permitted Liens
under clauses (i) through (v) of Section 9.6 hereof, (b) is not subject to any
agreement (including any agreement governing Indebtedness incurred in order to
finance or refinance the acquisition of such asset but excluding this Agreement)
which prohibits or limits the ability of the owner of such Project, to create,
incur, assume or suffer to exist any Lien upon any assets (or, in the case of a
Wholly-Owned Subsidiary owner, the Capital Stock of such owner), (c) is not
subject to any agreement (including any agreement governing Indebtedness
incurred in order to finance or refinance the acquisition of such asset) which
entitles any Person to the benefit of any Liens (other than Permitted Liens
under clauses (i) through (v) of Section 9.6 hereof) on any assets (or, in the
case of a Wholly-Owned Subsidiary owner, the Capital Stock) of such owner or
would entitle any Person to the benefit of any Liens (other than Permitted Liens
under clauses (i) through (v) of Section 9.6 hereof) on such assets or Capital
Stock upon the occurrence of any contingency (including, without limitation,
pursuant to an "equal and ratable" clause), (d) is not the subject of any
material architectural/engineering issue, as evidenced by a certification of
Borrower, and (e) is materially compliant with the representations and
warranties in Section 6.26 below. No Project of a Wholly-Owned Subsidiary shall
be deemed to be unencumbered unless both such Project and all Capital Stock of
such Wholly-Owned Subsidiary is unencumbered as provided herein and neither such
Wholly-Owned Subsidiary nor any intervening Wholly-Owned Subsidiary between the
Borrower and such Wholly-Owned Subsidiary has any Indebtedness for borrowed
money (other than (i) Indebtedness due to the Borrower and (ii) any incidental
Indebtedness and GAAP liabilities owing to parties other than the Borrower,
without duplication, not exceeding, in the aggregate, two percent (2%) of the
Capitalization Value of the Unencumbered Assets owned by such Wholly-Owned
Subsidiary).
"Value of Unencumbered Assets" means, as of any date, the amount
determined by dividing (A) the annualized Property Operating Income from each
Project which is an Unencumbered Asset as of such date based on a calculation
period which shall be either the immediately preceding full fiscal quarter or,
if so requested by Borrower or the Administrative Agent, the
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then-current partial fiscal quarter by (B) 10.25%, provided that not
more than 15% of the Value of Unencumbered Assets shall be attributable to
Unencumbered Assets which are ground leased. If a Project has been acquired
during such a calculation period then Borrower shall be entitled to include
budgeted pro forma Property Operating Income from such property for the entire
calculation period in the foregoing calculation. If a Project is no longer owned
as of the date of calculation, then no value shall be included based on
capitalizing Property Operating Income from such Project.
"Wholly-Owned Subsidiary" means a member of the Consolidated Group in
which 100% of the ownership interests are held, directly or indirectly, by the
Borrower and the Guarantors, in the aggregate.
The foregoing definitions shall be equally applicable to both the
singular and the plural forms of the defined terms.
I.2 Financial Standards. All financial computations required of a Person
under this Agreement shall be made, and all financial information required under
this Agreement shall be prepared, in accordance with GAAP, except that if any
Person's financial statements are not audited, such Person's financial
statements shall be prepared in accordance with the same sound accounting
principles utilized in connection with the financial information submitted to
Lenders with respect to the Borrower, the Financing Partnership or the General
Partner or the Properties in connection with this Agreement and shall be
certified by an authorized representative of such Person.
ARTICLE II
THE FACILITY
II.1 The Facility.
(a Subject to the terms and conditions of this Agreement and in
reliance upon the representations and warranties of Borrower and Guarantors
contained herein, Lenders agree, severally and not jointly, to make Advances
through the Administrative Agent to Borrower from time to time prior to the
Maturity Date, provided that the making of any such Advance will
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not cause the then Allocated Facility Amount to exceed the then-current
Aggregate Commitment. The Advances may be ratable Adjusted Alternate Base Rate
Advances, ratable LIBOR Advances, non-pro rata Swingline Loans or non-pro rata
Competitive Bid Loans. Except as provided in Sections 2.16 and 2.17 hereof, each
Lender shall fund its Percentage of each such Advance and no Lender will be
required to fund any amounts which when aggregated with such Lender's Percentage
of (i) all other Advances (other than Competitive Bid Loans) then outstanding,
(ii) all Swingline Advances and (iii) all Facility Letter of Credit Obligations
would exceed such Lender's then-current Commitment. This facility ("Facility")
is a revolving credit facility and, subject to the provisions of this Agreement,
Borrower may request Advances hereunder, repay such Advances and reborrow
Advances at any time and from time to time prior to the Maturity Date.
(b The Facility created by this Agreement, and the Commitment
of each Lender to lend hereunder, shall terminate on the Maturity Date.
II.2 Principal Payments. Any outstanding Advances (other than
Competitive Bid Loans, which may be required to be paid earlier, as hereinafter
provided, but must in all circumstances be paid no later than the Maturity Date)
and all other unpaid Obligations shall be paid in full by the Borrower on the
Maturity Date or earlier as specifically set forth herein. Each Competitive Bid
Loan shall be paid in full or be replaced by a new Advance by the last day of
the applicable Interest Period, subject to the notice and cure period described
in Section 2.16(i) below. To the extent so provided in any accepted Competitive
Bid Quote, unless otherwise agreed to in writing by the holder thereof, no
Competitive Bid Loan may be prepaid prior to the last day of the applicable
Interest Period.
II.3 Requests for Advances; Responsibility for Advance. The Advances
shall be made available to Borrower by Administrative Agent in accordance with
Section 2.1(a), Section 2.11(a), Section 2.16 and Section 2.17 hereof. The
obligation of each Lender to fund its Percentage of each ratable Advance shall
be several and not joint.
II.4 Evidence of Credit Extensions. The Advances of each Lender
outstanding at any time (other than Competitive Bid Loans, which are evidenced
by the Competitive Bid Notes) shall be
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evidenced by the Notes. Each Note executed by the Borrower shall be in a maximum
principal amount equal to each Lender's Percentage of the Aggregate Commitment.
Each Lender shall record Advances and principal payments thereof on the schedule
attached to its Note or, at its option, in its records, and each Lender's record
thereof shall be conclusive absent Borrower furnishing to such Lender conclusive
and irrefutable evidence of an error made by such Lender with respect to that
Lender's records. Notwithstanding the foregoing, the failure to make, or an
error in making, a notation with respect to any Advance or payment shall not
limit or otherwise affect the obligations of Borrower hereunder or under the
Notes to pay the amount actually owed by Borrower to Lenders.
II.5 Ratable and Non-Pro Rata Loans. Each Advance hereunder shall
consist of Loans made from the several Lenders ratably in proportion to their
Percentages, except for Swingline Loans which shall be made by the Swingline
Lender in accordance with Section 2.17 and Competitive Bid Loans which may be
made on a non-pro rata basis by one or more of the Lenders in accordance with
Section 2.16. The ratable Advances may be Adjusted Alternate Base Rate Advances,
LIBOR Advances or a combination thereof, selected by the Borrower in accordance
with Sections 2.10 and 2.11.
II.6 Applicable Margins. The ABR Applicable Margin and the LIBOR
Applicable Margin to be used in calculating the interest rate applicable to
different types of Advances shall vary from time to time in accordance with the
most recently issued ratings for Borrower's or General Partner's long-term,
senior unsecured debt as follows:
<TABLE>
<CAPTION>
Below either
BBB- or Baa3
Ratings: or less than
S&P/Moody's A-/A3 BBB+/Baa1 BBB/Baa2 BBB-/Baa3 two ratings
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Alternate Base Rate 0 0 0 0 25
Margin
- ----------------------------------------------------------------------------------------------------------------------
LIBOR Margin 70 80 90 100 125
- ----------------------------------------------------------------------------------------------------------------------
Facility Fee Rate 15 15 15 15 25
======================================================================================================================
</TABLE>
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<PAGE> 25
All margins and fees are in basis points per annum, and change as and
when the rating classification changes.
If the Borrower has two credit ratings at different levels, the lower of
the two credit ratings shall be used. If the Borrower has more than two credit
ratings from rating agencies satisfactory to the Administrative Agent, and the
ratings are not equivalent, then the margins and fee rates will be determined by
the lower of the two highest ratings, provided each of the two highest ratings
are Investment Grade, and at least one of the ratings shall be Investment Grade
from Moody's or S&P. "Investment Grade" shall mean a credit rating of BBB- or
above from S&P, Baa3 or above from Moody's or an equivalent rating from another
rating agency.
In the event that both S&P or Moody's shall cease to follow the REIT
industry, an alternate agency will be selected that is mutually acceptable to
the Required Lenders and the Borrower.
II.7 Facility Fee. The Borrower agrees to pay to the Administrative
Agent for the account of each Lender a facility fee (the "Facility Fee")
calculated on a daily basis beginning on the Agreement Execution Date and each
day thereafter while the Aggregate Commitments are in effect equal to the
applicable per annum Facility Fee Rate in effect for such day, as shown in
Section 2.6 hereof, converted to a per diem rate, times the then Aggregate
Commitment. The Facility Fee shall be shared among the Lenders based on their
respective Percentages and shall be paid quarterly in arrears on the last
Business Day of each calendar quarter.
II.8 Other Fees. The Borrower shall pay the fee due to the
Administrative Agent in connection with Competitive Bid Loans as described in
Section 2.16. The Borrower agrees to pay all other fees payable to the
Administrative Agent and the Arrangers pursuant to the Borrower's prior letter
agreements with them.
II.9 Minimum Amount. Each ratable LIBOR Advance shall be in the minimum
amount of $2,000,000 (and in multiples of $100,000 if in excess thereof).
II.10 Interest.
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(a The outstanding principal balance under the Notes shall bear
interest from time to time at a rate per annum equal to:
(i0 the Adjusted Alternate Base Rate; or
(ii0 at the election of Borrower with respect to
all or portions of the Obligations, the Adjusted LIBOR Rate.
The outstanding principal balance under the Competitive Bid Notes shall bear
interest from time to time at a rate per annum determined pursuant to Section
2.16 hereof equal to:
(i) the Absolute Rate; or
(ii) the Adjusted LIBOR Rate (using the
Competitive LIBOR Margin).
(b All interest shall be calculated for actual days elapsed on
the basis of a 360-day year. Interest accrued on each Adjusted Alternate Base
Rate Advance and Swingline Loan shall be payable in arrears from time to time on
each of (i) the first day of each calendar month, (ii) the Maturity Date, and
(iii) any other date on which such Advance or Swingline Loan is repaid. Interest
accrued on each LIBOR Advance shall be payable in arrears from time to time on
each of (i) the last day of the applicable LIBOR Interest Period, (ii) the last
day of the third month of any LIBOR Interest Period in excess of three months,
(iii) the Maturity Date, and (iv) any other date on which such Advance is
repaid. Interest shall not be payable for the day of any payment on the amount
paid if payment is received by Administrative Agent prior to noon (Chicago
time). If any payment of principal or interest under the Notes or the
Competitive Bid Notes shall become due on a day that is not a Business Day, such
payment shall be made on the next succeeding Business Day and, in the case of a
payment of principal, such extension of time shall be included in computing
interest due in connection with such payment; provided that (i) such extension
shall not result in any double-counting of interest on such payment and (ii) for
purposes of Section 10.1 hereof, any payments of principal described in this
sentence shall be considered to be "due" on such next succeeding Business Day.
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II.11 Selection of Rate Options and LIBOR Interest Periods.
(a Borrower, from time to time, may select the Rate Option and,
in the case of each LIBOR Advance, the commencement date (which shall be a
Business Day) and the length of the LIBOR Interest Period applicable to each
LIBOR Advance. Borrower shall give Administrative Agent irrevocable notice (a
"Borrowing Notice" not later than (i) 11:00 a.m. (Chicago time) at least one
Business Day prior to an Adjusted Alternate Base Rate Advance, (ii) 11:00 a.m.
(Chicago time) at least three (3) Business Days prior to a ratable LIBOR
Advance, and (iii) not later than 11:00 a.m. (Chicago time) on the Borrowing
Date for each Swingline Loan, specifying:
(i) the Borrowing Date, which shall be a
Business Day, of such Advance,
(ii) the aggregate amount of such Advance,
(iii) the Rate Options selected, and
(iv) in the case of each LIBOR Advance, the
LIBOR Interest Period applicable thereto.
The Borrower shall also comply with the conditions set forth in the
last grammatical paragraph of Section 5.1 for such Advance. Administrative Agent
shall provide each Lender by facsimile with a copy of each Borrowing Notice and
each Conversion/Continuation Notice on the same Business Day it is received.
Unless otherwise requested in writing by Borrower prior to such date, with
respect to each such Reimbursement Obligation, the Borrower hereby irrevocably
requests an Adjusted Alternate Base Rate Advance on each Business Day on which
Reimbursement Obligations are due, in the amount of such Reimbursement
Obligations and the Administrative Agent shall give the Lenders notice of each
such requested Advance in the same manner as other Adjusted Alternate Base Rate
Advances.
Not later than noon (Chicago time) on each Borrowing Date, each Lender
shall make available its Loan or Loans, in funds immediately available in
Chicago to the Administrative Agent. Administrative Agent will promptly make the
funds so received from the Lenders available to the Borrower.
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(b Administrative Agent shall, as soon as practicable after
receipt of a Borrowing Notice requesting a LIBOR Advance, determine the Adjusted
LIBOR Rate applicable to the requested ratable LIBOR Advance and inform Borrower
and Lenders of the same. Each determination of the Adjusted LIBOR Rate by
Administrative Agent shall be conclusive and binding upon Borrower in the
absence of manifest error.
(c If Borrower shall prepay a LIBOR Advance other than on the
last day of the LIBOR Interest Period applicable thereto, Borrower shall be
responsible to pay all amounts due to Lenders as required by Section 4.4 hereof.
The Lenders shall not be obligated to match fund their LIBOR Advances.
(d As of the end of each LIBOR Interest Period selected for a
LIBOR Advance, such LIBOR Advance will become an Adjusted Alternate Base Rate
Advance, unless Borrower has once again selected a LIBOR Interest Period in
accordance with the timing and procedures set forth in Section 2.11(g).
(e The right of Borrower to select the Adjusted LIBOR Rate
for an Advance pursuant to this Agreement is subject to the availability to
Lenders of a similar option as described in Section 4.2 below.
(f In no event may Borrower elect a LIBOR Interest Period
which would extend beyond the scheduled Maturity Date. Unless the Required
Lenders agree thereto, in no event may Borrower have more than five (5)
different LIBOR Interest Periods for ratable LIBOR Advances outstanding at any
one time.
(g Conversion and Continuation.
(i0 Borrower may elect from time to time,
subject to the other provisions of this Section 2.11, to
convert all or any part of a ratable Advance into any other
type of Advance; provided that any conversion of a ratable
LIBOR Advance shall be made on, and only on, the last day of
the LIBOR Interest Period applicable thereto.
(ii0 Adjusted Alternate Base Rate Advances
shall continue as Adjusted Alternate Base Rate Advances
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unless and until such Adjusted Alternate Base Rate Advances
are converted into ratable LIBOR Advances pursuant to a
Conversion/Continuation Notice from Borrower in accordance
with Section 2.11(g)(iv). LIBOR Advances shall continue until
the end of the then applicable LIBOR Interest Period therefor,
at which time each such Advance shall be automatically
converted into an Adjusted Alternate Base Rate Advance unless
the Borrower shall have given the Administrative Agent a
Conversion/Continuation Notice in accordance with Section
2.11(g)(iv) requesting that, at the end of such LIBOR Interest
Period, such Advance continue as an Advance of such type for
the same or another LIBOR Interest Period.
(iii0 Notwithstanding anything to the contrary
contained in Sections 2.11(g)(i) or (g)(ii), no Advance may be
converted into a LIBOR Advance or continued as a LIBOR Advance
(except with the consent of the Required Lenders) when any
Monetary Default or Event of Default has occurred and is
continuing.
(iv0 The Borrower shall give the Administrative
Agent irrevocable notice (a "Conversion/Continuation Notice")
of each conversion of an Advance or continuation of a LIBOR
Advance not later than 11:00 a.m. (Chicago time) on the
Business Day immediately preceding the date of the requested
conversion, in the case of a conversion into an Adjusted
Alternate Base Rate Advance, or 11:00 a.m. (Chicago time) at
least three (3) Business Days prior to the date of the
requested conversion or continuation, in the case of a
conversion into or continuation of a ratable LIBOR Advance,
specifying: (1) the requested date (which shall be a Business
Day) of such conversion or continuation; (2) the amount and
type of the Advance to be converted or continued; and (3) the
amounts and type(s) of Advance(s) into which such Advance is
to be converted or continued and, in the case of a conversion
into or continuation of a ratable LIBOR Advance, the duration
of the LIBOR Interest Period applicable thereto.
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II.12 Method of Payment. All payments of the Obligations hereunder
shall be made, without set-off, deduction, or counterclaim, in immediately
available funds to Administrative Agent at Administrative Agent's address
specified herein, or at any other Lending Installation of Administrative Agent
specified in writing by Administrative Agent to Borrower and each Lender, by
noon (local time) on the date when due and shall be applied ratably by
Administrative Agent among Lenders (except, as applicable, with respect to the
Swingline Loans and the Competitive Bid Loans). Each payment delivered to
Administrative Agent for the account of any Lender by the time of day specified
herein shall be delivered on the same Business Day by Administrative Agent to
such Lender in the same type of funds that Administrative Agent received at its
address specified herein or at any Lending Installation specified in a notice
received by Administrative Agent from such Lender. All payments received by the
Administrative Agent from the Borrower for the account of the Lenders shall be
disbursed to the applicable Lenders no later than the next Business Day
following the day such payment is received in good funds by the Administrative
Agent. If payments received by the Administrative Agent from the Borrower are
not disbursed to the applicable Lenders the same day as they are received, such
funds shall be invested overnight by the Administrative Agent and each Lender
will receive its Percentage of any interest so earned. The Lenders acknowledge
that the Administrative Agent does not guarantee any particular level of return
on the overnight funds and that the Administrative Agent will invest such funds
as it deems prudent from time to time. Administrative Agent is hereby authorized
to charge the account, if any, of Borrower maintained with First Chicago for
each payment of principal, interest and fees as it becomes due hereunder.
II.13 Default. Notwithstanding the foregoing, during the continuance of
a Monetary Default or an Event of Default, Borrower shall not have the right to
request a LIBOR Advance, request a Competitive Bid Loan, select a new LIBOR
Interest Period for an existing ratable LIBOR Advance or convert any Adjusted
Alternate Base Rate Advance to a ratable LIBOR Advance. During the continuance
of a Monetary Default or an Event of Default, without notice in the case of an
Event of Default under Section 10.10 hereof or at the election of the Required
Lenders by notice to Borrower in all other cases, all outstanding Advances shall
bear interest at the applicable Default Rates
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<PAGE> 31
until such Monetary Default or Event of Default ceases to exist or the
Obligations are paid in full.
II.14 Lending Installations. Each Lender may book its Advances at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time, provided that such change does not impose any
material additional financial obligation on the Borrower. All terms of this
Agreement shall apply to any such Lending Installation and the Notes shall be
deemed held by each Lender for the benefit of such Lending Installation. Each
Lender may, by written notice to the Administrative Agent and Borrower,
designate a Lending Installation through which Advances will be made by it and
for whose account payments are to be made.
II.15 Non-Receipt of Funds by Administrative Agent. Unless Borrower or
a Lender, as the case may be, notifies Administrative Agent prior to the date on
which it is scheduled to make payment to Administrative Agent of (i) in the case
of a Lender, an Advance, or (ii) in the case of Borrower, a payment of
principal, interest or fees to the Administrative Agent for the account of the
Lenders, that it does not intend to make such payment, Administrative Agent may
assume that such payment has been made. Administrative Agent may, but shall not
be obligated to, make the amount of such payment available to the intended
recipient in reliance upon such assumption. If such Lender or Borrower, as the
case may be, has not in fact made such payment to Administrative Agent, the
recipient of such payment shall, on demand by Administrative Agent, repay to
Administrative Agent the amount so made available together with interest thereon
in respect of each day during the period commencing on the date such amount was
so made available by Administrative Agent until the date Administrative Agent
recovers such amount at a rate per annum equal to (i) in the case of payment by
a Lender, the Federal Funds Effective Rate (as determined by Administrative
Agent) for such day or (ii) in the case of payment by Borrower, the interest
rate applicable to the relevant Advance.
2.16 Competitive Bid Loans.
(a) Competitive Bid Option. In addition to ratable Advances
pursuant to Section 2.5, but subject to the terms and conditions of this
Agreement (including, without limitation the limitation set forth in Section
2.1(a) as to the maximum
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<PAGE> 32
Allocated Facility Amount), the Borrower may, as set forth in this Section 2.16,
but only during a Rating Period, request the Lenders, prior to the Maturity
Date, to make offers to make Competitive Bid Loans to the Borrower. Each Lender
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 2.16. Competitive Bid Loans shall be evidenced by the Competitive
Bid Notes. To the extent so provided in any accepted Competitive Bid Quote,
Competitive Bid Loans may not be prepaid without the prior written consent of
the holder thereof.
(b) Competitive Bid Quote Request. When the Borrower wishes to
request offers to make Competitive Bid Loans under this Section 2.16, it shall
transmit to the Administrative Agent by telecopy a Competitive Bid Quote Request
substantially in the form of Exhibit C-1 hereto so as to be received no later
than (i) 10:00 a.m. (Chicago time) at least five Business Days prior to the
Borrowing Date proposed therein, in the case of a request for a Competitive
LIBOR Margin, or (ii) 9:00 a.m. (Chicago time) at least one Business Day prior
to the Borrowing Date proposed therein, in the case of a request for an Absolute
Rate, specifying:
(i0 the proposed Borrowing Date for the
proposed Competitive Bid Loan,
(ii0 the requested aggregate principal amount
of such Competitive Bid Loan, which shall not be less than
$5,000,000 and which shall be an integral multiple of
$1,000,000,
(iii0 whether the Competitive Bid Quotes
requested are to set forth a Competitive LIBOR Margin or an
Absolute Rate, or both, and
(iv0 the LIBOR Interest Period, if a
Competitive LIBOR Margin is requested, or the Absolute
Interest Period, if an Absolute Rate is requested.
The Borrower may request offers to make Competitive Bid Loans for more than one
Interest Period (but not more than five Interest Periods) in a single
Competitive Bid Quote Request. No Competitive Bid Quote Request shall be given
within five Business
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Days (or such other number of days as the Borrower and the Administrative Agent
may agree) of any other conforming Competitive Bid Quote Request. A Competitive
Bid Quote Request that does not conform substantially to the form of Exhibit C-1
hereto shall be rejected, and the Administrative Agent shall promptly notify the
Borrower of such rejection by telecopy.
(c Invitation for Competitive Bid Quotes. Promptly and in any
event before the close of business on the same Business Day of receipt of a
Competitive Bid Quote Request that is not rejected pursuant to Section 2.16(b),
the Administrative Agent shall send to each of the Lenders by telecopy an
Invitation for Competitive Bid Quotes substantially in the form of Exhibit C-2
hereto, which shall constitute an invitation by the Borrower to each Lender to
submit Competitive Bid Quotes offering to make the Competitive Bid Loans to
which such Competitive Bid Quote Request relates in accordance with this Section
2.16.
(d Submission and Contents of Competitive Bid Quotes.
(i0 Each Lender may, in its sole discretion,
submit a Competitive Bid Quote containing an offer or offers
to make Competitive Bid Loans in response to any Invitation
for Competitive Bid Quotes. Each Competitive Bid Quote must
comply with the requirements of this Section 2.16(d) and must
be submitted to the Administrative Agent by telex or telecopy
at its offices not later than (a) 2:00 p.m. (Chicago time) at
least four Business Days prior to the proposed Borrowing Date,
in the case of a request for a Competitive LIBOR Margin or (b)
9:00 a.m. (Chicago time) on the proposed Borrowing Date, in
the case of a request for an Absolute Rate (or, in either case
upon reasonable prior notice to the Lenders, such other time
and date as the Borrower and the Administrative Agent may
agree); provided that Competitive Bid Quotes submitted by
First Chicago may only be submitted if the Administrative
Agent or First Chicago notifies the Borrower of the terms of
the offer or offers contained therein no later than 30 minutes
prior to the latest time at which the relevant Competitive Bid
Quotes must be submitted by the other Lenders. Subject to the
Borrower's compliance with all other conditions to
disbursement herein, any Competitive Bid Quote so made
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<PAGE> 34
shall be irrevocable except with the written consent of the
Administrative Agent, which consent shall only be given on the
instructions of the Borrower.
(ii0 Each Competitive Bid Quote shall be in
substantially the form of Exhibit C-3 hereto and shall in any
case specify:
(a) the proposed Borrowing Date,
which shall be the same as that set forth in the
applicable Invitation for Competitive Bid Quotes,
(b) the principal amount of the
Competitive Bid Loan for which each such offer is
being made, which principal amount (1) may be greater
than, less than or equal to the Commitment of the
quoting Lender, (2) must be at least $5,000,000 and
an integral multiple of $1,000,000, and (3) may not
exceed the principal amount of Competitive Bid Loans
for which offers are requested,
(c) as applicable, the Competitive
LIBOR Margin and Absolute Rate offered for each such
Competitive Bid Loan,
(d) the minimum amount, if any, of
the Competitive Bid Loan which may be accepted by the
Borrower,
(e) the identity of the quoting
Lender, provided that such Competitive Bid Loan may
be funded by such Lender's Designated Lender as
provided in Section 2.16(j), regardless of whether
that is specified in the Competitive Bid Quote, and
(f) whether or not such Competitive
Bid Loan may be prepaid prior to the last day of the
applicable Interest Period.
(iii0 The Administrative Agent shall
reject any Competitive Bid Quote that:
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(a) is not substantially in the form
of Exhibit C-3 hereto or does not specify all of the
information required by Section 2.16(d)(ii),
(b) contains qualifying, conditional
or similar language, other than any such language
contained in Exhibit C-3 hereto (including the
requirement as to minimum amounts),
(c) proposes terms other than or in
addition to those set forth in the applicable
Invitation for Competitive Bid Quotes, or
(d) arrives after the time set forth
in Section 2.16(d)(i).
If any Competitive Bid Quote shall be rejected pursuant to
this Section 2.16(d)(iii), then the Administrative Agent shall
notify the relevant Lender of such rejection as soon as
practical.
(e Notice to Borrower. The Administrative Agent shall
promptly notify the Borrower of the terms (i) of any Competitive Bid Quote
submitted by a Lender that is in accordance with Section 2.16(d) and (ii) of any
Competitive Bid Quote that amends, modifies or is otherwise inconsistent with a
previous Competitive Bid Quote submitted by such Lender with respect to the same
Competitive Bid Quote Request. Any such subsequent Competitive Bid Quote shall
be disregarded by the Administrative Agent unless such subsequent Competitive
Bid Quote specifically states that it is submitted solely to correct a manifest
error in such former Competitive Bid Quote. The Administrative Agent's notice to
the Borrower shall specify the aggregate principal amount of Competitive Bid
Loans for which offers have been received for each Interest Period specified in
the related Competitive Bid Quote Request and the respective principal amounts
and Competitive LIBOR Margins or Absolute Rate, as the case may be, so offered
and, if applicable, restrictions on prepayment and minimums on the aggregate
principal amounts of any offer for a Competitive Bid Loan which may be accepted.
(f) Acceptance and Notice by Borrower. Not later than (i) 6:00
p.m. (Chicago time) at least four Business Days prior to the proposed Borrowing
Date in the case of a request for a
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<PAGE> 36
Competitive LIBOR Margin or (ii) 10:00 a.m. (Chicago time) on the proposed
Borrowing Date, in the case of a request for an Absolute Rate (or, in either
case upon reasonable prior notice to the Lenders, such other time and date as
the Borrower and the Administrative Agent may agree), the Borrower shall notify
the Administrative Agent of its acceptance or rejection of the offers so
notified to it pursuant to Section 2.16(e); provided, however, that the failure
by the Borrower to give such notice to the Administrative Agent shall be deemed
to be a rejection of all such offers. In the case of acceptance, such notice (a
"Competitive Bid Borrowing Notice") shall specify the aggregate principal amount
of offers for each Interest Period that are accepted. The Borrower may accept
any Competitive Bid Quote in whole or in part; provided that:
(i) the aggregate principal amount of all
Competitive Bid Loans to be disbursed on a given Borrowing
Date may not exceed the applicable amount set forth in the
related Competitive Bid Quote Request,
(ii) acceptance of offers may only be made on
the basis of ascending Competitive LIBOR Margins or Absolute
Rates, as the case may be, and
(iii) the Borrower may not accept any offer that
is described in Section 2.16(d)(iii) or that otherwise fails
to comply with the requirements of this Agreement.
(g) Allocation by Administrative Agent. If offers are made by
two or more Lenders with the same Competitive LIBOR Margins or Absolute Rates,
as the case may be, 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 Competitive Bid Loans in respect of which such offers are
accepted shall be allocated by the Administrative Agent among such Lenders as
nearly as possible (in such multiples, not greater than $1,000,000, as the
Administrative Agent may deem appropriate) in proportion to the aggregate
principal amount of such offers provided, however, that no Lender shall be
allocated any Competitive Bid Loan which is less than the minimum amount which
such Lender has indicated that it is willing to accept. Allocations by the
Administrative Agent of the amounts of Competitive Bid Loans shall be conclusive
in the
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absence of manifest error. The Administrative Agent shall promptly, but in any
event on the same Business Day, notify each Lender of its receipt of a
Competitive Bid Borrowing Notice, the principal amounts of the Competitive Bid
Loans allocated to each participating Lender and the interest rates applicable
to such Competitive Bid Loans.
(h) Administration Fee. The Borrower hereby agrees to pay to
the Administrative Agent an administration fee of $1,000 per each Competitive
Bid Quote Request transmitted by the Borrower to the Administrative Agent
pursuant to Section 2.16(b). Such administration fee shall be payable monthly in
arrears on the first Business Day of each month and on the Maturity Date (or
such earlier date on which the Aggregate Commitment shall terminate or be
cancelled) for any period then ending for which such fee, if any, shall not have
been theretofore paid.
(i) Other Terms. Any Competitive Bid Loan shall not reduce the
Commitment of the Competitive Bid Lender making such Competitive Bid Loan
(except as the availability of other Advances is reduced by the increase in the
Allocated Facility Amount due to such Competitive Bid Loan), and each such
Competitive Bid Lender shall continue to be obligated to fund its full
percentage of all pro rata Advances under the Facility up to such Lender's
Commitment. In no event can the aggregate amount of all Competitive Bid Loans at
any time exceed 50% of the then Aggregate Commitment. Competitive Bid Loans may
not be continued and, if not repaid at the end of the Interest Period applicable
thereto, subject to the notice and cure provisions in the following sentence,
shall (subject to the conditions to Advances set forth in this Agreement) be
replaced by new Competitive Bid Loans made in accordance with this Section 2.16
or by ratable Advances in accordance with Section 2.11. If the Borrower fails to
repay a Competitive Bid Loan at the end of the Interest Period applicable
thereto, such Competitive Bid Loan shall bear interest at the Default Rate
thereafter until repaid, the Borrower shall pay a late payment fee of $500 each
to the applicable Competitive Bid Lender or Lenders and the Administrative Agent
and the Borrower's failure to repay such Competitive Bid Loan within three (3)
Business Days after written demand for payment given by the applicable
Competitive Bid Lender or Lenders making such Competitive Bid Loan shall be an
Event of Default.
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(j) Designated Lenders. A Lender may designate its Designated
Lender to fund a Competitive Bid Loan on its behalf as described in Section
2.16(d)(ii)(e). Any Designated Lender which funds a Competitive Bid Loan shall
on and after the time of such funding become the obligee under such Competitive
Bid Loan and be entitled to receive payment thereof when due. No Lender shall be
relieved of its obligation to fund a Competitive Bid Loan, and no Designated
Lender shall assume such obligation, prior to the time such Competitive Bid Loan
is funded.
II.17 Swingline Loans. In addition to the other options available to
Borrower hereunder, up to $20,000,000 of the Swingline Commitment, shall be
available for Swingline Loans subject to the following terms and conditions.
Swingline Loans shall be made available for same day borrowings provided that
notice is given in accordance with Section 2.11(a) hereof. All Swingline Loans
shall bear interest at the Adjusted Alternate Base Rate and shall be deemed to
be Adjusted Alternate Base Rate Advances. In no event shall the Swingline Lender
be required to fund a Swingline Loan if it would increase the total aggregate
outstanding Loans (other than Competitive Bid Loans) by Swingline Lender
hereunder plus its Percentage of Facility Letter of Credit Obligations to an
amount in excess of its Commitment. Upon request of the Swingline Lender made to
all the Lenders, each Lender irrevocably agrees to purchase its Percentage of
any Swingline Loan made by the Swingline Lender regardless of whether the
conditions for disbursement are satisfied at the time of such purchase,
including the existence of an Event of Default hereunder provided that (i) no
Lender shall be required to have total outstanding Loans (other than Competitive
Bid Loans) plus its Percentage of Facility Letters of Credit to be in an amount
greater than its Commitment and (ii) no Lender shall be required to purchase its
Percentage of any Swingline Loan made by the Swingline Lender if the Swingline
Lender had actual knowledge that an Event of Default had occurred and was
continuing at the time such Swingline Loan was disbursed. Such purchase shall
take place on the date of the request by Swingline Lender so long as such
request is made by noon (Chicago time), otherwise on the Business Day following
such request. All requests for purchase shall be in writing. From and after the
date it is so purchased, each such Swingline Loan shall, to the extent
purchased, (i) be treated as a Loan made by the purchasing Lenders and not by
the selling Lender for all purposes under this Agreement and the payment of the
purchase price by a Lender shall be deemed to be
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the making of an Adjusted Alternate Base Rate Loan by such Lender and shall
constitute outstanding principal under such Lender's Note, and (ii) shall no
longer be considered a Swingline Loan except that all interest accruing on or
attributable to such Swingline Loan for the period prior to the date of such
purchase shall be paid when due by the Borrower to the Administrative Agent for
the benefit of the Swingline Lender and all such amounts accruing on or
attributable to such Loans for the period from and after the date of such
purchase shall be paid when due by the Borrower to the Administrative Agent for
the benefit of the purchasing Lenders. If prior to purchasing its Percentage of
a Swingline Loan one of the events described in Section 10.10 shall have
occurred and such event prevents the consummation of the purchase contemplated
by preceding provisions, each Lender will purchase an undivided participating
interest in the outstanding Swingline Loan in an amount equal to its Percentage
of such Swingline Loan. From and after the date of each Lender's purchase of its
participating interest in a Swingline Loan, if the Swingline Lender receives any
payment on account thereof, the Swingline Lender will distribute to such Lender
its participating interest in such amount (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which such Lender's
participating interest was outstanding and funded); provided, however, that in
the event that such payment was received by the Swingline Lender and is required
to be returned to the Borrower, each Lender will return to the Swingline Lender
any portion thereof previously distributed by the Swingline Lender to it. If any
Lender fails to so purchase its Percentage of any Swingline Loan, such Lender
shall be deemed to be a Defaulting Lender hereunder. No Swingline Loan shall be
outstanding for more than five (5) days at a time. If any Swingline Loan is not
repaid by the Borrower by such fifth day, the Swingline Lender shall cause the
other Lenders to purchase their respective Percentages of such Swingline Loan as
described above.
II.18 Increase in Aggregate Commitment. The Borrower may increase the
Aggregate Commitment from time to time up to $250,000,000 by agreement with
existing Lenders or new banks which when approved by the Administrative Agent
will become Lenders to provide all or a portion of such increase, with such
upfront fees and arrangement fees as may then be mutually agreed upon between
the Borrower, the Administrative Agent and the Lenders providing such increase.
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II.19 Application of Moneys Received. All moneys collected or received
by the Administrative Agent on account of the Facility directly or indirectly,
shall be applied in the following order of priority:
(i) to the payment of all reasonable costs
incurred in the collection of such moneys of which the
Administrative Agent shall have given notice to the Borrower;
(ii) to the reimbursement of any amounts due to
any of the Lenders in accordance with Article IV;
(iii) first to the payment of any fee due
pursuant to Section 3.8(b) in connection with the issuance of
a Facility Letter of Credit to the Issuing Bank until such fee
is paid in full, then next to the payment of the Facility Fee
and Facility Letter of Credit Fee to the Lenders, if then due,
in that order on a pro rata basis in accordance with the
respective amounts of such fees due to the Lenders and then
finally to the payment of all fees then due to the
Administrative Agent in its capacity as Administrative Agent
and not as a Lender;
(iv) to payment of the full amount of interest
and principal on the Swingline Loans;
(v) first to interest until paid in full and
then to principal for all Lenders (other than Defaulting
Lenders) (i) as allocated by the Borrower (unless an Event of
Default exists) between Competitive Bid Loans and ratable
Advances (the amount allocated to ratable Advances to be
distributed in accordance with the Percentages of the Lenders)
or (ii) if an Event of Default exists, in accordance with the
respective Funded Percentages of the Lenders;
(vi) any other sums due to the Administrative
Agent or any Lender under any of the Loan Documents; and
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(vii) to the payment of any sums due to each
Defaulting Lender as their respective Percentages appear
(provided that Administrative Agent shall have the right to
set-off against such sums any amounts due from such Defaulting
Lender).
II.20 Voluntary Reduction of Aggregate Commitment Amount. Upon at least
five (5) Business Days' prior irrevocable written notice (or telephonic notice
promptly confirmed in writing) to the Administrative Agent, Borrower shall have
the right, without premium or penalty, to permanently reduce the Aggregate
Commitment provided that (a) Borrower may not reduce the Aggregate Commitment
below the Allocated Facility Amount at the time of such requested reduction, (b)
any such partial reduction shall be in the minimum aggregate amount of Five
Million Dollars (U.S. $5,000,000) or any integral multiple of Five Million
Dollars (U.S. $5,000,000) in excess thereof, and (c) Borrower may not reduce the
Aggregate Commitment to an amount less than Fifty Million Dollars (U.S.
$50,000,000). Any reduction of the Aggregate Commitment shall be applied pro
rata to each Lender's Commitment.
ARTICLE III
THE LETTER OF CREDIT SUBFACILITY
III.1 Obligation to Issue. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of the
Borrower and the Guarantors herein set forth, the Issuing Bank hereby agrees to
issue for the account of Borrower, one or more Facility Letters of Credit in
accordance with this Article III, from time to time during the period commencing
on the Agreement Execution Date and ending on a date five (5) Business Days
prior to the scheduled Maturity Date.
III.2 Types and Amounts. The Issuing Bank shall not have any obligation
to:
(i) issue any Facility Letter of Credit if the
aggregate maximum amount then available for drawing under
Letters of Credit issued by such Issuing Bank, after giving
effect to the Facility Letter of Credit
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requested hereunder, shall exceed any limit imposed by law or
regulation upon such Issuing Bank;
(ii) issue any Facility Letter of Credit if,
after giving effect thereto, either (1) the then applicable
Allocated Facility Amount would exceed the then current
Aggregate Commitment, or (2) the Facility Letter of Credit
Obligations would exceed $10,000,000;
(iii) issue any Facility Letter of Credit having
an expiration date, or containing automatic extension
provision to extend such date, to a date which is after the
fifth (5th) Business Day immediately preceding the scheduled
Maturity Date; or
(iv) issue any Facility Letter of Credit having
an expiration date, or containing automatic extension
provisions to extend such date, to a date which is more than
twelve (12) months after the date of its issuance.
III.3 Conditions. In addition to being subject to the satisfaction of
the conditions contained in Article V hereof, the obligation of the Issuing Bank
to issue any Facility Letter of Credit is subject to the satisfaction in full of
the following conditions:
(i) the Borrower shall have delivered to the Issuing Bank at
such times and in such manner as the Issuing Bank may reasonably
prescribe such documents and materials as may be reasonably required
pursuant to the terms of the proposed Facility Letter of Credit (it
being understood that if any inconsistency exists between such
documents and the Loan Documents, the terms of the Loan Documents shall
control) and the proposed Facility Letter of Credit shall be reasonably
satisfactory to the Issuing Bank as to form and content;
(ii) as of the date of issuance, no order, judgment or decree
of any court, arbitrator or governmental authority shall purport by its
terms to enjoin or restrain the Issuing Bank from issuing the requested
Facility Letter of Credit and no law, rule or regulation applicable to
the Issuing Bank and no request or directive (whether or not having the
force of law) from any governmental authority with
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jurisdiction over the Issuing Bank shall prohibit or request that the
Issuing Bank refrain from the issuance of Letters of Credit generally
or the issuance of the requested Facility Letter or Credit in
particular; and
(iii) there shall not exist any Known Default or Event of
Default.
III.4 Procedure for Issuance of Facility Letters of Credit.
(a) Borrower shall give the Issuing Bank and the
Administrative Agent at least two (2) Business Days' prior written notice of any
requested issuance of a Facility Letter of Credit under this Agreement (a
"Letter of Credit Request"), a copy of which shall be sent immediately to all
Lenders (except that, in lieu of such written notice, the Borrower may give the
Issuing Bank and the Administrative Agent telephonic notice of such request if
confirmed in writing by delivery to the Issuing Bank and the Administrative
Agent (i) by close of business on such day of a telecopy of the written notice
required hereunder which has been signed by an authorized officer and contains
all information required to be contained in such written notice and (ii)
promptly (but in no event later than the requested date of issuance) of the
written notice required hereunder containing the original signature of an
authorized officer); such notice shall specify:
(1) the stated amount of the Facility Letter of Credit requested
(which stated amount shall not be less than $50,000);
(2) the effective date (which day shall be a Business Day) of
issuance of such requested Facility Letter of Credit (the
"Issuance Date");
(3) the date on which such requested Facility Letter of Credit is
to expire;
(4) the purpose for which such Facility Letter of Credit is to be
issued;
(5) the Person who is to be the beneficiary under such Facility
Letter of Credit to be issued; and
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(6) subject to Section 3.2, any special language required to be
included in the Facility Letter of Credit.
At the time such request is made, the Borrower shall also provide the
Administrative Agent and the Issuing Bank with a copy of the form of the
Facility Letter of Credit that the Borrower is requesting be issued. Such
notice, to be effective, must be received by such Issuing Bank and the
Administrative Agent not later than 2:00 p.m. (Chicago time) on the last
Business Day on which notice can be given under this Section 3.4(a).
(b) Subject to the terms and conditions of this Article III
and provided that the applicable conditions set forth in Article V hereof have
been satisfied, the Issuing Bank shall, on the Issuance Date, issue a Facility
Letter of Credit on behalf of the Borrower in accordance with the Letter of
Credit Request and the Issuing Bank's usual and customary business practices
unless the Issuing Bank has actually received (i) written notice from the
Borrower specifically revoking the Letter of Credit Request with respect to such
Facility Letter of Credit, or (ii) written or telephonic notice from the
Administrative Agent stating that the issuance of such Facility Letter of Credit
would violate Section 3.2 or Section 3.3.
(c) The Issuing Bank shall give the Administrative Agent (who
shall promptly notify Lenders) and the Borrower written notice, or telephonic
notice confirmed promptly thereafter in writing, of the issuance of a Facility
Letter of Credit (the "Issuance Notice"), including the information described in
Section 3.4(a).
(d) The Issuing Bank shall not extend or amend any Facility
Letter of Credit (other than pursuant to an automatic extension) unless the
requirements of this Section 3.4 are met as though a new Facility Letter of
Credit was being requested and issued.
III.5 Reimbursement Obligations; Duties of Issuing Bank.
(a) The Issuing Bank shall promptly notify the Borrower and
the Administrative Agent (who shall promptly notify Lenders) of any draw under a
Facility Letter of Credit. Any such draw shall constitute an Adjusted Alternate
Base Rate Advance of the Facility in the amount of the Reimbursement Obligation
with
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respect to such Facility Letter of Credit and shall bear interest at the
Adjusted Alternate Base Rate from the date of the relevant drawing(s) under the
pertinent Facility Letter of Credit unless otherwise selected by Borrower in
accordance with Section 2.11 hereof; provided that if a Monetary Default or an
Event of Default exists at the time of any such drawing(s), then the Borrower
shall reimburse the Issuing Bank for drawings under a Facility Letter of Credit
issued by the Issuing Bank no later than the next succeeding Business Day after
Borrower receives notice of the payment by the Issuing Bank and until repaid
such Reimbursement Obligation shall bear interest at the Default Rate.
(b) Any action taken or omitted to be taken by the Issuing
Bank under or in connection with any Facility Letter of Credit, if taken or
omitted in the absence of willful misconduct or gross negligence, shall not put
the Issuing Bank under any resulting liability to any Lender or, provided that
such Issuing Bank has complied with the procedures specified in Section 3.4
relieve a Lender of its obligations hereunder to the Issuing Bank. In
determining whether to pay under any Facility Letter of Credit, the Issuing Bank
shall have no obligation relative to the Lenders other than to confirm that any
documents required to be delivered under such Letter of Credit appear to have
been delivered in compliance, and that they appear to comply on their face, with
the requirements of such Letter of Credit.
III.6 Participation.
(a) Immediately upon issuance by the Issuing Bank of any
Facility Letter of Credit in accordance with the procedures set forth in Section
3.4, each Lender shall be deemed to have irrevocably and unconditionally
purchased and received from the Issuing Bank, without recourse, representation
or warranty, except as otherwise provided herein, an undivided interest and
participation equal to such Lender's Percentage in such Facility Letter of
Credit (including, without limitation, all obligations of the Borrower with
respect thereto) and all related rights hereunder and under the Guaranty and
other Loan Documents. Each Lender's obligation to make further Loans to Borrower
(other than any payments such Lender is required to make under subparagraph (b)
below) or to purchase an interest from the Issuing Bank in any subsequent
letters of credit issued by the Issuing Bank on behalf of Borrower shall be
reduced by such Lender's Percentage
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of the undrawn portion of each Facility Letter of Credit outstanding.
(b) In the event that the Issuing Bank makes any payment under
any Facility Letter of Credit and the Borrower shall not have repaid such amount
to the Issuing Bank pursuant to Section 3.7 hereof, the Issuing Bank shall
promptly notify the Administrative Agent, which shall promptly notify each
Lender of the same, and each Lender shall promptly and unconditionally pay to
the Administrative Agent for the account of the Issuing Bank the amount of such
Lender's Percentage of the unreimbursed amount of such payment, and the
Administrative Agent shall promptly pay such amount to the Issuing Bank.
Notwithstanding the foregoing, unless Borrower shall notify Administrative Agent
of Borrower's intent to repay the Reimbursement Obligation on the date of the
related drawing under any Facility Letter of Credit, such Reimbursement
Obligation shall simultaneously with such drawing be converted to and become an
Adjusted Alternate Base Rate Advance under Section 2.11. Each Lender's payments
of its Percentage of such Reimbursement Obligation as aforesaid shall be deemed
to be a Loan by such Lender as a part of the Adjusted Alternate Base Rate
Advance into which such Reimbursement Obligation is converted and shall
constitute outstanding principal under such Lender's Note. The failure of any
Lender to make available to the Administrative Agent for the account of the
Issuing Bank its Percentage of the unreimbursed amount of any such payment shall
not relieve any other Lender of its obligation hereunder to make available to
the Administrative Agent for the account of such Issuing Bank its Percentage of
the unreimbursed amount of any payment on the date such payment is to be made,
but no Lender shall be responsible for the failure of any other Lender to make
available to the Administrative Agent its Percentage of the unreimbursed amount
of any payment on the date such payment is to be made. Any Lender which fails to
make any payment required pursuant to this Section 3.6(b) shall be deemed to be
a Defaulting Lender hereunder.
(c) Whenever the Issuing Bank receives a payment on account of
a Reimbursement Obligation, including any interest thereon, the Issuing Bank
shall promptly pay to the Administrative Agent and the Administrative Agent
shall promptly pay to each Lender which has funded its participating interest
therein, in immediately available funds, an amount equal to such Lender's
Percentage thereof.
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(d) Upon the request of the Administrative Agent or any
Lender, the Issuing Bank shall furnish to such Administrative Agent or Lender
copies of any Facility Letter of Credit to which the Issuing Bank is party and
such other documentation as may reasonably be requested by the Administrative
Agent or Lender.
(e) The obligations of a Lender to make payments to the
Administrative Agent for the account of the Issuing Bank with respect to a
Facility Letter of Credit shall be absolute, unconditional and irrevocable, not
subject to any counterclaim, set-off, qualification or exception whatsoever
other than a failure of any such Issuing Bank to comply with the terms of this
Agreement relating to the issuance of such Facility Letter of Credit, and such
payments shall be made in accordance with the terms and conditions of this
Agreement under all circumstances.
III.7 Payment of Reimbursement Obligations.
(a) The Borrower agrees to pay to the Administrative Agent for
the account of the Issuing Bank the amount of all Advances for Reimbursement
Obligations, interest and other amounts payable to the Issuing Bank under or in
connection with any Facility Letter of Credit when due, irrespective of any
claim, set-off, defense or other right which the Borrower may have at any time
against any Issuing Bank or any other Person, under all circumstances, including
without limitation any of the following circumstances:
(i) any lack of validity or enforceability of
this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff,
defense or other right which the Borrower may have at any time
against a beneficiary named in a Facility Letter of Credit or
any transferee of any Facility Letter of Credit (or any Person
for whom any such transferee may be acting), the
Administrative Agent, the Issuing Bank, any Lender, or any
other Person, whether in connection with this Agreement, any
Facility Letter of Credit, the transactions contemplated
herein or any unrelated transactions (including any underlying
transactions between the Borrower and the beneficiary named in
any Facility Letter of Credit);
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(iii) any draft, certificate or any other
document presented under the Facility Letter of Credit proving
to be forged, fraudulent, invalid or insufficient in any
respect of any statement therein being untrue or inaccurate in
any respect;
(iv) the surrender or impairment of any
security for the performance or observance of any of the terms
of any of the Loan Documents; or
(v) the occurrence of any Default or Event of
Default.
(b) In the event any payment by the Borrower received by the
Issuing Bank or the Administrative Agent with respect to a Facility Letter of
Credit and distributed by the Administrative Agent to the Lenders on account of
their participations is thereafter set aside, avoided or recovered from the
Administrative Agent or Issuing Bank in connection with any receivership,
liquidation, reorganization or bankruptcy proceeding, each Lender which received
such distribution shall, upon demand by the Administrative Agent, contribute
such Lender's Percentage of the amount set aside, avoided or recovered together
with interest at the rate required to be paid by the Issuing Bank or the
Administrative Agent upon the amount required to be repaid by the Issuing Bank
or the Administrative Agent.
III.8 Compensation for Facility Letters of Credit.
(a) The Borrower shall pay to the Administrative Agent, for
the ratable account of the Lenders, based upon the Lenders' respective
Percentages, a per annum fee (the "Facility Letter of Credit Fee") with respect
to each Facility Letter of Credit that is equal to the LIBOR Applicable Margin
in effect from time to time. The Facility Letter of Credit Fee relating to any
Facility Letter of Credit shall be due and payable in arrears in equal
installments on the first Business Day of each month following the issuance of
any Facility Letter of Credit and, to the extent any such fees are then due and
unpaid, on the Maturity Date. The Administrative Agent shall promptly remit such
Facility Letter of Credit Fees, when paid, to the other Lenders in accordance
with their Percentages thereof. The Borrower shall not have any liability to any
Lender for the failure of the
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Administrative Agent to promptly deliver funds to any such Lender and shall be
deemed to have made all such payments on the date the respective payment is made
by the Borrower to the Administrative Agent, provided such payment is received
by the time specified in Section 2.12 hereof.
(b) The Issuing Bank also shall have the right to receive
solely for its own account an issuance fee of 0.125% of the face amount of each
Facility Letter of Credit, payable by the Borrower on the Issuance Date for each
such Facility Letter of Credit. The Issuing Bank shall also be entitled to
receive its reasonable out-of-pocket costs and the Issuing Bank's standard
charges of issuing, amending and servicing Facility Letters of Credit and
processing draws thereunder.
III.9 Letter of Credit Collateral Account. The Borrower hereby agrees
that it will, until all of the Obligations are paid and performed in full,
maintain a special collateral account (the "Letter of Credit Collateral
Account") at the Administrative Agent's office at the address specified pursuant
to Article XV, in the name of the Borrower but under the sole dominion and
control of the Administrative Agent, for the benefit of the Lenders, and in
which the Borrower shall have no interest other than as set forth in Section
11.1. In addition to the foregoing, the Borrower hereby grants to the
Administrative Agent, for the benefit of the Lenders, a security interest in and
to the Letter of Credit Collateral Account and any funds that may hereafter be
on deposit in such account, including income earned thereon. The Lenders
acknowledge and agree that the Borrower has no obligation to fund the Letter of
Credit Collateral Account unless and until so required under Section 11.1 hereof
and, if the Borrower does deposit any funds therein prior to being so required,
the Borrower may withdraw such funds so long as no Monetary Default or Event of
Default then exists.
ARTICLE IV
CHANGE IN CIRCUMSTANCES
IV.1 Yield Protection. If after the date hereof the adoption of or
change in any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
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interpretation thereof, or the compliance of any Lender therewith,
(i) subjects any Lender or any applicable
Lending Installation to any tax, duty, charge or withholding
on or from payments due from Borrower (excluding federal and
state taxation of the overall net income of any Lender or
applicable Lending Installation), or changes the basis of such
taxation of payments to any Lender in respect of its Loans or
other amounts due it hereunder, or
(ii) imposes or increases or deems applicable
any reserve, assessment, insurance charge, special deposit or
similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and
assessments taken into account in determining the interest
rate applicable to LIBOR Advances), or
(iii) imposes any other condition, and the
result is to increase the cost of any Lender or any applicable
Lending Installation of making, funding or maintaining loans
or reduces any amount receivable by any Lender or any
applicable Lending Installation in connection with loans, or
requires any Lender or any applicable Lending Installation to
make any payment calculated by reference to the amount of
Loans held, or interest received by it, by an amount deemed
material by such Lender,
then, within fifteen (15) days of demand by such Lender, Borrower shall pay such
Lender that portion of such increased expense incurred or reduction in an amount
received which such Lender determines is attributable to making, funding and
maintaining its Advances and its Commitment.
IV.2 Changes in Capital Adequacy Regulations. If a Lender determines
the amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporate entity controlling such
Lender is increased as a result of a Change (as defined below), then, within
fifteen (15) days of demand by such Lender, Borrower shall
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pay such Lender the amount necessary to compensate for any shortfall in the rate
of return on the portion of such increased capital which such Lender determines
is attributable to this Agreement, its Loans, its interest in the Facility
Letters of Credit, or its obligation to make Advances hereunder or participate
in or issue Facility Letters of Credit hereunder (after taking into account such
Lender's policies as to capital adequacy). "Change" means (i) any change after
the date of this Agreement in the Risk-Based Capital Guidelines (as defined
below) or (ii) any adoption of or change in any other law, governmental or
quasi-governmental rule, regulation, policy, guideline, interpretation, or
directive (whether or not having the force of law) after the date of this
Agreement which affects the amount of capital required or expected to be
maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. "Risk-Based Capital Guidelines" means (i) the risk-based
capital guidelines in effect in the United States on the date of this Agreement,
including transition rules, and (ii) the corresponding capital regulations
promulgated by regulatory authorities outside the United States implementing the
July 1988 report of the Basle Committee on Banking Regulation and Supervisory
Practices Entitled "International Convergence of Capital Measurements and
Capital Standards", including transition rules, and any amendments to such
regulations adopted prior to the date of this Agreement.
IV.3 Availability of LIBOR Advances. If any Lender determines that
maintenance of any of its LIBOR Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation or directive of any Governmental
Authority having jurisdiction, the Administrative Agent shall suspend by written
notice to Borrower the availability of LIBOR Advances and require any LIBOR
Advances to be repaid; or if the Required Lenders determine that (i) deposits of
a type or maturity appropriate to match fund LIBOR Advances are not available,
the Administrative Agent shall suspend by written notice to Borrower the
availability of LIBOR Advances with respect to any LIBOR Advances made after the
date of any such determination, or (ii) an interest rate applicable to a LIBOR
Advance does not accurately reflect the cost of making a LIBOR Advance, and, if
for any reason whatsoever the provisions of Section 4.1 are inapplicable, the
Administrative Agent shall suspend by written notice to Borrower the
availability of LIBOR Advances with
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respect to any LIBOR Advances made after the date of any such determination.
IV.4 Funding Indemnification. If any payment of a ratable LIBOR Advance
or a Competitive Bid Loan occurs on a date which is not the last day of the
applicable Interest Period, whether because of acceleration, prepayment or
otherwise, or a ratable LIBOR Advance or a Competitive Bid Loan is not made on
the date specified by Borrower for any reason other than default by one or more
of the Lenders, Borrower will indemnify each Lender (and each non-defaulting
Lender in the case of a default caused by a Lender) for any loss or cost
incurred by such Lender resulting therefrom, including, without limitation, any
loss or cost in liquidating or employing deposits acquired to fund or maintain
the ratable LIBOR Advance or Competitive Bid, as the case may be.
IV.5 Lender Statements; Survival of Indemnity. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its LIBOR Advances to reduce any liability of Borrower to such Lender
under Sections 4.1 and 4.2 or to avoid the unavailability of a LIBOR Advance, so
long as such designation is not disadvantageous to such Lender. Each Lender
shall deliver a written statement of such Lender as to the amount due, if any,
under Sections 4.1, 4.2 or 4.4 hereof. Such written statement shall set forth in
reasonable detail the calculations upon which such Lender determined such amount
and shall be final, conclusive and binding on Borrower in the absence of
manifest error. Determination of amounts payable under such Sections in
connection with a LIBOR Advance shall be calculated as though each Lender funded
its LIBOR Advance through the purchase of a deposit of the type and maturity
corresponding to the deposit used as a reference in determining the Adjusted
LIBOR Rate applicable to such Advance, whether in fact that is the case or not.
Unless otherwise provided herein, the amount specified in the written statement
shall be payable on demand after receipt by Borrower of the written statement.
The obligations of Borrower under Sections 4.1, 4.2 and 4.4 hereof shall survive
payment of the Obligations and termination of this Agreement for a period of one
year.
IV.6 Limitation on Borrower's Liability. The Borrower shall not be
obligated to compensate any Lender pursuant to Sections 4.1, 4.2 or 4.4 for any
amounts attributable to any period which is more than one year prior to the date
of such
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Lender's written statement under Section 4.5 of its right to compensation under
Sections 4.1, 4.2 or 4.4.
ARTICLE V
CONDITIONS PRECEDENT
V.1 Conditions Precedent to Closing. The Lenders shall not be required
to make the initial Advance hereunder, nor shall the Issuing Bank be required to
issue the initial Facility Letter of Credit hereunder unless (i) the Borrower
shall have paid all fees then due and payable to the Lenders, the Arrangers and
the Administrative Agent hereunder, and (ii) the Borrower shall have furnished
to the Administrative Agent, in form and substance satisfactory to the Lenders
and their counsel and with sufficient copies for the Lenders, the following:
(a) Certificates/Incorporation. A copy of the Certificate of
Limited Partnership for Bradley Operating Limited Partnership and a copy of the
articles of incorporation of Bradley Real Estate, Inc. and Bradley Financing
Corp., each certified by the appropriate Secretary of State or equivalent state
official.
(b) Agreements/Bylaws. A copy of the Agreement of Partnership
for Bradley Financing Partnership, the Agreement of Limited Partnership for
Bradley Operating Limited Partnership and a copy of the bylaws of Bradley
Financing Corp. and Bradley Real Estate, Inc., including all amendments thereto,
each certified by the Secretary or an Assistant Secretary of the applicable
entity (or its general partners) as being in full force and effect on the
Agreement Execution Date.
(c) Good Standing Certificates. A certified copy of a
certificate from the Secretary of State or equivalent state official of the
states where the Borrower, Bradley Financing Corp. and the General Partner are
organized, dated as of the most recent practicable date, showing the good
standing or partnership qualification (if issued) of each of them.
(d) Foreign Qualification Certificates. A certified copy of a
certificate from the Secretary of State or equivalent state official of the
state where the Borrower, Bradley Financing
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Corp. and the General Partner each maintain their principal place of business,
dated as of the most recent practicable date, showing the qualification to
transact business in such state as a foreign limited partnership or foreign
corporation, as the case may be, for each of them.
(e) Resolutions. A copy of a resolution or resolutions and
adopted by the Board of Directors of Bradley Financing Corp. and Bradley Real
Estate, Inc., certified by the Secretary or an Assistant Secretary of Bradley
Financing Corp. and Bradley Real Estate, Inc. as being in full force and effect
on the Agreement Execution Date, authorizing the Advances provided for herein
and the execution, delivery and performance of the Loan Documents by Bradley
Financing Corp. and Bradley Real Estate, Inc. to be executed and delivered by it
hereunder on behalf of itself and Borrower or the Financing Partnership, as the
case may be.
(f) Incumbency Certificate. A certificate, signed by the
Secretary or an Assistant Secretary of Bradley Financing Corp. and Bradley Real
Estate, Inc. and dated the Agreement Execution Date, as to the incumbency, and
containing the specimen signature or signatures, of the Persons authorized to
execute and deliver the Loan Documents to be executed and delivered hereunder.
(g) Loan Documents. Originals of the Loan Documents (in such
quantities as the Lenders may reasonably request), duly executed by authorized
officers of the appropriate entity.
(h) Opinion of Borrower's Counsel. A written opinion, dated
the Agreement Execution Date, from outside counsel for the Borrower which
counsel is reasonably satisfactory to Administrative Agent, substantially in the
form attached hereto as Exhibit E.
(i) Opinion of Guarantors' Counsel. A written opinion, dated
the Agreement Execution Date, from outside counsel for the Guarantors which
counsel is reasonably satisfactory to Administrative Agent, substantially in the
form attached hereto as Exhibit E.
(j) Insurance. Certificates of insurance evidencing that
Borrower, the Guarantors or any Wholly-Owned Subsidiary (as
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applicable) carries insurance on the Unencumbered Assets which satisfies the
Administrative Agent's insurance requirements, including, without limitation:
(i) Property and casualty insurance (including
coverage for flood and other water damage for any Unencumbered
Assets located within a 100-year flood plain) in the amount of
the replacement cost of the improvements at the Unencumbered
Assets;
(ii) Loss of rental income insurance in the
amount not less than one year's Gross Revenues from the
Unencumbered Assets; and
(iii) Comprehensive general liability insurance
in the amount of $1,000,000 per occurrence.
All insurance must be carried by companies with a Best
Insurance Reports (1992) Policyholder's and Financial Size Rating of "A-VII" or
better.
(k) Financial and Related Information. The following
information:
(i) A certificate, signed by an officer of the
General Partner on behalf of the Borrower, stating that on the
Agreement Execution Date no Default or Event of Default has
occurred and is continuing and that all representations and
warranties of the Borrower contained herein are true and
correct as of the Agreement Execution Date as and to the
extent set forth herein;
(ii) The most recent financial statements of
the Consolidated Group and a certificate from the Chief
Financial Officer of Bradley Real Estate, Inc. that no change
in the Consolidated Group's financial condition that would
have a Material Adverse Effect has occurred since the most
recent annual financial statements delivered to the
Administrative Agent prior to the Agreement Execution Date;
(iii) Written money transfer instructions, in
substantially the form of Exhibit F hereto, addressed to the
Administrative Agent and signed by the Borrower,
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together with such other related money transfer authorizations
as the Administrative Agent may have reasonably requested; and
(iv) Evidence of sufficient Unencumbered Assets
to assist the Administrative Agent in determining the
Borrower's compliance with Article IX hereof.
(l) Other Evidence as any Lender May Require. Such other
evidence as any Lender may reasonably request to establish the consummation of
the transactions contemplated hereby, the taking of all necessary actions in any
proceedings in connection herewith and compliance with the conditions set forth
in this Agreement.
(m) Prior Facility. Evidence that the Borrower's prior credit
facility agented by BankBoston has been terminated and that all obligations
thereunder have been repaid in full or such facility will be so terminated and
so repaid upon and from the initial Advance hereunder.
(n) Absence of Defaults. No Known Default or Event of Default
shall have occurred and be continuing under this Agreement or any of the Loan
Documents and, if required by Administrative Agent, Borrower shall deliver a
certificate of Borrower to such effect.
(o) Representations and Warranties. The representations and
warranties contained in Article VI and VII shall be true and correct as of such
Borrowing Date as and to the extent set forth therein.
All subsequent Advances (and issuances of Facility Letters of Credit)
shall be conditioned upon satisfaction of Sections 5.1(n) and (o) hereof.
Subject to the last grammatical paragraphs of Article VI and VII hereof, each
Borrowing Notice, Competitive Bid Quote Request and Conversion/Continuation
Notice shall constitute a representation and warranty by the Borrower that the
conditions contained in Sections 5.1(n) and (o) have been satisfied.
ARTICLE VI
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REPRESENTATIONS AND WARRANTIES
Borrower hereby represents and warrants that:
VI.1 Existence. Borrower is a limited partnership duly organized and
existing under the laws of the State of Delaware, with its principal place of
business in the State of Illinois, and is duly qualified as a foreign limited
partnership, properly licensed (if required), in good standing and has all
requisite authority to conduct its business in each jurisdiction in which it
owns Properties and, except where the failure to be so qualified or to obtain
such authority would not have a Material Adverse Effect, in each other
jurisdiction in which its business is conducted. Each of its Subsidiaries is
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization and has all requisite authority to conduct its
business in each jurisdiction in which it owns Property, except where the
failure or non-compliance by any Subsidiary with any of the foregoing would not
have a Material Adverse Effect.
VI.2 Corporate/Partnership Powers. The execution, delivery and
performance of the Loan Documents required to be delivered by Borrower hereunder
are within the partnership authority of such entity and the corporate powers of
the general partners of such entity, have been duly authorized by all requisite
action, and are not in conflict with the terms of any organizational instruments
of such entity, or any instrument or agreement to which Borrower, Bradley
Financing Corp. or the Financing Partnership is a party or by which Borrower,
Bradley Financing Corp. or the Financing Partnership or any of their respective
assets may be bound or affected.
VI.3 Power of Officers. The officers of the general partner of Borrower
executing the Loan Documents required to be delivered by the Borrower hereunder
have been duly elected or appointed and were fully authorized to execute the
same at the time each such agreement, certificate or instrument was executed.
VI.4 Government and Other Approvals. No approval, consent, exemption or
other action by, or notice to or filing with, any governmental authority (other
than the Securities Exchange
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Commission) is necessary in connection with the execution, delivery or
performance of the Loan Documents required hereunder.
VI.5 Solvency.
(i) Immediately after the Agreement Execution
Date and immediately following the making of each Loan and
after giving effect to the application of the proceeds of such
Loans, (a) the fair value of the assets of the Borrower and
its Subsidiaries on a consolidated basis, at a fair valuation,
will exceed the debts and liabilities, subordinated,
contingent or otherwise, of the Borrower and its Subsidiaries
on a consolidated basis; (b) the present fair saleable value
of the Properties of the Borrower and its Subsidiaries on a
consolidated basis will be greater than the amount that will
be required to pay the probable liability of the Borrower and
its Subsidiaries on a consolidated basis on their debts and
other liabilities, subordinated, contingent or otherwise, as
such debts and other liabilities become absolute and matured;
(c) the Borrower and its Subsidiaries on a consolidated basis
will be able to pay their debts and liabilities, subordinated,
contingent or otherwise, as such debts and liabilities become
absolute and matured; and (d) the Borrower and its
Subsidiaries on a consolidated basis will not have
unreasonably small capital with which to conduct the
businesses in which they are engaged as such businesses are
now conducted and are proposed to be conducted after the date
hereof.
(ii) Borrower does not intend to, or to permit any of
its Subsidiaries (if the same would have a Material Adverse
Effect) to, incur debts beyond its ability to pay such debts
as they mature, taking into account the timing of and amounts
of cash to be received by it or any such Subsidiary and the
timing of the amounts of cash to be payable on or in respect
of its Indebtedness or the Indebtedness of any such
Subsidiary.
VI.6 Compliance With Laws. There is no judgment, decree or order or any
law, rule or regulation of any court or governmental authority binding on
Borrower or any of its Subsidiaries which would be contravened, in any manner
which would have a Material
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Adverse Effect, by the execution, delivery or performance of the Loan Documents
required hereunder.
VI.7 Enforceability of Agreement. This Agreement is the legal, valid
and binding agreement of the Borrower, and the Notes when executed and delivered
will be the legal, valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with their respective terms, and the Loan
Documents required hereunder, when executed and delivered, will be similarly
legal, valid, binding and enforceable except to the extent that such enforcement
may be limited by applicable bankruptcy, insolvency, reorganization or other
similar laws affecting the rights of creditors generally.
VI.8 Title to Property. To the best of Borrower's knowledge after due
inquiry, Borrower, the Guarantors and their respective Subsidiaries (except to
the extent the same would not have a Material Adverse Effect), have good and
marketable title to the Properties and assets reflected in the financial
statements as owned by such party free and clear of Liens except for the
Permitted Liens. The execution, delivery or performance of the Loan Documents
required to be delivered by the Borrower hereunder will not result in the
creation of any Lien on the Properties. No consent to the transactions
contemplated hereunder is required, the failure to obtain which consent would
have a Material Adverse Effect, from any ground lessor or mortgagee or
beneficiary under a deed of trust or any other party except as has been
delivered to the Lenders.
VI.9 Litigation. There are no suits, arbitrations, claims, disputes or
other proceedings (including, without limitation, any civil, criminal,
administrative or environmental proceedings), pending or, to the best of
Borrower's knowledge, threatened against or affecting the Borrower or any of the
Properties, the adverse determination of which individually or in the aggregate
would have a Material Adverse Effect on the Borrower and/or the Properties taken
as a whole and/or would cause a Material Adverse Financial Change, except as
disclosed on Schedule 6.9 hereto, or otherwise disclosed to Lenders in
accordance with the terms hereof.
VI.10 Events of Default. No Known Default or Event of Default has
occurred and is continuing or would result from the
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incurring of obligations by the Borrower under any of the Loan Documents or any
other document to which Borrower is a party.
VI.11 Investment Company Act of 1940. Borrower is not, and will by such
acts as may be necessary continue not to be, an investment company within the
meaning of the Investment Company Act of 1940.
VI.12 Public Utility Holding Company Act. The Borrower is not 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 definitions of the Public Utility Holding Company Act of
1935, as amended.
VI.13 Regulation U. The proceeds of the Advances will not be used,
directly or indirectly, to purchase or carry any Margin Stock or to extend
credit to others for the purpose of purchasing or carrying any Margin Stock.
VI.14 No Material Adverse Financial Change. To the best knowledge of
Borrower, there has been no Material Adverse Financial Change in the condition
of Borrower since the date of the financial and/or operating statements most
recently submitted to the Lenders.
VI.15 Financial Information. All financial statements furnished to the
Lenders by or at the direction of the Borrower and all other financial
information and data furnished by the Borrower to the Lenders are complete and
correct in all material respects as of the date thereof, and such financial
statements have been prepared in accordance with GAAP and fairly present the
consolidated financial condition and results of operations of the Borrower as of
such date. To Borrower's knowledge, the Borrower has no contingent obligations,
liabilities for taxes or other outstanding financial obligations which are
material in the aggregate, except as disclosed in such statements, information
and data.
VI.16 Factual Information. All factual information heretofore or
contemporaneously furnished by or on behalf of the Borrower to the Lenders for
purposes of or in connection with this Agreement and the other Loan Documents
and the transactions contemplated therein is, and all other such factual
information
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hereafter furnished by or on behalf of the Borrower to the Lenders will be, true
and accurate (taken as a whole) in all material respects on the date as of which
such information is dated or certified and not incomplete by omitting to state
any material fact necessary to make such information (taken as a whole) not
misleading at such time.
VI.17 ERISA. (i) Borrower is not an entity deemed to hold "plan assets"
within the meaning of ERISA or any regulations promulgated thereunder of an
employee benefit plan (as defined in Section 3(3) of ERISA) which is subject to
Title I of ERISA or any plan within the meaning of Section 4975 of the Code, and
(ii) to the Borrower's knowledge, the execution of this Agreement and the
transactions contemplated hereunder do not give rise to a prohibited transaction
within the meaning of Section 406 of ERISA or Section 4975 of the Code.
VI.18 Taxes. All required tax returns have been filed by Borrower with
the appropriate authorities except to the extent that extensions of time to file
have been requested, granted and have not expired or except to the extent such
taxes are being contested in good faith and for which adequate reserves, in
accordance with GAAP, are being maintained.
VI.19 Environmental Matters. Except as disclosed in Schedule 6.19, as
the same may be modified by the Borrower from time to time by disclosing such
modifications to the Lenders and, if such modifications could reasonably be
expected to have a Material Adverse Effect, obtaining the Required Lenders'
approval, each of the following representations and warranties is true and
correct except to the extent that the facts and circumstances giving rise to any
such failure to be so true and correct, in the aggregate, could not reasonably
be expected to have a Material Adverse Effect:
(i) To the knowledge of the Borrower, the
Properties of Borrower, its Subsidiaries, and Investment
Affiliates do not contain any Materials of Environmental
Concern in amounts or concentrations which constitute a
violation of, or could reasonably give rise to liability
under, Environmental Laws.
(ii) Borrower has not received any written
notice alleging that any or all of the Properties of
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Borrower and its Subsidiaries and Investment Affiliates and
all operations at the Properties are not in compliance with
all applicable Environmental Laws. Further, Borrower has not
received any written notice alleging the existence of any
contamination at or under such Properties in amounts or
concentrations which constitute a violation of any
Environmental Law, or any violation of any Environmental Law
with respect to such Properties for which Borrower, its
Subsidiaries or Investment Affiliates is or could be liable.
(iii) To the knowledge of Borrower, during the
ownership of the Properties by any or all of Borrower, its
Subsidiaries and Investment Affiliates, Materials of
Environmental Concern have not been transported or disposed of
from the Properties of Borrower and its Subsidiaries and
Investment Affiliates in violation of, or in a manner or to a
location which could reasonably give rise to liability of
Borrower, any Subsidiary, or any Investment Affiliate under,
Environmental Laws, nor during the ownership of the Properties
by any or all of Borrower, its Subsidiaries and Investment
Affiliates have any Materials of Environmental Concern been
generated, treated, stored or disposed of at, on or under any
of such Properties in violation of, or in a manner that could
give rise to liability of Borrower, any Subsidiary or any
Investment Affiliate under, any applicable Environmental Laws.
(iv) No judicial proceedings or governmental or
administrative action is pending, or, to the knowledge of
Borrower, threatened, under any Environmental Law to which
Borrower, any of its Subsidiaries, or any Investment
Affiliate, is named as a party with respect to the Properties
of such entity, nor are there any consent decrees or other
decrees, consent orders, administrative order or other orders,
or other administrative or judicial requirements outstanding
under any Environmental Law with respect to such Properties
for which Borrower, its Subsidiaries, or any Investment
Affiliate is or could be liable.
(v) To the knowledge of Borrower during the
ownership of the Properties by any or all of Borrower,
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its Subsidiaries and Investment Affiliates, there has been no
release or threat of release of Materials of Environmental
Concern at or from the Properties of Borrower and its
Subsidiaries and Investment Affiliates, or arising from or
related to the operations of such entity in connection with
the Properties in violation of or in amounts or in a manner
that could give rise to liability under Environmental Laws.
VI.20 Insurance. Borrower has obtained the insurance which Borrower is
required to furnish to Lenders under Section 5.1(j) hereof.
VI.21 No Brokers. Borrower has dealt with no brokers in connection with
this Facility, and no brokerage fees or commissions are payable by or to any
Person in connection with this Agreement or the Advances. Lenders shall not be
responsible for the payment of any fees or commissions to any broker and
Borrower shall indemnify, defend and hold Lenders harmless from and against any
claims, liabilities, obligations, damages, costs and expenses (including
reasonable attorneys' fees and disbursements) made against or incurred by
Lenders as a result of claims made or actions instituted by any broker or Person
claiming by, through or under Borrower in connection with the Facility.
VI.22 No Violation of Usury Laws. No aspect of any of the transactions
contemplated herein violate or will violate any usury laws or laws regarding the
validity of agreements to pay interest in effect on the date hereof.
VI.23 Not a Foreign Person. Borrower is not a "foreign person" within
the meaning of Section 1445 or 7701 of the Internal Revenue Code.
VI.24 No Trade Name. As of the Agreement Execution Date, the Borrower
does not use any trade name and has not and does not do business under any name
other than their actual names set forth herein. The principal place of business
of Borrower is as stated in the recitals hereto.
VI.25 Subsidiaries. Schedule 6.25 hereto contains an accurate list of
all of the presently existing Subsidiaries of
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Borrower as of the Agreement Execution Date, setting forth their respective
jurisdictions of formation, the percentage of their respective Capital Stock
owned by it or its Subsidiaries and the Properties owned by them. All of the
issued and outstanding shares of Capital Stock of such Subsidiaries have been
duly authorized and issued and are fully paid and non-assessable.
VI.26 Unencumbered Assets. Schedule 6.26 hereto contains a complete and
accurate list of Unencumbered Assets as of the Agreement Execution Date and as
supplemented by Borrower from time to time including the entity that owns each
Unencumbered Asset. With respect to each Project identified from time to time as
an Unencumbered Asset, Borrower hereby represents and warrants as follows except
to the extent disclosed in writing to the Lenders and, if such disclosed matter
could reasonably be expected to have a Material Adverse Effect, approved in
writing by the Required Lenders (which approval will not be unreasonably
withheld or delayed):
(a) No portion of any improvement on the Unencumbered Asset is
located in an area identified by the Secretary of Housing and Urban Development
or any successor thereto as an area having special flood hazards pursuant to the
National Flood Insurance Act of 1968 or the Flood Disaster Protection Act of
1973, as amended, or any successor law, or, if located within any such area,
Borrower has obtained and will maintain the insurance prescribed in Section
5.1(j) hereof.
(b) Borrower has received no written notice that the Project
is in violation of building codes, land use and Environmental Laws, and other
similar laws ("Applicable Laws") which would have a material adverse effect on
the Project.
(c) The Unencumbered Asset is served by all utilities required
for the current or contemplated use thereof. All utility service is provided by
public utilities and the Unencumbered Asset has accepted or is equipped to
accept such utility service.
(d) All public roads and streets necessary for service of and
access to the Unencumbered Asset for the current or contemplated use thereof
have been completed, are serviceable and all-weather and are physically and
legally open for use by the public.
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(e) The Unencumbered Asset is served by public water and sewer
systems or, if the Unencumbered Asset is not serviced by a public water and
sewer system, such alternate systems are adequate and meet, in all material
respects, all requirements and regulations of, and otherwise complies in all
material respects with, all Applicable Laws with respect to such alternate
systems.
(f) Borrower is not aware of any material latent or patent
structural or other significant deficiency of the Unencumbered Asset which would
have a material adverse effect on the Project. The Unencumbered Asset is free of
material damage and waste that would materially and adversely affect the value
of the Unencumbered Asset, is in good repair and there is no deferred
maintenance other than ordinary wear and tear. The Unencumbered Asset is free
from damage caused by fire or other casualty which would have a material adverse
effect on the Project. To the actual knowledge of Borrower no notice has been
received of any actual or threatened condemnation proceedings affecting any
material part of the Unencumbered Asset.
(g) To Borrower's knowledge, all liquid and solid waste
disposal, septic and sewer systems located on the Unencumbered Asset are in a
good and safe condition and repair and to Borrower's knowledge, in material
compliance with all Applicable Laws with respect to such systems.
(h) All improvements on the Unencumbered Asset lie within the
boundaries of the legal description of the Unencumbered Asset, no such
improvements encroach upon easements benefitting the Unencumbered Asset other
than encroachments that do not materially adversely affect the use or occupancy
or value of the Unencumbered Asset and no improvements on adjoining properties
encroach upon the Unencumbered Asset or easements benefitting the Unencumbered
Asset other than encroachments that do not materially adversely affect the use
or occupancy of the Unencumbered Asset. All material amenities, necessary access
routes or other items that materially benefit the Unencumbered Asset are under
the control of Borrower, constitute easements that benefit the Unencumbered
Asset, are public property or, if not, do not materially adversely affect the
value thereof, and the Unencumbered Asset, by virtue of such easements or
otherwise, is contiguous to a physically open, dedicated all weather public
street, and has the necessary permits for ingress and egress.
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(i) There are no delinquent taxes, ground rents, water
charges, sewer rents, assessments, insurance premiums, leasehold payments, or
other outstanding charges affecting the Unencumbered Asset except to the extent
such items are being contested in good faith and as to which adequate reserves
have been provided or which will not materially adversely affect the value
thereof.
(j) With respect to those Unencumbered Assets in which the
Borrower, any Guarantor or any Wholly-Owned Subsidiary holds a leasehold estate
under a Financeable Ground Lease, with respect to each such Financeable Ground
Lease (i) the Borrower or such Guarantor or Wholly-Owned Subsidiary is the owner
of a valid and subsisting interest as tenant under the Financeable Ground Lease;
(ii) the Financeable Ground Lease is in full force and effect, unmodified and
not supplemented by any writing or otherwise; (iii) all rent, additional rent
and other charges reserved therein have been paid to the extent they are payable
to the date hereof; (iv) Borrower or such Guarantor or Wholly-Owned Subsidiary
enjoys the quiet and peaceful possession of the estate demised thereby, subject
to any subleases; (v) the Borrower or such Guarantor or Wholly-Owned Subsidiary
is not in default under any of the terms thereof and there are no circumstances
which, with the passage of time or the giving of notice or both, would
constitute an event of default thereunder; (vi) the lessor under the Financeable
Ground Lease is not in default under any of the terms or provisions thereof on
the part of the lessor to be observed or performed; (vii) the lessor under the
Financeable Ground Lease has satisfied all of its repair or construction
obligations, if any, to date pursuant to the terms of the Financeable Ground
Lease; (viii) the provisions of Section 9.9 hereof do not require the consent
(other than those consents which have been obtained and are in full force and
effect) under, and will not contravene any provision of or cause a default
under, the Financeable Ground Lease; (ix) Schedule 6.26 lists all the
Financeable Ground Leases to which any of the Unencumbered Assets are subject
and all amendments and modifications thereto; and (x) the lessor indicated on
Schedule 6.26 for each Financeable Ground Lease is the current lessor under the
related Financeable Ground Lease.
A breach of any of the representations and warranties contained in this Section
6.26 with respect to a Project shall disqualify such Project from being an
Unencumbered Asset for so long as such breach continues (unless otherwise
approved by the Required
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Lenders) but shall not constitute a Default (unless the elimination of such
Property as an Unencumbered Asset results in a Default under one of the other
provisions of this Agreement).
Borrower agrees that all of its representations and warranties set
forth in Article VI of this Agreement and elsewhere in this Agreement are true
on the Agreement Execution Date in all material respects, and will be true in
all material respects (except with respect to matters which have been disclosed
in writing to the Lenders and, if such disclosed matters would have a Material
Adverse Effect, have been approved by the Required Lenders) upon the date of
each request for an Advance and on the date of such Advance. Each Borrowing
Notice, Competitive Bid Quote Request and Conversion/Continuation Notice
hereunder shall constitute a reaffirmation of such representations and
warranties as deemed modified in accordance with the disclosures made and
approved, as aforesaid, as of the date of such notice or request and as of the
disbursement date of any Advance.
ARTICLE VII
ADDITIONAL REPRESENTATIONS AND WARRANTIES
Each Guarantor hereby represents and warrants that:
VII.1 Existence. The Financing Partnership is a general partnership
duly organized and existing under the laws of the State of Delaware, with its
principal place of business in the State of Illinois and is duly qualified as a
foreign partnership and properly licensed (if required). Bradley Real Estate,
Inc. is a corporation duly organized and existing under the laws of the State of
Maryland, with its principal place of business in the State of Illinois and is
duly qualified as a foreign corporation and properly licensed (if required).
Each Guarantor is in good standing in each jurisdiction where the failure to
qualify or be licensed (if required) would constitute a Material Adverse
Financial Change with respect to such Guarantor or have a Material Adverse
Effect on the business or properties of such Guarantor.
VII.2 Corporate and Partnership Powers. The execution, delivery and
performance of the Loan Documents required to be
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delivered by the Guarantors hereunder are within the corporate or partnership
powers of the Guarantors, have been duly authorized by all requisite corporate
or partnership action, and are not in conflict in any material respect with the
terms of any organizational instruments of the Guarantors, or any instrument or
agreement to which either Guarantor is a party or by which either Guarantor or
any of its assets is bound or affected.
VII.3 Power of Officers. The officers of the Guarantors (or their
general partners) executing the Loan Documents required to be delivered by the
Guarantors hereunder have been duly elected or appointed and were fully
authorized to execute the same at the time each such agreement, certificate or
instrument was executed.
VII.4 Government and Other Approvals. No approval, consent, exemption
or other action by, or notice to or filing with, any governmental authority is
necessary in connection with the execution, delivery or performance of the Loan
Documents required hereunder.
VII.5 Solvency.
(i) Immediately after the Agreement Execution
Date and immediately following the making of each Advance and
after giving effect to the application of the proceeds of such
Advances, (a) the fair value of the assets of each Guarantor
and its Subsidiaries on a consolidated basis, at a fair
valuation, will exceed the debts and liabilities,
subordinated, contingent or otherwise, of each Guarantor and
its Subsidiaries on a consolidated basis; (b) the present fair
saleable value of the Properties of each Guarantor and its
Subsidiaries on a consolidated basis will be greater than the
amount that will be required to pay the probable liability of
each Guarantor and its Subsidiaries on a consolidated basis on
their debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute
and matured; (c) each Guarantor and its Subsidiaries on a
consolidated basis will be able to pay their debts and
liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; and (d)
each Guarantor and
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its Subsidiaries on a consolidated basis will not have
unreasonably small capital with which to conduct the
businesses in which they are engaged as such businesses are
now conducted and are proposed to be conducted after the date
hereof.
(ii) Each Guarantor does not intend to, or to
permit any of its Subsidiaries to, incur debts beyond its
ability to pay such debts as they mature, taking into account
the timing of and amounts of cash to be received by it or any
such Subsidiary and the timing of the amounts of cash to be
payable on or in respect of its Indebtedness or the
Indebtedness of any such Subsidiary.
VII.6 Compliance With Laws. There is no judgment, decree or order or
any law, rule or regulation of any court or governmental authority binding on
the Guarantors which would be contravened in any manner which would have a
Material Adverse Effect, by the execution, delivery or performance of the Loan
Documents required hereunder.
VII.7 Enforceability of Guarantors' Agreements. The Loan Documents
executed by the Guarantor are the legal, valid and binding agreement of the
Guarantors, enforceable against the Guarantors in accordance with the terms
thereof, except to the extent that such enforcement may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws affecting the
rights of creditors generally.
VII.8 Liens; Consents. The execution, delivery or performance of the
Loan Documents required to be delivered by the Guarantors hereunder will not
result in the creation of any Lien on the Properties other than in favor of the
Lenders. No consent to the transactions hereunder is required, the failure to
obtain which consent would have a Material Adverse Effect, from any ground
lessor or mortgagee or beneficiary under a deed of trust or any other party
except as has been delivered to the Lenders.
VII.9 Litigation. There are no suits, arbitrations, claims, disputes or
other proceedings (including, without limitation, any civil, criminal,
administrative or environmental proceedings), pending or, to the best of the
Guarantors knowledge, threatened against or affecting the Guarantors or any
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of the Properties, the adverse determination of which individually or in the
aggregate would have a Material Adverse Effect on the Guarantors and/or would
cause a Material Adverse Financial Change with respect to the Guarantors.
VII.10 Events of Default. No Known Default or Event of Default has
occurred and is continuing or would result from the incurring of obligations by
the Guarantors under the Guaranty or any other document to which either
Guarantor is a party.
VII.11 Investment Company Act of 1940. Each Guarantor is not, and will
by such acts as may be necessary continue not to be, an investment company
within the meaning of the Investment Company Act of 1940.
VII.12 Public Utility Holding Company Act. Each Guarantor is not 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 definitions of the Public Utility Holding Company Act of
1935, as amended.
VII.13 No Material Adverse Financial Change. To the best knowledge of
the Guarantors, there has been no Material Adverse Financial Change in the
condition of the Guarantors since the last date on which the financial and/or
operating statements were submitted to the Lenders.
VII.14 Financial Information. All financial statements furnished to the
Lenders by or on behalf of the Guarantors and all other financial information
and data furnished by or on behalf of the Guarantors to the Lenders are complete
and correct in all material respects as of the date thereof, and such financial
statements have been prepared in accordance with GAAP and fairly present the
consolidated financial condition and results of operations of the Guarantors as
of such date. The Guarantors have no contingent obligations, liabilities for
taxes or other outstanding financial obligations which are material in the
aggregate, except as disclosed in such statements, information and data.
VII.15 Factual Information. All factual information heretofore or
contemporaneously furnished by or on behalf of the Guarantors to the Lenders for
purposes of or in connection with
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this Agreement and the other Loan Documents and the transactions contemplated
therein is, and all other such factual information hereafter furnished by or on
behalf of the Guarantors to the Lenders will be, true and accurate in all
material respects (taken as a whole) on the date as of which such information is
dated or certified and not incomplete by omitting to state any material fact
necessary to make such information (taken as a whole) not misleading at such
time.
VII.16 ERISA. (i) Each Guarantor is not an entity deemed to hold "plan
assets" within the meaning of ERISA or any regulations promulgated thereunder of
an employee benefit plan (as defined in Section 3(3) of ERISA) which is subject
to Title I of ERISA or any plan within the meaning of Section 4975 of the Code,
and (ii) to the Guarantors' knowledge, the execution of this Agreement and the
transactions contemplated hereunder do not give rise to a prohibited transaction
within the meaning of Section 406 of ERISA or Section 4975 of the Code.
VII.17 Taxes. All required tax returns have been filed by the
Guarantors with the appropriate authorities except to the extent that extensions
of time to file have been requested, granted and have not expired or except to
the extent such taxes are being contested in good faith and for which adequate
reserves, in accordance with GAAP, are being maintained.
VII.18 Environmental Matters. Except as disclosed in Schedule 6.19, as
the same may be modified by the Guarantor from time to time by disclosing such
modifications to the Lenders and, if such modifications could reasonably be
expected to have a Material Adverse Effect, obtaining the Required Lenders'
approval, each of the following representations and warranties is true and
correct except to the extent that the facts and circumstances giving rise to any
such failure to be so true and correct, in the aggregate, are not reasonably
expected to have a Material Adverse Effect:
(i) To the knowledge of such Guarantor, the
Properties of such Guarantor, its Subsidiaries, and Investment
Affiliates do not contain any Materials of Environmental
Concern in amounts or concentrations which constitute a
violation of, or could reasonably give rise to liability
under, Environmental Laws.
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(ii) Such Guarantor has not received any
written notice alleging that any of the Properties of such
Guarantor and its Subsidiaries and Investment Affiliates and
all operations at the Properties are not in compliance with
all applicable Environmental Laws. Further, such Guarantor has
not received any written notice alleging the existence of any
contamination at or under such Properties in amounts or
concentrations which constitute a violation of any
Environmental Law, or any violation of any Environmental Law
with respect to such Properties for which such Guarantor, its
Subsidiaries or Investment Affiliates is or could be liable.
(iii) To the knowledge of such Guarantor during
the ownership of the Properties by any or all of such
Guarantor, its Subsidiaries and Investment Affiliates,
Materials of Environmental Concern have not been transported
or disposed of from the Properties of such Guarantor and its
Subsidiaries and Investment Affiliates in violation of, or in
a manner or to a location which could reasonably give rise to
liability of such Guarantor, any Subsidiary, or any Investment
Affiliate under, Environmental Laws, nor during the ownership
of the Properties by any or all of such Guarantor, its
Subsidiaries and Investment Affiliates have any Materials of
Environmental Concern been generated, treated, stored or
disposed of at, on or under any of such Properties in
violation of, or in a manner that could give rise to liability
of such Guarantor, any Subsidiary or any Investment Affiliate
under, any applicable Environmental Laws.
(iv) No judicial proceedings or governmental or
administrative action is pending, or, to the knowledge of such
Guarantor, threatened, under any Environmental Law to which
such Guarantor, any of its Subsidiaries, or any Investment
Affiliate is named as a party with respect to the Properties
of such entity, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other
orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to such
Properties for which such Guarantor, its
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Subsidiaries, or any Investment Affiliate is or could be
liable.
(v) To the knowledge of such Guarantor during
the ownership of the Properties by any or all of such
Guarantor, its Subsidiaries and Investment Affiliates, there
has been no release or threat of release of Materials of
Environmental Concern at or from the Properties of such
Guarantor and its Subsidiaries and Investment Affiliates, or
arising from or related to the operations of such entity in
connection with the Properties in violation of or in amounts
or in a manner that could give rise to liability under
Environmental Laws.
VII.19 Insurance. Such Guarantor has obtained the insurance which such
Guarantor is required to furnish to Lenders under Section 5.1(j) hereof.
VII.20 Subsidiaries. Schedule 7.18 hereto contains an accurate list of
all of the presently existing Subsidiaries of each Guarantor as of the date of
this Agreement, setting forth their respective jurisdictions of formation, the
percentage of their respective Capital Stock owned by it or its Subsidiaries and
the Properties owned by them. All of the issued and outstanding shares of
Capital Stock of such Subsidiaries have been duly authorized and issued and are
fully paid and non-assessable.
VII.21 Status. Bradley Real Estate, Inc. is a corporation listed and in
good standing on the New York Stock Exchange ("NYSE") and shall maintain at all
times its qualification as a real estate investment trust under the Code.
Guarantors agree that all of their representations and warranties set
forth in Article VII of this Agreement and elsewhere in this Agreement are true
on the Agreement Execution Date, in all material respects, and will be true in
all material respects (except with respect to matters which have been disclosed
in writing to the Lenders and, if such disclosed matters could reasonably be
expected to have a Material Adverse Effect, have been approved by the Required
Lenders) upon the date of each request for an Advance and on the date of such
Advance. Each Borrowing Notice, Competitive Bid Quote Request and
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Conversion/Continuation Notice hereunder shall constitute a reaffirmation of
such representations and warranties as deemed modified in accordance with the
disclosures made and approved, as aforesaid, as of the date of such notice or
request and as of the disbursement date of any Advance.
ARTICLE VIII
AFFIRMATIVE COVENANTS
The Borrower and each Guarantor covenants and agrees that so long as
the Commitment of any Lender shall remain available and until the full and final
payment of all Obligations incurred under the Loan Documents it will:
VIII.1 Notices. Promptly give written notice to Administrative Agent
(who will promptly send such notice to Lenders) of:
(a) all litigation or arbitration proceedings affecting the
Borrower, the Guarantors or any Material Subsidiary where the amount claimed is
$5,000,000 or more or charges of criminal conduct are made;
(b) any Known Default or Event of Default, specifying the
nature and the period of existence thereof and what action has been taken or
been proposed to be taken with respect thereto;
(c) all claims filed against any Property owned by the
Borrower or the Guarantors which, if adversely determined, could have a Material
Adverse Effect on the ability of the Borrower or the Guarantors to meet any of
their obligations under the Loan Documents;
(d) the occurrence of any other event which the Borrower
reasonably determines could have a Material Adverse Effect on, or cause a
Material Adverse Financial Change with respect to, the Borrower or the
Guarantors;
(e) any Reportable Event or any "prohibited transaction" (as
such term is defined in Section 4975 of the Code) in connection with any Plan or
any trust created thereunder, which may, singly or in the aggregate materially
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impair the ability of the Borrower or either of the Guarantors to repay any of
its obligations under the Loan Documents, describing the nature of each such
event and the action, if any, the Borrower or the Guarantor, as the case may
be, proposes to take with respect thereto;
(f) any written notice from any federal, state, local or
foreign authority regarding any Hazardous Material, asbestos, or other
environmental condition, proceeding, order, claim or violation materially and
adversely affecting any of the Properties.
VIII.2 Financial Statements, Reports, Etc. Maintain, for itself and
each Subsidiary, a system of accounting established and administered in
accordance with GAAP, and furnish to the Lenders:
(i) As soon as available, but in any event not
later than 45 days after the close of the first three fiscal
quarters and not later than 90 days after the close of the
fiscal year, for the Consolidated Group an unaudited
consolidated balance sheet as of the close of each such period
and the related unaudited consolidated statements of income
and retained earnings and of cash flows of the Consolidated
Group for such period and the portion of the fiscal year
through the end of such period, setting forth in each case in
comparative form the figures for the previous year, all
certified by the chief financial officer or chief accounting
officer of Bradley Real Estate, Inc. and, in the case of the
annual statement audited by the Consolidated Group's
independent public accounting firm;
(ii) As soon as available, but in any event not
later than 45 days after the close of each fiscal quarter, for
the Consolidated Group, related reports in form and substance
reasonably satisfactory to the Lenders, all certified by the
chief financial officer or chief accounting officer of Bradley
Real Estate, Inc., including a statement of Funds From
Operations, a listing of Unencumbered Assets, a report listing
and describing all newly acquired Properties, including their
budgeted cash flow, cost and secured or unsecured
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Indebtedness assumed in connection with such acquisition, if
any, summary Property information for all Properties,
including, without limitation, their Property Operating
Income, occupancy rates, square footage, and such other
information as may be reasonably requested to evaluate the
quarterly compliance certificate delivered as provided below;
(iii) As soon as publicly available but in no
event later than the date such reports are to be filed with
the Securities & Exchange Commission, copies of all Form 10Ks,
10Qs, 8Ks, and any other annual, quarterly, monthly or other
reports, copies of all registration statements and any other
public information which any member of the Consolidated Group
files with the Securities & Exchange Commission and to the
extent any of such reports contains information required under
the other subsections of this Section 8.2, the information
need not be furnished separately under the other subsections;
(iv) As soon as available, but in any event not
later than 90 days after the close of each fiscal year of the
Consolidated Group, reports in form and substance reasonably
satisfactory to the Lenders, certified by the chief financial
officer or chief accounting officer of Bradley Real Estate,
Inc. containing Property Operating Income for each individual
Property included as Unencumbered Assets;
(v) Not later than forty-five (45) days after
the end of each of the first three fiscal quarters, and not
later than ninety (90) days after the end of the fiscal year,
a compliance certificate in substantially the form of Exhibit
G hereto signed by the chief financial officer or chief
accounting officer of Bradley Real Estate, Inc. on behalf of
the Borrower confirming that Borrower is in compliance with
all of the covenants of the Loan Documents, showing the
calculations and computations necessary to determine
compliance with the financial covenants contained in this
Agreement (including such schedules and backup information as
may be necessary to demonstrate such compliance) and stating
that to such officer's best
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knowledge, there is no other Known Default or Event of Default
exists, or if any Known Default or Event of Default exists,
stating the nature and status thereof;
(vi) (a) As soon as reasonably possible and in
any event within 10 Business Days after the Borrower knows
that any Reportable Event has occurred with respect to any
Plan, a statement, signed by Borrower, describing said
Reportable Event and within 20 days after such Reportable
Event, a statement describing the action which Borrower
proposes to take with respect thereto; and (b) within 10
Business Days of receipt, any notice from the Internal Revenue
Service, PBGC or Department of Labor with respect to a Plan
regarding any excise tax, proposed termination of a Plan,
prohibited transaction or fiduciary violation under ERISA or
the Code which could result in any liability to Borrower or
any member of the Controlled Group in excess of $100,000; and
(c) within 10 Business Days of filing, any Form 5500 filed by
Borrower with respect to a Plan, or any member of the
Controlled Group which includes a qualified accountant's
opinion.
(vii) As soon as reasonably possible and in any
event within 30 days after receipt by the Borrower, a copy of
(a) any notice or claim to the effect that the Borrower or any
of its Subsidiaries is or may be liable to any Person as a
result of the release by such entity, or any of its
Subsidiaries, or any other Person of any toxic or hazardous
waste or substance into the environment, and (b) any notice
alleging any violation of any federal, state or local
environmental, health or safety law or regulation by the
Borrower or any of its Subsidiaries or Investment Affiliates,
which, in either case, could be reasonably likely to have a
Material Adverse Effect;
(viii) Promptly upon the furnishing thereof to
the shareholders of the General Partner, copies of all
financial statements, reports and proxy statements so
furnished;
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(ix) Promptly upon the distribution thereof to
the press or the public, copies of all press releases;
(x) As soon as reasonably possible, and in any
event within 10 days after the Borrower knows of any fire or
other casualty or any pending or threatened condemnation or
eminent domain proceeding with respect to all or any material
portion of any Unencumbered Asset, a statement signed by the
chief financial officer of Bradley Real Estate, Inc.,
describing such fire, casualty or condemnation and the action
Borrower intends to take with respect thereto; and
(xi) Such other information (including, without
limitation, non-financial information) as the Administrative
Agent or any Lender may from time to time reasonably request.
VIII.3 Existence and Conduct of Operations. Except as permitted herein,
maintain and preserve its existence and all rights, privileges and franchises
now enjoyed and necessary for the operation of its business, including remaining
in good standing in each jurisdiction in which business is currently operated,
except to the extent the failure of the foregoing would not have a Material
Adverse Effect. Each member of the Consolidated Group will do all things
necessary to remain duly incorporated and/or duly qualified, validly existing
and in good standing as a real estate investment trust, corporation, general
partnership, limited liability company or limited partnership, as the case may
be, in its jurisdiction of incorporation/formation, except to the extent the
failure of the foregoing would not have a Material Adverse Effect. Each member
of the Consolidated Group will maintain all requisite authority to conduct its
business in each jurisdiction in which the Properties are located and, except
where the failure to be so qualified would not have a Material Adverse Effect,
in each jurisdiction required to carry on and conduct its businesses in
substantially the same manner as it is presently conducted. No member of the
Consolidated Group will undertake any business other than the acquisition,
development, ownership, management, operation and leasing of shopping center
properties and ancillary businesses specifically related thereto, except that
members of the Consolidated Group may invest in other assets subject to the
certain limitations contained herein with
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respect to the following specified categories of assets: (i) unimproved land;
(ii) other non-shopping center property holdings (provided that non-shopping
center properties owned as of the Agreement Execution Date shall not be included
in calculating the limitations set forth in the following sentence); (iii) stock
holdings other than in Subsidiaries; (iv) mortgages; and (v) investments in
Investment Affiliates. The total investment in any one of categories (i), (iii)
or (iv) shall not exceed 5% of Capitalization Value, the total investment in any
one of categories (ii) or (v) shall not exceed 10% of Capitalization Value and
the total investment in all the foregoing investment categories in the aggregate
shall be less than or equal to 20% of Capitalization Value. In addition to the
foregoing restrictions, investments in Projects Under Development shall not
exceed in the aggregate 10% of Capitalization Value. For the purposes of this
Section 8.3, all investments shall be valued in accordance with GAAP.
VIII.4 Maintenance of Properties. Maintain, preserve, protect and keep
the Properties in good repair, working order and condition, and make all
necessary and proper repairs, renewals and replacements, normal wear and tear
excepted.
VIII.5 Insurance. Provide a certificate of insurance from all insurance
carriers who maintain policies with respect to the Properties within thirty (30)
days prior to the end of each policy period, evidencing that the insurance
required to be furnished to Lenders pursuant to Section 5.1(j) hereof is in full
force and effect. Borrower shall timely pay, or cause to be paid, all premiums
on all insurance policies required under this Agreement from time to time.
Borrower shall promptly notify its insurance carrier or agent therefor (with a
copy of such notification being provided simultaneously to Administrative Agent)
if there is any occurrence which, under the terms of any insurance policy then
in effect with respect to the Properties, requires such notification.
VIII.6 Payment of Obligations. Pay all taxes, assessments, governmental
charges and other obligations when due, except such as may be contested in good
faith or as to which a bona fide dispute may exist, and for which adequate
reserves have been provided in accordance with sound accounting principles used
by Borrower on the date hereof, provided, however, that nonpayment of any such
taxes, assessments, governmental charges
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and other obligations with respect to any specific Property shall only result in
(i) the elimination of such Property as an Unencumbered Asset, if so required
under Section 6.26 or (ii) a Default hereunder, if such nonpayment could
reasonably be expected to have a Material Adverse Effect.
VIII.7 Compliance with Laws. Comply in all material respects with all
applicable laws, rules, regulations, orders and directions of any governmental
authority having jurisdiction over Borrower, General Partner, or any of their
respective businesses, provided, however, that noncompliance with respect to any
specific Property shall only result in (i) the elimination of such Property as
an Unencumbered Asset, if so required under Section 6.26 or (ii) a Default
hereunder, if such noncompliance could reasonably be expected to have a Material
Adverse Effect.
VIII.8 Adequate Books. Maintain adequate books, accounts and records in
order to provide financial statements in accordance with GAAP and, if requested
by any Lender, permit employees or representatives of such Lender at any
reasonable time and upon reasonable notice to inspect and audit the properties
of Borrower and of the Consolidated Group, and to examine or audit the
inventory, books, accounts and records of each of them and make copies and
memoranda thereof.
VIII.9 ERISA. Comply in all material respects with all requirements of
ERISA applicable to it with respect to each Plan.
VIII.10 Maintenance of Status. Bradley Real Estate, Inc. shall at all
times (i) remain as a corporation listed and in good standing on the New York
Stock Exchange (NYSE), and (ii) maintain its status as a real estate investment
trust in compliance with all applicable provisions of the Code (unless otherwise
consented to by the Required Lenders).
VIII.11 Use of Proceeds. Use the proceeds of the Facility for the
purposes of repaying other Indebtedness and paying fees, costs and expenses
relating to this Facility and for working capital and other general partnership
purposes.
VIII.12 Pre-Acquisition Environmental Investigations. Cause to be
prepared prior to the acquisition of each project that it intends to acquire an
environmental report pursuant to a
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standard scope of work attached as Exhibit H hereto and made a part hereof.
VIII.13 Dividends. Provided there is no Monetary Default or Event of
Default then existing, Bradley Real Estate, Inc. may make distributions to its
shareholders provided that the aggregate amount of distributions in any period
of four consecutive fiscal quarters is not in excess of 95% of its Funds From
Operations for such period. Notwithstanding the foregoing, unless at the time of
distribution there is a Monetary Default or Event of Default then existing,
Bradley Real Estate, Inc. shall be permitted at all times to distribute whatever
amount is necessary to maintain its tax status as a real estate investment
trust.
ARTICLE IX
NEGATIVE COVENANTS
The Borrower covenants and agrees that, so long as the Commitment shall
remain available and until full and final payment of all obligations incurred
under the Loan Documents, without the prior written consent of the Required
Lenders (or the Administrative Agent or a greater Percentage of the Lenders, if
so expressly provided), it will not, and the Consolidated Group will not:
IX.1 Change in Business. Engage in any business activities or
operations other than those permitted under Section 8.3 above or materially
change the nature of the use of Properties representing more than ten percent
(10%) of the then-current Capitalization Value of the Properties.
IX.2 Change of Management of Projects. Engage any management company
which is not an Affiliate of the Borrower to manage Properties representing more
than ten percent (10%) of the then-current Capitalization Value of the
Properties.
IX.3 Change of Ownership. Permit or suffer (i) Bradley Financing Corp.
and the Operating Partnership to own less than 100% of the partnership interests
in the Financing Partnership, (ii) Bradley Real Estate, Inc. to own less than
100% of the stock in Bradley Financing Corp., (iii) the Borrower to have any
general partner other than Bradley Real Estate, Inc., (iv) the
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Financing Partnership to be controlled by a Person other than Bradley Financing
Corp. and the Operating Partnership, (v) any pledge of, other encumbrance on, or
conversion to limited partnership interests of, any of the general partnership
interests in the Borrower or the Operating Partnership, or (vi) any pledge,
hypothecation, encumbrance or transfer of the general partnership interests in
the Borrower or the Financing Partnership.
IX.4 Use of Proceeds. Apply or permit to be applied any proceeds of any
Advance directly or indirectly, to the funding of any unsolicited tender offer
for any share of capital stock of any publicly held corporation or the purchase
of any Margin Stock.
IX.5 Transfers of Unencumbered Assets. Transfer or otherwise dispose of
(other than the creation or incurrence of Liens permitted under clauses (i)
through (v) of Section 9.6) an Unencumbered Asset without the prior written
consent of the Required Lenders if the Value of such Unencumbered Asset,
together with the Value of any other Unencumbered Assets which have been
transferred or disposed of during the then-current fiscal quarter and the
immediately preceding three (3) full fiscal quarters, would exceed the sum of
(i) fifteen percent (15%) of the Capitalization Value at the beginning of such
period plus (ii) the Capitalization Value attributable to Unencumbered Assets
acquired (and Projects first qualifying as Unencumbered Assets) after the
beginning of such period, provided that any sale of One North State Street,
Chicago, Illinois shall be excluded for purposes of all such calculations. All
such calculation periods shall begin on the Agreement Execution Date and shall
not include periods prior thereto.
IX.6 Liens. Create, incur, or suffer to exist (or permit any of their
Subsidiaries to create, incur, or suffer to exist) any Lien in, of or on the
Property of any member of the Consolidated Group other than:
(i) Liens for taxes, assessments or
governmental charges or levies on their Property if the same
shall not at the time be delinquent or thereafter can be paid
without penalty, or are being contested in good faith and by
appropriate proceedings and for which
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adequate reserves shall have been set aside on their books;
(ii) Liens which arise by operation of law,
such as carriers', warehousemen's, landlords', materialmen and
mechanics' liens and other similar liens arising in the
ordinary course of business which secure payment of
obligations not more than 30 days past due or which are being
contested in good faith by appropriate proceedings and for
which adequate reserves shall have been set aside on its
books;
(iii) Liens arising out of pledges or deposits
under worker's compensation laws, unemployment insurance, old
age pensions, or other social security or retirement benefits,
or similar legislation;
(iv) Utility easements, building restrictions,
zoning restrictions, easements and such other encumbrances
against real property as are of a nature generally existing
with respect to properties of a similar character and which do
not in any material way affect the marketability of the same
or interfere with the use thereof in the business of the
Consolidated Group;
(v) Liens of any Subsidiary solely in favor of
the Borrower or a Guarantor; and
(vi) Liens either (A) shown on title policies
for Properties owned by the Consolidated Group as of the
Agreement Execution Date or (B) arising in connection with any
Indebtedness permitted hereunder, in each case to the extent
such Liens will not result in a violation of any of the
provisions of this Agreement.
Liens permitted pursuant to this Section 9.6 shall be deemed to be "Permitted
Liens".
IX.7 Indebtedness and Cash Flow Covenants. Permit or suffer:
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(a) as of the last day of any fiscal quarter, the ratio of
Combined Operating EBITDA to Interest Expense for such fiscal quarter to be less
than 1.75 to 1.0;
(b) as of any day, Consolidated Total Indebtedness to exceed
55% of Capitalization Value of the Consolidated Group;
(c) as of any day, the ratio of the Value of Unencumbered
Assets to Consolidated Unsecured Debt to be less than 2.0 to 1.0;
(d) as of the last day of any fiscal quarter, the ratio
obtained by dividing (a) the aggregate Property Operating Income from all
Unencumbered Assets qualifying for inclusion in the calculation of Value of
Unencumbered Assets for such quarter by (b) Interest Expense on all Consolidated
Unsecured Debt for such quarter to be less than 2.00 to 1;
(e) as of any day, Consolidated Secured Debt to exceed 30% of
Capitalization Value;
(f) as of the last day of any fiscal quarter, the amount
obtained by subtracting Consolidated Total Indebtedness from Capitalization
Value to be less than the sum of (i) $250,000,000 plus (ii) seventy-five percent
(75%) of the aggregate proceeds received (net of customary related fees and
expenses) in connection with any equity offering by the Consolidated Group
(including any issuance of shares in Bradley Real Estate, Inc. or any offering
for sale of units in the Borrower, but excluding any transfers of such units in
exchange for Properties) after the Agreement Execution Date.
IX.8 Mergers and Dispositions. Enter into any merger, consolidation,
reorganization or liquidation or transfer or otherwise dispose of all or a
substantial portion of its properties, except for: (i) such transactions that
occur between members of the Consolidated Group; (ii) transactions where
Borrower and the Guarantors are the surviving entities and there is no change in
business conducted or loss of an investment grade credit rating, and no Default
or Event of Default under the Loan Documents results from such transaction; or
(iii) as otherwise approved in advance by the Required Lenders. Borrower will
notify the Administrative Agent (who will promptly notify Lenders) of any
dispositions or mergers involving assets valued
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in excess of 5% of the Consolidated Group's then-current Capitalization Value
and certify compliance with covenants after giving effect to such proposed
disposition or merger, regardless of whether any consent is required.
IX.9 Negative Pledges. Borrower agrees that throughout the term of this
Facility, no "negative pledge" on any Project then included in Unencumbered
Assets restricting the owner's right to sell or encumber such Project shall be
given to any other lender or creditor or, if such a "negative pledge" is given,
the Project affected shall be immediately excluded from Unencumbered Assets.
ARTICLE X
DEFAULTS
The occurrence of any one or more of the following events shall
constitute an Event of Default:
X.1 Nonpayment of Principal. The Borrower fails to pay any principal
portion of the Obligations when due, whether on the Maturity Date or otherwise,
subject only to Section 2.16(i) with respect to Competitive Bid Loans.
X.2 Certain Covenants. The Borrower, either Guarantor or any other
member of the Consolidated Group is not in compliance with any one or more of
Sections 8.10, 8.13 or 9.3 through 9.9 (inclusive) hereof, provided that, with
respect to Section 9.7, an Event of Default shall not be deemed to occur until
three (3) days after the noncompliance occurs.
X.3 Nonpayment of Interest and Other Obligations. The Borrower fails to
pay (i) any interest or Facility Fee due hereunder, and such failure continues
for a period of five (5) days after the date such payment is due, without
notice, or (ii) any portion of the Obligations (other than principal, interest
or Facility Fees) when due and such failure continues for a period of five (5)
days after written notice of such failure.
X.4 Cross Default. Any monetary default occurs (after giving effect to
any applicable cure period), or any acceleration occurs as a result of any other
default (after giving effect to
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any applicable cure period), under any other Indebtedness of the Consolidated
Group, singly or in the aggregate, in excess of (i) Five Million Dollars
($5,000,000) with respect to all Indebtedness other than "non-recourse"
Indebtedness or (ii) Twenty Million Dollars ($20,000,000) with respect to
Indebtedness which is "non-recourse", i.e., which is not recoverable by the
creditor thereof from the general assets of any member of the Consolidated
Group, but is limited to the proceeds of certain real estate, improvements and
related personal property.
X.5 Loan Documents. Any Loan Document is not in full force and effect
or a default has occurred and is continuing thereunder after giving effect to
any cure or grace period in any such document.
X.6 Representation or Warranty. At any time or times hereafter any
representation or warranty set forth in Articles VI (other than a breach under
Section 6.26 which does not constitute a Default hereunder) or VII of this
Agreement or in any other Loan Document or in any statement, report or
certificate now or hereafter made by the Borrower to the Lenders or the
Administrative Agent is not true and correct in any material respect, subject to
the last grammatical paragraphs of such Articles VI and VII hereof.
X.7 Covenants, Agreements and Other Conditions. The Borrower, either
Guarantor or any other member of the Consolidated Group fails to perform or
observe any of the other covenants, agreements and conditions contained in
Articles VIII and IX (except for Sections 8.10, 8.13 and 9.3 through 9.9
(inclusive) hereof) and elsewhere in this Agreement or any of the other Loan
Documents in accordance with the terms hereof or thereof, not specifically
referred to herein, and such Default continues unremedied for a period of thirty
(30) days after written notice from Administrative Agent, provided, however,
that if such Default is susceptible of cure but cannot by the use of reasonable
efforts be cured within such thirty (30) day period, such Default shall not
constitute an Event of Default under this Section 10.7 so long as (i) the
Borrower has commenced a cure within such thirty-day period and (ii) thereafter,
Borrower is proceeding to cure such default continuously and diligently and in a
manner reasonably satisfactory to Lenders and (iii) such
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default is cured not later than ninety (90) days after the expiration of such
thirty (30) day period.
X.8 No Longer General Partner. Bradley Real Estate, Inc. shall no
longer be the sole general partner of Borrower.
X.9 Material Adverse Financial Change. The Borrower or either Guarantor
has suffered a Material Adverse Financial Change or is Insolvent.
X.10 Bankruptcy.
(a) The General Partner, either Guarantor or any Subsidiary
having more than $10,000,000 of Equity Value (as defined below) (a "Material
Subsidiary") shall (i) have an order for relief entered with respect to it under
the Federal bankruptcy laws as now or hereafter in effect, (ii) make an
assignment for the benefit of creditors, (iii) apply for, seek, consent to, or
acquiesce in, the appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any substantial portion of its
Property, (iv) institute any proceeding seeking an order for relief under the
Federal bankruptcy laws as now or hereafter in effect or seeking to adjudicate
it as a bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors or fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (v) take any corporate
action to authorize or effect any of the foregoing actions set forth in this
Section 10.10(a), (vi) fail to contest in good faith any appointment or
proceeding described in Section 10.10(b) or (vii) not pay, or admit in writing
its inability to pay, its debts generally as they become due. As used herein,
the term "Equity Value" of a Subsidiary shall mean (1) Property Operating Income
of such Subsidiary's Properties owned as of the Agreement Execution Date
capitalized at a 10.25% rate, plus (2) the purchase price of any of such
Subsidiary's Properties acquired after the Agreement Execution Date less (3) any
Indebtedness of such Subsidiary;
(b) A receiver, trustee, examiner, liquidator or similar
official shall be appointed for the General Partner, either Guarantor or any
Material Subsidiary or any substantial portion of any of their Properties, or a
proceeding described in
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Section 10.10(a)(iv) shall be instituted against the General Partner, either
Guarantor or any such Material Subsidiary and such appointment continues
undischarged or such proceeding continues undismissed or unstayed for a period
of sixty (60) consecutive days.
X.11 Legal Proceedings. Borrower or either Guarantor is enjoined,
restrained or in any way prevented by any court order or judgment or if a notice
of lien, levy, or assessment is filed of record with respect to all or any part
of the Properties by any governmental department, office or agency, which could
materially adversely affect the performance of the obligations of such parties
hereunder or under the Loan Documents, as the case may be, or if any proceeding
is filed or commenced seeking to enjoin, restrain or in any way prevent the
foregoing parties from conducting all or a substantial part of their respective
business affairs and failure to vacate, stay, dismiss, set aside or remedy the
same within ninety (90) days after the occurrence thereof.
X.12 ERISA. Borrower or either Guarantor is deemed to hold "plan
assets" within the meaning of ERISA or any regulations promulgated thereunder of
an employee benefit plan (as defined in Section 3(3) of ERISA) which is subject
to Title I of ERISA or any plan (within the meaning of Section 4975 of the
Code).
X.13 Failure to Satisfy Judgments. The General Partner, either
Guarantor or any Material Subsidiary shall fail within sixty (60) days to pay,
bond or otherwise discharge any judgments or orders for the payment of money in
an amount which, when added to all other judgments or orders outstanding against
the Borrower, either Guarantor or any Material Subsidiary would exceed
$5,000,000 in the aggregate, which have not been stayed on appeal or otherwise
appropriately contested in good faith, unless the liability is insured against
and the insurer has not challenged coverage of such liability.
X.14 Environmental Remediation. Failure to remediate within the time
period required by law or governmental order, (or within a reasonable time in
light of the nature of the problem if no specific time period is so
established), environmental problems in violation of applicable law related to
Properties of the Consolidated Group where the estimated cost of remediation is
in the aggregate in excess of $5,000,000, in each case after all administrative
hearings and appeals have been concluded.
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ARTICLE XI
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
XI.1 Acceleration.
If any Event of Default described in Section 10.10 hereof occurs, the obligation
of the Lenders to make Advances and of the Issuing Bank to issue Facility
Letters of Credit shall automatically terminate and the Obligations shall
immediately become due and payable. If any other Event of Default described in
Article X hereof occurs, such obligation to make Advances and to issue Facility
Letters of Credit shall be terminated and at the election of the Required
Lenders, the Obligations may be declared to be due and payable. The
Administrative Agent shall exercise the rights and remedies of the Lenders
hereunder when so directed by the Required Lenders, and shall not do so without
such direction.
In addition to the foregoing, following the occurrence of an
Event of Default and so long as any Facility Letter of Credit has not been fully
drawn and has not been cancelled or expired by its terms, upon demand by the
Required Lenders the Borrower shall deposit in the Letter of Credit Collateral
Account cash in an amount equal to the aggregate undrawn face amount of all
outstanding Facility Letters of Credit and all fees and other amounts due or
which may become due with respect thereto. The Borrower shall have no control
over funds in the Letter of Credit Collateral Account, which funds shall be
invested by the Administrative Agent from time to time in its discretion in
certificates of deposit of First Chicago having a maturity not exceeding thirty
(30) days. Such funds shall be promptly applied by the Administrative Agent to
reimburse the Issuing Bank for drafts drawn from time to time under the Facility
Letters of Credit. Such funds, if any, remaining in the Letter of Credit
Collateral Account following the payment of all Obligations in full shall,
unless the Administrative Agent is otherwise directed by a court of competent
jurisdiction, be promptly paid over to the Borrower.
XI.2 Preservation of Rights; Amendments. No delay or omission of the
Lenders in exercising any right under the Loan
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Documents shall impair such right or be construed to be a waiver of any Default
or an acquiescence therein, and the making of an Advance notwithstanding the
existence of a Default or the inability of the Borrower to satisfy the
conditions precedent to such Advance shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by the Administrative Agent and the number of Lenders required hereunder
and then only to the extent in such writing specifically set forth. All remedies
contained in the Loan Documents or by law afforded shall be cumulative and all
shall be available to the Lenders until the Obligations have been paid in full.
XI.3 Defaulting Lenders. At such time as a Lender becomes a Defaulting
Lender, such Defaulting Lender's right to vote on matters which are subject to
the consent or approval of the Required Lenders or all Lenders shall be
immediately suspended until such time as the Lender is no longer a Defaulting
Lender. If a Defaulting Lender has failed to fund its Percentage of any Advance
and until such time as such Defaulting Lender subsequently funds its Percentage
of such Advance, all Obligations owing to such Defaulting Lender hereunder shall
be subordinated in right of payment, as provided in the following sentence, to
the prior payment in full of all principal of, interest on and fees relating to
the Loans funded by the other Lenders in connection with any such Advance in
which the Defaulting Lender has not funded its Percentage (such principal,
interest and fees being referred to as "Senior Loans" for the purposes of this
section). All amounts paid by the Borrower and otherwise due to be applied to
the Obligations owing to such Defaulting Lender pursuant to the terms hereof
shall be distributed by the Administrative Agent to the other Lenders in
accordance with their respective Percentages (recalculated for the purposes
hereof to exclude the Defaulting Lender) until all Senior Loans have been paid
in full. At that point, the "Defaulting Lender" shall no longer be deemed a
Defaulting Lender. After the Senior Loans have been paid in full equitable
adjustments will be made in connection with future payments by the Borrower to
the extent a portion of the Senior Loans had been repaid with amounts that
otherwise would have been distributed to a Defaulting Lender but for the
operation of this Section 11.3.
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This provision governs only the relationship among the Administrative Agent,
each Defaulting Lender and the other Lenders; nothing hereunder shall limit the
obligation of the Borrower to repay all Loans in accordance with the terms of
this Agreement. The provisions of this Section 11.3 shall apply and be effective
regardless of whether a Default occurs and is continuing, and notwithstanding
(i) any other provision of this Agreement to the contrary, (ii) any instruction
of the Borrower as to its desired application of payments or (iii) the
suspension of such Defaulting Lender's right to vote on matters as provided
above.
ARTICLE XII
THE ADMINISTRATIVE AGENT
XII.1 Appointment. First Chicago is hereby appointed Administrative
Agent hereunder and under each other Loan Document, and each of the Lenders
authorizes the Administrative Agent to act as the agent of such Lender as
specifically provided in this Agreement and the other Loan Documents. The
Administrative Agent agrees to act as such upon the express conditions contained
in this Article XII. The Administrative Agent shall not have a fiduciary
relationship in respect of any Lender by reason of this Agreement, except to the
extent the Administrative Agent acts as an agent with respect to the receipt or
payment of funds hereunder.
XII.2 Powers. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties to the Lenders, or any obligation to the Lenders to take any
action thereunder except any action specifically provided by the Loan Documents
to be taken by the Administrative Agent.
XII.3 General Immunity. Neither the Administrative Agent (in its
capacity as Administrative Agent) nor any of its directors, officers, agents or
employees shall be liable to the Borrower, the Lenders or any Lender for any
action taken or omitted to be taken by it or them hereunder or under any other
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Loan Document or in connection herewith or therewith, except for its or their
own gross negligence or willful misconduct. Subject to the express terms hereof,
the Administrative Agent will, unless otherwise instructed as described in
Section 12.5, endeavor to administer the Facility in substantially the same
manner as it administers similar credit facilities held for its own account.
XII.4 No Responsibility for Loans, Recitals, etc. Neither the
Administrative Agent (in its capacity as Administrative Agent) nor any of its
directors, officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into, or verify (i) any statement, warranty or
representation made in connection with any Loan Document or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document; (iii) the satisfaction of any
condition specified in Article V, except receipt of items required to be
delivered to the Administrative Agent; or (iv) the validity, effectiveness or
genuineness of any Loan Document or any other instrument or writing furnished in
connection therewith.
XII.5 Action on Instructions of Lenders. The Administrative Agent shall
in all cases act upon the written instructions of the Required Lenders or all
Lenders, as this Agreement may require, so long as such directions (i) are
consistent with the Lenders' express obligations hereunder and (ii) in the
Administrative Agent's good faith judgment, do not expose the Administrative
Agent to any material risk that the Administrative Agent is not indemnified
against hereunder. The Administrative Agent shall be fully protected in so
acting, or in so refraining from acting, hereunder and under any other Loan
Document in accordance with written instructions signed by the Required Lenders
or all Lenders, as the case may be, as required or permitted by the applicable
Loan Document, and such instructions and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders and on all holders of
Notes. The Administrative Agent shall be fully justified in failing or refusing
to take any action hereunder and under any other Loan Document unless it shall
first be indemnified to its satisfaction by the Lenders pro rata against any and
all liability, cost and expense that it may incur by reason of taking or
continuing to take any such action.
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XII.6 Employment of Administrative Agents and Counsel. The
Administrative Agent may execute any of its duties as Administrative Agent
hereunder and under any other Loan Document by or through employees, agents, and
attorneys-in-fact and shall not be answerable to the Lenders, except as to money
or securities received by it or its authorized agents, for the default or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. The Administrative Agent shall be entitled to advice of counsel
concerning all matters pertaining to the agency hereby created and its duties
hereunder and under any other Loan Document.
XII.7 Reliance on Documents; Counsel. The Administrative Agent shall be
entitled to rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of outside counsel selected by the
Administrative Agent.
XII.8 Administrative Agent's Reimbursement and Indemnification. The
Lenders agree to reimburse and indemnify the Administrative Agent ratably in
accordance with their respective Percentages (i) for any amounts not reimbursed
by the Borrower for which the Administrative Agent, in such capacity and not as
a Lender, is entitled to reimbursement by the Borrower under the Loan Documents,
(ii) for any other reasonable expenses incurred by the Administrative Agent, in
such capacity and not as a Lender, on behalf of the Lenders, in connection with
the preparation, execution, delivery, administration and enforcement of the Loan
Documents, if not paid by Borrower, and (iii) for any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Administrative Agent (in its capacity as
Administrative Agent and not as a Lender) in any way relating to or arising out
of the Loan Documents or any other document delivered in connection therewith or
the transactions contemplated thereby, or the enforcement of any of the terms
thereof or of any such other documents, provided that no Lender shall be liable
for any of the foregoing to the extent they arise from the gross negligence or
willful misconduct of the Administrative Agent or from matters arising solely
from lending
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limitations or other similar restrictions imposed on the Administrative Agent.
XII.9 Rights as a Lender. With respect to the Commitment, Advances made
by it and the Note issued to it, the Administrative Agent shall have the same
rights and powers hereunder and under any other Loan Document as any Lender and
may exercise the same as though it were not the Administrative Agent, and the
term "Lender" or "Lenders" shall, unless the context otherwise indicates,
include the Administrative Agent in its individual capacity. The Administrative
Agent, in its individual capacity, may accept deposits from, lend money to, and
generally engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Borrower or any of its Subsidiaries in which the Borrower or such
Subsidiary is not restricted hereby from engaging with any other Person.
XII.10 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
XII.11 Successor Administrative Agent. Each Lender agrees that First
Chicago shall serve as Administrative Agent at all times during the term of this
Facility, except that First Chicago may resign as Administrative Agent in the
event (x) First Chicago and Borrower shall mutually agree in writing or (y) an
Event of Default shall occur and be continuing under the Loan Documents, or (z)
First Chicago shall determine, in its sole reasonable discretion, that because
of its other banking relationships with Borrower and/or Borrower's Affiliates at
the time of such decision First Chicago's resignation as Administrative Agent
would be necessary in order to avoid creating an appearance of impropriety on
the part of First Chicago. First Chicago shall also resign as Administrative
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Agent, within 30 days after receipt of a written request from (A) the Borrower,
if the Administrative Agent's Commitment, after giving effect to any assignments
or reductions hereunder, is less than the lower of (i) 10% of the Aggregate
Commitment or (ii) $20,000,000 or (B) the Required Lenders, if the
Administrative Agent's Commitment is zero. First Chicago (or any successor
Administrative Agent) may be removed as Administrative Agent by written notice
received by Administrative Agent from the Required Lenders at any time with
cause (i.e., a breach by First Chicago (or any successor Administrative Agent)
of its duties as Administrative Agent hereunder) or for gross negligence or
willful misconduct. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint, on behalf of the Borrower and the Lenders, a
successor Administrative Agent which shall be subject to the prior written
approval of the Borrower (unless an Event of Default has occurred and is
continuing). If no successor Administrative Agent shall have been so appointed
by the Required Lenders and approved by the Borrower and shall have accepted
such appointment within sixty (60) days after the retiring Administrative
Agent's giving notice of resignation, then the retiring Administrative Agent
shall, prior to the effective date of its resignation, appoint after
consultation with the Borrower and in consideration of such consultation, on
behalf of the Borrower and the Lenders, a successor Administrative Agent. Such
successor Administrative Agent shall be a commercial bank having capital and
retained earnings of at least $500,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent (including the right to receive any fees for performing
such duties which accrue thereafter), and the retiring Administrative Agent
shall be discharged from its duties and obligations as Administrative Agent
hereunder and under the other Loan Documents arising or accruing after the
effective date of such resignation. After any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the provisions of this Article
XII shall continue in effect for its benefit and that of the other Lenders in
respect of any actions taken or omitted to be taken by it while it was acting as
the Administrative Agent hereunder and under the other Loan Documents.
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XII.12 Notice of Defaults. If a Lender has received written information
indicating the existence of a Default or Event of Default, such Lender shall
notify the Administrative Agent of such fact. Upon receipt of such notice that a
Default or Event of Default has occurred, the Administrative Agent shall notify
each of the Lenders of such fact.
XII.13 Requests for Approval. If the Administrative Agent requests in
writing the consent or approval of a Lender, such Lender shall respond and
either approve or disapprove definitively in writing to the Administrative Agent
within ten Business Days (or sooner if such notice specifies a shorter period,
but in no event less than five Business Days, for responses based on
Administrative Agent's good faith determination that circumstances exist
warranting its request for an earlier response) after such written request from
the Administrative Agent. If the Lender does not so respond, that Lender shall
be deemed to have approved the request. Upon request, the Administrative Agent
shall notify the Lenders which Lenders, if any, failed to respond to a request
for approval.
XII.14 Copies of Documents. Administrative Agent shall promptly deliver
to each of the Lenders copies of all notices of default and other formal notices
(including without limitation all requests for waivers or modifications) sent or
received and according to Section 15.1 of this Agreement. Administrative Agent
shall deliver to Lenders within 15 Business Days following receipt, copies of
all financial statements, other financial reporting information, certificates
and notices received except to the extent such items are required to be
furnished directly to the Lenders by Borrower hereunder. Within fifteen Business
Days after a request by a Lender to the Administrative Agent for other documents
furnished to the Administrative Agent by the Borrower, the Administrative Agent
shall provide copies of such documents to such Lender except where this
Agreement obligates Administrative Agent to provide copies in a shorter period
of time.
ARTICLE XIII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
XIII.1 Successors and Assigns.
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The terms and provisions of the Loan Documents shall be binding upon and inure
to the benefit of Borrower and the Lenders and their respective successors and
assigns, except that the Borrower shall not have the right to assign its rights
or obligations under the Loan Documents without the consent of all the Lenders
and any assignment by any Lender must be made in compliance with Section 13.3.
The Administrative Agent may treat the payee of any Note as the owner thereof
for all purposes hereof unless and until such payee complies with Section 13.3
in the case of an assignment thereof or, in the case of any other transfer, a
written notice of the transfer is filed with the Administrative Agent. Any
assignee or transferee of a Note agrees by acceptance thereof to be bound by all
the terms and provisions of the Loan Documents. Any request, authority or
consent of any Person who at the time of making such request or giving such
authority or consent is the holder of any Note, shall be conclusive and binding
on any subsequent holder, transferee or assignee of such Note or of any Note or
Notes issued in exchange therefor.
XIII.2 Participations.
13.2.1 Permitted Participants; Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable law,
at any time sell to one or more banks or other entities
("Participants") participating interests in any Advance owing to such
Lender, any Note held by such Lender, any Commitment of such Lender or
any other interest of such Lender under the Loan Documents. In the
event of any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under the Loan Documents shall
remain unchanged, such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, such
Lender shall remain the holder of any such Note for all purposes under
the Loan Documents, all amounts payable by Borrower under this
Agreement shall be determined as if such Lender had not sold such
participating interests, and Borrower and the Administrative Agent and
the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under
the Loan Documents.
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13.2.2 Voting Rights. Each Lender shall retain the sole right
to vote its Percentage of the Aggregate Commitment, without the consent
of any Participant or Designated Lender, for the approval or
disapproval of any amendment, modification or waiver of any provision
of the Loan Documents, provided that such Lender may grant such
Participant the right to approve any amendment, modification or waiver
which forgives principal, interest or fees or reduces the interest rate
or fees payable hereunder, postpones any date fixed for any
regularly-scheduled payment of principal of or interest on the
Obligations or extends the Maturity Date.
XIII.3 Assignments.
13.3.1 Permitted Assignments. Any Lender may, with the prior
written consent of Administrative Agent and the Borrower (which
consents shall not be unreasonably withheld or delayed), in accordance
with applicable law, at any time assign to one or more Qualified
Lenders (collectively, "Purchasers") all or a portion not less than
$10,000,000 of its rights and obligations under the Loan Documents,
except that no consent of Administrative Agent or Borrower shall ever
be required for (i) any assignment to a Person directly or indirectly
controlling, controlled by or under direct or indirect common control
with the assigning Lender or (ii) the pledge or assignment by a Lender
of such Lender's Note and other rights under the Loan Documents to any
Federal Reserve Bank in accordance with applicable law and no consent
of the Borrower shall be required when an Event of Default has occurred
and is continuing. "Qualified Lender" shall mean an institution with
assets over $5,000,000,000 that is generally in the business of making
loans similar to this Facility and that maintains an office in the
United States of America. Such assignments and assumptions shall be
substantially in the form of Exhibit I hereto. The Borrower shall
execute any and all documents which are customarily required by such
Lender (including, without limitation, a replacement promissory note or
notes in the forms provided hereunder) in connection with any such
assignment, but Borrower shall not be obligated to pay any fees and
expenses incurred by any Lender in connection with any assignment
pursuant to this Section. Any Lender selling all or any part of its
rights and obligation hereunder in a
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transaction requiring the consent of the Administrative Agent shall pay
to the Administrative Agent a fee of $3,500.00 per assignee to
reimburse Administrative Agent for its involvement in such assignment.
13.3.2 Effect; Effective Date of Assignment. Upon delivery to
the Administrative Agent of a notice of assignment executed by the
assigning Lender and the Purchaser, such assignment shall become
effective on the effective date specified in such notice of assignment.
The notice of assignment shall contain a representation by the
Purchaser to the effect that none of the consideration used to make the
purchase of the Commitment and the Loan under the applicable assignment
agreement are "plan assets" as defined under ERISA and that the rights
and interests of the Purchaser in and under the Loan Documents will not
be "plan assets" under ERISA. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Lender party to
this Agreement and any other Loan Document executed by the Lenders and
shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party hereto,
and no further consent or action by Borrower, the Lenders or the
Administrative Agent shall be required to release the transferor Lender
with respect to the percentage of the Commitment and Advances assigned
to such Purchaser. Upon the consummation of any assignment to a
Purchaser pursuant to this Section 13.3.2, the transferor Lender, the
Administrative Agent and Borrower shall make appropriate arrangements
so that replacement Notes are issued to such transferor Lender and new
Notes or, as appropriate, replacement Notes, are issued to such
Purchaser, in each case in principal amounts reflecting their
respective Commitments, as adjusted pursuant to such assignment.
XIII.4 Dissemination of Information. Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of Borrower and General Partner. Each Transferee
shall agree in writing to keep confidential any such information which is not
publicly available.
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XIII.5 Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with all applicable provisions of the Code with respect to
withholding and other tax matters.
ARTICLE XIV
GENERAL PROVISIONS
XIV.1 Survival of Representations. All representations and warranties
contained in this Agreement shall survive delivery of the Notes and the making
of the Advances herein contemplated until the Obligations are fully repaid.
XIV.2 Governmental Regulation. Anything contained in this Agreement to
the contrary notwithstanding, no Lender shall be obligated to extend credit to
the Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
XIV.3 Taxes. Any recording and other taxes (excluding franchise, income
or similar taxes) or other similar assessments or charges payable or ruled
payable by any governmental authority incurred in connection with the
consummation of the transactions contemplated by this Agreement shall be paid by
the Borrower, together with interest and penalties, if any.
XIV.4 Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
XIV.5 No Third Party Beneficiaries. This Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement and their respective successors and assigns.
XIV.6 Expenses; Indemnification. Subject to the provisions of this
Agreement, Borrower will pay (a) all reasonable out-of-pocket costs and expenses
incurred by the Administrative Agent and the Arrangers (including the reasonable
fees, out-of-pocket expenses and other reasonable expenses of
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counsel, which counsel may be employees of Administrative Agent) in connection
with the preparation, execution and delivery of this Agreement, the Notes, the
Loan Documents and any other agreements or documents referred to herein or
therein and any amendments thereto, (b) all out-of-pocket costs and expenses
incurred by the Administrative Agent and the Lenders (including the reasonable
fees, out-of-pocket expenses and other reasonable expenses of counsel to the
Administrative Agent and each of the Lenders, which counsel may be employees of
Administrative Agent or the Lenders) after the occurrence of a Default or Event
of Default in connection with the enforcement and protection of the rights of
the Lenders under this Agreement, the Notes, the Loan Documents or any other
agreement or document referred to herein or therein, and (c) all reasonable and
customary costs and expenses of periodic audits by the Administrative Agent's
personnel of the Borrower's books and records, provided that such audits shall
not be performed more often than once each calendar year unless an Event of
Default has occurred. The Borrower further agrees to indemnify the Lenders,
their directors, officers and employees against all losses, claims, damages,
penalties, judgments, liabilities and reasonable expenses (including, without
limitation, all expenses of litigation or preparation therefor whether or not
the Lenders is a party thereto) which any of them may pay or incur arising out
of or relating to this Agreement, the other Loan Documents, the transactions
contemplated hereby or the direct or indirect application or proposed
application of the proceeds of any Advance hereunder, except that the foregoing
indemnity shall not apply to a Lender to the extent that any losses, claims,
etc. are the result of such Lender's gross negligence or wilful misconduct. The
obligations of the Borrower under this Section shall survive for two years
beyond the termination of this Agreement.
XIV.7 Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
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<PAGE> 102
XIV.8 Nonliability of the Lenders. The relationship between the
Borrower and the Lenders shall be solely that of borrower and lender. The
Lenders shall not have any fiduciary responsibilities to the Borrower. The
"Co-Agents" identified on the title page hereof shall not have any rights or
obligations hereunder solely as a result of such designation. The Lenders
undertake no responsibility to the Borrower to review or inform the Borrower of
any matter in connection with any phase of the Borrower's business or
operations.
XIV.9 Choice of Law. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
XIV.10 Consent to Jurisdiction. THE BORROWER HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE
COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A
COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT
THE RIGHT OF THE LENDERS TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS
OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE
LENDERS OR ANY AFFILIATE OF THE LENDERS INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS.
XIV.11 Waiver of Jury Trial. THE BORROWER, THE GUARANTORS, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN
TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED
WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
XIV.12 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective
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<PAGE> 103
permitted successors and assigns, except that the Borrower shall not have the
right to assign its rights or obligations under the Loan Documents. Any assignee
or transferee of the Notes agrees by acceptance thereof to be bound by all the
terms and provisions of the Loan Documents. Any request, authority or consent of
any Person, who at the time of making such request or giving such authority or
consent is the holder of the Notes, shall be conclusive and binding on any
subsequent holder, transferee or assignee of such Notes or of any note or notes
issued in exchange therefor.
XIV.13 Entire Agreement; Modification of Agreement. The Loan Documents
embody the entire agreement among the Borrower, Guarantors, Administrative Agent
and Lenders and supersede all prior conversations, agreements, understandings,
commitments and term sheets among any or all of such parties with respect to the
subject matter hereof. Any provisions of this Agreement may be amended or waived
if, but only if, such amendment or waiver is in writing and is signed by the
Borrower, and Administrative Agent if the rights or duties of Administrative
Agent are affected thereby, and
(a) each of the Lenders if such amendment or waiver
(i) reduces, forgives or changes the method of
calculating, any payment of principal or interest on the
Obligations or any fees payable by Borrower to such Lender
hereunder; or
(ii) postpones the date fixed for any payment of
principal of or interest on the Obligations or any fees
payable by Borrower to such Lender hereunder; or
(iii) changes the amount of such Lender's
Commitment (other than pursuant to an assignment permitted
under Section 13.3) or the unpaid principal amount of such
Lender's Note; or
(iv) extends the Maturity Date; or
(v) releases or limits the liability of the
Guarantors under any of the Loan Documents; or
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<PAGE> 104
(vi) changes the definition of Required Lenders
or modifies any requirement for consent by each of the
Lenders; or
(vii) changes the notice and funding times for
making or continuing Advances under Article II; or
(viii) increases the Aggregate Commitment (other
than pursuant to Section 2.18); or
(ix) changes the distribution priorities in
Section 2.19; or
(b) the Required Lenders, to the extent expressly provided for
herein and in the case of all other waivers or amendments if no percentage of
Lenders is specified herein.
Any amendment hereto pursuant to Section 2.18 hereof increasing the Aggregate
Commitment shall only require the consent of the Borrower, the Administrative
Agent and the Lender providing such new or increased Commitment.
XIV.14 Dealings with the Borrower. The Lenders and their affiliates may
accept deposits from, extend credit to and generally engage in any kind of
banking, trust or other business with the Borrower or the General Partner or any
of their Affiliates regardless of the capacity of the Lenders hereunder.
XIV.15 Set-Off.
(a) If an Event of Default shall have occurred, each Lender
shall have the right, at any time and from time to time without notice to the
Borrower, any such notice being hereby expressly waived, to set-off and to
appropriate or apply any and all deposits of money or property or any other
indebtedness at any time held or owing by such Lender to or for the credit or
the account of the Borrower against and on account of all outstanding
Obligations and all Obligations which from time to time may become due hereunder
and all other obligations and liabilities of the Borrower under this Agreement,
irrespective of whether or not such Lender shall have made any demand hereunder
and whether or not said obligations and liabilities shall have matured. Any
Lender may, by separate agreement with the Borrower, waive its set-off rights
with respect to all or any portion of the
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<PAGE> 105
obligations and liabilities of the Borrower to such Lender against deposits held
by such Lender, which waiver shall be binding upon all other Lenders as to any
set-off rights such non-waiving Lenders might otherwise be able to assert
against deposits held by such waiving Lender. The Borrower is not obligated
hereunder to maintain deposits with any Lender (except as expressly provided in
Section 3.9 hereof).
(b) Each Lender agrees that if it shall, by exercising any
right of set-off or counterclaim or otherwise, receive payment of a proportion
of the aggregate amount of principal, interest or fees due with respect to any
Note held by it which is greater than the proportion received by any other
Lender in respect of the aggregate amount of principal, interest or fees due
with respect to any Note held by such other Lender, the Lender receiving such
proportionately greater payment shall purchase such participations in the Notes
held by the other Lenders and such other adjustments shall be made as may be
required so that all such payments of principal, interest or Fees with respect
to the Notes held by the Lenders shall be shared by the Lenders pro rata
according to their respective Commitments. No Lender shall be required to share
any payments it may receive by exercising any such rights if such Lender elects
to apply such payments to debts and obligations other than the Obligations under
this Agreement.
XIV.16 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Agreement by signing any such
counterpart. This Agreement shall be effective when it has been executed by the
Borrower and each of the Lenders shown on the signature pages hereof.
ARTICLE XV
NOTICES
XV.1 Giving Notice. All notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by facsimile and addressed or delivered to such party at its address
set forth below or at such other address as may be designated by such party in a
notice
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<PAGE> 106
to the other parties. Any notice, if mailed and properly addressed with
postage prepaid, shall be deemed given when received; any notice, if transmitted
by telex or facsimile, shall be deemed given when transmitted (answerback
confirmed in the case of telexes). Notice may be given as follows:
To the Borrower:
Chief Financial Officer
Bradley Real Estate, Inc.
40 Skokie Boulevard, Suite 600
Northbrook, Illinois 60062-1626
Attention: Irving E. Lingo, Jr.
Each of the above with a copy to:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, Massachusetts 02109
Attention: Ross D. Gillman, Esq.
Telecopy: (617) 523-1231
To each Lender:
As shown below the Lenders' signatures.
To the Administrative Agent:
The First National Bank of Chicago
One First National Plaza
Chicago, Illinois 60670
Attention: Real Estate Finance Division
Telecopy: (312) 732-1117
With a copy to:
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
Attention: Patrick G. Moran, Esq.
Telecopy: (312) 876-7934
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<PAGE> 107
XV.2 Change of Address. Each party may change the address for service
of notice upon it by a notice in writing to the other parties hereto.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
BORROWER: BRADLEY OPERATING LIMITED PARTNERSHIP
By: BRADLEY REAL ESTATE, INC., its General
Partner
By:/s/ Irving E. Lingo, Jr.
--------------------------------------
Title: Chief Financial Officer
-----------------------------------
GUARANTORS: BRADLEY FINANCING PARTNERSHIP
By: BRADLEY FINANCING CORP., its General
Partner
By:/s/ Thomas P. D'Arcy
--------------------------------------
Title: President
-----------------------------------
BRADLEY REAL ESTATE, INC.
By:/s/ Irving E. Lingo, Jr.
-----------------------------------------------
Its:Chief Financial Officer
----------------------------------------------
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<PAGE> 108
LENDERS: THE FIRST NATIONAL BANK OF CHICAGO
By:
-----------------------------------------------
Title:
--------------------------------------------
Commitment: $27,000,000
Percentage of Aggregate Commitment: 13.5%
Address for Notices:
One First National Plaza
Chicago, Illinois 60670
Attention: Real Estate Finance Division
Telephone: 312/732-2107
Telecopy: 312/732-1117
BANKBOSTON, N.A.
By:
-----------------------------------------------
Title:
--------------------------------------------
Commitment: $27,000,000
Percentage of Aggregate Commitment: 13.5%
Address for Notices:
100 Federal Street
Boston, Massachusetts 02110
Attention: Howard N. Blackwell
Telephone: 617/434-1655
Telecopy: 617/434-0382
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<PAGE> 109
BANK OF AMERICA NATIONAL TRUST & SAVINGS
ASSOCIATION
By:
-----------------------------------------------
Title:
--------------------------------------------
Commitment: $27,000,000
Percentage of Aggregate Commitment: 13.5%
Address for Notices:
231 South LaSalle Street
Chicago, Illinois 60697-1516
Attention: Richard G. Baer, Jr.
Telephone: 312/828-5149
Telecopy: 312/974-4970
FLEET NATIONAL BANK
By:
-----------------------------------------------
Title:
--------------------------------------------
Commitment: $27,000,000
Percentage of Aggregate Commitment: 13.5%
Address for Notices:
75 State Street
MS: MABOF11C
Boston, Massachusetts 02109
Attention: Thomas Hanold
Telephone: 617/346-2881
Telecopy: 617/346-3220
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<PAGE> 110
U.S. BANK NATIONAL ASSOCIATION, F/K/A AND
D/B/A FIRST BANK NATIONAL ASSOCIATION
By:
----------------------------------------------
Title:
-------------------------------------------
Commitment: $20,000,000
Percentage of Aggregate Commitment: 10.0%
Address for Notices:
601 Second Avenue South, MPFP 0802
Minneapolis, Minnesota 55402-4302
Attention: Kathleen M. Connor
Telephone: 612/973-0306
Telecopy: 612/973-0830
FIRST UNION NATIONAL BANK
By:
----------------------------------------------
Title:
-------------------------------------------
Commitment: $18,000,000
Percentage of Aggregate Commitment: 9.0%
Address for Notices:
One First Union Center, DC-6
Charlotte, North Carolina 28288-0166
Attention: John A. Schissel
Telephone: 704/383-1967
Telecopy: 704/383-6205
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<PAGE> 111
KEYBANK NATIONAL ASSOCIATION
By:
----------------------------------------------
Title:
-------------------------------------------
Commitment: $18,000,000
Percentage of Aggregate Commitment: 9.0%
Address for Notices:
Commercial Real Estate Division
190 South LaSalle Street, Suite 2840
Chicago, Illinois 60603
Attention: David C. Bluestone
Telephone: 312/251-3582
Telecopy: 312/251-0687
LASALLE NATIONAL BANK
By:
----------------------------------------------
Title:
-------------------------------------------
Commitment: $18,000,000
Percentage of Aggregate Commitment: 9.0%
Address for Notices:
135 South LaSalle Street, Suite 1225
Chicago, Illinois 60603
Attention: John Hein
Telephone: 312/904-8620
Telecopy: 312/904-6467
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<PAGE> 112
MELLON BANK, N.A.
By:
----------------------------------------------
Title:
-------------------------------------------
Commitment: $18,000,000
Percentage of Aggregate Commitment: 9.0%
Address for Notices:
One Mellon Bank Center, Suite 2940
Pittsburgh, Pennsylvania 15258
Attention: Janis Carey
Telephone: 412/234-1159
Telecopy: 412/234-8657
ADMINISTRATIVE AGENT: THE FIRST NATIONAL BANK OF CHICAGO
By:
----------------------------------------------
Title:
-------------------------------------------
Address for Notices:
One First National Plaza
Chicago, Illinois 60670
Attention: Real Estate Finance Division
Telephone: 312/732-2107
Telecopy: 312/732-1117
DOCUMENTATION AGENT: BANKBOSTON, N.A.
By:
----------------------------------------------
Title:
-------------------------------------------
Address for Notices:
100 Federal Street
Boston, Massachusetts 02110
Attention: Howard N. Blackwell
Telephone: 617/434-1655
Telecopy: 617/434-0382
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<PAGE> 113
EXHIBITS
- --------
A - Percentages
B-1 - Form of Note
B-2 - Form of Competitive Bid Note
C-1 - Form of Competitive Bid Quote Request
C-2 - Invitation for Competitive Bid Quotes
C-3 - Competitive Bid Quote
D - Form of Guaranty
E - Opinion of Counsel
F - Wiring Instructions
G - Form of Compliance Certificate
H - Scope of Work for Environmental Investigations
I - Form of Assignment Agreement
J - Form of Designation Agreement
SCHEDULES
- ---------
6.9 Litigation (Borrower)
6.19 Environmental Compliance
6.25 Subsidiaries (Borrower)
6.26 Unencumbered Assets
7.8 Litigation (General Partner)
7.18 Subsidiaries (General Partner)
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<PAGE> 1
EXHIBIT 99.2
FORM OF NOTE
$_______________ December 23, 1997
On or before the Maturity Date, as defined in that certain Unsecured
Revolving Credit Agreement dated as of December 23, 1997 (the "Agreement")
between BRADLEY OPERATING LIMITED PARTNERSHIP, a Delaware limited partnership
("Borrower"), Bradley Financing Partnership, Bradley Real Estate, Inc. and The
First National Bank of Chicago, a national bank organized under the laws of the
United States of America, individually and as Administrative Agent for the
Lenders, BankBoston, N.A., a national bank organized under the laws of the
United States of America, individually and as Documentation Agent for the
Lenders and certain other lenders party thereto (as such terms are defined in
the Agreement), Borrower promises to pay to the order of
_________________________ (the "Lender"), or its successors and assigns, the
principal sum of ____________________ AND NO/100 DOLLARS ($__________) or the
aggregate unpaid principal amount of all Loans (other than Competitive Bid
Loans) made by the Lender to the Borrower pursuant to Section 2.1 of the
Agreement, without set-off or counterclaim in immediately available funds at the
office of the Administrative Agent in Chicago, Illinois, together with interest
on the unpaid principal amount hereof at the rates and on the dates set forth in
the Agreement and all other then due fees or charges as provided herein or in
the Agreement. The Borrower shall pay this Promissory Note ("Note") in full on
or before the Maturity Date in accordance with the terms of the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Advance and the date and amount of each principal
payment hereunder.
This Note is issued pursuant to, and is entitled to the benefits of,
the Agreement and the other Loan Documents, to which Agreement and Loan
Documents, as they may be amended from time to time, reference is hereby made
for, inter alia, a statement of the terms and conditions under which this Note
may be prepaid or its maturity accelerated. Capitalized terms used herein and
not otherwise defined herein are used with the meanings attributed to them in
the Agreement.
<PAGE> 2
If there is an Event of Default or Default under the Agreement or any
other Loan Document and Lender exercises its remedies provided under the
Agreement and/or any of the Loan Documents, then in addition to all amounts
recoverable by the Lender under such documents, Lender shall be entitled to
receive reasonable attorneys fees and expenses incurred by Lender in exercising
such remedies.
Borrower and all endorsers severally waive presentment, protest and
demand, notice of protest, demand and of dishonor and nonpayment of this Note
(except as otherwise expressly provided for in the Agreement), and any and all
lack of diligence or delays in collection or enforcement of this Note, and
expressly agree that this Note, or any payment hereunder, may be extended from
time to time, and expressly consent to the release of any party liable for the
obligation secured by this Note, the release of any of the security of this
Note, the acceptance of any other security therefor, or any other indulgence or
forbearance whatsoever, all without notice to any party and without affecting
the liability of the Borrower and any endorsers hereof.
This Note shall be governed and construed under the internal laws of
the State of Illinois.
BORROWER AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHT UNDER THIS PROMISSORY NOTE OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO
OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS NOTE AND
AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
BRADLEY OPERATING LIMITED PARTNERSHIP
By: BRADLEY REAL ESTATE, INC., its
general partner
By:
Its:
<PAGE> 3
PAYMENTS OF PRINCIPAL
Unpaid
Principal
Notation
Date Balance
Made by
<PAGE> 1
EXHIBIT 99.3
FORM OF COMPETITIVE BID NOTE
December 23, 1997
On or before the last day of each "Interest Period" applicable to a
"Competitive Bid Loan", as defined in that certain Unsecured Revolving Credit
Agreement dated as of December 23, 1997 (the "Agreement") between BRADLEY
OPERATING LIMITED PARTNERSHIP, a Delaware limited partnership ("Borrower"),
Bradley Real Estate, Inc., Bradley Financing Partnership, BankBoston, N.A.,
individually and as Documentation Agent for the Lenders, individually and as
Administrative Agent for the Lenders and certain other lenders party thereto (as
such terms are defined in the Agreement), Borrower promises to pay to the order
of _________________________ (the "Lender"), or its successors and assigns, the
unpaid principal amount of such Competitive Bid Loan made by the Lender to the
Borrower pursuant to Section 2.16 of the Agreement, without set-off or
counterclaim in immediately available funds at the office of the Administrative
Agent in Chicago, Illinois, together with interest on the unpaid principal
amount hereof at the rates and on the dates established pursuant to the
Agreement. The Borrower shall pay any remaining unpaid principal amount of such
Competitive Bid Loans under this Competitive Bid Note ("Note") in full on or
before the Maturity Date in accordance with the terms of the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date, amount and due date of each Competitive Bid Loan and the date and
amount of each principal payment hereunder.
This Note is issued pursuant to, and is entitled to the security under
and benefits of, the Agreement and the other Loan Documents, to which Agreement
and Loan Documents, as they may be amended from time to time, reference is
hereby made for, inter alia, a statement of the terms and conditions under which
this Note may be prepaid or its maturity accelerated. Capitalized terms used
herein and not otherwise defined herein are used with the meanings attributed to
them in the Agreement.
If there is an Event of Default or Default under the
<PAGE> 2
Agreement or any other Loan Document and Lender exercises its remedies provided
under the Agreement and/or any of the Loan Documents, then in addition to all
amounts recoverable by the Lender under such documents, Lender shall be entitled
to receive reasonable attorneys fees and expenses incurred by Lender in
exercising such remedies.
Borrower and all endorsers severally waive presentment, protest and
demand, notice of protest, demand and of dishonor and nonpayment of this Note
(except as otherwise expressly provided for in the Agreement), and any and all
lack of diligence or delays in collection or enforcement of this Note, and
expressly agree that this Note, or any payment hereunder, may be extended from
time to time, and expressly consent to the release of any party liable for the
obligation secured by this Note, the release of any of the security of this
Note, the acceptance of any other security therefor, or any other indulgence or
forbearance whatsoever, all without notice to any party and without affecting
the liability of the Borrower and any endorsers hereof.
This Note shall be governed and construed under the internal laws of
the State of Illinois.
BORROWER AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHT UNDER THIS PROMISSORY NOTE OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO
OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS NOTE AND
AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
BRADLEY OPERATING LIMITED PARTNERSHIP
By: Bradley Real Estate, Inc., its
general partner
By:
Its:
<PAGE> 3
PAYMENTS OF PRINCIPAL
Unpaid
Principal
Notation
Date Balance
Made by
<PAGE> 1
EXHIBIT 99.4
FORM OF GUARANTY
This Guaranty made as of December 23, 1997, by Bradley Financing
Partnership, a Delaware general partnership and Bradley Real Estate, Inc., a
Maryland corporation (collectively, "Guarantor"), to and for the benefit of The
First National Bank of Chicago, a national banking association, individually
("First Chicago"), and as administrative agent for itself and the lenders listed
on the signature pages of the Loan Agreement (as defined below) and their
respective successors and assigns (collectively, "Lender").
RECITALS
A. Bradley Operating Limited Partnership, a Delaware limited partnership
("Borrower"), and Guarantor have requested that Lender make an unsecured
revolving credit facility available to Borrower in the aggregate principal
amount of up to $200,000,000, subject to future increase to $250,000,000
("Facility").
B. Lender has agreed to make available the Facility to Borrower pursuant
to the terms and conditions set forth in an Unsecured Revolving Credit Agreement
bearing even date herewith between Borrower, First Chicago and Guarantors ("Loan
Agreement"). All capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to such terms in the Loan Agreement.
C. Borrower has executed and delivered to Lender Promissory Notes of
even date herewith in the aggregate principal amount of $200,000,000, together
with Competitive Bid Notes, as evidence of its indebtedness to Lender with
respect to the Facility (the promissory notes described above, together with any
amendments or allonges thereto, or restatements, replacements or renewals
thereof, and/or new promissory notes to new Lenders under the Loan Agreement,
including without limitation notes increasing the Facility to $250,000,000 in
the aggregate, are collectively referred to herein as the "Note").
D. Guarantors are a general partner of Borrower and a general
partnership in which the Borrower is a general partner, and therefore, Guarantor
will derive financial benefit from the
<PAGE> 2
Facility evidenced by the Note, Loan Agreement and the other Loan Documents. The
execution and delivery of this Guaranty by Guarantor is a condition precedent to
the performance by Lender of its obligations under the Loan Agreement.
AGREEMENTS
NOW, THEREFORE, Guarantor, in consideration of the matters described in
the foregoing Recitals, which Recitals are incorporated herein and made a part
hereof, and for other good and valuable consideration, hereby agrees as follows:
1. Guarantor absolutely, unconditionally, and irrevocably guarantees to
Lender:
(a) the full and prompt payment of the principal of and interest
on the Note when due, whether at stated maturity, upon acceleration or
otherwise, and at all times thereafter, and the prompt payment of all
sums which may now be or may hereafter become due and owing under the
Note, the Loan Agreement, and the other Loan Documents;
(b) the payment of all Enforcement Costs (as hereinafter defined
in Paragraph 7 hereof); and
(c) the full, complete, and punctual observance, performance,
and satisfaction of all of the obligations, duties, covenants, and
agreements of Borrower under the Loan Agreement and the Loan Documents.
All amounts due, debts, liabilities, and payment obligations described in
subparagraphs (a) and (b) of this Paragraph 1 are referred to herein as the
"Facility Indebtedness." All obligations described in subparagraph (c) of this
Paragraph 1 are referred to herein as the "Obligations."
2. In the event of any default by Borrower in making payment of the
Facility Indebtedness, or in performance of the Obligations, as aforesaid, in
each case beyond the expiration of any applicable grace period, Guarantor
agrees, on demand by Lender or the holder of the Note, to pay all the Facility
Indebtedness and to perform all the Obligations as are or then or thereafter
become due and owing or are to be performed under the terms of the Note, the
Loan Agreement and the other Loan Documents, and to pay any reasonable expenses
incurred by Lender in protecting, preserving, or defending its interest in the
<PAGE> 3
Property or in connection with the Facility or under any of the Loan Documents,
including, without limitation, all reasonable attorneys' fees and costs. Lender
shall have the right, at its option, either before, during or after pursuing any
other right or remedy against Borrower or Guarantor, to perform any and all of
the Obligations by or through any agent, contractor or subcontractor, or any of
their agents, of its selection, all as Lender in its sole discretion deems
proper, and Guarantor shall indemnify and hold Lender free and harmless from and
against any and all loss, damage, cost, expense, injury, or liability Lender may
suffer or incur in connection with the exercise of its rights under this
Guaranty or the performance of the Obligations, except to the extent the same
arises as a result of the gross negligence or wilful misconduct of Lender.
All of the remedies set forth herein and/or provided by any of the Loan
Documents or law or equity shall be equally available to Lender, and the choice
by Lender of one such alternative over another shall not be subject to question
or challenge by Guarantor or any other person, nor shall any such choice be
asserted as a defense, set-off, or failure to mitigate damages in any action,
proceeding, or counteraction by Lender to recover or seeking any other remedy
under this Guaranty, nor shall such choice preclude Lender from subsequently
electing to exercise a different remedy. The parties have agreed to the
alternative remedies hereinabove specified in part because they recognize that
the choice of remedies in the event of a failure hereunder will necessarily be
and should properly be a matter of business judgment, which the passage of time
and events may or may not prove to have been the best choice to maximize
recovery by Lender at the lowest cost to Borrower and/or Guarantor. It is the
intention of the parties that such choice by Lender be given conclusive
effect regardless of such subsequent developments.
3. Guarantor does hereby waive (i) notice of acceptance of this Guaranty
by Lender and any and all notices and demands of every kind which may be
required to be given by any statute, rule or law, (ii) any defense, right of
set-off or other claim which Guarantor may have against the Borrower or which
Guarantor or Borrower may have against Lender or the holder of the Note (other
than payment of the Facility Indebtedness or performance of the Obligations),
(iii) presentment for payment, demand for payment (other than as provided for in
Paragraph 2 above), notice of nonpayment (other than as provided for in
Paragraph 2 above) or dishonor, protest and notice of protest, diligence in
collection
<PAGE> 4
and any and all formalities which otherwise might be legally required
to charge Guarantor with liability, (iv) any failure by Lender to inform
Guarantor of any facts Lender may now or hereafter know about Borrower, the
Facility, or the transactions contemplated by the Loan Agreement, it being
understood and agreed that Lender has no duty so to inform and that the
Guarantor is fully responsible for being and remaining informed by the Borrower
of all circumstances bearing on the existence or creation, or the risk of
nonpayment of the Facility Indebtedness or the risk of nonperformance of the
Obligations, and (v) any and all right to cause a marshalling of assets of the
Borrower or any other action by any court or governmental body with respect
thereto, or to cause Lender to proceed against any other security given to
Lender in connection with the Facility Indebtedness or the Obligations. Credit
may be granted or continued from time to time by Lender to Borrower without
notice to or authorization from Guarantor, regardless of the financial or other
condition of the Borrower at the time of any such grant or continuation. Lender
shall have no obligation to disclose or discuss with Guarantor its assessment of
the financial condition of Borrower. Guarantor acknowledges that no
representations of any kind whatsoever have been made by Lender to Guarantor. No
modification or waiver of any of the provisions of this Guaranty shall be
binding upon Lender except as expressly set forth in a writing duly signed and
delivered on behalf of Lender. Guarantor further agrees that any exculpatory
language contained in the Loan Agreement and the Note shall in no event apply to
this Guaranty, and will not prevent Lender from proceeding against Guarantor to
enforce this Guaranty.
4. Guarantor further agrees that Guarantor's liability as guarantor shall
in nowise be impaired by any renewals or extensions which may be made from time
to time, with or without the knowledge or consent of Guarantor of the time for
payment of interest or principal under the Note or by any forbearance or delay
in collecting interest or principal under the Note, or by any waiver by Lender
under the Loan Agreement or any other Loan Documents, or by Lender's failure or
election not to pursue any other remedies it may have against Borrower, or by
any change or modification in the Note, Loan Agreement or any other Loan
Documents, or by the acceptance by Lender of any additional security or any
increase, substitution or change therein, or by the release by Lender of any
security or any withdrawal thereof or decrease therein, or by the application of
payments received from any source to the payment of any obligation other than
the
<PAGE> 5
Facility Indebtedness, even though Lender might lawfully have elected to apply
such payments to any part or all of the Facility Indebtedness, it being
theintent hereof that Guarantor shall remain liable as principal for payment of
the Facility Indebtedness and performance of the Obligations until all
indebtedness has been paid in full and the other terms, covenants and conditions
of the Loan Agreement and other Loan Documents and this Guaranty have been
performed and the Aggregate Commitment terminated, notwithstanding any act or
thing which might otherwise operate as a legal or equitable discharge of a
surety. Guarantor further understands and agrees that Lender may at any time
enter into agreements with Borrower to amend and modify the Note, Loan Agreement
or other Loan Documents, or any thereof, and may waive or release any provision
or provisions of the Note, the Loan Agreement and other Loan Documents or any
thereof, and, with reference to such instruments, may make and enter into any
such agreement or agreements as Lender and Borrower may deem proper and
desirable, without in any manner impairing this Guaranty or any of Lender's
rights hereunder or any of the Guarantor's obligations hereunder.
5. This is an absolute, unconditional, complete, present and continuing
guaranty of payment and performance and not of collection. Guarantor agrees that
this Guaranty may be enforced by Lender without the necessity at any time of
resorting to or exhausting any other security or collateral given in connection
herewith or with the Note, the Loan Agreement, or any of the other Loan
Documents, or resorting to any other guaranties, and Guarantor hereby waives the
right to require Lender to join Borrower in any action brought hereunder or to
commence any action against or obtain any judgment against Borrower or to pursue
any other remedy or enforce any other right. Guarantor further agrees that
nothing contained herein or otherwise shall prevent Lender from pursuing
concurrently or successively all rights and remedies available to it at law
and/or in equity or under the Note, Loan Agreement or any other Loan Documents,
and the exercise of any of its rights or the completion of any of its remedies
shall not constitute a discharge of any of Guarantor's obligations hereunder, it
being the purpose and intent of the Guarantor that the obligations of such
Guarantor hereunder shall be primary, absolute, independent and unconditional
under any and all circumstances whatsoever. Neither Guarantor's obligations
under this Guaranty nor any remedy for the enforcement thereof shall be
impaired, modified, changed or released in any manner whatsoever by any
impairment, modification, change, release or
<PAGE> 6
limitation of the liability of Borrower under the Note, Loan Agreement or other
Loan Documents or by reason of Borrower's bankruptcy or by reason of any
creditor or bankruptcy proceeding instituted by or against Borrower. This
Guaranty shall continue to be effective and be deemed to have continued in
existence or be reinstated (as the case may be) if at any time payment of all or
any part of any sum payable pursuant to the Note, Loan Agreement or any other
Loan Document is rescinded or otherwise required to be returned by the payee
upon the insolvency, bankruptcy, or reorganization of the payor, all as though
such payment to Lender had not been made, regardless of whether Lender contested
the order requiring the return of such payment. The obligations of Guarantor
pursuant to the preceding sentence shall survive any termination, cancellation,
or release of this Guaranty.
6. This Guaranty shall be assignable by Lender to any assignee of all or
a portion of Lender's rights under the Loan Documents.
7. If: (i) this Guaranty, the Note or any other Loan Document is placed
in the hands of an attorney for collection or is collected through any legal
proceeding; (ii) an attorney is retained to represent Lender in any bankruptcy,
reorganization, receivership, or other proceedings affecting creditors' rights
and involving a claim under this Guaranty, the Note, the Loan Agreement, or any
Loan Document; (iii) an attorney is retained to provide advice or other
representation with respect to the Loan Documents in connection with an
enforcement action or potential enforcement action; or (iv) an attorney is
retained to represent Lender in any other legal proceedings whatsoever in
connection with this Guaranty, the Note, the Loan Agreement, any of the Loan
Documents, or any property subject thereto (other than any action or proceeding
brought by any Lender or participant against the Administrative Agent (as
defined in the Loan Agreement) alleging a breach by the Administrative Agent of
its duties under the Loan Documents), then Guarantor shall pay to Lender upon
demand all reasonable attorney's fees, costs and expenses, including, without
limitation, court costs, filing fees, recording costs, expenses of foreclosure,
title insurance premiums, survey costs, minutes of foreclosure, and all other
costs and expenses incurred in connection therewith (all of which are referred
to herein as "Enforcement Costs"), in addition to all other amounts due
hereunder.
<PAGE> 7
8. The parties hereto intend that each provision in this Guaranty
comports with all applicable local, state and federal laws and judicial
decisions. However, if any provision or provisions, or if any portion of any
provision or provisions, in this Guaranty is found by a court of law to be in
violation of any applicable local, state or federal ordinance, statute, law,
administrative or judicial decision, or public policy, and if such court should
declare such portion, provision or provisions of this Guaranty to be illegal,
invalid, unlawful, void or unenforceable as written, then it is the intent of
all parties hereto that such portion, provision or provisions shall be given
force to the fullest possible extent that they are legal, valid and enforceable,
that the remainder of this Guaranty shall be construed as if such illegal,
invalid, unlawful, void or unenforceable portion, provision or provisions were
not contained therein, and that the rights, obligations and interest of Lender
or the holder of the Note under the remainder of this Guaranty shall continue in
full force and effect.
9. Any indebtedness of Borrower to Guarantor now or hereafter existing is
hereby subordinated to the Facility Indebtedness. Guarantor agrees that until
the entire Facility Indebtedness has been paid in full and the Aggregate
Commitment has been terminated, at such times as an Event of Default under the
Loan Agreement may have occurred and be continuing, (i) Guarantor will not seek,
accept, or retain for Guarantor's own account, any payment from Borrower on
account of such subordinated debt, and (ii) any such payments to Guarantor on
account of such subordinated debt shall be collected and received by Guarantor
in trust for Lender and shall be paid over to Lender on account of the Facility
Indebtedness without impairing or releasing the obligations of Guarantor
hereunder.
10. Unless and until the Facility Indebtedness has been paid in full and
the Aggregate Commitment has been terminated, Guarantor shall not assert any
claim (within the meaning of 11 U.S.C. Section (101) which Guarantor may have
against Borrower arising from a payment made by Guarantor under this Guaranty
and agrees not to assert or take advantage of any subrogation rights of
Guarantor or Lender or any right of Guarantor or Lender to proceed against
(i) Borrower for reimbursement, or (ii) any other guarantor or any collateral
security or guaranty or right of offset held by Lender for the payment of the
Facility Indebtedness and performance of the Obligations, nor shall Guarantor
seek or be entitled to seek any contribution or
<PAGE> 8
reimbursement from Borrower or any other guarantor in respect of payments made
by Guarantor hereunder. It is expressly understood that the waivers and
agreements of Guarantor set forth above constitute additional and cumulative
benefits given to Lender for its security and as an inducement for its extension
of credit to Borrower.
11. Any amounts received by Lender from any source on account of any
indebtedness may be applied by Lender toward the payment of such indebtedness,
and in such order of application, as Lender may from time to time elect.
12. The Guarantor hereby submits to personal jurisdiction in the State of
Illinois for the enforcement of this Guaranty and waives any and all personal
rights to object to such jurisdiction for the purposes of litigation to enforce
this Guaranty. Guarantor hereby consents to the jurisdiction of either the
Circuit Court of Cook County, Illinois, or the United States District Court for
the Northern District of Illinois, in any action, suit, or proceeding which
Lender may at any time wish to file in connection with this Guaranty or any
related matter. Guarantor hereby agrees that an action, suit, or proceeding to
enforce this Guaranty may be brought in any state or federal court in the State
of Illinois and hereby waives any objection which Guarantor may have to the
laying of the venue of any such action, suit, or proceeding in any such court;
provided, however, that the provisions of this Paragraph shall not be deemed to
preclude Lender from filing any such action, suit, or proceeding in any other
appropriate forum.
13. Bradley Financing Partnership and Lender agree that such Guarantor's
obligations hereunder shall not exceed the greater of: (i) the aggregate amount
of all monies received, directly or indirectly, by such Guarantor from Borrower
after the date hereof (whether by loan, capital infusion or other means), or
(ii) the maximum amount of the Facility Indebtedness not subject to avoidance
under Title 11 of the United States Code, as same may be amended from time to
time, or any applicable state law (the "Bankruptcy Code"). To that end, to the
extent such obligations would otherwise be subject to avoidance under the
Bankruptcy Code if such Guarantor is not deemed to have received valuable
consideration, fair value or reasonably equivalent value for its obligations
hereunder, such Guarantor's obligations hereunder shall be reduced to that
amount which, after giving effect thereto, would not render such Guarantor
insolvent, or leave such
<PAGE> 9
Guarantor with an unreasonably small capital to conduct its business, or cause
the Guarantor to have incurred debts (or intended to have incurred debts) beyond
its ability to pay such debts as they mature, as such terms are determined, and
at the time such obligations are deemed to have been incurred, under the
Bankruptcy Code. In the event Guarantor shall make any payment or payments under
this Guaranty each other Guarantor shall contribute to such paying Guarantor an
amount equal to such non-paying Guarantor's pro rata share (based on their
respective maximum liabilities hereunder) of such payment or payments made by
such paying Guarantor, provided that such contribution right shall be
subordinate and junior in right of payment to all the Guaranteed Obligations to
Lender.
14. All notices and other communications provided to any party hereto
under this Agreement or any other Loan Document shall be in writing or by telex
or by facsimile and addressed or delivered to such party at its address set
forth below or at such other address as may be designated by such party in a
notice to the other parties. Any notice, if mailed and properly addressed with
postage prepaid, shall be deemed given when received; any notice, if transmitted
by telex or facsimile, shall be deemed given when transmitted (answerback
confirmed in the case of telexes). Notice may be given as follows:
To the Guarantor:
Chief Financial Officer
Bradley Real Estate, Inc.
40 Skokie Boulevard, Suite 600
Northbrook, Illinois 60062-1626
Attention: Irving E. Lingo, Jr.
With a copy to:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, Massachusetts 02109
Attention: Ross D. Gillman, Esq.
Telecopy: (617) 523-1231
<PAGE> 10
To the Lender:
c/o The First National Bank of Chicago, as agent
One First National Plaza
Chicago, Illinois 60670
Attention: Real Estate Finance Department
Telecopy: (312) 732-1117
With a copy to:
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
Attention: Patrick G. Moran, Esq.
Telecopy: (312) 876-7934
or at such other address as the party to be served with notice may have
furnished in writing to the party seeking or desiring to serve notice as a place
for the service of notice.
15. This Guaranty shall be binding upon the heirs, executors, legal and
personal representatives, successors and assigns of Guarantor and shall inure to
the benefit of Lender's successors and assigns. The liability of the entities
comprising the Guarantor hereunder shall be joint and several.
16. This Guaranty shall be construed and enforced under the internal laws
of the State of Illinois.
17. GUARANTOR AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHT UNDER THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO OR
ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS GUARANTY AND
AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
IN WITNESS WHEREOF, Guarantor has delivered this Guaranty in the State
of Illinois as of the date first written above.
BRADLEY FINANCING PARTNERSHIP
By: BRADLEY FINANCING CORP., its managing
general partner
<PAGE> 11
By:
Its:
BRADLEY REAL ESTATE, INC.
By:
Its:
