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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): July 9, 1998
Kimco Realty Corporation
(Exact name of registrant as specified in its charter)
Maryland 1-10899 13-2744380
- ------------------------------- ---------------- --------------------
(State or other jurisdiction of (Commission File (IRS Employer
incorporation) Number) Identification No.)
3333 New Hyde Park Road
New Hyde Park, New York 11042-0020
- ------------------------------- --------------------
(Address of principal executive (zip code)
offices)
516/869-9000
-----------------------------------
Registrant's telelphone,
including area code
Not Applicable
- --------------------------------------------------------------------------------
(former name or former address, if changed since last report.)
Page 1 of
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KIMCO REALTY CORPORATION AND SUBSIDIARIES
CURRENT REPORT
ON
FORM 8-K
Item 5. Other Events
Attached and incorporated by reference as Exhibit 4. (a) and (b) to this Current
Report on Form 8-K are (a) the Remarketing Agreement, dated as of August 11,
1998, between Kimco Realty Corporation, a Maryland corporation ("Kimco"), and
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated and (b)
the Credit agreement dated as of August 21, 1998, between Kimco, the several
banks, financial institutions and other entities from time to time parties to
this agreement ("the Lenders"), The Chase Manhattan Bank, as administrative
agent for the Lenders, and First National Bank of Chicago.
Item 7. Financial Statements and Exhibits
Filed as exhibits and incorporated by reference into the registration statements
on Form S-3 and all amendments thereto (Nos. 333-61303 and 333-37285) are 1(m)
Underwriting Agreement, dated July 9, 1998, between Edward Jones & Co. and Kimco
Realty Corporation and 1(n) Terms Agreement, July 9, 1998, between Edward Jones
& Co. and Kimco Realty Corporation. Filed as exhibits and incorporated by
reference into the registration statements on Form S-3 and all amendments
thereto (No. 333-61303) are 1(o) Underwriting Agreement, dated November 4,
1998, between Jefferies & Company, Inc. and Kimco Realty Corporation and 1(p)
Terms Agreement, dated November 4, 1998, between Jefferies & Company, Inc. and
Kimco Realty Corporation.
Other exhibits:
4(a) Remarketing Agreement, dated as of August 11, 1998, between Kimco
Realty Corporation and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated.
4(b) Credit Agreement, dated as of August 21, 1998, among Kimco Realty
Corporation, the several banks, financial institutions and other entities, The
Chase Manhattan Bank and The First National Bank of Chicago.
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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.
Kimco Realty Corporation
------------------------
Registrant
Date: October 14, 1998
By: /s/ Michael V. Pappagallo
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Michael V. Pappagallo
Chief Financial Officer
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KIMCO REALTY CORPORATION
(a Maryland corporation)
Common Stock, Warrants to Purchase Common Stock, Preferred Stock
and Depositary Shares
UNDERWRITING AGREEMENT
November 4, 1998
Jefferies & Company, Inc.
11100 Santa Monica Boulevard
Los Angeles, California 90025
Ladies and Gentlemen:
Kimco Realty Corporation, a Maryland corporation (the "Company"),
proposes to issue and sell shares of Common Stock, $.01 par value (the "Common
Stock"), or warrants to purchase a number of shares of Common Stock (the
"Common Stock Warrants"), or both, or shares of Preferred Stock, $1.00 par
value (the "Preferred Shares"), from time to time, in one or more offerings on
terms to be determined at the time of sale. The Preferred Shares may be
offered in the form of depositary shares (the "Depositary Shares") represented
by depositary receipts (the "Depositary Receipts"). The Common Stock Warrants
will be issued pursuant to a Common Stock Warrant Agreement (the "Warrant
Agreement") between the Company and a warrant agent (the "Warrant Agent").
Each series of Preferred Shares may vary as to the specific number of shares,
title, stated value, liquidation preference, issuance price, ranking, dividend
rate or rates (or method of calculation), dividend payment dates, any
redemption or sinking fund requirements, any conversion provisions and any
other variable terms as set forth in the applicable articles supplementary
(each, the "Articles Supplementary") relating to such Preferred Shares. As
used herein, "Securities" shall mean the Common Stock, the Common Stock
Warrants, the Preferred Shares, the Depositary Shares and the Depositary
Receipts; and "Warrant Securities" shall mean the Common Stock issuable upon
exercise of Common Stock Warrants. As used herein, "you" and "your," unless
the context otherwise requires, shall mean the parties to whom this Agreement
is addressed together with the other parties, if any, identified in the
applicable Terms Agreement (as hereinafter defined) as additional co-managers
with respect to Underwritten Securities (as hereinafter defined) purchased
pursuant thereto.
Whenever the Company determines to make an offering of Securities
through you or through an underwriting syndicate managed by you, the Company
will enter into an agreement (the "Terms Agreement") providing for the sale of
such Securities (the "Underwritten Securities") to, and the purchase and
offering thereof by, you and such other underwriters, if any, selected by you
as have authorized you to enter into such Terms Agreement on their behalf (the
"Underwriters," which term shall include you whether acting alone in the sale
of the Underwritten Securities or as a member of an underwriting syndicate and
any Underwriter substituted pursuant to Section 10 hereof). The Terms
Agreement relating to the offering of
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Underwritten Securities shall specify the number of Underwritten Securities of
each class or series to be initially issued, including the number of Common
Stock Warrants, if any (the "Initial Underwritten Securities"), whether the
Initial Underwritten Securities shall be in the form of Depositary Shares and
the fractional amount of Preferred Shares represented by each Depositary
Share, the names of the Underwriters participating in such offering (subject
to substitution as provided in Section 10 hereof), the number of Initial
Underwritten Securities which each such Underwriter severally agrees to
purchase, the names of such of you or such other Underwriters acting as
co-managers, if any, in connection with such offering, the price at which the
Initial Underwritten Securities are to be purchased by the Underwriters from
the Company, any initial public offering price, the time, date and place of
delivery and payment, any delayed delivery arrangements and any other variable
terms of the Initial Underwritten Securities (including, but not limited to,
current ratings (in the case of Preferred Shares and Depositary Shares only),
designations, liquidation preferences, conversion provisions, redemption
provisions and sinking fund requirements and the terms of the Warrant
Securities and the terms, prices and dates upon which such Warrant Securities
may be purchased). In addition, each Terms Agreement shall specify whether the
Company has agreed to grant to the Underwriters an option to purchase
additional Underwritten Securities to cover over-allotments, if any, and the
number of Underwritten Securities subject to such option (the "Option
Securities"). As used herein, the term "Underwritten Securities" shall include
the Initial Underwritten Securities and all or any portion of the Option
Securities agreed to be purchased by the Underwriters as provided herein, if
any. The Terms Agreement, which shall be substantially in the form of Exhibit
A hereto, may take the form of an exchange of any standard form of written
telecommunication between you and the Company. Each offering of Underwritten
Securities through you or through an underwriting syndicate managed by you
will be governed by this Agreement, as supplemented by the applicable Terms
Agreement.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-61303) for
the registration of the Securities and Warrant Securities and certain of the
Company's debt securities, under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering thereof from time to time in accordance with
Rule 415 of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations"). Such registration statement (including all
pre-effective amendments thereto) has been declared effective by the
Commission, and the Company has filed such post-effective amendments thereto
as may have been required prior to the execution of the applicable Terms
Agreement and each such post-effective amendment has been declared effective
by the Commission. Such registration statement (as so amended, if applicable),
including all information, if any, deemed to be a part thereof pursuant to
Rule 434 of the 1933 Act Regulations, is collectively referred to herein as
the "Registration Statement" and the final prospectus and the prospectus
supplement relating to the offering of the Underwritten Securities (the
"Prospectus Supplement"), in the form first used to confirm sales by the
Underwriters for use in connection with the offering of the Underwritten
Securities, are collectively referred to herein as the "Prospectus"; provided,
however, that all references to the "Registration Statement" and the
"Prospectus" shall be deemed to include all documents incorporated therein by
reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), prior to the execution of the applicable Terms Agreement. All
references in this Agreement to financial
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statements and schedules and other information which is "contained,"
"included" or "stated" in the Registration Statement or the Prospectus (and
all other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which is or is
deemed to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement or the Prospectus
shall be deemed to mean and include the filing of any document under the 1934
Act which is or is deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be. If the Company elects to rely
on Rule 434 under the 1933 Act Regulations, all references to the "Prospectus"
shall be deemed to include, without limitation, the final or preliminary
prospectus and the term sheet or abbreviated term sheet, taken together,
provided to the Underwriters by the Company in reliance on Rule 434 under the
1933 Act (the "Rule 434 Prospectus"). If the Company files a registration
statement with the Commission to register a portion of the Securities and
Warrant Securities and relies on Rule 462(b) for such registration statement
to become effective upon filing with the Commission (the "Rule 462
Registration Statement"), then any reference to "Registration Statement"
herein shall be deemed to be to both the registration statement referred to
above (No. 333-61303) and the Rule 462 Registration Statement.
Section 1. Representations and Warranties. (a) The Company represents
and warrants to you, as of the date hereof, and to you and each other
Underwriter named in the applicable Terms Agreement, as of the date thereof,
the Closing Time (as hereinafter defined) and each Date of Delivery, if any
(as hereinafter defined) (in each case, a "Representation Date"), as follows:
(i) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective and at each time
thereafter on which the Company filed an Annual Report on Form
10-K with the Commission, complied, and as of each
Representation Date will comply, in all material respects with
the requirements of the 1933 Act and 1933 Act Regulations; the
Registration Statement, at the time the Registration Statement
became effective and at each time thereafter on which the
Company filed an Annual Report on Form 10-K with the
Commission, did not, and at each time thereafter on which any
amendment to the Registration Statement becomes effective or
the Company files an Annual Report on Form 10-K with the
Commission and as of each Representation Date will not, contain
an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading; and the Prospectus,
as of the date hereof, does not, and as of each Representation
Date will not, include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that
the representations and warranties in this subsection shall not
apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity
with information furnished to the Company in writing by any
Underwriter through you expressly for use in the Registration
Statement or Prospectus.
(ii) The accountants who certified the financial statements,
financial statement schedules and historical summaries of
revenue and certain operating expenses for the properties
related thereto included or incorporated by reference in the
Registration
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Statement and the Prospectus are independent public accountants
as required by the 1933 Act and the 1933 Act Regulations.
(iii) The historical financial statements included or incorporated
by reference in the Registration Statement and the Prospectus
present fairly the financial position of the Company and its
consolidated subsidiaries as at the dates indicated and the
results of their operations for the periods specified; except
as may otherwise be stated in the Registration Statement and
the Prospectus, said financial statements have been prepared in
conformity with generally accepted accounting principles
applied on a consistent basis; and the financial statement
schedules and other financial information and data included or
incorporated by reference in the Registration Statement and the
Prospectus present fairly the information required to be stated
therein.
(iv) The historical summaries of revenue and certain operating
expenses included or incorporated by reference in the
Registration Statement and the Prospectus, if any, present
fairly the revenue and those operating expenses included in
such summaries for the periods specified in conformity with
generally accepted accounting principles; the pro forma
condensed consolidated financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus, if any, present fairly the pro forma financial
position of the Company and its consolidated subsidiaries as at
the dates indicated and the pro forma results of their
operations for the periods specified; and the pro forma
condensed consolidated financial statements, if any, have been
prepared in conformity with generally accepted accounting
principles applied on a consistent basis, the assumptions on
which such pro forma financial statements have been prepared
are reasonable and are set forth in the notes thereto, such pro
forma financial statements have been prepared, and the pro
forma adjustments set forth therein have been applied, in
accordance with the applicable accounting requirements of the
1933 Act and the 1933 Act Regulations, and such pro forma
adjustments have been properly applied to the historical
amounts in the compilation of such statements.
(v) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as may
otherwise be stated therein or contemplated thereby, (A) there
has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of
business, (B) there have been no transactions or acquisitions
entered into by the Company or any of its subsidiaries other
than those arising in the ordinary course of business, which
are material with respect to the Company and its subsidiaries
considered as one enterprise, and (C) except for regular
quarterly dividends on the Company's common stock, or dividends
declared, paid or made in accordance with the terms of any
series of the Company's preferred stock, there has been no
dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock.
(vi) The Company has been duly incorporated and is validly existing
as a corporation under the laws of Maryland and is in good
standing with the State
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Department of Assessments and Taxation of Maryland with
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Prospectus; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify
would not have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business affairs or
business prospects of the Company and its subsidiaries
considered as one enterprise; and the Articles Supplementary
relating to the Preferred Shares or Depositary Shares, if
applicable, will be in full force and effect as of each
Representation Date.
(vii) Each significant subsidiary (as defined in Rule 1-02 of
Regulation S-X promulgated under the 1933 Act) of the Company
(each, a "Significant Subsidiary") has been duly incorporated
and is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction
in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have
a material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise; and all of the issued and outstanding capital stock
of each Significant Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and is owned
by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity, except for security interests
granted in respect of indebtedness of the Company or any of its
subsidiaries and referred to in the Prospectus.
(viii) The authorized, issued and outstanding stock of the Company
is as set forth in the Prospectus under "Capitalization"
(except for subsequent issuances, if any, pursuant to
reservations, agreements, employee benefit plans, dividend
reinvestment plans, employee and director stock option plans or
the exercise of convertible securities referred to in the
Prospectus); and the outstanding capital stock of the Company
has been duly authorized and validly issued and is fully paid
and non-assessable and is not subject to preemptive or other
similar rights.
(ix) The Underwritten Securities being sold pursuant to the
applicable Terms Agreement and, if applicable, the deposit of
the Preferred Shares in accordance with the provisions of a
Deposit Agreement (each, a "Deposit Agreement"), among the
Company, the financial institution named in the Deposit
Agreement (the "Depositary") and the holders of the Depositary
Receipts issued thereunder, have, as of each Representation
Date, been duly authorized by the Company and such Underwritten
Securities have been duly authorized for issuance and sale
pursuant to this Agreement and such Underwritten Securities,
when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth in the
applicable Terms Agreement or any Delayed Delivery Contract (as
hereinafter defined), will be validly issued, fully paid and
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non-assessable and will not be subject to preemptive or other
similar rights; the Preferred Shares, if applicable, conform to
the provisions of the Articles Supplementary; and the
Underwritten Securities being sold pursuant to the applicable
Terms Agreement conform in all material respects to all
statements relating thereto contained in the Prospectus.
(x) If applicable, the Common Stock Warrants have been duly
authorized and, when issued and delivered pursuant to this
Agreement and countersigned by the Warrant Agent as provided in
the Warrant Agreement, will have been duly executed,
countersigned, issued and delivered and will constitute valid
and legally binding obligations of the Company entitled to the
benefits provided by the Warrant Agreement under which they are
to be issued; the issuance of the Warrant Securities upon
exercise of the Common Stock Warrants will not be subject to
preemptive or other similar rights; and the Common Stock
Warrants conform in all material respects to all statements
relating thereto contained in the Prospectus.
(xi) If applicable, the shares of Common Stock issuable upon
conversion of any of the Preferred Shares or the Depositary
Shares, or the Warrant Securities, will have been duly and
validly authorized and reserved for issuance upon such
conversion or exercise by all necessary corporate action and
such shares, when issued upon such conversion or exercise, will
be duly and validly issued and will be fully paid and
non-assessable, and the issuance of such shares upon such
conversion or exercise will not be subject to preemptive or
other similar rights; the shares of Common Stock issuable upon
conversion of any of the Preferred Shares or the Depositary
Shares, or the Warrant Securities, conform in all material
respects to the descriptions thereof in the Prospectus.
(xii) The applicable Warrant Agreement, if any, and the applicable
Deposit Agreement, if any, will have been duly authorized,
executed and delivered by the Company prior to the issuance of
any applicable Underwritten Securities, and each constitutes a
valid and legally binding agreement of the Company enforceable
in accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency or other similar laws
relating to or affecting creditors' rights generally and by
general equity principles (regardless of whether enforcement is
considered in a proceeding in equity or at law); and the
Warrant Agreement, if any, and the Deposit Agreement, if any,
each conforms in all material respects to all statements
relating thereto contained in the Prospectus.
(xiii) If applicable, upon execution and delivery of the Depositary
Receipts pursuant to the terms of the Deposit Agreement, the
persons in whose names such Depositary Receipts are registered
will be entitled to the rights specified therein and in the
Deposit Agreement, except as enforcement of such rights may be
limited by bankruptcy, insolvency or other similar laws
relating to or affecting creditors' rights generally and by
general equity principles (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(xiv) Neither the Company nor any of its subsidiaries is in
violation of its charter or by-laws or in default in the
performance or observance of any material
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obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company
or any of its subsidiaries is subject, except for any such
violation or default that would not have a material adverse
effect on the condition, financial or otherwise, or on the
earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise; and the
execution, delivery and performance of this Agreement, the
applicable Terms Agreement, the applicable Warrant Agreement,
if any, or the applicable Deposit Agreement, if any, and the
consummation of the transactions contemplated herein and
therein and compliance by the Company with its obligations
hereunder and thereunder have been duly authorized by all
necessary corporate action, and will not conflict with or
constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its
subsidiaries pursuant to any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the
Company or any of its subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or
assets of the Company or any of its subsidiaries is subject,
nor will such action result in any violation of the charter or
by-laws of the Company or any applicable law, administrative
regulation or administrative or court order or decree.
(xv) The Company has operated and intends to continue to operate in
such a manner as to qualify to be taxed as a "real estate
investment trust" under the Internal Revenue Code of 1986, as
amended (the "Code"), for the taxable year in which sales of
the Underwritten Securities are to occur.
(xvi) Neither the Company nor any of its subsidiaries is an
"investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "1940 Act").
(xvii) There is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened
against or affecting the Company or any of its subsidiaries
which is required to be disclosed in the Prospectus (other than
as disclosed therein), or which might result in any material
adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, or
which might materially and adversely affect the properties or
assets thereof or which might materially and adversely affect
the consummation of this Agreement, the applicable Terms
Agreement, the applicable Warrant Agreement, if any, or the
applicable Deposit Agreement, if any, or the transactions
contemplated herein or therein; all pending legal or
governmental proceedings to which the Company or any of its
subsidiaries is a party or of which any of its property or
assets is the subject which are not described in the
Prospectus, including ordinary routine litigation incidental to
the business, are, considered in the aggregate, not material;
and there are no contracts or documents of the Company or any
of its
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subsidiaries which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been so filed.
(xviii) Neither the Company nor any of its subsidiaries is required
to own or possess any trademarks, service marks, trade names or
copyrights in order to conduct the business now operated by it,
other than those the failure to possess or own would not have a
material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise.
(xix) No authorization, approval or consent of any court or
governmental authority or agency is required that has not been
obtained in connection with the consummation by the Company of
the transactions contemplated by this Agreement, the applicable
Terms Agreement, any Warrant Agreement or any Deposit
Agreement, except such as may be required under the 1933 Act or
the 1933 Act Regulations, state securities laws or real estate
syndication laws.
(xx) The Company and its subsidiaries possess such certificates,
authorities or permits issued by the appropriate state, federal
or foreign regulatory agencies or bodies necessary to conduct
the business now operated by them, other than those the failure
to possess or own would not have a material adverse effect on
the condition, financial or otherwise, or on the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, and neither the
Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any
such certificate, authority or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect the condition,
financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries
considered as one enterprise.
(xxi) The Company has full corporate power and authority to enter
into this Agreement, the applicable Terms Agreement and the
Delayed Delivery Contracts, if any, and this Agreement has
been, and as of each Representation Date, the applicable Terms
Agreement and the Delayed Delivery Contracts, if any, will have
been, duly authorized, executed and delivered by the Company.
(xxii) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter
are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission under the 1934 Act (the
"1934 Act Regulations"), and, when read together with the other
information in the Prospectus, at the time the Registration
Statement became effective and as of the applicable
Representation Date or during the period specified in Section
3(f), did not and will not include an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
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(xxiii) Except as otherwise disclosed in the Prospectus and except
as would not have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business affairs or
business prospects of the Company and its subsidiaries
considered as one enterprise: (i) all properties and assets
described in the Prospectus are owned with good and marketable
title by the Company, its subsidiaries and/or a joint venture
or partnership in which any such party is a participant (a
"Related Entity"); (ii) all of the leases under which any of
the Company, its subsidiaries or, to the knowledge of the
Company, Related Entities holds or uses real properties or
assets as a lessee are in full force and effect, and neither
the Company, nor any of its subsidiaries or, to the knowledge
of the Company, Related Entities is in material default in
respect of any of the terms or provisions of any of such leases
and no claim has been asserted by anyone adverse to any such
party's rights as lessee under any of such leases, or affecting
or questioning any such party's right to the continued
possession or use of the leased property or assets under any
such leases; (iii) all liens, charges, encumbrances, claims or
restrictions on or affecting the properties and assets of any
of the Company, its subsidiaries or Related Entities which are
required to be disclosed in the Prospectus are disclosed
therein; (iv) neither the Company, nor any of its subsidiaries
or, to the knowledge of the Company, Related Entities nor any
lessee of any portion of any such party's properties is in
default under any of the leases pursuant to which any of the
Company, its subsidiaries or, to the knowledge of the Company,
Related Entities leases its properties and neither the Company,
nor any of its subsidiaries or Related Entities knows of any
event which, but for the passage of time or the giving of
notice, or both, would constitute a default under any of such
leases; (v) no tenant under any of the leases pursuant to which
any of the Company, or its subsidiaries or, to the knowledge of
the Company, Related Entities leases its properties has an
option or right of first refusal to purchase the premises
demised under such lease; (vi) each of the properties of any of
the Company or, to the knowledge of the Company, its
subsidiaries or Related Entities complies with all applicable
codes and zoning laws and regulations; and (vii) neither the
Company nor any of its subsidiaries has knowledge of any
pending or threatened condemnation, zoning change or other
proceeding or action that will in any manner affect the size
of, use of, improvements on, construction on, or access to the
properties of any of the Company, or its subsidiaries or
Related Entities.
(xxiv) Title insurance in favor of the mortgagee or the Company, its
subsidiaries and/or their Related Entities is maintained with
respect to each shopping center property owned by any such
entity in an amount at least equal to (a) the cost of
acquisition of such property or (b) the cost of construction of
such property (measured at the time of such construction),
except, in each case, where the failure to maintain such title
insurance would not have a material adverse effect on the
condition, financial or otherwise, or on the earnings, business
affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(xxv) The mortgages and deeds of trust encumbering the properties
and assets described in the Prospectus are not convertible nor
does any of the Company, or its subsidiaries hold a
participating interest therein.
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(xxvi) Each of the partnership and joint venture agreements to which
the Company or any of its subsidiaries is a party, and which
relates to real property described in the Prospectus, has been
duly authorized, executed and delivered by such applicable
party and constitutes the valid agreement thereof, enforceable
in accordance with its terms, except as limited by (a) the
effect of bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or
affecting the rights or remedies of creditors or (b) the effect
of general principles of equity, whether enforcement is
considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor
may be brought, and the execution, delivery and performance of
any of such agreements did not, at the time of execution and
delivery, and does not constitute a breach of, or default
under, the charter or by-laws of such party or any material
contract, lease or other instrument to which such party is a
party or by which its properties may be bound or any law,
administrative regulation or administrative or court order or
decree.
(xxvii) None of the Company, or any of its subsidiaries has any
knowledge of (a) the unlawful presence of any hazardous
substances, hazardous materials, toxic substances or waste
materials (collectively, "Hazardous Materials") on any of the
properties owned by it or the Related Entities, or (b) any
unlawful spills, releases, discharges or disposal, of Hazardous
Materials that have occurred or are presently occurring off
such properties as a result of any construction on or operation
and use of such properties which presence or occurrence would
have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise; and in connection with the construction on or
operation and use of the properties owned by the Company, its
subsidiaries and Related-Entities, each of the Company, and its
subsidiaries represents that, as of each Representation Date,
it has no knowledge of any material failure to comply with all
applicable local, state and federal environmental laws,
regulations, ordinances and administrative and judicial orders
relating to the generation, recycling, reuse, sale, storage,
handling, transport and disposal of any Hazardous Materials.
(b) Any certificate signed by any officer of the Company and
delivered to you or to counsel for the Underwriters in connection with the
offering of the Underwritten Securities shall be deemed a representation and
warranty by the Company to each Underwriter participating in such offering as
to the matters covered thereby on the date of such certificate and, unless
subsequently amended or supplemented, at each Representation Date subsequent
thereto.
Section 2. Purchase and Sale. (a) The several commitments of the
Underwriters to purchase the Underwritten Securities pursuant to the
applicable Terms Agreement shall be deemed to have been made on the basis of
the representations and warranties herein contained and shall be subject to
the terms and conditions herein set forth.
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company may grant, if so provided in the applicable Terms Agreement relating
to the Initial Underwritten Securities, an option to the Underwriters named in
such Terms Agreement, severally and not jointly, to purchase up to the
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number of Option Securities set forth therein at a price per Option Security
equal to the price per Initial Underwritten Security, less an amount equal to
any dividends declared by the Company and paid or payable on the Initial
Underwritten Securities but not on the Option Underwritten Securities. Such
option, if granted, will expire 30 days or such lesser number of days as may
be specified in the applicable Terms Agreement after the Representation Date
relating to the Initial Underwritten Securities, and may be exercised in whole
or in part from time to time only for the purpose of covering over-allotments
which may be made in connection with the offering and distribution of the
Initial Underwritten Securities upon notice by you to the Company setting
forth the number of Option Securities as to which the several Underwriters are
then exercising the option and the time, date and place of payment and
delivery for such Option Securities. Any such time and date of delivery (a
"Date of Delivery") shall be determined by you, but shall not be later than
three full business days and not be earlier than two full business days after
the exercise of said option, unless otherwise agreed upon by you and the
Company. If the option is exercised as to all or any portion of the Option
Securities, each of the Underwriters, acting severally and not jointly, will
purchase that proportion of the total number of Option Securities then being
purchased which the number of Initial Underwritten Securities each such
Underwriter has severally agreed to purchase as set forth in the applicable
Terms Agreement bears to the total number of Initial Underwritten Securities
(except as otherwise provided in the applicable Terms Agreement), subject to
such adjustments as you in your discretion shall make to eliminate any sales
or purchases of fractional Initial Underwritten Securities.
(c) Payment of the purchase price for, and delivery of, the
Underwritten Securities to be purchased by the Underwriters shall be made at
the office of Brown & Wood LLP, 58th Floor, One World Trade Center, New York,
New York 10048-0557, or at such other place as shall be agreed upon by you and
the Company, at 9:00 A.M., New York City time, on the third business day
(unless postponed in accordance with the provisions of Section 10) following
the date of the applicable Terms Agreement or, if pricing takes place after
4:30 P.M., New York City time, on the date of the applicable Terms Agreement,
on the fourth business day (unless postponed in accordance with the provisions
of Section 10) following the date of the applicable Terms Agreement or at such
other time as shall be agreed upon by you and the Company (each such time and
date being referred to as a "Closing Time"). In addition, in the event that
any or all of the Option Securities are purchased by the Underwriters, payment
of the purchase price for, and delivery of certificates representing, such
Option Securities, shall be made at the above-mentioned offices of Brown &
Wood LLP, or at such other place as shall be agreed upon by you and the
Company on each Date of Delivery as specified in the notice from you to the
Company. Unless otherwise specified in the applicable Terms Agreement, payment
shall be made to the Company by wire transfer or certified or official bank
check or checks in Federal or similar same-day funds payable to the order of
the Company against delivery to you for the respective accounts of the
Underwriters for the Underwritten Securities to be purchased by them. The
Underwritten Securities or, if applicable, Depositary Receipts evidencing the
Depositary Shares, shall be in such authorized denominations and registered in
such names as you may request in writing at least one business day prior to
the applicable Closing Time or Date of Delivery, as the case may be. The
Underwritten Securities, which may be in temporary form, will be made
available for examination and packaging by you on or before the first business
day prior to the Closing Time or Date of Delivery, as the case may be.
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If authorized by the applicable Terms Agreement, the Underwriters
named therein may solicit offers to purchase Underwritten Securities from the
Company pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Exhibit B hereto with such changes therein as the
Company may approve. As compensation for arranging Delayed Delivery Contracts,
the Company will pay to you at Closing Time, for the respective accounts of
the Underwriters, a fee specified in the applicable Terms Agreement for each
of the Underwritten Securities for which Delayed Delivery Contracts are made
at the Closing Time as is specified in the applicable Terms Agreement. Any
Delayed Delivery Contracts are to be with institutional investors of the types
described in the Prospectus. At the Closing Time, the Company will enter into
Delayed Delivery Contracts (for not less than the minimum number of
Underwritten Securities per Delayed Delivery Contract specified in the
applicable Terms Agreement) with all purchasers proposed by the Underwriters
and previously approved by the Company as provided below, but not for an
aggregate number of Underwritten Securities in excess of that specified in the
applicable Terms Agreement. The Underwriters will not have any responsibility
for the validity or performance of Delayed Delivery Contracts.
You shall submit to the Company, at least two business days prior to
the Closing Time, the names of any institutional investors with which it is
proposed that the Company will enter into Delayed Delivery Contracts and the
number of Underwritten Securities to be purchased by each of them, and the
Company will advise you, at least two business days prior to the Closing Time,
of the names of the institutions with which the making of Delayed Delivery
Contracts is approved by the Company and the number of Underwritten Securities
to be covered by each such Delayed Delivery Contract.
The number of Underwritten Securities agreed to be purchased by the
several Underwriters pursuant to the applicable Terms Agreement shall be
reduced by the number of Underwritten Securities covered by Delayed Delivery
Contracts, as to each Underwriter as set forth in a written notice delivered
by you to the Company; provided, however, that the total number of
Underwritten Securities to be purchased by all Underwriters shall be the total
number of Underwritten Securities covered by the applicable Terms Agreement,
less the number of Underwritten Securities covered by Delayed Delivery
Contracts.
Section 3. Covenants of the Company. The Company covenants with you,
and with each Underwriter participating in the offering of Underwritten
Securities, as follows:
(a) If the Company does not elect to rely on Rule 434 under the 1933
Act Regulations, immediately following the execution of the applicable Terms
Agreement, the Company will prepare a Prospectus Supplement setting forth the
number of Underwritten Securities covered thereby and their terms not
otherwise specified in the Prospectus pursuant to which the Underwritten
Securities are being issued, the names of the Underwriters participating in
the offering and the number of Underwritten Securities which each severally
has agreed to purchase, the names of the Underwriters acting as co-managers in
connection with the offering, the price at which the Underwritten Securities
are to be purchased by the Underwriters from the Company, the initial public
offering price, if any, the selling concession and reallowance, if any, any
delayed delivery arrangements, and such other information as you and the
Company deem appropriate in connection with the offering of the Underwritten
Securities; and the Company will
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promptly transmit copies of the Prospectus Supplement to the Commission for
filing pursuant to Rule 424(b) of the 1933 Act Regulations and will furnish to
the Underwriters named therein as many copies of the Prospectus (including
such Prospectus Supplement) as you shall reasonably request. If the Company
elects to rely on Rule 434 under the 1933 Act Regulations, immediately
following the execution of the applicable Terms Agreement, the Company will
prepare an abbreviated term sheet that complies with the requirements of Rule
434 under the 1933 Act Regulations and will provide the Underwriters with
copies of the form of Rule 434 Prospectus, in such number as you shall
reasonably request, and promptly file or transmit for filing with the
Commission the form of Prospectus complying with Rule 434(c)(2) of the 1933
Act Regulations in accordance with Rule 424(b) of the 1933 Act Regulations.
(b) The Company will notify you immediately, and confirm such notice
in writing, of (i) the effectiveness of any amendment to the Registration
Statement, (ii) the transmittal to the Commission for filing of any Prospectus
Supplement or other supplement or amendment to the Prospectus or any document
to be filed pursuant to the 1934 Act, (iii) the receipt of any comments from
the Commission, (iv) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (v) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose; and the Company will make
every reasonable effort to prevent the issuance of any stop order and, if any
stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(c) At any time when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities, the Company will give you notice of its intention to file or
prepare any amendment to the Registration Statement or any amendment or
supplement to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or
otherwise (including any revised prospectus which the Company proposes for use
by the Underwriters in connection with an offering of Underwritten Securities
which differs from the Prospectus on file at the Commission at the time the
Registration Statement first becomes effective, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act
Regulations, or any abbreviated term sheet prepared in reliance on Rule 434 of
the 1933 Act Regulations), and will furnish you with copies of any such
amendment or supplement or other documents proposed to be filed or used a
reasonable amount of time prior to such proposed filing or use, as the case
may be, and will not file any such amendment or supplement or other documents
in a form to which you or counsel for the Underwriters shall reasonably
object.
(d) The Company will deliver to each Underwriter as many signed and
conformed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) as such Underwriter reasonably requests.
(e) The Company will furnish to each Underwriter, from time to time
during the period when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request for the purposes
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contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the
1934 Act Regulations.
(f) If at any time when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Securities any event shall occur or condition exist as a result
of which it is necessary, in the opinion of counsel for the Underwriters or
counsel for the Company, to amend or supplement the Prospectus in order that
the Prospectus will not include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein
not misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of
either such counsel, at any such time to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the
1933 Act or the 1933 Act Regulations, then the Company will promptly prepare
and file with the Commission such amendment or supplement, whether by filing
documents pursuant to the 1933 Act, the 1934 Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement and Prospectus comply with such requirements.
(g) The Company will endeavor, in cooperation with the Underwriters,
to qualify the Underwritten Securities, the Warrant Securities, if any, and
the shares of Common Stock issuable upon conversion of the Preferred Shares or
the Depositary Shares, if any, for offering and sale under the applicable
securities laws and real estate syndication laws of such states and other
jurisdictions of the United States as you may designate. In each jurisdiction
in which the Underwritten Securities, the Warrant Securities, if any, and the
shares of Common Stock issuable upon conversion of the Preferred Shares or the
Depositary Shares, if any, have been so qualified, the Company will file such
statements and reports as may be required by the laws of such jurisdiction to
continue such qualification in effect for so long as may be required for the
distribution of the Underwritten Securities and the Warrant Securities, if
any; provided, however, that the Company shall not be obligated to qualify as
a foreign corporation in any jurisdiction where it is not so qualified.
(h) With respect to each sale of Underwritten Securities, the Company
will make generally available to its security holders as soon as practicable,
but not later than 90 days after the close of the period covered thereby, an
earnings statement (in form complying with the provisions of Rule 158 of the
1933 Act Regulations) covering a twelve-month period beginning not later than
the first day of the Company's fiscal quarter next following the "effective
date" (as defined in such Rule 158) of the Registration Statement.
(i) The Company will use its best efforts to meet the requirements to
qualify as a "real estate investment trust" under the Code for the taxable
year in which sales of the Underwritten Securities are to occur.
(j) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act in connection with sales of
the Underwritten Securities, will file all documents required to be filed with
the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the
time period prescribed by the 1934 Act and the 1934 Act Regulations.
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(k) If the Preferred Shares or Depositary Shares are convertible into
shares of Common Stock or if Common Stock Warrants are issued, the Company
will reserve and keep available at all times, free of preemptive or other
similar rights, a sufficient number of shares of Common Stock or Preferred
Shares, as the case may be, for the purpose of enabling the Company to satisfy
any obligations to issue such shares upon conversion of the Preferred Shares
or the Depositary Shares, as the case may be, or upon exercise of the Common
Stock Warrants.
(l) If the Underwritten Securities are Common Stock, the Company will
use its best efforts to list such shares of Common Stock on the New York Stock
Exchange or such other national securities exchange on which the Company's
shares of Common Stock are then listed. If the Preferred Shares or Depositary
Shares are convertible into shares of Common Stock, the Company will use its
best efforts to list the shares of Common Stock issuable upon conversion of
the Preferred Shares or Depositary Shares on the New York Stock Exchange or
such other national securities exchange on which the Company's shares of
Common Stock are then listed.
Section 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement or the
applicable Terms Agreement, including (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto, (ii)
the printing and filing of this Agreement and the applicable Terms Agreement,
(iii) the preparation, issuance and delivery of the Underwritten Securities to
the Underwriters and the Warrant Securities, if any, (iv) the fees and
disbursements of the Company's counsel and accountants, (v) the qualification
of the Underwritten Securities, the Warrant Securities, if any, and the shares
of Common Stock issuable upon conversion of the Preferred Shares or the
Depositary Shares, if any, under securities laws and real estate syndication
laws in accordance with the provisions of Section 3(g), including filing fees
and the fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey, (vi)
the printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto, and of the
Prospectus and any amendments or supplements thereto, including each
abbreviated term sheet delivered by the Company pursuant to Rule 434 of the
1933 Act Regulations, (vii) the printing and delivery to the Underwriters of
copies of the applicable Deposit Agreement, if any, and the applicable Warrant
Agreement, if any, (viii) any fees charged by nationally recognized
statistical rating organizations for the rating of the Securities, (ix) the
fees and expenses, if any, incurred with respect to the listing of the
Underwritten Securities, the Warrant Securities, if any, or the shares of
Common Stock issuable upon conversion of the Preferred Shares or the
Depositary Shares, if any, on any national securities exchange, and (x) the
fees and expenses, if any, incurred with respect to any filing with the
National Association of Securities Dealers, Inc.
If the applicable Terms Agreement is terminated by you in accordance
with the provisions of Section 5 or Section 9(b)(i), the Company shall
reimburse the Underwriters named in such Terms Agreement for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
Section 5. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase Underwritten Securities pursuant
to the applicable Terms Agreement
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are subject to the accuracy of the representations and warranties of the
Company herein contained, to the accuracy of the statements of the Company's
officers made in any certificate pursuant to the provisions hereof, to the
performance by the Company of all of its covenants and other obligations
hereunder, and to the following further conditions:
(a) At Closing Time, (i) no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, (ii) if
Preferred Shares or Depositary Shares are being offered, the rating assigned
by any nationally recognized statistical rating organization to any preferred
stock of the Company as of the date of the applicable Terms Agreement shall
not have been lowered since such date nor shall any such rating organization
have publicly announced that it has placed any preferred stock of the Company
on what is commonly termed a "watch list" for possible downgrading, (iii)
there shall not have come to your attention any facts that would cause you to
believe that the Prospectus, together with the applicable Prospectus
Supplement, at the time it was required to be delivered to purchasers of the
Underwritten Securities, included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at such time, not misleading
and (iv) the Underwritten Securities or the Common Stock issuable upon
conversion thereof, as applicable in accordance with Section 3(l) hereof,
shall have been duly listed in accordance with such Section 3(l).
(b) At Closing Time, you shall have received:
(1) The favorable opinion, dated as of Closing Time, of Latham
& Watkins, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation under the laws of the State of
Maryland and is in good standing with the State Department of
Assessments and Taxation of Maryland.
(ii) The Company has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus.
(iii) The Company is duly qualified as a foreign
corporation to transact business and is in good standing in
each jurisdiction in which it owns or leases real property,
except where the failure to so qualify would not have a
material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise.
(iv) The authorized, issued and outstanding stock of the
Company is as set forth in the Prospectus under
"Capitalization" (except for subsequent issuances, if any,
pursuant to reservations, agreements, employee benefit plans,
dividend reinvestment plans or employee and director stock
option plans referred to in the Prospectus); and the
outstanding capital stock of the Company has been
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duly authorized, validly issued, fully paid and non-assessable
and is not subject to preemptive or other similar rights
arising by operation of law or, to the best of such counsel's
knowledge otherwise.
(v) The Underwritten Securities being-sold pursuant to the
applicable Terms Agreement and, if applicable, the deposit of
the Preferred Shares in accordance with the provisions of a
Deposit Agreement, have been duly and validly authorized by all
necessary corporate action and such Underwritten Securities
have been duly authorized for issuance and sale pursuant to
this Agreement and such Underwritten Securities, when issued
and delivered by the Company pursuant to this Agreement against
payment of the consideration set forth in the applicable Terms
Agreement or any Delayed Delivery Contract, will be validly
issued, fully paid and non-assessable and will not be subject
to preemptive or other similar rights arising by operation of
law or, to the best of such counsel's knowledge, otherwise; and
the Preferred Shares, if applicable, conform to the provisions
of the Articles Supplementary.
(vi) If applicable, the Common Stock Warrants have been
duly authorized and, when issued and delivered pursuant to this
Agreement and countersigned by the Warrant Agent as provided in
the Warrant Agreement, will have been duly executed,
countersigned, issued and delivered and will constitute valid
and legally binding obligations of the Company entitled to the
benefits provided by the Warrant Agreement under which they are
to be issued.
(vii) If applicable, the shares of Common Stock issuable
upon conversion of any of the Preferred Shares or Depositary
Shares, or the exercise of Warrant Securities, have been duly
and validly authorized and reserved for issuance upon such
conversion or exercise by all necessary corporate action on the
part of the Company and such shares, when issued upon such
conversion or exercise in accordance with the charter of the
Company, the Deposit Agreement, the Terms Agreement, the
Delayed Delivery Contract or the Warrant Agreement, as the case
may be, will be duly and validly issued and will be fully paid
and non-assessable, and the issuance of such shares upon such
conversion or exercise will not be subject to preemptive or
other similar rights arising by operation of law or, to the
best of such counsel's knowledge, otherwise.
(viii) The applicable Warrant Agreement, if any, and the
applicable Deposit Agreement, if any, have been duly
authorized, executed and delivered by the Company, and
(assuming due authorization, execution and delivery by the
Warrant Agent in the case of the Warrant Agreement, and the
Depositary, in the case of the Deposit Agreement) each
constitutes a valid and legally binding agreement of the
Company enforceable in accordance with its terms; and the
Warrant Agreement, if any, and the Deposit Agreement, if any,
each conforms in all material respects to all statements
relating thereto contained in the Prospectus.
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(ix) If applicable, upon execution and delivery of the
Depositary Receipts pursuant to the terms of the Deposit
Agreement, the persons in whose names such Depositary Receipts
are registered will be entitled to the rights specified therein
and in the Deposit Agreement.
(x) Each of this Agreement, the applicable Terms Agreement
and the Delayed Delivery Contracts, if any, has been duly
authorized, executed and delivered by the Company.
(xi) The Registration Statement is effective under the
1933 Act and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(xii) The Registration Statement and the Prospectus,
excluding the documents incorporated by reference therein, as
of their respective effective or issue dates, comply as to form
in all material respects with the requirements for registration
statements on Form S-3 under the 1933 Act and the 1933 Act
Regulations; it being understood, however, that no opinion need
be rendered with respect to the financial statements, schedules
and other financial and statistical data included or
incorporated by reference in the Registration Statement or the
Prospectus; it being understood, further, that in passing upon
the compliance as to form of the Registration Statement and the
Prospectus, such counsel may assume that the statements made
therein are correct and complete. If applicable, the Rule 434
Prospectus conforms in all material respects to the
requirements of Rule 434 under the 1933 Act Regulations.
(xiii) Each document filed pursuant to the 1934 Act and
incorporated or deemed to be incorporated by reference in the
Prospectus (other than the financial statements, schedules and
other financial and statistical data included therein, as to
which no opinion need be rendered) complied when so filed as to
form in all material respects with the 1934 Act and the 1934
Act Regulations. In passing upon compliance as to form of such
documents, such counsel may assume that the statements made
therein are correct and complete.
(xiv) If applicable, the relative rights preferences,
interests and powers of the Preferred Shares or Depositary
Shares, as the case may be, are as set forth in the Articles
Supplementary relating thereto, and all such provisions are
valid under the Maryland General Corporation Law ("MGCL"); and,
as applicable, the form of certificate used to evidence
Preferred Shares being represented by the Depositary Shares and
the form of certificate used to evidence the related Depositary
Receipts are in due and proper form under the MGCL and comply
with all applicable statutory requirements under the MGCL.
(xv) The Underwritten Securities, the Warrant Securities,
and the shares of Common Stock issuable upon conversion of the
Preferred Shares or Depositary
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Shares, if applicable, conform in all material respects to the
statements relating thereto contained in the Prospectus.
(xvi) No authorization, approval or consent of any court
or governmental authority or agency is required that has not
been obtained in connection with the consummation by the
Company of the transactions contemplated by this Agreement, the
applicable Terms Agreement, the applicable Deposit Agreement,
if any, or the applicable Warrant Agreement, if any, except
such as may be required under the 1933 Act, 1934 Act and state
securities laws or real estate syndication laws.
(xvii) Neither the Company nor any of its subsidiaries is
required to be registered under the 1940 Act.
(xviii) Commencing with the Company's taxable year
beginning January 1, 1992, the Company has been organized in
conformity with the requirements for qualification as a "real
estate investment trust," and its method of operation will
enable it to meet the requirements for qualification and
taxation as a "real estate investment trust" under the Code,
provided that such counsel's opinion as to this matter shall be
conditioned upon certain representations as to factual matters
made by the Company to such counsel as described therein.
(xix) The statements set forth (a) in the Prospectus under
the caption "Certain Federal Income Tax Considerations to the
Company of its REIT Election" and (b) in the Prospectus
Supplement under the caption "Certain Federal Income Tax
Considerations," to the extent such statements constitute
matters of law, summaries of legal matters, or legal
conclusions, have been reviewed by them and are accurate in all
material respects.
The opinions rendered in (vi), (viii) and (ix) of subsection
(b)(1) are subject to the following exceptions, limitations and
qualifications: (i) the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting the rights and remedies of
creditors; and (ii) the effect of general principles of equity,
whether enforcement is considered in a proceeding in equity or at
law, and the discretion of the court before which any proceeding
therefor may be brought.
(2) The favorable opinion, dated as of Closing Time, of Robert
P. Schulman, Esq., counsel for the Company, or other counsel
satisfactory to the Underwriters, in form and substance satisfactory
to counsel for the Underwriters, to the effect that:
(i) To the best of his knowledge and information, there
are no legal or governmental proceedings pending or threatened
which are required to be disclosed in the Prospectus, other
than those disclosed therein, and all pending legal or
governmental proceedings to which the Company or any of its
subsidiaries is a party or of which any of the property of the
Company or its subsidiaries is the subject which are not
described in the Prospectus, including
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ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material.
(ii) To the best of his knowledge and information, there
are no contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments required to be described or
referred to in the Registration Statement or the Prospectus or
to be filed as exhibits to the Registration Statement other
than those described or referred to therein or filed as
exhibits thereto, the descriptions thereof or references
thereto are correct, and, to the best of his knowledge and
information, no default exists in the due performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage
(except as otherwise described in the Prospectus), loan
agreement, note, lease or other instrument so described,
referred to or filed which would have a material adverse effect
on the condition, financial or otherwise, or on the earnings,
business or business prospects of the Company and its
subsidiaries considered as one enterprise.
(iii) To the best of his knowledge and information, the
execution and delivery of this Agreement, the applicable Terms
Agreement, the applicable Deposit Agreement, if any, or the
applicable Warrant Agreement, if any, and the consummation of
the transactions contemplated herein and therein and compliance
by the Company with its obligations hereunder and thereunder
will not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound or to which
any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in
violation of the provisions of the charter or by-laws of the
Company or any applicable law, administrative regulation or
administrative or court order or decree.
(iv) Each of the partnership and joint venture agreements
to which the Company or any of its subsidiaries is a party, and
which relates to real property described in the Prospectus, has
been duly authorized, executed and delivered by such applicable
party and constitutes the valid agreement thereof, enforceable
in accordance with its terms, except as limited by bankruptcy
and general equitable principles and the execution, delivery
and performance of any of such agreements did not, at the time
of execution and delivery, and does not constitute a breach of,
or default under, the charter or by-laws of such party or any
material contract, lease or other instrument to which such
party is a party or by which its properties may be bound or any
law, administrative regulation or administrative or court order
or decree.
(v) The Company, its subsidiaries and the Related Entities
hold title to the properties and assets described in the
Prospectus, subject only to the liens and
20
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encumbrances securing indebtedness reflected in the Prospectus
and such other liens, encumbrances and matters of record which
do not materially and adversely affect the value of such
properties and assets considered in the aggregate.
(vi) Each Significant Subsidiary of the Company has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease
and operate its properties and to conduct its business as
described in the Prospectus and, to the best of his knowledge
and information, is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction
in which it owns or leases real property, except where the
failure to so qualify would not have a material adverse effect
on the condition, financial or otherwise, or on the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; and all of the
issued and outstanding capital stock of each such Significant
Subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable and, to the best of his knowledge
and information, is owned by the Company, directly or through
subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity, except
for security interests granted in respect of indebtedness of
the Company or any of its subsidiaries and described in the
Prospectus.
(3) The favorable opinion, dated as of Closing Time, of Brown &
Wood LLP, counsel for the Underwriters in form and substance
satisfactory to the Underwriters.
(4) In giving their opinions required by subsections (b)(1) and
(b)(3), respectively, of this Section, Latham & Watkins (or other
counsel satisfactory to the Underwriters) and Brown & Wood LLP shall
each additionally state that nothing has come to their attention
that would lead them to believe that the Registration Statement or
any amendment thereto, at the time it became effective (or, if an
amendment to the Registration Statement or an Annual Report on Form
10-K has been filed by the Company with the Commission subsequent to
the effectiveness of the Registration Statement, then at the time
such amendment becomes effective or at the time of the most recent
filing of such Annual Report, as the case may be) or at the date of
the applicable Terms Agreement, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein
not misleading or that the Prospectus, at the date of the applicable
Terms Agreement or at Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; it
being understood that no opinion need be rendered with respect to
the financial statements, schedules and other financial and
statistical data included in the Registration Statement or the
Prospectus. In giving their opinions, Latham & Watkins, Robert P.
Schulman, Esq. (or other counsel satisfactory to the Underwriters)
and Brown & Wood LLP may rely, (1) as to matters involving the laws
of the State of Maryland upon the opinion of Ballard Spahr Andrews &
Ingersoll LLP (or other counsel reasonably
21
<PAGE>
satisfactory to counsel for the Underwriters) in form and substance
satisfactory to counsel for the Underwriters, (2) as to all matters
of fact, upon certificates and written statements of officers and
employees of and accountants for the Company, and (3) as to the
qualification and good standing of the Company or any of its
subsidiaries to do business in any state or jurisdiction, upon
certificates of appropriate government officials or opinions of
counsel in such jurisdictions.
(c) At Closing Time, there shall not have been, since the date of the
applicable Terms Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business; and you
shall have received a certificate of the Chief Executive Officer, the
President or Vice President and the chief financial officer or chief
accounting officer of the Company, dated as of such Closing Time, to the
effect that (i) there has been no such material adverse change and (ii) the
representations and warranties in Section 1 are true and correct with the same
force and effect as though made on such Closing Time. As used in this Section
5(c), the term "Prospectus" means the Prospectus in the form first used by the
Underwriters to confirm sales of the Underwritten Securities.
(d) At the time of execution of the applicable Terms Agreement, you
shall have received from PricewaterhouseCoopers LLP a letter dated such date,
in form and substance satisfactory to you, to the effect that (i) they are
independent accountants with respect to the Company within the meaning of the
1933 Act and the 1933 Act Regulations thereunder; (ii) it is their opinion
that the consolidated financial statements and financial statement schedules
of the Company and the historical summaries of revenue and certain operating
expenses for the properties related thereto included or incorporated by
reference in the Registration Statement and the Prospectus and audited by them
and covered by their opinions therein comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and the
1933 Act Regulations; (iii) they have performed limited procedures, not
constituting an audit, including a reading of the latest available unaudited
interim consolidated financial statements of the Company, a reading of the
minute books of the Company, inquiries of certain officials of the Company who
have responsibility for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, and on the basis
of such limited review and procedures nothing came to their attention that
caused them to believe that (A) any material modifications should be made to
the unaudited financial statements and financial statement schedules of the
Company included or incorporated by reference in the Registration Statement
and the Prospectus for them to be in conformity with generally accepted
accounting principles, (B) the unaudited financial statements and financial
statement schedules of the Company included or incorporated by reference in
the Registration Statement and the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the 1934 Act
as it relates to Form 10-Q and the 1934 Act Regulations, (C) the unaudited
operating data and balance sheet data of the Company in the Registration
Statement and the Prospectus under the caption "Selected Consolidated
Financial Data" were not determined on a basis substantially consistent with
that used in determining the corresponding amounts in the audited financial
statements included or incorporated by reference in the Registration Statement
and the Prospectus, or (D) at a specified date not more than three days prior
to the date of the applicable
22
<PAGE>
Terms Agreement, there has been any change in the capital stock of the Company
or in the consolidated long-term debt of the Company or any decrease in the
net assets of the Company, as compared with the amounts shown in the most
recent consolidated balance sheet included or incorporated by reference in the
Registration Statement and the Prospectus or, during the period from the date
of the most recent consolidated statement of operations included or
incorporated by reference in the Registration Statement and the Prospectus to
a specified date not more than three days prior to the date of the applicable
Terms Agreement, there were any decreases, as compared with the corresponding
period in the preceding year, in consolidated revenues, or decrease in net
income or net income per share of the Company, except in all instances for
changes, increases or decreases which the Registration Statement and the
Prospectus disclose have occurred or may occur; and (iv) in addition to the
audit referred to in their opinions and the limited procedures referred to in
clause (iii) above, they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information which are included or incorporated by reference in the
Registration Statement and the Prospectus and which are specified by you, and
have found such amounts, percentages and financial information to be in
agreement with the relevant accounting, financial and other records of the
Company and its subsidiaries identified in such letter.
(e) At Closing Time, you shall have received from
PricewaterhouseCoopers LLP a letter dated as of Closing Time to the effect
that they reaffirm the statements made in the letter furnished pursuant to
subsection (d) of this Section, except that the "specified date" referred to
shall be a date not more than three days prior to such Closing Time.
(f) At Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the
Underwritten Securities and the Warrant Securities, if any, as herein
contemplated and related proceedings, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Underwritten Securities and the
Warrant Securities, if any, as herein contemplated shall be satisfactory in
form and substance to you and counsel for the Underwriters.
(g) In the event the Underwriters exercise their option provided in a
Terms Agreement as set forth in Section 2(b) hereof to purchase all or any
portion of the Option Securities, the representations and warranties of the
Company contained herein and the statements in any certificates furnished by
the Company hereunder shall be true and correct as of each Date of Delivery,
and, at the relevant Date of Delivery, you shall have received:
(i) A certificate, dated such Date of Delivery, of the Chief
Executive Officer, the President or the chief financial or chief
accounting officer of the Company, in, their capacities as such,
confirming that the certificate delivered at Closing Time pursuant
to Section 5(c) hereof remains true and correct as of such Date of
Delivery.
(ii) The favorable opinion of Latham & Watkins, counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date
23
<PAGE>
of Delivery, relating to the Option Securities and otherwise
substantially to the same effect as the opinion required by Sections
5(b)(1) and 5(b)(4) hereof.
(iii) The favorable opinion of Robert P. Schulman, Esq.,
counsel for the Company, or other counsel satisfactory to the
Underwriters, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities and otherwise substantially to the same effect as the
opinion required by Sections 5(b)(2) and 5(b)(4) hereof.
(iv) The favorable opinion of Brown & Wood LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities and otherwise to the same effect as the opinion required
by Sections 5(b)(3) and 5(b)(4) hereof.
(v) A letter from PricewaterhouseCoopers LLP, in form and
substance satisfactory to you and dated such Date of Delivery,
substantially the same in scope and substance as the letter
furnished to you pursuant to Section 5(d) hereof, except that the
"specified date" in the letter furnished pursuant to this Section
5(g)(v) shall be a date not more than three days prior to such Date
of Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms Agreement
may be terminated by you by notice to the Company at any time at or prior to
the Closing Time, and such termination shall be without liability of any party
to any other party except as provided in Section 4 hereof.
Section 6. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the
information deemed to be part of the Registration Statement pursuant
to Rule 430A(b) or Rule 434 of the 1933 Act Regulations, if
applicable, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
the Prospectus (or any amendment or supplement thereto) or the
omission, or alleged omission therefrom, of a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission referred to in subsection (i) above, or any
such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
24
<PAGE>
(iii) against any and all expense whatsoever (including, the
fees and disbursements of counsel chosen by you), as incurred, which
was reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any
such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by
any Underwriter through you expressly for use in the Registration Statement
(or any amendment thereto) and the Prospectus (or any amendment or supplement
thereto); provided further, that with respect to any preliminary prospectus,
such indemnity shall not inure to the benefit of any Underwriter (or the
benefit of any person controlling such Underwriter) if the person asserting
any such losses, liabilities, claims, damages or expenses purchased the
Underwritten Securities which are the subject thereof from such Underwriter
and if such person was not sent or given a copy of the Prospectus (excluding
any documents incorporated therein by reference) at or prior to confirmation
of the sale of such Underwritten Securities to such person in any case where
such sending or giving is required by the 1933 Act and the untrue statement or
omission of a material fact contained in such preliminary prospectus was
corrected in the Prospectus and the Prospectus was delivered to such
Underwriter a reasonable amount of time prior to the date of delivery of such
confirmation.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own expense
in the defense of such action. If it so elects within a reasonable time after
receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and approved by the indemnified parties
defendant in such action, unless such indemnified parties reasonably object to
such assumption on the ground that there may be legal defenses available to
them which are different from or in addition to those available to such
indemnifying party. If an indemnifying party
25
<PAGE>
assumes the defense of such action, the indemnifying parties shall not be
liable for any fees and expenses of counsel for the indemnified parties
incurred thereafter in connection with such action. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
Section 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and the
Underwriters with respect to the offering of the Underwritten Securities shall
contribute to the aggregate losses, liabilities, claims, damages and expenses
of the nature contemplated by said indemnity agreement incurred by the Company
and one or more of the Underwriters in respect of such offering, as incurred,
in such proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the Prospectus in respect of such offering bears to the initial
public offering price appearing thereon and the Company is responsible for the
balance; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Notwithstanding the provisions of this Section
7, no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Underwritten Securities purchased
by it pursuant to the applicable Terms Agreement and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay in respect of such losses,
liabilities, claims, damages and expenses. For purposes of this Section, each
person, if any, who controls an Underwriter within the meaning of Section 15
of the 1933 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Company.
Section 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or the applicable Terms Agreement, or contained in certificates of
officers of the Company submitted pursuant hereto, shall remain operative and
in full force and effect, regardless of any termination of this Agreement or
the applicable Terms Agreement, or investigation made by or on behalf of any
Underwriter or any controlling person, or by or on behalf of the Company and
shall survive delivery of and payment for the Underwritten Securities.
Section 9. Termination of Agreement. (a) This Agreement (excluding
the applicable Terms Agreement) may be terminated for any reason at any time
by the Company or by you upon the giving of 30 days' written notice of such
termination to the other party hereto.
(b) You may also terminate the applicable Terms Agreement, by notice
to the Company, at any time at or prior to the Closing Time if (i) there has
been, since the date of such Terms Agreement or since the respective dates as
of which information is given in the
26
<PAGE>
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) there has occurred any
material adverse change in the financial markets in the United States or any
outbreak or escalation of hostilities or other national or international
calamity or crisis, the effect of which is such as to make it, in your
judgment, impracticable to market the Underwritten Securities or enforce
contracts for the sale of the Underwritten Securities, or (iii) trading in any
of the securities of the Company has been suspended by the Commission or the
New York Stock Exchange, or if trading generally on either the New York Stock
Exchange, the American Stock Exchange or the Nasdaq National Market has been
suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by either of said
exchanges or by order of the Commission or any other governmental authority,
or if a banking moratorium has been declared by Federal, New York or Maryland
authorities, or (iv) Preferred Shares or Depositary Shares are being offered
and the rating assigned by any nationally recognized statistical rating
organization to any preferred stock of the Company as of the date of the
applicable Terms Agreement shall have been lowered since such date or if any
such rating organization shall have publicly announced that it has placed any
preferred stock of the Company on what is commonly termed a "watch list" for
possible downgrading. As used in this Section 9(b), the term "Prospectus"
means the Prospectus in the form first used by the Underwriters to confirm
sales of the Underwritten Securities.
(c) In the event of any such termination, (x) the covenants set forth
in Section 3 with respect to any offering of Underwritten Securities shall
remain in effect in so long as any Underwriter owns any such Underwritten
Securities purchased from the Company pursuant to the applicable Terms
Agreement and (y) the covenant set forth in Section 3(h) hereof, the
provisions of Section 4 hereof, the indemnity and contribution agreements set
forth in Sections 6 and 7 hereof, and the provisions of Sections 8 and 13
hereof shall remain in effect.
Section 10. Default by One or More of the Underwriters. If one or
more of the Underwriters shall fail at the Closing Time to purchase the
Underwritten Securities which it or they are obligated to purchase under the
applicable Terms Agreement (the "Defaulted Securities"), then you shall have
the right, within 24 hours thereafter, to make arrangements for one or more of
the non-defaulting Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if however, you shall not
have completed such arrangements within such 24-hour period, then:
(a) if the total number of Defaulted Securities does not exceed
10% of the total number of Underwritten Securities to be purchased
pursuant to such Terms Agreement, the non-defaulting Underwriters
named in such Terms Agreement shall be obligated to purchase the
full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the total number of Defaulted Securities exceeds 10% of
the total number of Underwritten Securities to be purchased pursuant
to such Terms Agreement,
27
<PAGE>
the applicable Terms Agreement shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
In the event of any such default which does not result in a
termination of the applicable Terms Agreement, either you or the Company shall
have the right to postpone the Closing Time for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
the Prospectus or in any other documents or arrangements.
Section 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed Jefferies & Company, Inc., 11100 Santa Monica
Boulevard, 10th Floor, Los Angeles, CA 90025, to the attention of Jerry M.
Gluck, Executive Vice President and General Counsel, and notices to the
Company shall be directed to it at 3333 New Hyde Park Road, New Hyde Park, New
York 11042-0020, attention of Milton Cooper, Chairman of the Board.
Section 12. Parties. This Agreement and the applicable Terms
Agreement shall inure to the benefit of and be binding upon you and the
Company and any Underwriter who becomes a party of such Terms Agreement, and
their respective successors. Nothing expressed or mentioned in this Agreement
or the applicable Terms Agreement is intended or shall be construed to give
any person, firm or corporation, other than those referred to in Sections 6
and 7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or such Terms Agreement
or any provision herein or therein contained. This Agreement and the
applicable Terms Agreement and all conditions and provisions hereof and
thereof are intended to be for the sole and exclusive benefit of the parties
hereto and thereto and their respective successors and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Underwritten Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
Section 13. Governing Law and Time. This Agreement and the applicable
Terms Agreement shall be governed by and construed in accordance with the laws
of the State of New York applicable to agreements made and to be performed in
said State. Specified times of day refer to New York City time.
Section 14. Counterparts. This Agreement and the applicable Terms
Agreement may be executed in one or more counterparts, and if executed in more
than one counterpart the executed counterparts shall constitute a single
instrument.
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<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between you and the Company in accordance with its terms.
Very truly yours,
KIMCO REALTY CORPORATION
By /s/ Glenn G. Cohen
---------------------------
Name: Glenn G. Cohen
Title: Treasurer
CONFIRMED AND ACCEPTED, as of the date first above written:
JEFFERIES & COMPANY, INC.
By /s/ Robert M. Werle
------------------------
Name: Robert M. Werle
Title: Managing Director
29
<PAGE>
KIMCO REALTY CORPORATION
(a Maryland corporation)
Common Stock
TERMS AGREEMENT
Dated: November 4, 1998
To: Kimco Realty Corporation
3333 New Hyde Park Road
New Hyde Park, New York 11042-0020
Attention: Chairman of the Board of Directors
Dear Sirs:
We understand that Kimco Realty Corporation, a Maryland corporation
(the "Company"), proposes to issue and sell 170,000 shares of its common stock
(the "Common Stock") , $.01 par value per share (the "Underwritten
Securities"). Subject to the terms and conditions set forth or incorporated by
reference herein, Jefferies & Company, Inc. (the "Underwriter") offers to
purchase all of the Underwritten Securities at the purchase price set forth
below.
The Underwritten Securities shall have the following terms:
Title of Securities: Common Stock, $.01 par value per share
Number of Shares: 170,000
Purchase price per share: $38.8975
Number of Option Securities: Not Applicable
Delayed Delivery Contracts: Not authorized
Closing date and location: November 10, 1998
Brown & Wood LLP
One World Trade Center
New York, New York 10048
All of the provisions contained in the Underwriting Agreement
attached as Annex A hereto are hereby incorporated by reference in their
entirety herein and shall be deemed to be a part of this Terms Agreement to
the same extent as if such provisions had been set forth in full herein. Terms
defined in such document are used herein as therein defined.
<PAGE>
Please accept this offer no later than 7:00 P.M. (New York City time)
on November 4, 1998 by signing a copy of this Terms Agreement in the space set
forth below and returning the signed copy to us.
Very truly yours,
JEFFERIES & COMPANY, INC.
By: /s/ Robert M. Werle
----------------------------
Name: Robert M. Werle
Title: Managing Director
Accepted:
KIMCO REALTY CORPORATION
By: /s/ Michael V. Pappagallo
---------------------------
Name: Michael V. Pappagallo
Title: VP/CFO
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Kimco Realty Corporation
(a Maryland corporation)
Common Stock, Warrants to Purchase Common Stock, Preferred Stock
and Depositary Shares
Underwriting Agreement
July 9, 1998
Edward D. Jones & Co., L. P.
12555 Manchester Road
St. Louis, MO 63131-3729
Ladies and Gentlemen:
Kimco Realty Corporation, a Maryland corporation (the "Company"),
proposes to issue and sell shares of Common Stock, $.01 par value (the
"Common Stock"), or warrants to purchase a number of shares of Common Stock
(the "Common Stock Warrants"), or both, or shares of Preferred Stock, $1.00
par value (the "Preferred Shares"), from time to time, in one or more
offerings on terms to be determined at the time of sale. The Preferred
Shares may be offered in the form of depositary shares (the "Depositary
Shares") represented by depositary receipts (the "Depositary Receipts"). The
Common Stock Warrants will be issued pursuant to a Common Stock Warrant
Agreement (the "Warrant Agreement") between the Company and a warrant agent
(the "Warrant Agent"). Each series of Preferred Shares may vary as to the
specific number of shares, title, stated value, liquidation preference,
issuance price, ranking, dividend rate or rates (or method of calculation),
dividend payment dates, any redemption or sinking fund requirements, any
conversion provisions and any other variable terms as set forth in the
applicable articles supplementary (each, the "Articles Supplementary")
relating to such Preferred Shares. As used herein, "Securities" shall mean
the Common Stock, the Common Stock Warrants, the Preferred Shares, the
Depositary Shares and the Depositary Receipts; and "Warrant Securities"
shall mean the Common Stock issuable upon exercise of Common Stock Warrants.
As used herein, "you" and "your," unless the context otherwise requires,
shall mean the parties to whom this Agreement is addressed together with the
other parties, if any, identified in the applicable Terms Agreement (as
hereinafter defined) as additional co-managers with respect to Underwritten
Securities (as hereinafter defined) purchased pursuant thereto.
Whenever the Company determines to make an offering of Securities
through you or through an underwriting syndicate managed by you, the Company
will enter into an agreement (the "Terms Agreement") providing for the sale
of such Securities (the "Underwritten Securities") to, and the purchase and
offering thereof by, you and such other underwriters, if any, selected by
you as have authorized you to enter into such Terms Agreement on their
behalf (the "Underwriters," which term shall include you whether acting
alone in the sale of the Underwritten Securities or as a member of an
underwriting syndicate and any Underwriter substituted pursuant to Section
10 hereof). The Terms Agreement relating to the offering of
<PAGE>
Underwritten Securities shall specify the number of Underwritten Securities
of each class or series to be initially issued, including the number of
Common Stock Warrants, if any (the "Initial Underwritten Securities"),
whether the Initial Underwritten Securities shall be in the form of
Depositary Shares and the fractional amount of Preferred Shares represented
by each Depositary Share, the names of the Underwriters participating in
such offering (subject to substitution as provided in Section 10 hereof),
the number of Initial Underwritten Securities which each such Underwriter
severally agrees to purchase, the names of such of you or such other
Underwriters acting as co-managers, if any, in connection with such
offering, the price at which the Initial Underwritten Securities are to be
purchased by the Underwriters from the Company, any initial public offering
price, the time, date and place of delivery and payment, any delayed
delivery arrangements and any other variable terms of the Initial
Underwritten Securities (including, but not limited to, current ratings (in
the case of Preferred Shares and Depositary Shares only), designations,
liquidation preferences, conversion provisions, redemption provisions and
sinking fund requirements and the terms of the Warrant Securities and the
terms, prices and dates upon which such Warrant Securities may be
purchased). In addition, each Terms Agreement shall specify whether the
Company has agreed to grant to the Underwriters an option to purchase
additional Underwritten Securities to cover over-allotments, if any, and the
number of Underwritten Securities subject to such option (the "Option
Securities"). As used herein, the term "Underwritten Securities" shall
include the Initial Underwritten Securities and all or any portion of the
Option Securities agreed to be purchased by the Underwriters as provided
herein, if any. The Terms Agreement, which shall be substantially in the
form of Exhibit A hereto, may take the form of an exchange of any standard
form of written telecommunication between you and the Company. Each offering
of Underwritten Securities through you or through an underwriting syndicate
managed by you will be governed by this Agreement, as supplemented by the
applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-37285) for
the registration of the Securities and Warrant Securities and certain of the
Company's debt securities, under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering thereof from time to time in accordance with
Rule 415 of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations"). Such registration statement (including all
pre-effective amendments thereto) has been declared effective by the
Commission, and the Company has filed such post-effective amendments thereto
as may have been required prior to the execution of the applicable Terms
Agreement and each such post-effective amendment has been declared effective
by the Commission. Such registration statement (as so amended, if
applicable), including all information, if any, deemed to be a part thereof
pursuant to Rule 434 of the 1933 Act Regulations, is collectively referred
to herein as the "Registration Statement" and the final prospectus and the
prospectus supplement relating to the offering of the Underwritten
Securities (the "Prospectus Supplement"), in the form first used to confirm
sales by the Underwriters for use in connection with the offering of the
Underwritten Securities, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to the execution of the applicable
Terms Agreement. All references in this Agreement to financial
<PAGE>
statements and schedules and other information which is "contained,"
"included" or "stated" in the Registration Statement or the Prospectus (and
all other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which is or is
deemed to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement or the Prospectus
shall be deemed to mean and include the filing of any document under the
1934 Act which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be. If the Company
elects to rely on Rule 434 under the 1933 Act Regulations, all references to
the "Prospectus" shall be deemed to include, without limitation, the final
or preliminary prospectus and the term sheet or abbreviated term sheet,
taken together, provided to the Underwriters by the Company in reliance on
Rule 434 under the 1933 Act (the "Rule 434 Prospectus"). If the Company
files a registration statement with the Commission to register a portion of
the Securities and Warrant Securities and relies on Rule 462(b) for such
registration statement to become effective upon filing with the Commission
(the "Rule 462 Registration Statement"), then any reference to "Registration
Statement" herein shall be deemed to be both the registration statement
referred to above (No. 333-37285) and the Rule 462 Registration Statement.
Section 1. Representations and Warranties. (a) The Company
represents and warrants to you, as of the date hereof, and to you and each
other Underwriter named in the applicable Terms Agreement, as of the date
thereof, the Closing Time (as hereinafter defined) and each Date of
Delivery, if any (as hereinafter defined) (in each case, a "Representation
Date"), as follows:
(i) The Registration Statement and the Prospectus, at the
time the Registration Statement became effective and at each time
thereafter on which the Company filed an Annual Report on Form 10-K
with the Commission, complied, and as of each Representation Date
will comply, in all material respects with the requirements of the
1933 Act and 1933 Act Regulations; the Registration Statement, at
the time the Registration Statement became effective and at each
time thereafter on which the Company filed an Annual Report on Form
10-K with the Commission, did not, and at each time thereafter on
which any amendment to the Registration Statement becomes effective
or the Company files an Annual Report on Form 10-K with the
Commission and as of each Representation Date will not, contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; and the Prospectus, as of the
date hereof, does not, and as of each Representation Date will not,
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through you expressly for use
in the Registration Statement or Prospectus.
(ii) The accountants who certified the financial
statements, financial statement schedules and historical summaries
of revenue and certain operating expenses for the
<PAGE>
properties related thereto included or incorporated by reference in
the Registration Statement and the Prospectus are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(iii) The historical financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus present fairly the financial position of the Company and
its consolidated subsidiaries as at the date indicated and the
results of their operations for the periods specified; except as
may otherwise be stated in the Registration Statement and the
Prospectus, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on
a consistent basis; and the financial statement schedules and other
financial information and dated included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the information required to be stated therein.
(iv) The historical summaries of revenue and certain
operating expenses included or incorporated by reference in the
Registration Statement and the Prospectus, if any, present fairly
the revenue and those operating expenses included in such summaries
for the periods specified in conformity with generally accepted
accounting principles; the pro forma condensed consolidated
financial statements included or incorporated by reference in the
Registration Statement and the Prospectus, if any, present fairly
the pro forma financial position of the Company and its
consolidated subsidiaries as at the dates indicated and the pro
forma results of their operations for the periods specified; and
the pro forma condensed consolidated financial statements, if any,
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis, the assumptions on which
such pro forma financial statements have been prepared are
reasonable and are set forth in the notes thereto, such pro forma
financial statements have been prepared, and the pro forma
adjustments set forth therein have been applied, in accordance with
the applicable accounting requirements of the 1933 Act and the 1933
Act Regulations, and such pro forma adjustments have been properly
applied to the historical amounts in the compilation of such
statements.
(v) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
may otherwise be stated therein or contemplated thereby, (A) there
has been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of
business, (B) there have been no transactions or acquisitions
entered into by the Company or any of its subsidiaries other than
those arising in the ordinary course of business, which are
material with respect to the Company and its subsidiaries
considered as one enterprise, and (C) except for regular quarterly
dividends on the Company's common stock, or dividends declared,
paid or made in accordance with the terms of any series of the
Company's preferred stock, there has been no dividend or
distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
<PAGE>
(vi) The Company has been duly incorporated and is validly
existing as a corporation under the laws of Maryland and is in good
standing with the State Department of Assessments and Taxation of
Maryland with corporate power and authority to own, lease and
operate its properties and to conduct its business as described in
the Prospectus; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise,
or on the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise; and the
Articles Supplementary relating to the Preferred Shares or
Depositary Shares, if applicable, will be in full force and effect
as of each Representation Date.
(vii) Each significant subsidiary (as defined in Rule 1-02
of Regulation S-X promulgated under the 1933 Act) of the Company
(each, a "Significant Subsidiary") has been duly incorporated and
is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has corporate power
and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and is duly
qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure to so qualify
would not have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business affairs or
business prospects of the Company and its subsidiaries considered
as one enterprise; and all of the issued and outstanding capital
stock of each Significant Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and is owned by
the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim
or equity, except for security interests granted in respect of
indebtedness of the Company or any of its subsidiaries and referred
to in the Prospectus.
(viii) The authorized, issued and outstanding stock of the
Company is as set forth in the Prospectus under "Capitalization" or
in the latest balance sheet incorporated by reference therein
(except for subsequent issuances, if any, pursuant to reservations,
agreements, employee benefit plans, dividend reinvestment plans,
employee and director stock option plans or the exercise of
convertible securities referred to in the Prospectus or otherwise
referred to in the Prospectus); and the outstanding capital stock
of the Company has been duly authorized and validly issued and is
fully paid and non-assessable and is not subject to preemptive or
other similar rights.
(ix) The Underwritten Securities being sold pursuant to
the applicable Terms Agreement and, if applicable, the deposit of
the Preferred Shares in accordance with the provisions of a Deposit
Agreement (each, a "Deposit Agreement"), among the Company, the
financial institution named in the Deposit Agreement (the
"Depositary") and the holders of the Depositary Receipts issued
thereunder, have, as of each Representation Date, been duly
authorized by the Company and such Underwritten Securities have
been duly authorized by the Company and such Underwritten
Securities have been duly
<PAGE>
authorized for issuance and sale pursuant to this Agreement and
such Underwritten Securities, when issued and delivered by the
Company pursuant to this Agreement against payment of the
consideration set forth in the applicable Terms Agreement or any
Delayed Delivery Contract (as hereinafter defined), will be validly
issued, fully paid and non-assessable and will not be subject to
preemptive or other similar rights; the Preferred Shares, if
applicable, conform to the provisions of the Articles
Supplementary; and the Underwritten Securities being sold pursuant
to the applicable Terms Agreement conform in all material respects
to all statements relating thereto contained in the Prospectus.
(x) If applicable, the Common Stock Warrants have been
duly authorized and, when issued and delivered pursuant to this
Agreement and countersigned by the Warrant Agent as provided in the
Warrant Agreement, will have been duly executed, countersigned,
issued and delivered and will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Warrant Agreement under which they are to be issued; the issuance
of the Warrant Securities upon exercise of the Common Stock
Warrants will not be subject to preemptive or other similar rights;
and the Common Stock Warrants conform in all material respects to
all statements relating thereto contained in the Prospectus.
(xi) If applicable, the shares of Common Stock issuable
upon conversion of any of the Preferred Shares or the Depositary
Shares, or the Warrant Securities, will have been duly and validly
authorized and reserved for issuance upon such conversion or
exercise by all necessary corporate action and such shares, when
issued upon such conversion or exercise, will be duly and validly
issued and will be fully paid and non-assessable, and the issuance
of such shares upon such conversion or exercise will not be subject
to preemptive or other similar rights; the shares of Common Stock
issuable upon conversion of any of the Preferred Shares or the
Depositary Shares, or the Warrant Securities, conform in all
material respects to the descriptions thereof in the Prospectus.
(xii) The applicable Warrant Agreement, if any, and the
applicable Deposit Agreement, if any, will have been duly
authorized, executed and delivered by the Company prior to the
issuance of any applicable Underwritten Securities, and each
constitutes a valid and legally binding agreement of the Company
enforceable in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or other similar
laws relating to or affecting creditors' rights generally and by
general equity principles (regardless of whether enforcement is
considered in a proceeding in equity or at law); and the Warrant
Agreement, if any, and the Deposit Agreement, if any, each conforms
in all material respects to all statements relating thereto
contained in the Prospectus.
(xiii) If applicable, upon execution and delivery of the
Depositary Receipts pursuant to the terms of the Deposit Agreement,
the persons in whose names such Depositary Receipts are registered
will be entitled to the rights specified therein and in the Deposit
Agreement, except as enforcement of such rights may be limited by
bankruptcy, insolvency or other similar laws relating to or
affecting creditors' rights generally and by
<PAGE>
general equity principles (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(xiv) Neither the Company nor any of its subsidiaries is
in violation of its charter or by-laws or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which
the Company or any of its subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or assets
of the Company or any of its subsidiaries is subject, except for
any such violation or default that would not have a material
adverse effect on the condition, financial or otherwise, or on the
earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise; and the execution,
delivery and performance of this Agreement, the applicable Terms
Agreement, the applicable Warrant Agreement, if any, or the
applicable Deposit Agreement, if any, and the consummation of the
transactions contemplated herein and therein and compliance by the
Company with its obligations hereunder and thereunder have been
duly authorized by all necessary corporate action, and will not
conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the
Company or any of its subsidiaries is a party or by which it or any
of them may be bound, or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will such
action result in any violation of the charter or by-laws of the
Company or any applicable law, administrative regulation or
administrative or court order or decree.
(xv) The Company has operated and intends to continue to
operate in such a manner as to qualify to be taxed as a "real
estate investment trust" under the Internal Revenue Code of 1986,
as amended (the "Code"), for the taxable year in which sales of the
Underwritten Securities are to occur.
(xvi) Neither the Company nor any of its subsidiaries is
an "investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "1940 Act").
(xvii) There is no action, suit or proceeding before or by
any court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries which is required
to be disclosed in the Prospectus (other than as disclosed
therein), or which might result in any material adverse change in
the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, or which might materially and
adversely affect the properties or assets thereof or which might
materially and adversely affect the consummation of this Agreement,
the applicable Terms Agreement, the applicable Warrant Agreement,
if any, or the applicable Deposit Agreement, if any, or the
transactions contemplated herein or therein; all pending legal or
governmental
<PAGE>
proceedings to which the Company or any of its subsidiaries is a
party or of which any of its property or assets is the subject
which are not described in the Prospectus, including ordinary
routine litigation incidental to the business, are, considered in
the aggregate, not material; and there are no contracts or
documents of the Company or any of its subsidiaries which are
required to be filed as exhibits to the Registration Statement by
the 1933 Act or by the 1933 Act Regulations which have not been so
filed.
(xviii) Neither the Company nor any of its subsidiaries is
required to own or possess any trademarks, service marks, trade
names or copyrights in order to conduct the business now operated
by it, other than those the failure to possess or own would not
have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise.
(xix) No authorization, approval or consent of any court
or governmental authority or agency is required that has not been
obtained in connection with the consummation by the Company of the
transactions contemplated by this Agreement, the applicable Terms
Agreement, any Warrant Agreement or any Deposit Agreement, except
such as may be required under the 1933 Act or the 1933 Act
Regulations, state securities laws or real estate syndication laws.
(xx) The Company and its subsidiaries possess such
certificates, authorities or permits issued by the appropriate
state, federal or foreign regulatory agencies or bodies necessary
to conduct the business now operated by them, other than those the
failure to possess or own would not have a material adverse effect
on the condition, financial or otherwise, or on the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, and neither the Company
nor any of its subsidiaries has received any notice of proceeding
relating to the revocation or modification of any such certificate,
authority or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would
materially and adversely affect the condition, financial or
otherwise, or the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise.
(xxi) The Company has full corporate power and authority
to enter into this Agreement, the applicable Terms Agreement and
the Delayed Delivery Contracts, if any, and this Agreement has
been, and as of each Representation Date, the applicable Terms
Agreement and the Delayed Delivery Contracts, if any, will have
been, duly authorized, executed and delivered by the Company.
(xxii) The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time they were
or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934
Act and the rules and regulations of the Commission under the 1934
Act (the "1934 Act Regulations"), and, when read together with the
other information in the Prospectus, at the time the Registration
Statement became effective and as of the applicable Representation
Date or during the period specified in Section 3(f), did not and
will not
<PAGE>
include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(xxiii) Except as otherwise disclosed in the Prospectus
and except as would not have a material adverse effect on the
condition, financial or otherwise, or on the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise: (i) all properties and assets
described in the Prospectus are owned with good and marketable
title by the Company, its subsidiaries and/or a joint venture or
partnership in which any such party is a participant (a "Related
Entity"); (ii) all of the leases under which any of the Company,
its subsidiaries or, to the knowledge of the Company, Related
Entities holds or uses real properties or assets as a lessee are in
full force and effect, and neither the Company, nor any of its
subsidiaries or, to the knowledge of the Company, Related Entities
is in material default in respect of any of the terms or provisions
of any of such leases and no claim has been asserted by anyone
adverse to any such party's rights as lessee under any of such
leases, or affecting or questioning any such party's right to the
continued possession or use of the leased property or assets under
any such leases; (iii) all liens, charges, encumbrances, claims or
restrictions on or affecting the properties and assets of any of
the Company, its subsidiaries or Related Entities which are
required to be disclosed in the Prospectus are disclosed therein;
(iv) neither the Company, nor any of its subsidiaries or, to the
knowledge of the Company, Related Entities nor any lessee of any
portion of any such party's properties is in default under any of
the leases pursuant to which any of the Company, its subsidiaries
or, to the knowledge of the Company, Related Entities leases its
properties and neither the Company, nor any of its subsidiaries or
Related Entities knows of any event which, but for the passage of
time or the giving of notice, or both, would constitute a default
under any of such leases; (v) no tenant under any of the leases
pursuant to which any of the Company, or its subsidiaries or, to
the knowledge of the Company, Related Entities leases its
properties has an option or right of first refusal to purchase the
premises demised under such lease; (vi) each of the properties of
any of the Company or, to the knowledge of the Company, its
subsidiaries or Related Entities complies with all applicable codes
and zoning laws and regulations; and (vii) neither the Company nor
any of its subsidiaries has knowledge of any pending or threatened
condemnation, zoning change or other proceeding or action that will
in any manner affect the size of, use of, improvements on,
construction on, or access to the properties of any of the Company,
or its subsidiaries or Related Entities.
(xxiv) Title insurance in favor of the mortgagee or the
Company, its subsidiaries and/or their Related Entities is
maintained with respect to each shopping center property owned by
any such entity in an amount at least equal to (a) the cost of
acquisition of such property or (b) the cost of construction of
such property (measured at the time of such construction), except,
in each case, where the failure to maintain such title insurance
would not have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business affairs or
business prospects of the Company and its subsidiaries considered
as one enterprise.
<PAGE>
(xxv) The mortgages and deeds of trust encumbering the
properties and assets described in the Prospectus are not
convertible nor does any of the Company, or its subsidiaries hold a
participating interest therein.
(xxvi) Each of the partnership and joint venture
agreements to which the Company or any of its subsidiaries is a
party, and which relates to real property described in the
Prospectus, has been duly authorized, executed and delivered by
such applicable party and constitutes the valid agreement thereof,
enforceable in accordance with its terms, except as limited by (a)
the effect of bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or
affecting the rights or remedies of creditors or (b) the effect of
general principles of equity, whether enforcement is considered in
a proceeding in equity or at law, and the discretion of the court
before which any proceeding therefor may be brought, and the
execution, delivery and performance of any of such agreements did
not, at the time of execution and delivery, and does not constitute
a breach of, or default under, the charter or by-laws of such party
or any material contract, lease or other instrument to which such
party is a party or by which its properties may be bound or any
law, administrative regulation or administrative or court order or
decree.
(xxvii) None of the Company, or any of its subsidiaries
has any knowledge of (a) the unlawful presence of any hazardous
substances, hazardous materials, toxic substances or waste
materials (collectively, "Hazardous Materials") on any of the
properties owned by it or the Related Entities, or (b) any unlawful
spills, releases, discharges or disposal of Hazardous Materials
that have occurred or are presently occurring off such properties
as a result of any construction on or operation and use of such
properties which presence or occurrence would have a material
adverse effect on the condition, financial or otherwise, or on the
earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise; and in connection
with the construction on or operation and use of the properties
owned by the Company, its subsidiaries and Related Entities, each
of the Company, and its subsidiaries represents that, as of each
Representation Date, it has no knowledge of any material failure to
comply with all applicable local, state and federal environmental
laws, regulations, ordinances and administrative and judicial
orders relating to the generation, recycling, reuse, sale, storage,
handling, transport and disposal of any Hazardous Materials.
(b) Any certificate signed by any officer of the Company and
delivered to you or to counsel for the Underwriters in connection with the
offering of the Underwritten Securities shall be deemed a representation and
warranty by the Company to each Underwriter participating in such offering
as to the matters covered thereby on the date of such certificate and,
unless subsequently amended or supplemented, at each Representation Date
subsequent thereto.
Section 2. Purchase and Sale. (a) several commitments of the
Underwriters to purchase the Underwritten Securities pursuant to the
applicable Terms Agreement shall be deemed to have been made on the basis of
the representations and warranties herein contained and shall be subject to
the terms and conditions herein set forth.
<PAGE>
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth,
the Company may grant, if so provided in the applicable Terms Agreement
relating to the Initial Underwritten Securities, an option to the
Underwriters named in such Terms Agreement, severally and not jointly, to
purchase up to the number of Option Securities set forth therein at a price
per Option Security equal to the price per Initial Underwritten Security,
less an amount equal to any dividends declared by the Company and paid or
payable on the Initial Underwritten Securities but not on the Option
Underwritten Securities. Such option, if granted, will expire 30 days or
such lesser number of days as may be specified in the applicable Terms
Agreement after the Representation Date relating to the Initial Underwritten
Securities, and may be exercised in whole or in part from time to time only
for the purpose of covering over-allotments which may be made in connection
with the offering and distribution of the Initial Underwritten Securities
upon notice by you to the Company setting forth the number of Option
Securities as to which the several Underwriters are then exercising the
option and the time, date and place of payment and delivery for such Option
Securities. Any such time and date of delivery (a "Date of Delivery") shall
be determined by you, but shall not be later than three full business days
and not be earlier than two full business days after the exercise of said
option, unless otherwise agreed upon by you and the Company. If the option
is exercised as to all or any portion of the Option Securities, each of the
Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of Option Securities then being purchased
which the number of Initial Underwritten Securities each such Underwriter
has severally agreed to purchase as set forth in the applicable Terms
Agreement bears to the total number of Initial Underwritten Securities
(except as otherwise provided in the applicable Terms Agreement), subject to
such adjustments as you in your discretion shall make to eliminate any sales
or purchases of fractional Initial Underwritten Securities.
(c) Payment of the purchase price for, and delivery of, the
Underwritten Securities to be purchased by the Underwriters shall be made at
the office of Chapman and Cutler, 111 West Monroe Street, Chicago, Illinois
60603, or at such other place as shall be agreed upon by you and the
Company, at 10:00 A.M., New York City time, on the third business day
(unless postponed in accordance with the provisions of Section 10) following
the date of the applicable Terms Agreement or, if pricing takes place after
4:30 p.m., New York City time, on the date of the applicable Terms
Agreement, on the fourth business day (unless postponed in accordance with
the provisions of Section 10) following the date of the applicable Terms
Agreement or at such other time as shall be agreed upon by you and the
Company (each such time and date being referred to as a "Closing Time"). In
addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and
delivery of certificates representing, such Option Securities, shall be made
at the above-mentioned offices of Chapman and Cutler, or at such other place
as shall be agreed upon by you and the Company on each Date of Delivery as
specified in the notice from you to the Company. Unless otherwise specified
in the applicable Terms Agreement, payment shall be made to the Company by
wire transfer or certified or official bank check or checks in Federal or
similar same-day funds payable to the order of the Company against delivery
to you for the respective accounts of the Underwriters for the Underwritten
Securities to be purchased by them. The Underwritten Securities or, if
applicable, Depositary Receipts evidencing the Depositary Shares, shall be
in such authorized denominations and registered in such names as you may
request in writing at least one business
<PAGE>
day prior to the applicable Closing Time or Date of Delivery, as the case
may be. The Underwritten Securities, which may be in temporary form, will be
made available for examination and packaging by you on or before the first
business day prior to the Closing Time or Date of Delivery, as the case may
be.
If authorized by the applicable Terms Agreement, the Underwriters
named therein may solicit offers to purchase Underwritten Securities from
the Company pursuant to delayed delivery contracts ("Delayed Delivery
Contracts") substantially in the form of Exhibit B hereto with such changes
therein as the Company may approve. As compensation for arranging Delayed
Delivery Contracts, the Company will pay to you at Closing Time, for the
respective accounts of the Underwriters, a fee specified in the applicable
Terms Agreement for each of the Underwritten Securities for which Delayed
Delivery Contracts are made at the Closing Time as is specified in the
applicable Terms Agreement. Any Delayed Delivery Contracts are to be with
institutional investors of the types described in the Prospectus. At the
Closing Time, the Company will enter into Delayed Delivery Contracts (for
not less than the minimum number of Underwritten Securities per Delayed
Delivery Contract specified in the applicable Terms Agreement) with all
purchasers proposed by the Underwriters and previously approved by the
Company as provided below, but not for an aggregate number of Underwritten
Securities in excess of that specified in the applicable Terms Agreement.
The Underwriters will not have any responsibility for the validity or
performance of Delayed Delivery Contracts.
You shall submit to the Company, at least two business days prior
to the Closing Time, the names of any institutional investors with which it
is proposed that the Company will enter into Delayed Delivery Contracts and
the number of Underwritten Securities to be purchased by each of them, and
the Company will advise you, at least two business days prior to the Closing
Time, of the names of the institutions with which the making of Delayed
Delivery Contracts is approved by the Company and the number of Underwritten
Securities to be covered by each such Delayed Delivery Contract.
The number of Underwritten Securities agreed to be purchased by the
several Underwriters pursuant to the applicable Terms Agreement shall be
reduced by the number of Underwritten Securities covered by Delayed Delivery
Contracts, as to each Underwriter as set forth in a written notice delivered
by you to the Company; provided, however, that the total number of
Underwritten Securities to be purchased by all Underwriters shall be the
total number of Underwritten Securities covered by the applicable Terms
Agreement, less the number of Underwritten Securities covered by Delayed
Delivery Contracts.
Section 3. Covenants of the Company. The Company covenants with
you, and with each Underwriter participating in the offering of Underwritten
Securities, as follows:
(a) If the Company does not elect to rely on Rule 434 under the
1933 Act Regulations, immediately following the execution of the applicable
Terms Agreement, the Company will prepare a Prospectus Supplement setting
forth the number of Underwritten Securities covered thereby and their terms
not otherwise specified in the Prospectus pursuant to which the Underwritten
Securities are being issued, the names of the Underwriters participating in
the offering and the number of Underwritten Securities which each severally
has agreed to
<PAGE>
purchase, the names of the Underwriters acting as co-managers in connection
with the offerings, the price at which the Underwritten Securities are to be
purchased by the Underwriters from the Company, the initial public offering
price, if any, the selling concession and reallowance, if any, any delayed
delivery arrangements, and such other information as you and the Company
deem appropriate in connection with the offering of the Underwritten
Securities; and the Company will promptly transmit copies of the Prospectus
Supplement to the Commission for filing pursuant to Rule 424(b) of the 1933
Act Regulations and will furnish to the Underwriters named therein as many
copies of the Prospectus (including such Prospectus Supplement) as you shall
reasonably request. If the Company elects to rely on Rule 434 under the 1933
Act Regulations, immediately following the execution of the applicable Terms
Agreement, the Company will prepare an abbreviated term sheet that complies
with the requirements of Rule 434 under the 1933 Act Regulations and will
provide the Underwriters with copies of the form of Rule 434 Prospectus, in
such number as you shall reasonably request, and promptly file or transmit
for filing with the Commission the form of Prospectus complying with Rule
434(c)(2) of the 1933 Act Regulations in accordance with Rule 424(b) of the
1933 Act Regulations.
(b) The Company will notify you immediately, and confirm such
notice in writing, of (i) the effectiveness of any amendment to the
Registration Statement, (ii) the transmittal to the Commission for filing of
any Prospectus Supplement or other supplement or amendment to the Prospectus
or any document to be filed pursuant to the 1934 Act, (iii) the receipt of
any comments from the Commission, (iv) any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (v) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose; and the Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(c) At any time when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Securities, the Company will give you notice of its intention
to file or prepare any amendment to the Registration Statement or any
amendment or supplement to the Prospectus, whether pursuant to the 1933 Act,
1934 Act or otherwise (including any revised prospectus which the Company
proposes for use by the Underwriters in connection with an offering of
Underwritten Securities which differs from the Prospectus on file at the
Commission at the time the Registration Statement first becomes effective,
whether or not such revised prospectus is required to be filed pursuant to
Rule 424(b) of the 1933 Act Regulations, or any abbreviated term sheet
prepared in reliance on Rule 434 of the 1933 Act Regulations), and will
furnish you with copies of any such amendment or supplement or other
documents proposed to be filed or used a reasonable amount of time prior to
such proposed filing or use, as the case may be, and will not file any such
amendment or supplement or other documents in a form to which you or counsel
for the Underwriters shall reasonably object.
(d) The Company will deliver to each Underwriter as many signed and
conformed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated
by reference therein and documents incorporated or deemed to be incorporated
by reference therein) as such Underwriter reasonably requests.
<PAGE>
(e) The Company will furnish to each Underwriter, from time to time
during the period when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request for the purposes
contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the
1934 Act Regulations.
(f) If at any time when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Securities any event shall occur or condition exist as a result
of which it is necessary, in the opinion of counsel for the Underwriters or
counsel for the Company, to amend or supplement the Prospectus in order that
the Prospectus will not include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the
time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of either such counsel, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, then the Company
will promptly prepare and file with the Commission such amendment or
supplement, whether by filing documents pursuant to the 1933 Act, the 1934
Act or otherwise, as may be necessary to correct such untrue statement or
omission or to make the Registration Statement and Prospectus comply with
such requirements.
(g) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Underwritten Securities, the Warrant
Securities, if any, and the shares of Common Stock issuable upon conversion
of the Preferred Shares or the Depositary Shares, if any, for offering and
sale under the applicable securities laws and real estate syndication laws
of such states and other jurisdictions of the United States as you may
designate. In each jurisdiction in which the Underwritten Securities, the
Warrant Securities, if any, and the shares of Common Stock issuable upon
conversion of the Preferred Shares or the Depositary Shares, if any, have
been so qualified, the Company will file such statements and reports as may
be required by the laws of such jurisdiction to continue such qualification
in effect for so long as may be required for the distribution of the
Underwritten Securities and the Warrant Securities, if any; provided,
however, that the Company shall not be obligated to qualify as a foreign
corporation in any jurisdiction where it is not so qualified.
(h) With respect to each sale of Underwritten Securities, the
Company will make generally available to its security holders as soon as
practicable, but not later than 90 days after the close of the period
covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 of the 1933 Act Regulations) covering a twelve-month
period beginning not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in such Rule 158) of
the Registration Statement.
(i) The Company will use its best efforts to meet the requirements
to qualify as a "real estate investment trust" under the Code for the
taxable year in which sales of the Underwritten Securities are to occur.
<PAGE>
(j) The Company, during the period when the Prospectus is required
to be delivered under the 1933 Act or the 1934 Act in connection with sales
of the Underwritten Securities, will file all documents required to be filed
with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within
the time period prescribed by the 1934 Act and the 1934 Act Regulations.
(k) If the Preferred Shares or Depositary Shares are convertible
into shares of Common Stock or if Common Stock Warrants are issued, the
Company will reserve and keep available at all times, free of preemptive or
other similar rights, a sufficient number of shares of Common Stock or
Preferred Shares, as the case may be, for the purpose of enabling the
Company to satisfy any obligations to issue such shares upon conversion of
the Preferred Shares or the Depositary Shares, as the case may be, or upon
exercise of the Common Stock Warrants.
(l) If the Underwritten Securities are Common Stock, the Company
will use its best efforts to list such shares of Common Stock on the New
York Stock Exchange or such other national securities exchange on which the
Company's shares of Common Stock are then listed. If the Preferred Shares or
Depository Shares are convertible into shares of Common Stock, the Company
will use its best efforts to list the shares of Common Stock issuable upon
conversion of the Preferred Shares or Depositary Shares on the New York
Stock Exchange or such other national securities exchange on which the
Company's shares of Common Stock are then listed.
(m) The Company has complied and will comply with the provisions of
Florida H.B. 1771, codified as Section 517.075 of the Florida Statutes,
1987, as amended, and all regulations thereunder relating to issuers doing
business with Cuba.
Section 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement or the
applicable Terms Agreement, including (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto,
(ii) the printing and filing of this Agreement and the applicable Terms
Agreement, (iii) the preparation, issuance and delivery of the Underwritten
Securities to the Underwriters and the Warrant Securities, if any, (iv) the
fees and disbursements of the Company's counsel and accountants, (v) the
qualification of the Underwritten Securities, the Warrant Securities, if
any, and the shares of Common Stock issuable upon conversion of the
Preferred Shares or the Depositary Shares, if any, under securities laws and
real estate syndication laws in accordance with the provisions of Section
3(g), including filing fees and the fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey, (vi) the printing and delivery to the
Underwriters of copies of the Registration Statement as originally filed and
of each amendment thereto, and of the Prospectus and any amendments or
supplements thereto, including each abbreviated term sheet delivered by the
Company pursuant to Rule 434 of the 1933 Act Regulations, (vii) the printing
and delivery to the Underwriters of copies of the applicable Deposit
Agreement, if any, and the applicable Warrant Agreement, if any, (viii) any
fees charged by nationally recognized statistical rating organizations for
the rating of the Securities, (ix) the fees and expenses, if any, incurred
with respect to the listing of the Underwritten Securities, the Warrant
Securities, if any, or the shares of Common Stock issuable upon conversion
of the Preferred Shares or the Depositary Shares, if any, on any national
securities exchange, and (x) the
<PAGE>
fees and expenses, if any, incurred with respect to any filing with the
National Association of Securities Dealers, Inc.
If the applicable Terms Agreement is terminated by you in
accordance with the provisions of Section 5 or Section 9(b)(i), the Company
shall reimburse the Underwriters named in such Terms Agreement for all of
their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
Section 5. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase Underwritten Securities pursuant
to the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Company herein contained, to the
accuracy of the statements of the Company's officers made in any certificate
pursuant to the provisions hereof, to the performance by the Company of all
of its covenants and other obligations hereunder, and to the following
further conditions:
(a) At Closing Time, (i) no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, (ii) if
Preferred Shares or Depositary Shares are being offered, the rating assigned
by any nationally recognized statistical rating organization to any
preferred stock of the Company as of the date of the applicable Terms
Agreement shall not have been lowered since such date nor shall any such
rating organization have publicly announced that it has placed any preferred
stock of the Company on what is commonly termed a "watch list" for possible
downgrading, (iii) there shall not have come to your attention any facts
that would cause you to believe that the Prospectus, together with the
applicable Prospectus Supplement, at the time it was required to be
delivered to purchasers of the Underwritten Securities, included an untrue
statement of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in light of the circumstances
existing at such time, no misleading and (iv) the Underwritten Securities or
the Common Stock issuable upon conversion thereof, as applicable in
accordance with Section 3(m) hereof, shall have been duly listed in
accordance with such Section 3(m).
(b) At Closing Time, you shall have received:
(1) The favorable opinion, dated as of Closing Time, of
Latham & Watkins, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation under the laws of the
State of Maryland and is in good standing with the State
Department of Assessments and Taxation of Maryland.
(ii) The Company has corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus.
(iii) The Company is duly qualified as a foreign
corporation to transact business and is in good standing
in each jurisdiction in which it owns or leases
<PAGE>
real property, except where the failure to so qualify
would not have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business
affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(iv) The authorized, issued and outstanding stock
of the Company is as set forth in the Prospectus under
"Capitalization" or in the latest balance sheet
incorporated by reference therein (except for subsequent
issuances, if any, pursuant to reservations, agreements,
employee benefit plans, dividend reinvestment plans or
employee and director stock option plans referred to in
the Prospectus or otherwise referred to in the
Prospectus); and the outstanding capital stock of the
Company has been duly authorized, validly issued, fully
paid and non-assessable and is not subject to preemptive
or other similar rights arising by operation of law or, to
the best of such counsel's knowledge otherwise.
(v) The Underwritten Securities being sold
pursuant to the applicable Terms Agreement and, if
applicable, the deposit of the Preferred Shares in
accordance with the provisions of a Deposit Agreement,
have been duly and validly authorized by all necessary
corporate action and such Underwritten Securities have
been duly authorized for issuance and sale pursuant to
this Agreement and such Underwritten Securities, when
issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth
in the applicable Terms Agreement or any Delayed Delivery
Contract, will be validly issued, fully paid and
non-assessable and will not be subject to preemptive or
other similar rights arising by operation of law or, to
the best of such counsel's knowledge, otherwise; and the
Preferred Shares, if applicable, conform to the provisions
of the Articles Supplementary.
(vi) If applicable, the Common Stock Warrants
have been duly authorized and, when issued and delivered
pursuant to this Agreement and countersigned by the
Warrant Agent as provided in the Warrant Agreement, will
have been duly executed, countersigned, issued and
delivered and will constitute valid and legally binding
obligations of the Company entitled to the benefits
provided by the Warrant Agreement under which they are to
be issued.
(vii) If applicable, the shares of Common Stock
issuable upon conversion of any of the Preferred Shares or
Depositary Shares, or the exercise of Warrant Securities,
have been duly and validly authorized and reserved for
issuance upon such conversion or exercise by all necessary
corporate action on the part of the Company and such
shares, when issued upon such conversion or exercise in
accordance with the charter of the Company, the Deposit
Agreement, the Terms Agreement, the Delayed Delivery
Contract or the Warrant Agreement, as the case may be,
will be duly and validly issued and will be fully paid and
non-assessable, and the issuance of such shares upon such
conversion or exercise will not be subject to preemptive
or other similar rights arising by operation of law or, to
the best of such counsel's knowledge, otherwise.
<PAGE>
(viii) The applicable Warrant Agreement, if any,
and the applicable Deposit Agreement, if any, have been
duly authorized, executed and delivered by the Company,
and (assuming due authorization, execution and delivery by
the Warrant Agent in the case of the Warrant Agreement,
and the Depositary, in the case of the Deposit Agreement)
each constitutes a valid and legally binding agreement of
the Company enforceable in accordance with its terms; and
the Warrant Agreement, if any, and the Deposit Agreement,
if any, conforms in all material respects to all
statements relating thereto contained in the Prospectus.
(ix) If applicable, upon execution and delivery
of the Depositary Receipts pursuant to the terms of the
Deposit Agreement, the persons in whose names such
Depositary Receipts are registered will be entitled to the
rights specified therein and in the Deposit Agreement.
(x) Each of this Agreement, the applicable Terms
Agreement and the Delayed Delivery Contracts, if any, has
been duly authorized, executed and delivered by the
Company.
(xi) The Registration Statement is effective
under the 1933 Act and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued under the 1933
Act or proceedings therefor initiated or threatened by the
Commission.
(xii) The Registration Statement and the
Prospectus, excluding the documents incorporated by
reference therein, as of their respective effective or
issue dates, comply as to form in all material respects
with the requirements for registration statements on Form
S-3 under the 1933 Act and the 1933 Act Regulations; it
being understood, however, that no opinion need be
rendered with respect to the financial statements,
schedules and other financial and statistical data
included or incorporated by reference in the Registration
Statement or the Prospectus; it being understood, further,
that in passing upon the compliance as to form of the
Registration Statement and the prospectus, such counsel
may assume that the statements made therein are correct
and complete. If applicable, the Rule 434 Prospectus
conforms in all material respects to the requirements of
Rule 434 under the 1933 Act Regulations.
(xiii) Each document filed pursuant to the 1934
Act and incorporated or deemed to be incorporated by
reference in the Prospectus (other than the financial
statements, schedules and other financial and statistical
data included therein, as to which no opinion need be
rendered) complied when so filed as to form in all
material respects with the 1934 Act and the 1934 Act
Regulations. In passing upon compliance as to form of such
documents, such counsel may assume that the statements
made therein are correct and complete.
(xiv) If applicable, the relative rights
preferences, interests and powers of the Preferred Shares
or Depositary Shares, as the case may be, are as set forth
<PAGE>
in the Articles Supplementary relating thereto, and all
such provisions are valid under the Maryland General
Corporation Law ("MGCL"); and, as applicable, the form of
certificate used to evidence Preferred Shares being
represented by the Depositary Shares and the form of
certificate used to evidence the related Depositary
Receipts are in due and proper form under the MGCL and
comply with all applicable statutory requirements under
the MGCL.
(xv) The Underwritten Securities, the Warrant
Securities, and the shares of Common Stock issuable upon
conversion of the Preferred Shares or Depositary Shares,
if applicable, conform in all material respects to the
statements relating thereto contained in the Prospectus.
(xvi) No authorization, approval or consent of
any court or governmental authority or agency is required
that has not been obtained in connection with the
consummation by the Company of the transactions
contemplated by this Agreement, the applicable Terms
Agreement, the applicable Deposit Agreement, if any, or
the applicable Warrant Agreement, if any, except such as
may be required under the 1933 Act, 1934 Act and state
securities laws or real estate syndication laws.
(xvii) Neither the Company nor any of its
subsidiaries is required to be registered under the 1940
Act.
(xviii) Commencing with the Company's taxable
year beginning January 1, 1992, the Company has been
organized in conformity with the requirements for
qualification as a "real estate investment trust," and its
method of operation will enable it to meet the
requirements for qualification and taxation as a "real
estate investment trust" under the Code, provided that
such counsel's opinion as to this matter shall be
conditioned upon certain representations as to factual
matters made by the Company to such counsel as described
therein.
(xix) The statements set forth (a) in the
Prospectus under the caption "Certain Federal Income Tax
Considerations to the Company of its REIT Election" and
(b) in the Prospectus Supplement under the caption
"Certain Federal Income Tax Considerations," to the extent
such statements constitute matters of law, summaries of
legal matters, or legal conclusions, have been reviewed by
them and are accurate in all material respects.
The opinions rendered in (vi), (viii) and (ix) of
subsection (b)(1) are subject to the following exceptions,
limitations and qualifications: (i) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights and
remedies of creditors; and (ii) the effect of general principles of
equity, whether enforcement is considered in a proceeding in equity
or at law, and the discretion of the court before which any
proceeding therefor may be brought.
<PAGE>
(2) The favorable opinion, dated as of Closing Time, of
Robert P. Schulman, Esq., counsel for the Company, or other counsel
satisfactory to the Underwriters, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) To the best of his knowledge and information,
there are no legal or governmental proceedings pending or
threatened which are required to be disclosed in the
Prospectus, other than those disclosed therein, and all
pending legal or governmental proceedings to which the
Company or any of its subsidiaries is a party or of which
any of the property of the Company or its subsidiaries is
the subject which are not described in the Prospectus,
including ordinary routine litigation incidental to the
business, are, considered in the aggregate, not material.
(ii) To the best of his knowledge and
information, there are no contracts, indentures,
mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement other than those
described or referred to therein or filed as exhibits
thereto, the descriptions thereof or references thereto
are correct, and, to the best of his knowledge and
information, no default exists in the due performance or
observance of any material obligation, agreement, covenant
or condition contained in any contract, indenture,
mortgage (except as otherwise described in the
Prospectus), loan agreement, note, lease or other
instrument so described, referred to or filed which would
have a material adverse effect on the condition, financial
or otherwise, or on the earnings, business or business
prospects of the Company and its subsidiaries considered
as one enterprise.
(iii) To the best of his knowledge and
information, the execution and delivery of this Agreement,
the applicable Terms Agreement, the applicable Deposit
Agreement, if any, or the applicable Warrant Agreement, if
any, and the consummation of the transactions contemplated
herein and therein and compliance by the Company with its
obligations hereunder and thereunder will not conflict
with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company
or any of its subsidiaries pursuant to any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its subsidiaries
is a party or by which it or any of them may be bound or
to which any of the property or assets of the Company or
any of its subsidiaries is subject, nor will such action
result in violation of the provisions of the charter or
by-laws of the Company or any applicable law,
administrative regulation or administrative or court order
or decree.
(iv) Each of the partnership and joint venture
agreements to which the Company or any of its subsidiaries
is a party, and which relates to real property described
in the Prospectus, has been duly authorized, executed and
delivered by such applicable party and constitutes the
valid agreement thereof, enforceable in
<PAGE>
accordance with its terms, except as limited by bankruptcy
and general equitable principles and the execution,
delivery and performance of any of such agreements did
not, at the time of execution and delivery, and does not
constitute a breach of, or default under, the charter or
by-laws of such party or any material contract, lease or
other instrument to which such party is a party or by
which its properties may be bound or any law,
administrative regulation or administrative or court order
or decree.
(v) The Company, its subsidiaries and the Related
Entities hold title to the properties and assets described
in the Prospectus, subject only to the liens and
encumbrances securing indebtedness reflected in the
Prospectus and such other liens, encumbrances and matters
of record which do not materially and adversely affect the
value of such properties and assets considered in the
aggregate.
(vi) Each Significant Subsidiary of the Company
has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and,
to the best of his knowledge and information, is duly
qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which its
owns or leases real property, except where the failure to
so qualify would not have a material adverse effect on the
condition, financial or otherwise, or on the earnings,
business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise; and all of
the issued and outstanding capital stock of each such
Significant Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and, to
the best of his knowledge and information, is owned by the
Company, directly or through subsidiaries, free and clear
of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity, except for security
interests granted in respect of indebtedness of the
Company or any of its subsidiaries and described in the
Prospectus.
(3) The favorable opinion, dated as of Closing Time, of
Chapman and Cutler, counsel for the Underwriters in form and
substance satisfactory to the Underwriters.
(4) In giving their opinions required by subsections
(b)(1) and (b)(3), respectively, of this Section, Latham & Watkins,
(or other counsel satisfactory to the Underwriters) and Chapman and
Cutler shall each additionally state that nothing has come to their
attention that would lead them to believe that the Registration
Statement or any amendment thereto, at the time it became effective
(or, if an amendment to the Registration Statement or an Annual
Report on Form 10-K has been filed by the Company with the
Commission subsequent to the effectiveness of the Registration
Statement, then at the time such amendment becomes effective or at
the time of the most recent filing of such Annual Report, as the
case may be) or at the date of the applicable Terms Agreement,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in
order to make the statements
<PAGE>
therein not misleading or that the Prospectus, at the date of the
applicable Terms Agreement or at Closing Time, included or includes
an untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; it being understood that no opinion need be rendered
with respect to the financial statements, schedules and other
financial and statistical data included in the Registration
Statement or the Prospectus. In giving their opinions, Latham &
Watkins, Robert P. Schulman, Esq. (or other counsel satisfactory to
the Underwriters) and Chapman and Cutler may rely, (1) as to
matters involving the laws of the State of Maryland upon the
opinion of Ballard Spahr Andrews & Ingersoll LLP (or other counsel
reasonably satisfactory to counsel for the Underwriters) in form
and substance satisfactory to counsel for the Underwriters, (2) as
to all matters of fact, upon certificates and written statements of
officers and employees of and accountants for the Company, and (3)
as to the qualification and good standing of the Company or any of
its subsidiaries to do business in any state or jurisdiction, upon
certificates of appropriate government officials or opinions of
counsel in such jurisdictions.
(c) At Closing Time, there shall not have been, since the date of
the applicable Terms Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business; and
you shall have received a certificate of the Chief Executive Officer, the
President or Vice President and the chief financial officer or chief
accounting officer of the Company, dated as of such Closing Time, to the
effect that (i) there has been no such material adverse change and (ii) the
representations and warranties in Section 1 are true and correct with the
same force and effect as through made on such Closing Time. As used in this
Section 5(c), the term "Prospectus" means the Prospectus in the form first
used by the Underwriters to confirm sales of the Underwritten Securities.
(d) At the time of execution of the applicable Terms Agreement, you
shall have received from Coopers & Lybrand L.L.P. a letter dated such date,
in form and substance satisfactory to you, to the effect that (i) they are
independent accountants with respect to the Company within the meaning of
the 1933 Act and the 1933 Act Regulations thereunder; (ii) it is their
opinion that the consolidated financial statements and financial statement
schedules of the Company and the historical summaries of revenue and certain
operating expenses for the properties related thereto included or
incorporated by reference in the Registration Statement and the Prospectus
and audited by them and covered by their opinions therein comply as to form
in all material respects with the applicable accounting requires of the 1933
Act and the 1933 Act Regulations; (iii) they have performed limited
procedures, not constituting an audit, including a reading of the latest
available unaudited interim consolidated financial statements of the
Company, a reading of the minute books of the Company, inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, and on the basis of such limited review and
procedures nothing came to their attention that caused them to believe that
(A) any material modifications should be made to the unaudited financial
statements and financial statement schedules of the Company included or
incorporated by reference in the Registration Statement and the Prospectus
for them to be in conformity with generally accepted accounting principles,
(B) the unaudited financial statements and financial statement schedules of
the Company included or incorporated by reference in the Registration
Statement
<PAGE>
and the Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the 1934 Act as it relates to Form
10-Q and the 1934 Act Regulations, (C) the unaudited operating data and
balance sheet data of the Company in the Registration Statement and the
Prospectus under the caption "Selected Consolidated Financial Data" were not
determined on a basis substantially consistent with that used in determining
the corresponding amounts in the audited financial statements included or
incorporated by reference in the Registration Statement and the Prospectus,
or (D) at a specified date not more than three days prior to the date of the
applicable Terms Agreement, there has been any change in the capital stock
of the Company or in the consolidated long-term debt of the Company or any
decrease in the net assets of the Company, as compared with the amounts
shown in the most recent consolidated balance sheet included or incorporated
by reference in the Registration Statement and the Prospectus or, during the
period from the date of the most recent consolidated statement of operations
included or incorporated by reference in the Registration Statement and the
Prospectus to a specified date not more than three days prior to the date of
the applicable Terms Agreement, there were any decreases, as compared with
the corresponding period in the preceding year, in consolidated revenues, or
decrease in net income or net income per share of the Company, except in all
instances for changes, increases or decreases which the Registration
Statement and the Prospectus disclose have occurred or may occur; and (iv)
in addition to the audit referred to in their opinions and the limited
procedures referred to in clause (iii) above, they have carried out certain
specified procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are included or
incorporated by reference in the Registration Statement and the Prospectus
and which are specified by you, and have found such amounts, percentages and
financial information to be in agreement with the relevant accounting,
financial and other records of the Company and its subsidiaries identified
in such letter.
(e) At Closing Time, you shall have received from Coopers & Lybrand
L.L.P. a letter dated as of Closing Time to the effect that they reaffirm
the statements made in the letter furnished pursuant to subsection (d) of
this Section, except that the "specified date" referred to shall be a date
not more than three days prior to such Closing Time.
(f) At Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the issuance and sale of the
Underwritten Securities and the Warrant Securities, if any, as herein
contemplated and related proceedings, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any of
the conditions, herein contained; and all proceedings taken by the Company
in connection with the issuance and sale of the Underwritten Securities and
the Warrant Securities, if any, as herein contemplated shall be satisfactory
in form and substance to you and counsel for the Underwriters.
(g) In the event the Underwriters exercise their option provided in
a Terms Agreement as set forth in Section 2(b) hereof to purchase all or any
portion of the Option Securities, the representations and warranties of the
Company contained herein and the
<PAGE>
statements in any certificates furnished by the Company hereunder shall be
true and correct as of each Date of Delivery, and, at the relevant Date of
Delivery, you shall have received:
(i) A certificate, dated such Date of Delivery, of the
Chief Executive Officer, the President or the chief financial or
chief accounting officer of the Company, in their capacities as
such, confirming that the certificate delivered at Closing Time
pursuant to Section 5(c) hereof remains true and correct as of such
Date of Delivery.
(ii) The favorable opinion of Latham & Watkins, counsel
for the Company, in form and substance satisfactory to counsel for
the Underwriters, dated such Date of Delivery, relating to the
Option Securities and otherwise substantially to the same effect as
the opinion required by Sections 5(b)(i) and 5(b)(iv) hereof.
(iii) The favorable opinion of Robert P. Schulman, Esq.,
counsel for the Company, or other counsel satisfactory to the
Underwriters, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities and otherwise substantially to the same effect as the
opinion required by Sections 5(b)(ii) and 5(b)(iv) hereof.
(iv) The favorable opinion of Chapman and Cutler, counsel
for the Underwriters, dated such Date of Delivery, relating to the
Option Securities and otherwise to the same effect as the opinion
required by Sections 5(b)(iii) and 5(b)(iv) hereof.
(v) A letter from Coopers & Lybrand L.L.P., in form and
substance satisfactory to you and dated such Date of Delivery,
substantially the same in scope and substance as the letter
furnished to you pursuant to Section 5(d) hereof, except that the
"specified date" in the letter furnished pursuant to this Section
5(h)(v) shall be a date not more than three days prior to such Date
of Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms
Agreement may be terminated by you by notice to the Company at any time at
or prior to the Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4
hereof.
Section 6. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the
information deemed to be part of the Registration Statement
pursuant to Rule 430A(b) or Rule 434 of the 1933 Act Regulations,
if applicable, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included
in the Prospectus (or any amendment or supplement
<PAGE>
thereto) or the omission, or alleged omission therefrom, of a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission referred to in subsection (i) above, or any
such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever (including,
the fees and disbursements of counsel chosen by you), as incurred,
which was reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i)
or (ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through you expressly for use in the Registration
Statement (or any amendment thereto) and the Prospectus (or any amendment or
supplement thereto); provided further, that with respect to any preliminary
prospectus, such indemnity shall not inure to the benefit of any Underwriter
(or the benefit of any person controlling such Underwriter) if the person
asserting any such losses, liabilities, claims, damages or expenses
purchased the Underwritten Securities which are the subject thereof from
such Underwriter and if such person was not sent or given a copy of the
Prospectus (excluding any documents incorporated therein by reference) at or
prior to confirmation of the sale of such Underwritten Securities to such
person in any case where such sending or giving is required by the 1933 Act
and the untrue statement or omission of a material fact contained in such
preliminary prospects was corrected in the Prospectus and the Prospectus was
delivered to such Underwriter a reasonable amount of time prior to the date
of delivery of such confirmation.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act, against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through you
expressly for use in the Registration Statement (or any amendment thereto)
or the Prospectus (or any amendment or supplement thereto).
<PAGE>
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sough hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own
expense in the defense of such action. If it so elects within a reasonable
time after receipt of such notice, an indemnifying party, jointly with any
other indemnifying parties receiving such notice, may assume the defense of
such action with counsel chosen by it and approved by the indemnified
parties defendant in such action, unless such indemnified parties reasonably
object to such assumption on the ground that there may be legal defenses
available to them which are different from or in addition to those available
to such indemnifying party. If an indemnifying party assumes the defense of
such action, the indemnifying parties shall not be liable for any fees and
expenses of counsel for the indemnified parties incurred thereafter in
connection with such action. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified parties
in connection with any one action or separate but similar or related actions
in the same jurisdiction arising out of the same general allegations or
circumstances.
Section 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for
in Section 6 is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and
the Underwriters with respect to the offering of the Underwritten Securities
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by
the Company and one or more of the Underwriters in respect of such offering,
as incurred, in such proportions that the Underwriters are responsible for
that portion represented by the percentage that the underwriting discount
appearing on the cover page of the Prospectus in respect of such offering
bears to the initial public offering price appearing thereon and the Company
is responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. Notwithstanding the provisions
of this Section 7, no Underwriter shall be required to contribute any amount
in excess of the amount by which the total price at which the Underwritten
Securities purchased by it pursuant to the applicable Terms Agreement and
distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay in
respect of such losses, liabilities, claims, damages and expenses. For
purposes of this Section, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act shall have the same rights
to contribution as such Underwriter, and each director of the Company, each
officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as the Company.
Section 8. Representation, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or the applicable Terms Agreement, or contained in certificates of
officers of the Company submitted pursuant hereto, shall remain operative
and in full force and effect, regardless of any termination of this
<PAGE>
Agreement or the applicable Terms Agreement, or investigation made by or on
behalf of any Underwriter or any controlling person, or by or on behalf of
the Company and shall survive delivery of and payment for the Underwritten
Securities.
Section 9. Termination of Agreement. (a) This Agreement, (excluding
the applicable Terms Agreement) may be terminated for any reason at any time
by the Company or by you upon the giving of 30 days' written notice of such
termination to the other party hereto.
(b) You may also terminate the applicable Terms Agreement, by
notice to the Company, at any time at or prior to the Closing Time if (i)
there has been, since the date of such Terms Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business, or (ii) there has occurred any material adverse change in the
financial markets in the United States or any outbreak or escalation of
hostilities or other national or international calamity or crisis, the
effect of which is such as to make it, in your judgment, impracticable to
market the Underwritten Securities or enforce contracts for the sale of the
Underwritten Securities, or (iii) trading in any of the securities of the
Company has been suspended by the Commission or the New York Stock Exchange,
or if trading generally on either the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market has been suspended, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices
for securities have been required, by either of said exchanges or by order
of the Commission or any other governmental authority, or if a banking
moratorium has been declared by Federal, New York or Maryland authorities,
or (iv) Preferred Shares or Depository Shares are being offered and the
rating assigned by any nationally recognized statistical rating organization
to any preferred stock of the Company as of the date of the applicable Terms
Agreement shall have been lowered since such date or if any such rating
organization shall have publicly announced that it has placed any preferred
stock of the Company on what is commonly termed a "watch list" for possible
downgrading. As used in this Section 9(b), the term "Prospectus" means the
Prospectus in the form first used by the Underwriters to confirm sales of
the Underwritten Securities.
(c) In the event of any such termination, (x) the covenants set
forth in Section 3 with respect to any offering of Underwritten Securities
shall remain in effect in so long as any Underwriter owns any such
Underwritten Securities purchased from the Company pursuant to the
applicable Terms Agreement and (y) the covenant set forth in Section 3(h)
hereof, the provisions of Section 4 hereof, the indemnity and contribution
agreements set forth in Sections 6 and 7 hereof, and the provisions of
Sections 8 and 13 hereof shall remain in effect.
Section 10. Default by One or More of the Underwriters. If one or
more of the Underwriters shall fail at the Closing Time to purchase the
Underwritten Securities which it or they are obligated to purchase under the
applicable Terms Agreement (the "Defaulted Securities"), then you shall have
the right, within 24 hours thereafter, to make arrangements for one or more
of the non-defaulting Underwriters, or any other underwriters, to purchase
all, but not less than all, of the Defaulted Securities in such amounts as
may be agreed upon and upon the
<PAGE>
terms herein set forth; if however, you shall not have completed such
arrangements within such 24-hour period, then:
(a) if the total number of Defaulted Securities does not
exceed 10% of the total number of Underwritten Securities to be
purchased pursuant to such Terms Agreement, the non-defaulting
Underwriters named in such Terms Agreement shall be obligated to
purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the total number of Defaulted Securities exceeds
10% of the total number of Underwritten Securities to be purchased
pursuant to such Terms Agreement, the applicable Terms Agreement
shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default under this
Agreement and the applicable Terms Agreement.
In the event of any such default which does not result in a
termination of the applicable Terms Agreement, either you or the Company
shall have the right to postpone the Closing Time for a period not exceeding
seven days in order to effect any required changes in the Registration
Statement or the Prospectus or in any other documents or arrangements.
Section 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed c/o Edward D. Jones & Co., L. P., 12555
Manchester Road, St. Louis, MO 63131-3729 attention T. William Hizar, Jr.,
and notices to the Company shall be directed to it at 3333 New Hyde Park
Road, New Hyde Park, New York 11042-0020, attention of Milton Cooper,
Chairman of the Board.
Section 12. Parties. This Agreement and the applicable Terms
Agreement shall inure to the benefit of and be binding upon you and the
Company and any Underwriter who becomes a party of such Terms Agreement, and
their respective successors. Nothing expressed or mentioned in this
Agreement or the applicable Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than those referred
to in Sections 6 and 7 and their heirs and legal representatives, any legal
or equitable right, remedy or claim under or in respect of this Agreement or
such Terms Agreement or any provisions herein or therein contained. This
Agreement and the applicable Terms Agreement and all conditions and
provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties hereto and thereto and their respective successors
and said controlling persons and officers and directors and their heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Underwritten Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
Section 13. Governing Law and Time. This Agreement and the
applicable Terms Agreement shall be governed by and construed in accordance
with the laws of the State of New
<PAGE>
York applicable to agreements made and to be performed in said State.
Specified times of day refer to New York City time.
Section 14. Counterparts. This Agreement and the applicable Terms
Agreement may be executed in one or more counterparts, and if executed in
more than one counterpart the executed counterparts shall constitute a
single instrument.
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement
between you and the Company in accordance with its terms.
Very truly yours,
Kimco Realty Corporation
By /s/ Michael V. Pappagalo
---------------------------
Name: Michael V. Pappagalo
Title: VP/CFO
Confirmed and Accepted, as of the date first above written:
Edward D. Jones & Co., L.P.
By /s/ T. William Hizar, Jr.
-------------------------------
Name: T. William Hizar, Jr.
Title: Principal
<PAGE>
Exhibit A
Kimco Realty Corporation
(a Maryland Corporation)
Terms Agreement
Dated: , 19
------------ ---
To: Kimco Realty Corporation
3333 New Hyde Park Road
Suite 100
New Hyde Park, New York 11042-0020
Attention: Chairman of the Board of Directors
Dear Sirs:
We (the "Underwriter") understand that Kimco Realty Corporation, a
Maryland corporation (the "Company"), proposes to issue and sell the number
of shares of
--------------------------------------------------------------
set forth below (the "Underwritten Securities"). Subject to the terms and
conditions set forth or incorporated by reference herein, we offer to
purchase the Initial Underwritten Securities (as defined in the Underwriting
Agreement referred to below) and a proportionate share of Option Securities
(as defined in the Underwriting Agreement) to the extent any are purchased,
at the purchase price set forth below.
The Underwritten Securities shall have the following terms:
Title of Securities:
------------------------------
Number of Shares:
-----------------
Public offering price per share: $
----------------
Purchase price per share: $
-------------------
Number of Option Securities:
--------------
Delayed Delivery Contracts:
------------
Closing date and location: , 19 ;
------------ -- ---------------------------
All the provisions contained in the document attached as Annex A
hereto entitled "Kimco Realty Corporation--Common Stock, Warrants to
Purchase Common Stock, Preferred Stock and Depositary Shares--Underwriting
Agreement" are hereby incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same extent as
if such provisions had been set forth in full herein. Terms defined in such
document are used herein as therein defined.
<PAGE>
Please accept this offer on , 19 , by signing a copy of this Terms
------- --
Agreement in the space set forth below and returning the signed copy to us.
Very truly yours,
Edward D. Jones & Co., L.P.
By
Name:
Title:
Accepted:
Kimco Realty Corporation
By
Name:
Title:
<PAGE>
Kimco Realty Corporation
(a Maryland Corporation)
Common Stock
Terms Agreement
Dated: November 4, 1998
To: Kimco Realty Corporation
3333 New Hyde Park Road
Suite 100
New Hyde Park, New York 11042-0020
Attention: Chairman of the Board of Directors
Dear Sirs:
We (the "Underwriter") understand that Kimco Realty Corporation, a
Maryland corporation (the "Company"), proposes to issue and sell the number
of shares of its common stock, $.01 par value per share (the "Common
Stock"), set forth below (the "Underwritten Securities"). Subject to the
terms and conditions set forth or incorporated by reference herein, we offer
to purchase the Initial Underwritten Securities (as defined in the
Underwriting Agreement referred to below) to the extent any are purchased,
at the purchase price set forth below.
The Underwritten Securities shall have the following terms:
Title of Securities: Common Stock, $.01 par value
Number of Shares: 650,000
Public offering price per share: $39.6875
Purchase price per share: $37.7075
Number of Option Securities: not authorized
Delayed Delivery Contracts: not authorized
Closing date and location: November 10, 1998; Chapman and Cutler, 111 West
Monroe Street, Chicago, IL 60603
All the provisions contained in the document attached as Annex A
hereto entitled "Kimco Realty Corporation--Common Stock, Warrants to
Purchase Common Stock, Preferred Stock and Depositary Shares--Underwriting
Agreement" are hereby incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same extent as
if such provisions had been set forth in full herein; provided that the
reference to the registration
<PAGE>
statement on Form S-3 (No. 333-37285) shall be deemed to refer to both the
registration statement on Form S-3 (No. 333-37285) and the registration
statement on Form S-3 (No. 333-61303). Terms defined in such document are
used herein as therein defined.
Please accept this offer on November 4, 1998, by signing a copy of this
Terms Agreement in the space set forth below and returning the signed copy
to us.
Very truly yours,
Edward D. Jones & Co., L.P.
By /s/ T. William Hizar, Jr.
-----------------------------
Name: T. William Hizar, Jr.
Title: Principal
Accepted:
Kimco Realty Corporation
By /s/ Michael V. Pappagalo
------------------------------
Name: Michael V. Pappagalo
Title: VP/CFO
<PAGE>
REMARKETING AGREEMENT
REMARKETING AGREEMENT, dated as of August 11, 1998 (this "Remarketing Agreement"
or this "Agreement"), by and between Kimco Realty Corporation (the "Company")
and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch"). WHEREAS, the Company proposes to issue $100,000,000 aggregate
principal amount of Remarketed Reset Notes Due August 18, 2008 (the "Notes"),
such Notes to be issued under an Indenture dated as of September 1, 1993, as
amended by the First Supplemental Indenture dated as of August 4, 1994, the
Second Supplemental Indenture dated as of April 7, 1995 and as further amended
or supplemented from time to time (the "Indenture"), by and between the Company
and IBJ Schroder Bank & Trust Company, as trustee (the "Trustee"); and WHEREAS,
the Notes are to be initially offered to the public through Merrill Lynch; and
WHEREAS, the Company has requested that Merrill Lynch act as Rate Agent (as
defined in Section 2(a) hereof) and as Remarketing Agent (as defined in Section
2(a) hereof) in connection with the Notes and as such to perform the services
described herein; and WHEREAS, Merrill Lynch is willing to act as Rate Agent and
as Remarketing Agent in connection with the Notes and as such to perform such
duties on the terms and conditions expressly set forth herein.
NOW, THEREFORE, for and in consideration of the covenants herein made, and
subject to the conditions herein set forth, the parties hereto agree as follows:
Definitions. Capitalized terms used and not defined in this Agreement shall have
the respective meanings assigned to them in the Notes or, if not defined
therein, in the Indenture relating to the Notes.
Appointment and Obligations of Merrill Lynch. The Company hereby appoints
Merrill Lynch, and Merrill Lynch hereby accepts such appointment, (i) as the
rate agent (the "Rate Agent") of the Company for the Notes to determine (1)
LIBOR and the interest rate on the Notes for any Quarterly Period, and/or (2)
the yield to maturity on the applicable United States Treasury security that is
used in connection with the determination of the applicable Fixed Rate, and the
ensuing applicable Fixed Rate and (ii) as the exclusive remarketing agent (the
"Remarketing Agent") for the purpose of (x) recommending to the Company the
Spread for each Subsequent Spread Period that, in the opinion of the Remarketing
Agent, will enable the Remarketing Agent to remarket, for delivery on the Tender
Date, tendered Notes at 100% of the principal amount thereof, (y) if the Company
and the Remarketing Agent agree on the Spread referred to in (x) above, entering
into a remarketing agency agreement (each, a "Remarketing Agency Agreement")
with the Company, substantially in the form attached hereto as Exhibit A,
pursuant to which the Remarketing Agent will attempt, on a reasonable best
efforts basis, to remarket the Notes tendered by the beneficial owners thereof
(the "Beneficial Owners") (each such attempted and/or completed remarketing
being hereinafter referred to as a "Remarketing"), and (z) performing such other
duties as are assigned to the Remarketing Agent in the Notes and/or the
Indenture and/or the applicable Remarketing Agency Agreement, in each case
subject to the conditions
<PAGE>
set forth herein and therein. The Remarketing Agent shall also have the option,
but not the obligation, to purchase any tendered Notes at a price equal to 100%
of the principal amount thereof.
The Rate Agent hereby agrees to determine LIBOR on each LIBOR Determination Date
in accordance with the following provisions and the other relevant provisions of
the Notes: LIBOR shall be determined on the basis of the offered rates for
three-month deposits in U.S. dollars commencing on the second London Business
Day immediately following the applicable LIBOR Determination Date, which appears
on Telerate Page 3750 as of approximately 11:00 a.m., London time, on such LIBOR
Determination Date. If no rate appears on Telerate Page 3750, LIBOR for the
applicable LIBOR Determination Date will be determined in accordance with the
provisions of paragraph (ii) below.
With respect to a LIBOR Determination Date on which no rate appears on Telerate
Page 3750 as of approximately 11:00 a.m., London time, on the applicable LIBOR
Determination Date, the Rate Agent shall select four major reference banks in
the London interbank market and shall request the principal London offices of
each such bank to provide it with a quotation of the rate at which three-month
deposits in U.S. dollars, commencing on the second London Business Day
immediately following such LIBOR Determination Date, are offered by it to prime
banks in the London interbank market as of approximately 11:00 a.m., London
time, on such LIBOR Determination Date and in a principal amount equal to an
amount of not less than U.S. $1,000,000 that is representative for a single
transaction in such market at such time. If at least two such quotations are
provided, LIBOR for the applicable LIBOR Determination Date will be the
arithmetic mean of such quotations as calculated by the Rate Agent. If fewer
than two quotations are provided, the Rate Agent, after consultation with the
Company, shall select three major banks in The City of New York and shall
request each such bank to provide it with the rates quoted by such bank as of
approximately 11:00 a.m., New York City time, on such LIBOR Determination Date
for loans in U.S. dollars to leading European banks, having a three-month
maturity, commencing on the second London Business Day immediately following
such LIBOR Determination Date and in a principal amount equal to an amount of
not less than U.S. $1,000,000 that is representative for a single transaction in
such market at such time, and LIBOR for such LIBOR Determination Date shall be
the arithmetic mean of such rates; provided, however, that if the banks selected
as aforesaid by the Rate Agent are not quoting as mentioned in this sentence,
LIBOR for such LIBOR Determination Date will be the LIBOR determined with
respect to the immediately preceding LIBOR Determination Date, or in the case of
the first LIBOR Determination Date, LIBOR for the Initial Quarterly Period.
The Rate Agent hereby agrees to determine the yield to maturity on the
applicable United States Treasury security that is used in connection with the
determination of the applicable Fixed Rate, and the ensuing applicable Fixed
Rate, in accordance with this Section 2(c). If the Notes are to be reset to the
Fixed Rate Mode, as agreed to by the Company and the Remarketing Agent on a
Duration/Mode Determination Date, then the applicable Fixed Rate for the
corresponding Subsequent Spread Period will be determined by 1:00 p.m., New York
City time, on the third Business Day prior to the Commencement Date for the
Subsequent Spread Period (the "Fixed Rate Determination Date"). The Fixed Rate
will be a per annum rate and will be determined by
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adding (i) the applicable Spread (as agreed to by the Company and the
Remarketing Agent on the preceding Spread Determination Date) to (ii) the yield
to maturity determined by 1:00 p.m., New York City time, on the Fixed Rate
Determination Date (expressed as a bond equivalent, on the basis of a year of
365 or 366 days, as applicable, and applied on a daily basis) of the applicable
United States Treasury security, selected by the Rate Agent after consultation
with the Remarketing Agent, as having a maturity comparable to the duration
selected for the following Subsequent Spread Period, which would be used in
accordance with customary financial practice in pricing new issues of corporate
debt securities of comparable maturity to the duration selected for the
following Subsequent Spread Period.
Fees and Expenses. The obligations of the Company to pay to the Remarketing
Agent on each Tender Date the fees set forth in the applicable Remarketing
Agency Agreement shall survive the termination of this Agreement and remain in
full force and effect until all such payments shall have been made in full. The
Company will pay all expenses of the Remarketing Agent in connection with the
Remarketing Agency Agreement, including: (a) the preparation, filing, printing
and delivery of the prospectus, if any, and any amendments or supplements
thereto and any Remarketing Memorandum (as defined in the Remarketing Agency
Agreement) in connection with the Remarketing of the Notes; (b) the preparation
and delivery of this Agreement, the Remarketing Agency Agreement, the Indenture
and such other documents as may be required in connection with the Remarketing
of the Notes; (c) the fees and disbursements of the Company's accountants,
counsel and other advisors or agents (including any calculation agent or
exchange rate agent) and of the fees and disbursements of the Trustee; and (d)
the fees charged by nationally recognized statistical rating organizations for
the rating of the Notes.
Removal of the Rate Agent and Remarketing Agent. With respect to any Subsequent
Spread Period, the Company may, in its absolute discretion, remove the Rate
Agent and Remarketing Agent by giving notice to the Rate Agent and Remarketing
Agent prior to 3:00 p.m., New York City time, on the Duration/Mode Determination
Date applicable thereto, such removal to be effective upon the Company's
appointment of a successor Rate Agent and Remarketing Agent. In such case, the
Company will use its best efforts to appoint a successor Rate Agent and
Remarketing Agent and enter into such a remarketing agreement with such persons
as soon as reasonably practicable.
Dealing in the Notes. Subject to its compliance with applicable laws and
regulations, Merrill Lynch, when acting as a Rate Agent and Remarketing Agent or
in its individual or any other capacity, may buy, sell, hold and deal in any of
the Notes. Merrill Lynch may exercise any vote or join in any action which any
Beneficial Owner of Notes may be entitled to exercise or take pursuant to the
Indenture with like effect as if it did not act in any capacity hereunder.
Merrill Lynch, in its individual capacity, either as principal or agent, may
also engage in or
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have an interest in any financial or other transaction with the Company as
freely as if it did not act in any capacity hereunder.
Current Prospectus. If Merrill Lynch determines, based upon advice of counsel,
that changes in applicable law, regulations or interpretations of the Securities
and Exchange Commission (the "Commission") make it necessary or advisable to
file a new registration statement with the Commission and/or deliver a current
prospectus in connection with a Remarketing, the Company shall file a new
registration statement with the Commission, in a form reasonably acceptable to
Merrill Lynch and its counsel, and furnish a current prospectus to be used by
the Remarketing Agent in such Remarketing, as applicable.
Representations and Warranties of the Company. The Company represents and
warrants to Merrill Lynch as of the date hereof, and as of each Tender Date, as
follows:
The Company has made all filings with the Commission that it is required to make
under the Securities Exchange Act of 1934, as amended (the "1934 Act"), and the
rules and regulations thereunder (the "1934 Act Regulations") (collectively,
the"1934 Act Documents"). Each 1934 Act Document complies in all material
respects with the requirements of the 1934 Act and the 1934 Act Regulations, and
each 1934 Act Document did not, at the time of filing with the Commission, and
will not, as of each Tender Date, as modified or superseded by any subsequently
filed 1934 Act Document on or prior to such Tender Date, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
As of the date hereof and at each Tender Date, any prospectus and any
Remarketing Memorandum relating to the Notes and any amendments and supplements
thereto did not and will not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading.
The accountants who certified the financial statements, financial statement
schedules and historical summaries of revenue and certain operating expenses for
the properties related thereto included or incorporated by reference in the 1934
Act Documents are independent public accountants as required by the Securities
Act of 1933, as amended (the"1933 Act"), and the rules and regulations
thereunder (the "1933 Act Regulations").
The historical financial statements included or incorporated by reference in the
1934 Act Documents present fairly the financial position of the Company and its
consolidated subsidiaries as at the dates indicated and the results of their
operations for the periods specified; except as may otherwise be stated in the
1934 Act Documents, said financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent basis; and
the financial statement schedules and other financial information and data
included or incorporated by reference in the 1934 Act Documents present fairly
the information required to be stated therein.
(a) The historical summaries of revenue and certain operating expenses included
or incorporated by reference in the 1934 Act Documents, if any, present fairly
the revenue and those operating expenses included in such summaries for the
periods specified in conformity
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with generally accepted accounting principles; the pro forma condensed
consolidated financial statements included or incorporated by reference in the
1934 Act Documents, if any, present fairly the pro forma financial position of
the Company and its consolidated subsidiaries as of the dates indicated and the
pro forma results of their operations for the periods specified; and the pro
forma condensed consolidated financial statements, if any, have been prepared in
conformity with generally accepted accounting principles applied on a consistent
basis, the assumptions on which such pro forma financial statements have been
prepared are reasonable and are set forth in the notes thereto, such pro forma
financial statements have been prepared, and the pro forma adjustments set forth
therein have been applied, in accordance with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations, and such pro forma
adjustments have been properly applied to the historical amounts in the
compilation of such statements. Since the respective dates as of which
information is given in the 1934 Act Documents, except as may otherwise be
stated therein or contemplated thereby, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, (B)
there have been no transactions or acquisitions entered into by the Company or
any of its subsidiaries other than those arising in the ordinary course of
business, which are material with respect to the Company and its subsidiaries
considered as one enterprise, and (C) except for regular quarterly dividends on
the Company's common stock, or dividends declared, paid or made in accordance
with the terms of any series of the Company's preferred stock, there has been no
dividend or distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
The Company has been duly incorporated and is validly existing as a corporation
under the laws of Maryland and is in good standing with the State Department of
Assessments and Taxation of Maryland with corporate power and authority to own,
lease and operate its properties and to conduct its business as contemplated
under this Remarketing Agreement, the Remarketing Agency Agreement and the other
agreements to which it is a party; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify would not have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise. Each
significant subsidiary (as defined in Rule 1-02 of Regulation S-X promulgated
under the 1933 Act) of the Company (each, a "Significant Subsidiary") has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the 1934 Act Documents, and to enter into and perform its
obligations under any agreements to which it is a party, and is duly qualified
as a foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify would not have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise; and
all of the issued and outstanding capital stock of each Significant Subsidiary
has been duly authorized and validly issued, is fully paid and non-assessable
and is owned by the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim
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or equity, except for security interests granted in respect of indebtedness of
the Company or any of its subsidiaries and referred to in the 1934 Act
Documents.
The outstanding capital stock of the Company has been duly authorized and
validly issued and is fully paid and non-assessable and is not subject to
preemptive or other similar rights.
The Company has full corporate power and authority to enter into this
Remarketing Agreement and the Remarketing Agency Agreement, and this Remarketing
Agreement and the Remarketing Agency Agreement have been duly authorized,
executed and delivered by the Company.
The Indenture (A) has been duly authorized, executed and delivered by the
Company, and, assuming due authorization, execution and delivery by the Trustee,
constitutes a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, subject to (i) applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or similar laws
affecting creditors' rights generally and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding at law
or in equity and except the effect on enforceability of (x) requirements that a
claim with respect to any Notes payable other than in U.S. dollars (or a foreign
or composite currency judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined pursuant to
applicable law or (y) federal or state law limiting, delaying or prohibiting the
making of payments outside the United States; and (B) conforms in all material
respects to the description thereof in the Prospectus relating to the initial
issuance of the Notes.
The Notes have been duly authorized by the Company for offer, sale, issuance and
delivery pursuant to the Distribution Agreement dated as of November 4, 1997
among the Company and Merrill Lynch, Chase Securities Inc., First Chicago
Capital Markets, Inc., Goldman, Sachs & Co., J.P. Morgan Securities Inc. and
Morgan Stanley & Co. Incorporated (the "Distribution Agreement"), and the
Pricing Supplement dated August 11, 1998 to the Prospectus dated November 4,
1997, the Terms Agreement dated August 11, 1998 between the Company and Merrill
Lynch (the "Terms Agreement") and the Prospectus Supplement dated November 4,
1997 relating to the Notes for the Company, and when issued and authenticated in
the manner provided for in the Indenture and delivered against payment of the
consideration therefor specified in the Pricing Supplement, will constitute
valid and legally binding obligations of the Company, entitled to the benefits
of the Indenture enforceable against the Company in accordance with its terms,
subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transferor or similar laws affecting creditors' rights generally and
(ii) general principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity and except the effect on
enforceability of federal or state law limiting, delaying or prohibiting the
making of payments outside the United States. Such Notes will be in the form
contemplated by, and each registered holder thereof is entitled to the benefits
of, the applicable Indenture. Such Notes rank and will rank on a parity with all
unsecured and unsubordinated indebtedness of the Company that is outstanding on
the date hereof and on each Tender Date as herein contemplated or that may be
incurred thereafter, except that such Notes will be effectively subordinated to
the prior claims of each secured mortgage lender to any specific Property which
secures such lender's mortgage.
Neither the Company nor any of its subsidiaries is in violation of its charter
or by-laws or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which
the Company or any of its
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subsidiaries is a party or by which it or any of them may be bound, or to which
any of the property or assets of the Company or any of its subsidiaries is
subject, except for any such violation or default that would not have a material
adverse effect on the condition, financial or otherwise, or on the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise; and the execution, delivery and performance of
this Remarketing Agreement, the Remarketing Agency Agreement, the Terms
Agreement and the Indenture and the execution and delivery of the Notes and the
consummation of the transactions contemplated herein and therein and compliance
by the Company with its obligations hereunder and thereunder have been duly
authorized by all necessary corporate action, and will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the Company
or any of its subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any violation of the
charter or by-laws of the Company or any applicable law, administrative
regulation or administrative or court order or decree.
The Company has operated and intends to continue to operate in such a manner as
to qualify to be taxed as a "real estate investment trust" under the Internal
Revenue Code of 1986, as amended (the "Code").
Neither the Company nor any of its subsidiaries is an "investment company"
within the meaning of the Investment Company Act of 1940, as amended (the "1940
Act").
There is no action, suit or proceeding before or by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened against or affecting the Company or any of its subsidiaries
which is required to be disclosed in the 1934 Act Documents (other than as
disclosed therein), or which might result in any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, or which might materially and adversely affect the properties or
assets thereof or which might materially and adversely affect the consummation
of this Remarketing Agreement, the Remarketing Agency Agreement, the Terms
Agreement, the Indenture, the Notes or the transactions contemplated herein or
therein; all pending legal or governmental proceedings to which the Company or
any of its subsidiaries is a party or of which any of its property or assets is
the subject which are not described in the 1934 Act Documents, including
ordinary routine litigation incidental to the business, are, considered in the
aggregate, not material; and there are no contracts or documents of the Company
or any of its subsidiaries which are required to be filed as exhibits to the
1934 Act Documents which have not been so filed.
Neither the Company nor any of its subsidiaries is required to own or possess
any trademarks, service marks, trade names or copyrights in order to conduct the
business now operated by it, other than those the failure to possess or own
would not have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise.
The Company and its subsidiaries possess such certificates, authorities or
permits issued by the appropriate state, federal or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them, other than
those the failure to possess or own would not have a material adverse effect on
the condition, financial or otherwise, or on the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, and neither the Company nor any of its subsidiaries has received any
notice of proceedings
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relating to the revocation or modification of any such certificate, authority or
permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect the
condition, financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise.
Except as otherwise disclosed in the 1934 Act Documents and except as would not
have a material adverse effect on the condition, financial or otherwise, or on
the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise: (i) all properties and assets
described in the 1934 Act Documents are owned with good and marketable title by
the Company, its subsidiaries and/or a joint venture or partnership in which any
such party is a participant (a "Related Entity"); (ii) all of the leases under
which any of the Company, its subsidiaries or, to the knowledge of the Company,
Related Entities holds or uses real properties or assets as a lessee are in full
force and effect, and neither the Company, nor any of its subsidiaries or, to
the knowledge of the Company, Related Entities is in material default in respect
of any of the terms or provisions of any of such leases and no claim has been
asserted by anyone adverse to any such party's rights as lessee under any of
such leases, or affecting or questioning any such party's right to the continued
possession or use of the leased property or assets under any such leases; (iii)
all liens, charges, encumbrances, claims or restrictions on or affecting the
properties and assets of any of the Company, its subsidiaries or Related
Entities which are required to be disclosed in the 1934 Act Documents are
disclosed therein; (iv) neither the Company, nor any of its subsidiaries or, to
the knowledge of the Company, Related Entities nor any lessee of any portion of
any such party's properties is in default under any of the leases pursuant to
which any of the Company, its subsidiaries or, to the knowledge of the Company,
Related Entities leases its properties and neither the Company, nor any of its
subsidiaries or Related Entities knows of any event which, but for the passage
of time or the giving of notice, or both, would constitute a default under any
of such leases; (v) no tenant under any of the leases pursuant to which any of
the Company, or its subsidiaries or, to the knowledge of the Company, Related
Entities leases its properties has an option or right of first refusal to
purchase the premises demised under such lease; (vi) each of the properties of
any of the Company or, to the knowledge of the Company, its subsidiaries or
Related Entities complies with all applicable codes and zoning laws and
regulations; and (vii) neither the Company nor any of its subsidiaries has
knowledge of any pending or threatened condemnation, zoning change or other
proceeding or action that will in any manner affect the size of, use of,
improvements on, construction on, or access to the properties of any of the
Company, or its subsidiaries or Related Entities. Title insurance in favor of
the mortgagee or the Company, its subsidiaries and/or their Related Entities is
maintained with respect to each shopping center property owned by any such
entity in an amount at least equal to (a) the cost of acquisition of such
property or (b) the cost of construction of such property (measured at the time
of such construction), except, in each case, where the failure to maintain such
title insurance would not have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise.
The mortgages and deeds of trust encumbering the properties and assets described
in the 1934 Act Documents are not convertible nor does any of the Company, or
its subsidiaries hold a participating interest therein.
Each of the partnership and joint venture agreements to which the Company or any
of its subsidiaries is a party, and which relates to real property described in
the Prospectus, has been duly authorized, executed and delivered by such
applicable party and constitutes the valid
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agreement thereof, enforceable in accordance with its terms, except as limited
by (a) the effect of bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting the rights or
remedies of creditors or (b) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be brought, and
the execution, delivery and performance of any of such agreements did not, at
the time of execution and delivery, and does not constitute a breach of, or
default under, the charter or by-laws of such party or any material contract,
lease or other instrument to which such party is a party or by which its
properties may be bound or any law, administrative regulation or administrative
or court order or decree.
None of the Company, or any of its subsidiaries has any knowledge of (a) the
unlawful presence of any hazardous substances, hazardous materials, toxic
substances or waste materials (collectively, "Hazardous Materials") on any of
the properties owned by it or the Related Entities, or (b) any unlawful spills,
releases, discharges or disposal, of Hazardous Materials that have occurred or
are presently occurring off such properties as a result of any construction on
or operation and use of such properties which presence or occurrence would have
a material adverse effect on the condition, financial or otherwise, or on the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; and in connection with the
construction on or operation and use of the properties owned by the Company, its
subsidiaries and Related-Entities, each of the Company, and its subsidiaries
represents that it has no knowledge of any material failure to comply with all
applicable local, state and federal environmental laws, regulations, ordinances
and administrative and judicial orders relating to the generation, recycling,
reuse, sale, storage, handling, transport and disposal of any Hazardous
Materials.
The Notes are rated A3 by Moody's Investors Service, Inc. and A- by Standard &
Poor's Ratings Services.
Any certificate signed by any officer of the Company and delivered to you or to
counsel for the Remarketing Agent in connection with the remarketing of the
Notes shall be deemed a representation and warranty by the Company to the
Remarketing Agent as to the matters covered thereby on the date of such
certificate and, unless subsequently amended or supplemented, at each Tender
Date subsequent thereto.
References in the foregoing representations and warranties to the 1934 Act
Documents shall be deemed to refer to the registration statement and prospectus,
if any, in each case including the documents incorporated by reference therein,
if any of such documents are required pursuant to Section 6 hereof.
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Conditions to the Remarketing Agent's Obligations. The obligations of the
Remarketing Agent to purchase and remarket the Notes shall be subject to (a) the
terms and conditions of the applicable Remarketing Agency Agreement, (b) the due
performance in all material respects by the Company of its obligations and
agreements as set forth in this Remarketing Agreement and the accuracy of the
representations and warranties in this Remarketing Agreement and any certificate
delivered pursuant hereto, and (c) the further condition that none of the
following events shall exist at any time during which the Remarketing Agent
would otherwise be obligated to take any action under this Remarketing
Agreement:
(1) all of the Notes for which the Remarketing Agent is
responsible hereunder shall have been called for redemption or tendered
for repurchase by the Company; or
(2) without the prior written consent of the Remarketing
Agent, the Indenture or the Notes shall have been amended in any
manner, or otherwise contained any provisions not contained therein as
of the date hereof, that in either case in the reasonable opinion of
the Remarketing Agent materially changes the nature of the Notes or the
remarketing procedures (it being understood that notwithstanding the
provisions of this clause (2) the Company shall not be prohibited from
amending such documents).
Indemnification.
Indemnification. The Company agrees to indemnify and hold harmless the
Remarketing Agent and each person, if any, who controls the Remarketing Agent
within the meaning of Section 20 of the 1934 Act and any director, officer,
employee or affiliate thereof, as follows: against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, arising out of (A) the
failure to have an effective registration statement under the 1933 Act, relating
to the Notes, if required, or the failure to satisfy the prospectus delivery
requirements of the 1933 Act because the Company failed to provide the
Remarketing Agent with a prospectus for delivery, or (B) any untrue statement or
alleged untrue statement of a material fact contained in the 1934 Act Documents,
the registration statement and prospectus, if any are required pursuant to
Section 6 of this Agreement, or the Remarketing Memorandum, if any, or any
amendment thereto (including in each case any documents incorporated by
reference therein), or (C) the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances in which they were made, not
misleading, or (D) any violation by the Company of, or any failure by the
Company to perform any of its obligations under, this Agreement or (E) the acts
or omissions of the Rate Agent in connection with its duties and obligations
hereunder except those that are finally judicially determined to be due to its
gross negligence or willful misconduct; against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any investigation or
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proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever arising out of, or based upon, any of items (A) through (E) of
clause (i) above; provided that (subject to Section 9(d) hereof) any such
settlement is effected with the written consent of the Company, which consent
shall not be unreasonably withheld; and against any and all expense whatsoever,
as incurred (including the fees and disbursements of counsel chosen by the
Remarketing Agent), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever arising out of,
or based upon, any of items (A) through (E) of clause (i) above to the extent
that any such expense is not paid under (i) or (ii) above; provided, however,
that this indemnity shall not apply to any loss, liability, claim, damage or
expense to the extent arising out of any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company by the Remarketing Agent expressly
for use in the Remarketing Memorandum or registration statement (or any
amendment thereto), if applicable.
Indemnification of Company, Directors and Officers. The Remarketing Agent agrees
to indemnify and hold harmless the Company, its directors and each of its
officers, if any, who sign the registration statement if such is required
pursuant to Section 6 hereof, and each person, if any, who controls the Company
within the meaning of Section 20 of the 1934 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
Section 9(a) hereof, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Remarketing
Memorandum or registration statement (or any amendment thereto), if applicable,
in reliance upon and in conformity with written information furnished to the
Company by the Remarketing Agent expressly for use in such Remarketing
Memorandum or registration statement (or any amendment thereto).
Actions Against Parties; Notification. Each indemnified party shall give notice
as promptly as reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially prejudiced
as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In the
case of parties indemnified pursuant to Section 9(a) above, counsel to the
indemnified parties shall be selected by the Remarketing Agent. In the case of
parties indemnified pursuant to Section 9(b) above, counsel to the indemnified
parties shall be selected by the Company. An indemnifying party may participate
at its own expense in the defense of such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any one local counsel) separate from their own counsel
for all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 9 or10 hereof (whether or not
the indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section9(a)(ii) effected without its written consent if (i) such settlement is
11
<PAGE>
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
Continuation of Indemnification. The indemnity agreements contained in this
Section 9 shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Remarketing Agent, and shall survive
the termination or cancellation of this Agreement and the remarketing of any
Notes hereunder.
Contribution. In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 9 hereof
is for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, in connection with any Remarketing the
Company, on the one hand, and the Remarketing Agent, on the other, shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by said indemnity agreement incurred by the Company and
the Remarketing Agent, as incurred, in such proportions that the Remarketing
Agent is responsible for that portion represented by the percentage that the
commissions and fees received by the Remarketing Agent in connection with such
Remarketing bears to the aggregate principal amount of such Notes outstanding at
the time of such remarketing, and the Company is responsible for the balance. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section,
each person, if any, who controls the Remarketing Agent within the meaning of
Section 20 of the 1934 Act shall have the same rights to contribution as the
Remarketing Agent, and each director of the Company and each of its officers, if
any, who sign the registration statement, if any, and each person, if any, who
controls the Company within the meaning of Section 20 of the 1934 Act shall have
the same rights to contribution as the Company.
Termination of this Remarketing Agreement. Subject to Section 3 hereof relating
to the payment of fees and expenses, this Agreement (i) shall terminate as to
the Rate Agent on the effective date of the removal of such Rate Agent pursuant
to Section 4 hereof, and (ii) shall terminate as to the Remarketing Agent on the
effective date of the removal of such Remarketing Agent pursuant to Section 4
hereof.
Rate Agent's and Remarketing Agent's Performance; Duty of Care. The duties and
obligations of the Rate Agent and Remarketing Agent hereunder shall be
determined solely by the express provisions of this Remarketing Agreement and
the Notes and the Indenture and, in the case of the Remarketing Agent, the
applicable Remarketing Agency Agreement.
12
<PAGE>
GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED IN SUCH STATE.
Term of Agreement. Unless otherwise terminated in accordance with the provisions
hereof, this Agreement shall remain in full force and effect from the date
hereof until the first day thereafter on which no Notes are outstanding.
Successors and Assigns. The rights and obligations of the Company hereunder may
not be assigned or delegated to any other person without the prior written
consent of Merrill Lynch. The rights and obligations of Merrill Lynch hereunder
may not be assigned or delegated to any other person without the prior written
consent of the Company. This Agreement shall inure to the benefit of and be
binding upon the Company and Merrill Lynch and their respective successors and
assigns. The terms "successors" and "assigns" shall not include any purchaser of
any Notes merely because of such purchase.
Headings. Section headings have been inserted in this Agreement as a matter of
convenience of reference only, and it is agreed that such section headings are
not a part of this Agreement and will not be used in the interpretation of any
provisions of this Agreement.
Severability. If any provision of this Agreement shall be held or deemed to be
or shall, in fact, be invalid, inoperative or unenforceable as applied in any
particular case in any or all jurisdictions because it conflicts with any
provision of any constitution, statute, rule or public policy or for any other
reason, such circumstances shall not have the effect of rendering the provision
in question invalid, inoperative or unenforceable in any other case,
circumstances or jurisdiction, or of rendering any other provision or provisions
of this Agreement invalid, inoperative or unenforceable to any extent
whatsoever.
Counterparts. This Agreement may be executed in several counterparts, each of
which shall be regarded as an original and all of which shall constitute one and
the same document.
Amendments. This Agreement may be amended by any instrument in writing signed by
each of the parties hereto.
Notices. Unless otherwise specified, any notices, requests, consents or other
communications given or made hereunder or pursuant hereto shall be made in
writing or transmitted by any standard form of telecommunication or by telephone
and confirmed in writing. All written notices shall be deemed to be validly
given or made, if delivered by hand, when so delivered, or if mailed, when
mailed registered or certified mail, return receipt requested and postage
prepaid. All notices by telecommunication (including telephone) shall be deemed
to be validly given or made when received. All such notices, requests, consents
or other
13
<PAGE>
communications shall be addressed as follows: if to the Company, to Kimco Realty
Corporation, 3333 New Hyde Park Road, New Hyde Park, New York 11042-0020,
Attention: Milton Cooper, Chairman of the Board, and if to Merrill Lynch, to
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Merrill Lynch World
Headquarters, World Financial Center, North Tower, New York, New York
10281- 1209, Attention: Debt Syndicate, or to such other address as either of
the above shall specify to the other in writing.
Benefit. Nothing in this Agreement, express or implied, is intended or shall be
construed to confer upon or given any person other than the parties hereto any
remedy or claim under or by reason of this Agreement or any term, covenant or
condition hereof, all of which shall be for the sole and exclusive benefit of
the parties.
14
<PAGE>
IN WITNESS WHEREOF, each of the Company and Merrill Lynch has caused this
Agreement to be executed in its name and on its behalf by one of its duly
authorized officers as of the date first above written.
KIMCO REALTY CORPORATION
By:
-----------------------------------------
Name:
Title:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
-----------------------------------------
Authorized Signatory
15
<PAGE>
REMARKETING AGENCY AGREEMENT
REMARKETING AGENCY AGREEMENT, dated as of _______________ __, ____, (this
"Agreement") by and between Kimco Realty Corporation (the "Company") and Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (the
"Remarketing Agent"). The Remarketing Agent hereby agrees to attempt, on a best
efforts basis, to remarket the Notes described below (the "Notes") that have
been tendered by the holders thereof for sale on ______________ __, ____ (the
"Tender Date") at a price equal to 100% of the aggregate principal amount so
tendered.
The Remarketing Agent will attempt, on a reasonable best efforts basis, to
remarket the validly tendered Notes at a price equal to 100% of the aggregate
principal amount so tendered. There is no assurance that the Remarketing Agent
will be able to remarket the entire principal amount of Notes tendered in a
remarketing. The Remarketing Agent shall also have the option, but not the
obligation, to purchase any tendered Notes at such price. The obligation of the
Remarketing Agent to purchase tendered Notes from the tendering Noteholders will
be subject to certain conditions and termination events customary in the
Company's public offerings, including the termination events, as amended hereby,
incorporated into this Agreement by reference to the attached Distribution
Agreement, and to the conditions set forth in Section 8 of the Remarketing
Agreement.
IF NO NEW REGISTRATION STATEMENT OR PROSPECTUS IS REQUIRED, INCLUDE THE
FOLLOWING: It is acknowledged and agreed that the Notes need not be further
registered under the Securities Act of 1933, as amended (the "1933 Act"), and
that, in connection with the remarketing of the Notes by the Remarketing Agent
in accordance with the terms of the Remarketing Agreement dated August 11, 1998
(the "Remarketing Agreement"), no prospectus meeting the requirements of Section
10 of the 1933 Act need be delivered or filed pursuant to Rule 424 under the
1933 Act.
It is understood that the Remarketing Agent may, in its discretion, deliver to
purchasers and prospective purchasers, in connection with the remarketing, one
or more forms of written communication describing the terms of the Notes (each,
a "Remarketing Memorandum"), the form of each of which shall be delivered to the
Company not less than two Business Days prior to its use. Such Remarketing
Memorandum shall be subject to the approval of the Company prior to its use by
the Remarketing Agent, which approval shall not be unreasonably withheld or
delayed.
The following hereby are incorporated into this Agreement in their entirety and
made applicable to the obligations of the Remarketing Agent to the extent
applicable to any remarketing of the Notes, except as explicitly amended hereby:
(A) Section 4(k) of the attached Distribution Agreement (which dates referred to
therein shall be the date of the Remarketing Agency Agreement and the
Representation Date for the relevant Tender Date);
(B) Sections 4(a) and 5(b) of the attached Distribution Agreement;
(C) The representations and warranties made pursuant to the above-referenced
Remarketing Agreement;
(D) Section 11 of the attached Distribution Agreement; and
(E) Section 12 of the attached Distribution Agreement (except that Section 12 is
amended to allow for the termination of this Agreement by the Remarketing Agent
if the Company's representations and warranties therein are not accurate and
correct).
7
<PAGE>
All references contained in the attached Distribution Agreement to the "Agent"
or "Agents" shall be deemed to refer to the Remarketing Agent. All references to
the "Notes" shall be deemed to refer to the Notes described below. All
references to the "Representation Date" shall be deemed to refer to the Tender
Date. The terms "Registration Statement" and "Prospectus" shall be deemed to
refer to the 1934 Act Document and Remarketing Memorandum, if any, in each case
as amended or supplemented to the date hereof and the Tender Date, including the
documents included in or incorporated by reference into such documents.
IF A NEW REGISTRATION STATEMENT OR PROSPECTUS IS REQUIRED, INCLUDE THE
FOLLOWING: It is understood that a new registration statement or new prospectus
is being filed by the Company in connection with the remarketing of the Notes
(the "New Registration Statement" and/or "New Prospectus"). In connection
therewith and with the remarketing of the Notes, the attached Distribution
Agreement (including the requirements therein relating to delivery of legal
opinions, comfort letters and officers' certificates) hereby is incorporated
into this Agreement in its entirety (except as modified below) and the
Remarketing Agent shall be deemed to be acting as "Agent" thereunder. All
references in such Distribution Agreement to (i) the "Agent" or "Agents" shall
be deemed to refer to the Remarketing Agent, (ii) the Distribution Agreement
shall be deemed to refer to the Remarketing Agency Agreement and (iii) the
"Settlement Date" or the "Representation Date" shall be deemed to refer to the
Tender Date. To the extent the provisions of such Distribution Agreement refer
to the "Prospectus" or the "Registration Statement," such references shall be
deemed to refer to the New Registration Statement or the New Prospectus, as
applicable, including all documents incorporated by reference therein. Section
12 of the attached Distribution Agreement shall be amended to allow for the
termination of this Agreement by the Remarketing Agent if the Company's
representations and warranties therein are not accurate and correct in all
material respects. All capitalized terms not otherwise defined in this Agreement
have the respective meanings assigned thereto in the Notes, the form of which is
attached hereto.
Company: Kimco Realty Corporation
3333 New Hyde Park Road
New Hyde Park, New York 11042-0020
8
<PAGE>
Remarketing Agent and Address: Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
World Financial Center, North
Tower, 26th Floor
New York, New York 10281-1209
Title of Notes: Remarketed Reset Notes Due August 18, 2008
Principal Amount of Notes to
be Purchased:
Title of Indenture: Indenture dated as of September 1, 1993,
as amended by the First Supplemental
Indenture dated as of August 4, 1994, the
Second Supplemental Indenture dated as of
April 7, 1995 and as further amended or
supplemented from time to time by and
between the Company and the Trustee
Trustee: IBJ Schroder Bank & Trust Company
Current Ratings:
Moody's Investors Service, Inc.:
Standard & Poor's Ratings Services:
CERTAIN TERMS OF THE NOTES
Stated Maturity: August 18, 2008
Spread Determination Date:
Duration/Mode Determination Date:
Tender Notice Date:
Interest Reset Date:
Tender Date:
New Interest Rate: As determined by application of the
provisions set forth in the attached form
of the Notes on the LIBOR Determination
Date or the Fixed Rate Determination Date,
as applicable.
Spread:
Interest Payment Dates:
Subsequent Spread Period:
Redemption Provisions: Redeemable as set forth in the attached
Pricing Supplement dated August 11, 1998.
9
<PAGE>
Beneficial Owner Tender Provisions: As set forth in the attached Pricing
Supplement dated August 11, 1998. In the
event that the Remarketing Agent fails to
purchase all Notes validly tendered for
purchase on the Tender Date, then the
Remarketing Agent shall promptly notify
the Company and the Trustee of such
failure.
Shorter Subsequent Spread Period: In the event that (A) the Remarketing
Agent fails to remarket all Notes validly
tendered for remarketing and (B) the
Company has not given notice of redemption
of all of the Notes then outstanding in
accordance with the provisions described
in the attached form of the Notes, then
the Subsequent Spread Period shall be a
period of one year, which Subsequent
Spread Period shall be deemed to have
commenced upon the Commencement Date that
coincides with the Tender Date.
Legal Opinion: If required to be delivered pursuant to
this Agreement, the opinion required to be
delivered pursuant to Section 5 of the
attached Distribution Agreement shall be
modified to read as follows "(iv) The
Notes have been duly authorized; a single
global Note registered in the name of CEDE
& Co., a nominee of The Depository Trust
Company ("DTC"), has been duly
authenticated in accordance with the
provisions of the Indenture, paid for and
delivered to DTC, and constitutes a valid
and binding obligation of the Company; and
the Agent will acquire the rights of a
bona fide purchaser (as such terms are
defined in the Uniform Commercial Code as
in effect in the State of New York (the
"UCC")) in any portion of the Notes
transferred to the Agent by a prior owner
thereof as recorded on the books of DTC,
provided that (i) the portion of the Notes
transferred is an authorized denomination
of the Notes, (ii) the transfer is
recorded on the books of DTC by a debit to
the transferor's account with DTC and a
credit to the Agent's account with DTC,
(iii) the Agent makes payment to such
transferor of value for such transfer and
(iv) the Agent purchases such interest in
good faith and without notice of any
adverse claim, within the meaning of the
UCC."
If required to be delivered pursuant to this Remarketing Agency
Agreement, the opinion required to be delivered pursuant to Section 5 of the
attached Distribution Agreement may be delivered by any counsel designated by
the Remarketing Agent and reasonably acceptable to the Company.
Form of Notes: Global certificate registered in the name
of the nominee, which currently is CEDE &
Co., of
10
<PAGE>
the depository of the Notes, which is DTC.
The beneficial owners of the Notes
("Beneficial Owners") are not entitled to
receive definitive certificates
representing their Notes, except under
limited circumstances. A Beneficial
Owner's ownership of a Note currently is
recorded on or through the records of the
brokerage firm or other entity that is a
participant in DTC and that maintains such
Beneficial Owner's account.
Purchase Price: 100% of the principal amount of the Notes
Payable to DTC for the Beneficial Owners
of Tendered Notes.
11
<PAGE>
Remarketing Fee: _____% of the principal amount of the
Notes outstanding on each Tender Date
multiplied by the number of years
remaining in the Stated Maturity, not to
exceed ____% for any one additional Spread
Period.
Closing: Brown & Wood llp, One World Trade Center,
New York, New York, 10048-0557, at 9:00
a.m., New York City time, on the Tender
Date.
The foregoing terms are hereby confirmed and agreed to as of this ___ day
of ____________.
KIMCO REALTY CORPORATION
By:
---------------------------------------
Name:
Title:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
---------------------------------------
Authorized Signatory
12
<PAGE>
EXECUTION COPY
===============================================================================
CREDIT AGREEMENT
among
KIMCO REALTY CORPORATION
The Several Lenders
from Time to Time Parties Hereto
THE CHASE MANHATTAN BANK,
as Administrative Agent
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Syndication Agent
Dated as of August 21, 1998
CHASE SECURITIES INC.,
as Arranger and Book Manager
===============================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
SECTION 1. DEFINITIONS......................................................................................... 1
1.1 Defined Terms..................................................................................... 1
1.2 Other Definitional Provisions..................................................................... 23
SECTION 2. AMOUNT AND TERMS OF CREDIT FACILITIES............................................................... 24
2.1 Facility A Commitments............................................................................ 24
2.2 Facility B Commitments............................................................................ 26
2.3 Optional Prepayments.............................................................................. 29
2.4 Conversion and Continuation Options............................................................... 29
2.5 Fees.............................................................................................. 30
2.6 Interest Rates and Payment Dates.................................................................. 31
2.7 Computation of Interest and Fees.................................................................. 31
2.8 Inability to Determine Interest Rate; Unavailability of C/D Rate Option........................... 32
2.9 Pro Rata Treatment and Payments................................................................... 32
2.10 Illegality....................................................................................... 33
2.11 Requirements of Law.............................................................................. 34
2.12 Taxes............................................................................................ 36
2.13 Indemnity........................................................................................ 38
2.14 Change of Lending Office......................................................................... 38
2.15 Replacement of Lenders under Certain Circumstances............................................... 38
2.16 Facility B Extension Procedure................................................................... 39
SECTION 3. LETTERS OF CREDIT................................................................................... 39
3.1. L/C Commitment................................................................................... 39
3.2. Procedure for Issuance of Letters of Credit...................................................... 40
3.3. Fees and Other Charges........................................................................... 40
3.4. L/C Participations............................................................................... 40
3.5. Reimbursement Obligation of the Borrower......................................................... 41
3.6. Obligations Absolute............................................................................. 42
3.7. Letter of Credit Payments........................................................................ 42
3.8. Applications..................................................................................... 43
3.9. Subsidiary Account Party......................................................................... 43
SECTION 4. REPRESENTATIONS AND WARRANTIES...................................................................... 43
4.1 Financial Condition............................................................................... 43
4.2 No Change......................................................................................... 44
4.3 Corporate Existence; Compliance with Law.......................................................... 44
4.4 Corporate Power; Authorization; Enforceable Obligations........................................... 44
4.5 No Legal Bar...................................................................................... 45
4.6 No Material Litigation............................................................................ 45
4.7 No Default........................................................................................ 45
4.8 Ownership of Property............................................................................. 45
4.9 Intellectual Property............................................................................. 45
4.10 No Burdensome Restrictions....................................................................... 45
4.11 Taxes............................................................................................ 46
4.12 Federal Regulations.............................................................................. 46
4.13 ERISA............................................................................................ 46
4.14 Investment Company Act; Other Regulations........................................................ 46
4.15 Subsidiaries..................................................................................... 47
4.16 Purpose of Loans................................................................................. 47
4.17 Environmental Matters............................................................................ 47
4.18 Year 2000 Matters................................................................................ 48
4.19 Insurance........................................................................................ 48
</TABLE>
<PAGE>
<TABLE>
<S> <C>
4.20 Condition of Properties.......................................................................... 48
4.21 Benefit of Loans................................................................................. 49
4.22 REIT............................................................................................. 49
SECTION 5. CONDITIONS PRECEDENT................................................................................ 49
5.1 Conditions to Initial Extension of Credit......................................................... 49
5.2 Conditions to Each Extension of Credit............................................................ 50
SECTION 6. AFFIRMATIVE COVENANTS............................................................................... 51
6.1 Financial Statements.............................................................................. 51
6.2 Certificates; Other Information................................................................... 52
6.3 Payment of Obligations............................................................................ 52
6.4 Maintenance of Existence, etc..................................................................... 52
6.5 Maintenance of Property; Insurance................................................................ 53
6.6 Inspection of Property; Books and Records; Discussions............................................ 53
6.7 Notices........................................................................................... 53
6.8 Environmental Laws................................................................................ 54
SECTION 7. NEGATIVE COVENANTS.................................................................................. 54
7.1 Financial Covenants............................................................................... 55
7.2 Limitation on Fundamental Changes................................................................. 55
7.3 Limitation on Restricted Payments................................................................. 56
7.4 Limitation on Investments, Loans and Advances..................................................... 56
7.5 Limitation on Transactions with Affiliates........................................................ 57
7.6 Limitation on Changes in Fiscal Year.............................................................. 57
7.7 Limitation on Lines of Business, Issuance of Commercial Paper, Creation of Subsidiaries,
Negative Pledges.............................................................................. 57
SECTION 8. EVENTS OF DEFAULT................................................................................... 58
SECTION 9. THE ADMINISTRATIVE AGENT............................................................................ 61
9.1 Appointment....................................................................................... 61
9.2 Delegation of Duties.............................................................................. 62
9.3 Exculpatory Provisions............................................................................ 62
9.4 Reliance by Administrative Agent.................................................................. 62
9.5 Notice of Default................................................................................. 63
9.6 Non-Reliance on Administrative Agent and Other Lenders............................................ 63
9.7 Indemnification................................................................................... 63
9.8 Administrative Agent in Its Individual Capacity................................................... 64
9.9 Successor Administrative Agent.................................................................... 64
9.10 The Syndication Agent, the Arranger and the Book Manager......................................... 64
SECTION 10. MISCELLANEOUS...................................................................................... 65
10.1 Amendments and Waivers........................................................................... 65
10.2 Notices.......................................................................................... 65
10.3 No Waiver; Cumulative Remedies................................................................... 66
10.4 Survival of Representations and Warranties....................................................... 66
10.5 Payment of Expenses and Taxes.................................................................... 66
10.6 Successors and Assigns........................................................................... 67
10.7 Participations................................................................................... 67
10.8 Assignments...................................................................................... 68
10.9 The Register; Disclosure; Pledges to Federal Reserve Banks....................................... 69
10.10 Commitment Increases............................................................................ 70
10.11 Adjustments; Set-off............................................................................ 71
10.12 Counterparts.................................................................................... 71
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
10.13 Severability.................................................................................... 72
10.14 Integration..................................................................................... 72
10.15 GOVERNING LAW................................................................................... 72
10.16 Submission To Jurisdiction; Waivers............................................................. 72
10.17 Acknowledgements................................................................................ 73
10.18 WAIVERS OF JURY TRIAL........................................................................... 73
10.19 Confidentiality................................................................................. 73
</TABLE>
SCHEDULES
- ---------
SCHEDULE 1.1A Names and Commitments of Lenders
SCHEDULE 1.1B Income REIT
SCHEDULE 3.9 Existing Letter of Credit
SCHEDULE 4.1 Certain Financial Disclosure
SCHEDULE 4.15 Subsidiaries
SCHEDULE 4.19 Condemnation Proceedings
EXHIBITS
- --------
EXHIBIT A-1 Form of Facility A Revolving Credit Note
EXHIBIT A-2 Form of Facility B Revolving Credit Note
EXHIBIT B Form of Assignment and Acceptance
EXHIBIT C Form of Subsidiary Guarantee
EXHIBIT D Form of Closing Certificate
EXHIBIT E Form of Opinion of Robert P. Schulman, Esq.
EXHIBIT F Form of Compliance Certificate
EXHIBIT G-1 Form of New Lender Supplement
EXHIBIT G-2 Form of Commitment Increase Supplement
iii
<PAGE>
3
CREDIT AGREEMENT, dated as of August 21, 1998, among KIMCO REALTY CORPORATION,
a Maryland corporation (the "Borrower"), the several banks, financial
institutions and other entities from time to time parties to this Agreement
(the "Lenders"), THE CHASE MANHATTAN BANK, a New York banking corporation, as
administrative agent for the Lenders hereunder (in such capacity, the
"Administrative Agent"), and THE FIRST NATIONAL BANK OF CHICAGO, as syndication
agent (in such capacity, the "Syndication Agent").
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Base CD Rate in effect on
such day plus 1% and (c) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall mean
the rate of interest per annum publicly announced from time to time by
the Administrative Agent as its prime rate in effect at its principal
office in New York City (the Prime Rate not being intended to be the
lowest rate of interest charged by Chase in connection with extensions
of credit to debtors); "Base CD Rate" shall mean the sum of (a) the
product of (i) the Three-Month Secondary CD Rate and (ii) a fraction,
the numerator of which is one and the denominator of which is one
minus the C/D Reserve Percentage and (b) the C/D Assessment Rate;
"Three-Month Secondary CD Rate" shall mean, for any day, the secondary
market rate for three-month certificates of deposit reported as being
in effect on such day (or, if such day shall not be a Business Day,
the next preceding Business Day) by the Board through the public
information telephone line of the Federal Reserve Bank of New York
(which rate will, under the current practices of the Board, be
published in Federal Reserve Statistical Release H.15(519) during the
week following such day), or, if such rate shall not be so reported on
such day or such next preceding Business Day, the average of the
secondary market quotations for three-month certificates of deposit of
major money center banks in New York City received at approximately
10:00 A.M., New York City time, on such day (or, if such day shall not
be a Business Day, on the next preceding Business Day) by the
Administrative Agent from three New York City negotiable certificate
of deposit dealers of recognized standing selected by it; and "Federal
Funds Effective Rate" shall mean, for any day, the weighted average of
the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published
on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three federal
funds brokers of recognized standing selected by it. If for any reason
the Administrative Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable to
ascertain the Base CD Rate or the Federal Funds Effective Rate, or
both, for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance
with the terms thereof, the ABR shall be determined without regard to
clause (b) or (c), or both, of the first sentence of this definition,
as appropriate, until the circumstances giving rise to such inability
no longer exist. Any change in the ABR due to a change in the Prime
Rate, the Three-Month Secondary CD Rate or the Federal Funds Effective
Rate shall be effective as of the opening of business on the effective
day of such change in the Prime Rate, the Three-Month Secondary CD
Rate or the Federal Funds Effective Rate, respectively.
"ABR Loans": Revolving Credit Loans the rate of interest
applicable to which is based upon the ABR.
"Adjusted Net Income": for any period, Consolidated Net
Income; provided that there shall be excluded (a) the income (or
deficit) of any other Person accrued prior to the date it becomes a
Subsidiary of the Borrower or is merged into or consolidated with the
Borrower or any of its Subsidiaries and (b) unless otherwise expressly
provided herein, the earnings of any Unconsolidated Subsidiary or
Joint Venture.
"Administrative Agent": as defined in the preamble hereto.
<PAGE>
4
"Affiliate": as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is
under common control with, such Person. For purposes of this
definition, "control" of a Person means the power, directly or
indirectly, either to (a) vote 10% or more of the securities having
ordinary voting power for the election of directors of such Person or
(b) direct or cause the direction of the management and policies of
such Person, whether by contract or otherwise.
"Affiliated Entities": the collective reference to
Subsidiaries of the Borrower and Joint Ventures.
"Aggregate Outstanding Facility B Extentions of Credit": as to
any Facility B Lender at any time, an amount equal to the sum of
(a) the aggregate principal amount of all Facility B Revolving Credit
Loans made by such Lender then outstanding and (b) such Lender's
Facility B Commitment Percentage of the L/C Obligations then
outstanding.
"Agreement": this Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"Applicable Margin": with respect to each Revolving Credit
Loan at any date, the applicable percentage per annum set forth below
based upon the Status on such date:
<TABLE>
<CAPTION>
Level I Level II Level III Level IV Level V
Status Status Status Status Status
<S> <C> <C> <C> <C> <C>
Eurodollar Loans,
C/D Rate Loans and 0.45% 0.50% 0.80% 1.00% 1.50%
Money Market Loans
ABR Loans 0% 0% 0% 0% 0.50%
</TABLE>
"Application": an application, in such form as the Issuing
Lender may specify from time to time, requesting the Issuing Lender to
open a Letter of Credit.
"Available Facility A Commitment": as to any Facility A
Lender, at any time of determination, an amount equal to such Lender's
Facility A Commitment at such time minus the aggregate principal
amount of the Facility A Revolving Credit Loans made by such Lender
then outstanding.
"Available Facility B Commitment": as to any Facility B
Lender, at any time of determination, an amount equal to such Lender's
Facility B Commitment at such time minus such Lender's Aggregate
Outstanding Facility B Extensions of Credit at such time.
"Board": the Board of Governors of the Federal Reserve System
(or any successor).
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified in a notice
pursuant to Section 2.1(d) or 2.2(d) as a date on which the Borrower
requests the Lenders to make Revolving Credit Loans hereunder.
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or
required by law to close, except that, when used in connection with a
Eurodollar Loan with respect to which the Eurodollar Rate is
determined based upon the Telerate screen in accordance with the
definition of Eurodollar Rate, "Business Day" shall mean any Business
Day on which dealings in foreign currencies and exchange between banks
may be carried on in London, England and New York, New York.
"Capital Stock": any and all shares, interests,
participations or other equivalents (however designated) of capital
stock of a corporation, any and all equivalent ownership interests in
a Person (other than a corporation) and any and all warrants or
options to purchase any of the foregoing.
<PAGE>
5
"Cash Equivalents": (i) securities issued or directly and
fully guaranteed or insured by the United States Government or any
agency or instrumentality thereof having maturities of not more than
one year from the date of acquisition, (ii) time deposits and
certificates of deposit having maturities of not more than one year
from the date of acquisition of any Lender or of any domestic
commercial bank the senior long-term unsecured debt of which is rated
at least A or the equivalent thereof by S&P or A2 or the equivalent
thereof by Moody's and having capital and surplus in excess of
$500,000,000, (iii) repurchase obligations with a term of not more
than seven days for underlying securities of the types described in
clauses (i) and (ii) entered into with any bank meeting the
qualifications specified in clause (ii) above, (iv) commercial paper
rated at least A-1 or the equivalent thereof by S&P or P-1 or the
equivalent thereof by Moody's and in either case maturing within 90
days after the date of acquisition and (v) investments in money market
funds that have assets in excess of $2,000,000,000, are managed by
recognized and responsible institutions and invest all of their assets
in (x) obligations of the types referred to in clauses (i), (ii),
(iii) and (iv) above and (y) commercial paper having at least the
rating described in clause (iv) above and maturing within 270 days
after the date of acquisition.
"C/D Assessment Rate": for any day as applied to any C/D Rate
Loan or any ABR Loan, the annual assessment rate in effect on such day
which is payable by a member of the Bank Insurance Fund classified as
adequately capitalized and within supervisory subgroup "B" (or a
comparable successor assessment risk classification) within the
meaning of 12 C.F.R. ss. 327.3(d) (or any successor provision) to the
Federal Deposit Insurance Corporation (or any successor) for such
Corporation's (or such successor's) insuring time deposits at offices
of such institution in the United States.
"C/D Base Rate": with respect to each day during each
Interest Period pertaining to a C/D Rate Loan, the rate of interest
per annum notified to the Administrative Agent by Chase as the average
rate bid at 9:00 A.M., New York City time, or as soon thereafter as
practicable, on the first day of such Interest Period by a total of
three certificate of deposit dealers of recognized standing selected
by Chase for the purchase at face value from Chase of its certificates
of deposit in an amount comparable to the C/D Rate Loan of Chase to
which such Interest Period applies and having a maturity comparable to
such Interest Period.
"C/D Rate": with respect to each day during each Interest
Period pertaining to a C/D Rate Loan, a rate per annum determined for
such day (rounded upward to the nearest 1/100th of 1%) equal to the
C/D Base Rate plus the C/D Assessment Rate.
"C/D Rate Loans": Revolving Credit Loans the rate of interest
applicable to which is based upon the C/D Rate.
"C/D Reserve Percentage": for any day as applied to any ABR
Loan, that percentage (expressed as a decimal) which is in effect on
such day, as prescribed by the Board, for determining the maximum
reserve requirement for a Depositary Institution (as defined in
Regulation D of the Board) in respect of new non-personal time
deposits in Dollars having a maturity of 30 days or more.
"C/D Tranche": the collective reference to C/D Rate Loans the
then current Interest Periods with respect to all of which begin on
the same date and end on the same later date (whether or not such
Loans shall originally have been made on the same day).
"Chase": The Chase Manhattan Bank.
"Closing Date": August 21, 1998.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment Percentage": as to any Lender at any time, the
percentage which such Lender's aggregate Commitments then constitutes
of the aggregate Commitments of all Lenders (or, at any time after the
Commitments shall have expired or terminated, the percentage which the
aggregate principal amount of such Lender's Revolving Credit Loans
then outstanding constitutes of the aggregate principal amount of the
Revolving Credit Loans of all Lenders then outstanding).
<PAGE>
6
"Commitments": the collective reference to the Facility A
Commitments and the Facility B Commitments.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single employer under
Section 414 of the Code.
"Confidential Memorandum": the Confidential Memorandum, dated
July 1998, with respect to the Borrower and the credit facilities
contained herein.
"Consolidated Net Income": for any period, consolidated net
income (or loss) of the Borrower and its Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or
any of its property is bound.
"Default": any of the events specified in Section 8, whether
or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Distributable": with respect to any Unconsolidated
Subsidiary or Joint Venture, the circumstance that earnings or other
comparable amounts with respect thereto may be paid without
restriction (whether pursuant to a Contractual Obligation,
restrictions in any relevant organizational documents, applicable
Requirements of Law or otherwise) to the Borrower or any of its
consolidated Subsidiaries to the extent of the Borrower's Pro Rata
Interest therein.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Environmental Laws": any and all foreign, Federal, state,
local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority
or other Requirements of Law (including common law) regulating,
relating to or imposing liability or standards of conduct concerning
protection of human health or the environment, as now or may at any
time hereafter be in effect, in each case to the extent the foregoing
are applicable to the Borrower, any Subsidiary or any Joint Venture or
any of their respective assets or properties.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurodollar Loans": Revolving Credit Loans the rate of
interest applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate of interest
determined on the basis of the rate for deposits in Dollars for a
period equal to such Interest Period commencing on the first day of
such Interest Period appearing on Page 3750 of the Telerate screen as
of 11:00 A.M., London time, two Business Days prior to the beginning
of such Interest Period. In the event that such rate does not appear
on Page 3750 of the Telerate Service (or otherwise on such service),
the "Eurodollar Rate" shall be determined by reference to such other
publicly available service for displaying eurodollar rates as may be
agreed upon by the Administrative Agent and the Borrower or, in the
absence of such agreement, the "Eurodollar Rate" shall instead be the
rate per annum notified to the Administrative Agent by Chase as the
rate at which Chase is offered Dollar deposits at or about 10:00 A.M.,
New York City time, two Business Days prior to the beginning of such
Interest Period, in the interbank eurodollar market where the
eurodollar and foreign currency and exchange operations in respect of
its Eurodollar Loans are then being conducted for delivery on the
first day of such Interest Period for the number of days comprised
therein and in an amount comparable to the amount of its Eurodollar
Loan to be outstanding during such Interest Period.
"Eurodollar Tranche": the collective reference to Eurodollar
Loans the then current Interest Periods with respect to all of which
begin on the same date and end on the same later date (whether or not
such Loans shall originally have been made on the same day).
<PAGE>
7
"Event of Default": any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Existing Credit Agreement": the Credit Agreement, dated as
of June 30, 1994, as amended and restated as of June 26, 1997, as
amended, among the Borrower, the several banks and financial
institutions from time to time a party thereto, The Chase Manhattan
Bank and The First National Bank of Chicago, as Co-Managers, and the
Administrative Agent.
"Facility A Commitment": as to any Lender, the obligation of
such Lender (if any) to make Facility A Revolving Credit Loans to the
Borrower hereunder in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such Lender's
name on Schedule 1.1A, as such amount may be changed from time to time
in accordance with the provisions of this Agreement. It is understood
and agreed that, on the Closing Date, the "Facility A Commitment" of
each "Lender" under the Existing Credit Agreement shall automatically
terminate pursuant to Section 2.1(f) of the Existing Credit Agreement
(with the Lenders parties hereto that are "Lenders" under the Existing
Credit Agreement waiving, pursuant to a Required Lender vote in
accordance with Section 10.1 of the Existing Credit Agreement, any
advance notice required to be delivered by the Borrower in connection
with such termination) and be concurrently replaced by the Facility A
Commitment of each Lender as described above.
"Facility A Commitment Fee": as defined in Section 2.5(a).
"Facility A Commitment Fee Rate": the applicable percentage
per annum set forth below based upon Status on the date of the
relevant Facility A Commitment Fee payment:
<TABLE>
<CAPTION>
Level I Level II Level III Level IV Level V
Status Status Status Status Status
<S> <C> <C> <C> <C> <C>
0.20% 0.20% 0.20% 0.25% 0.30%
</TABLE>
"Facility A Commitment Percentage": as to any Facility A
Lender at any time, the percentage which such Lender's Facility A
Commitment then constitutes of the aggregate Facility A Commitments
(or, at any time after the Facility A Commitments shall have expired
or terminated, the percentage which the aggregate principal amount of
such Lender's Facility A Revolving Credit Loans then outstanding
constitutes of the aggregate principal amount of the Facility A
Revolving Credit Loans then outstanding).
"Facility A Commitment Period": the period from and including
the Closing Date to but not including the Facility A Termination Date
or such earlier date on which the Facility A Commitments shall
terminate as provided herein.
"Facility A Lender": any Lender having a Facility A
Commitment.
"Facility A Revolving Credit Loans": as defined in Section
2.1(a)(i).
"Facility A Revolving Credit Note": as defined in Section
2.1(b).
"Facility A Termination Date": the date which is 364 days
after the Closing Date, i.e., August 20, 1999 (or, if such date is not
a Business Day, the Business Day next preceding such date).
"Facility A Tranche": any C/D Tranche, Eurodollar Tranche or
Money Market Tranche in respect of Facility A Revolving Credit Loans.
"Facility B Commitment": as to any Lender, the obligation of
such Lender (if any) to make Facility B Revolving Credit Loans to
and/or issue or participate in Letters of Credit issued on behalf of
the Borrower hereunder in an aggregate principal and/or face amount at
any one time outstanding not to exceed the amount set forth opposite
such Lender's name on Schedule 1.1A, as such amount may be changed
from time to time in accordance with the provisions of this Agreement.
It is understood and agreed that, on the Closing Date, the "Facility B
Commitment" of each "Lender" under the Existing Credit Agreement shall
<PAGE>
8
automatically terminate pursuant to Section 2.2(f) of the
Existing Credit Agreement (with the Lenders parties hereto that
are "Lenders" under the Existing Credit Agreement waiving, pursuant to
a Required Lender vote in accordance with Section 10.1 of the Existing
Credit Agreement, any advance notice required to be delivered by the
Borrower in connection with such termination) and be concurrently
replaced by the Facility B Commitment of each Lender as described
above.
"Facility B Commitment Fee": as defined in Section 2.5(b).
"Facility B Commitment Fee Rate": the applicable percentage
per annum set forth below based upon Status on the date of the
relevant Facility B Commitment Fee payment:
<TABLE>
<CAPTION>
Level I Level II Level III Level IV Level V
Status Status Status Status Status
<S> <C> <C> <C> <C> <C>
0.20% 0.20% 0.20% 0.25% 0.30%
</TABLE>
"Facility B Commitment Percentage": as to any Facility B
Lender at any time, the percentage which such Lender's Facility B
Commitment then constitutes of the aggregate Facility B Commitments
(or, at any time after the Facility B Commitments shall have expired
or terminated, the percentage which the aggregate principal amount of
such Lender's Facility B Revolving Credit Loans then outstanding
constitutes of the aggregate principal amount of the Facility B
Revolving Credit Loans then outstanding).
"Facility B Commitment Period": the period from and including
the Closing Date to but not including the Facility B Termination Date
or such earlier date on which the Facility B Commitments shall
terminate as provided herein.
"Facility B Lender": any Lender having a Facility B
Commitment.
"Facility B Revolving Credit Loans": as defined in Section
2.2(a)(i).
"Facility B Revolving Credit Note": as defined in Section
2.2(b).
"Facility B Termination Date": August 21, 2001.
"Facility B Tranche": any C/D Tranche, Eurodollar Tranche or
Money Market Tranche in respect of Facility B Revolving Credit Loans.
"FAD": FFO less adjustments for straight line rents and
capital expenditures for recurring, non-revenue enhancing capital
improvements.
"Federal Funds Effective Rate": as defined in the definition
of "ABR".
"FFO": funds from operations, as calculated based upon the
NAREIT definition in effect on the date of said calculation.
"Final Date": as defined in Section 2.11(e).
"Financing Lease": any lease of property, real or personal,
the obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on a balance sheet of the
lessee.
"GAAP": generally accepted accounting principles in the
United States of America consistent with those utilized in preparing
the audited financial statements referred to in Section 4.1.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Gross Asset Value": as of the last day of any period of two
consecutive fiscal quarters of the Borrower, an amount equal to the
sum of (a) 2 multiplied by an amount equal to (i) Total Adjusted
<PAGE>
9
EBITDA (determined for the purpose of this definition without regard
to the Income REIT or the Identified Properties) for such period
divided by (ii) 0.10, (b) Unrestricted Cash and Cash Equivalents as of
such day, (c) in the case of Income REIT, an amount equal to 2
multiplied by (x) the Borrower's Pro Rata Interest in the Income REIT
multiplied by (y)(1) the Total Adjusted EBITDA (determined in a manner
comparable to that set forth in clause (a) above) of the Income REIT
divided by 0.10, minus (2) Indebtedness of the Income REIT on the last
day of such period (provided that in no event shall the amount
described in this clause (c) exceed 15% of Gross Asset Value) and (d)
an amount equal to 75% of the aggregate purchase price paid by the
Borrower and its Subsidiaries to acquire each Identified Property with
respect to such period (provided that in no event shall the amount
described in this clause (d) exceed 20% of Gross Asset Value).
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation (determined without duplication) of (a) the
guaranteeing person or (b) another Person (including, without
limitation, any bank under any letter of credit) to induce the
creation of which the guaranteeing person has issued a reimbursement,
counter-indemnity or similar obligation, in either case guaranteeing
or in effect guaranteeing any Indebtedness, leases, dividends or other
obligations (the "primary obligations") of any other third Person (the
"primary obligor") in any manner, whether directly or indirectly,
including, 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 maximum stated amount of the primary
obligation relating to such Guarantee Obligation (or, if less, the
maximum stated liability set forth in the instrument embodying such
Guarantee Obligation), provided, that, in 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.
"Identified Property": with respect to any period of two
consecutive fiscal quarters of the Borrower, any Property acquired by
the Borrower or any of its Subsidiaries during such period and
designated as an "Identified Property" for such period by the Borrower
by written notice to the Administrative Agent concurrently with the
delivery of any compliance certificate pursuant to Section 6.2(b);
provided, that, after giving effect to such designation (and the
calculation of Gross Asset Value as a result thereof), the amount
described in clause (d) of the definition of Gross Asset Value for
such period shall not exceed 20% of such Gross Asset Value.
"Income REIT": the stabilized income REIT to be formed by the
Borrower in exchange for a less than majority initial equity interest
therein, including any of its Subsidiaries, as more specifically
described on Schedule 1.1B.
"Indebtedness": of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money,
(b) all obligations of such Person for the deferred purchase price of
property or services (other than current trade liabilities incurred in
the ordinary course of business and payable in accordance with
customary practices), to the extent such obligations constitute
indebtedness for the purposes of GAAP, (c) any other indebtedness of
such Person which is evidenced by a note, bond, debenture or similar
instrument, (d) all obligations of such Person under Financing Leases,
(e) all obligations of such Person in respect of acceptances issued or
created for the account of such Person, (f) all Guarantee Obligations
of such Person (excluding, in the case of the Borrower, Guarantee
Obligations of the Borrower in respect of primary obligations of any
Subsidiary), and (g) all liabilities secured by any Lien on any
property owned by such Person even though such Person has not assumed
or otherwise become liable for the payment thereof.
<PAGE>
10
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any ABR Loan, the last day
of each calendar month to occur while such Loan is outstanding and the
Facility A Termination Date (in the case of Facility A Revolving
Credit Loans) or the Facility B Termination Date (in the case of
Facility B Revolving Credit Loans), (b) as to any Eurodollar Loan or
C/D Rate Loan, the last day of each calendar month to occur while such
Loan is outstanding and the last day of the Interest Period with
respect thereto and (c) as to any Money Market Loans, the Money Market
Loan Maturity Date applicable thereto.
"Interest Period": (a) with respect to any Eurodollar Loan:
(i) initially, the period commencing on the
borrowing or conversion date, as the case may be, with
respect to such Eurodollar Loan and ending one, two, three or
six months thereafter, as selected by the Borrower in its
notice of borrowing or notice of conversion, as the case may
be, given with respect thereto; and
(ii) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such
Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower by irrevocable notice
to the Administrative Agent not less than three Business Days
prior to the last day of the then current Interest Period
with respect thereto;
and (b) with respect to any C/D Rate Loan:
(i) initially, the period commencing on the
borrowing or conversion date, as the case may be, with
respect to such C/D Rate Loan and ending 30, 60, 90 or 180
days thereafter, as selected by the Borrower in its notice of
borrowing or notice of conversion, as the case may be, given
with respect thereto; and
(ii) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such
C/D Rate Loan and ending 30, 60, 90 or 180 days thereafter,
as selected by the Borrower by irrevocable notice to the
Administrative Agent not less than two Business Days prior to
the last day of the then current Interest Period with respect
thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period pertaining to a
Eurodollar Loan would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end
on the immediately preceding Business Day;
(2) if any Interest Period pertaining to a C/D Rate
Loan would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding
Business Day; and
(3) any Interest Period pertaining to a Eurodollar
Loan that begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of a calendar month.
"Issuing Lender": Chase, in its capacity as issuer of any
Letter of Credit.
"Joint Venture": any joint venture, partnership or other
minority-owned entity (other than a Subsidiary) in which the Borrower
or any of its Subsidiaries owns an interest.
<PAGE>
11
L/C Commitment": $25,000,000.
"L/C Commitment": with respect to each Letter of Credit, the
last day of each March, June, September and December to occur while
such Letter of Credit is outstanding and the date on which such Letter
of Credit shall expire or be cancelled or fully drawn.
"L/C Fee Rate": with respect to each Letter of Credit at any
date, the applicable percentage per annum set forth below based upon
the Status on such date:
<TABLE>
<CAPTION>
Level I Level II Level III Level IV Level V
Status Status Status Status Status
<S> <C> <C> <C> <C> <C>
0.45% 0.50% 0.80% 1.00% 1.50%
</TABLE>
"L/C Obligations": at any time, an amount equal to the sum of (a) the
aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters
of Credit which have not then been reimbursed pursuant to Section 0.
"L/C Participants": the collective reference to all the Facility B
Lenders other than the Issuing Lender.
"Lenders": as defined in the preamble hereto.
"Letters of Credit": as defined in Section 0.
"Lien": any mortgage, pledge, hypothecation, assignment (including
any collateral assignment but excluding any assignment of an asset made in
lieu of a sale thereof where the assignor is paid the fair market value of
such asset by the assignee and the assignee assumes all of the rights and
obligations attributable to ownership of such asset), deposit arrangement,
encumbrance, lien (statutory or other), charge or other security interest
or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement and
any Financing Lease having substantially the same economic effect as any
of the foregoing).
"Loan Documents": this Agreement, any Notes, the Applications and
the Subsidiary Guarantee.
"Loan Parties": the Borrower and the Subsidiary Guarantors.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole, (b) the
ability of the Borrower to perform its obligations under any Loan Document
to which it is a party, (c) the ability of the Guarantors, taken as a
whole, to perform their respective obligations under the Subsidiary
Guarantee or (d) the validity or enforceability of this Agreement or any
of the other Loan Documents or the rights or remedies of the
Administrative Agent or the Lenders hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated
as such in or under any Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
"Money Market Loan Maturity Date": with respect to any Money Market
Loan, the maturity date requested by the Borrower in connection therewith
(which date shall in no event be later than the earlier of (a) 29 days
after the Borrowing Date thereof or (b) the Facility A Termination Date or
the Facility B Termination Date, as the case may be).
"Money Market Loans": Revolving Credit Loans the rate of interest
applicable to which is based upon the Money Market Rate.
<PAGE>
12
"Money Market Rate": with respect to any proposed Money Market Loan,
the quoted rate per annum obtained by the Administrative Agent with
respect thereto, and accepted by each Facility A Lender or each Facility B
Lender, as the case may be, in its sole discretion, no later than 10:00
A.M., New York City time, two Business Days prior to the requested
Borrowing Date (or, in the case of Money Market Loans having a Money
Market Loan Maturity Date of six days or less from the relevant Borrowing
Date, the quoted rate per annum obtained by the Administrative Agent with
respect thereto, and accepted by each Facility A Lender or each Facility B
Lender, as the case may be, in its sole discretion, no later than one hour
after the quote is obtained by the Administrative Agent, which quote shall
in no event be obtained later than 12:00 Noon, New York City time, on the
relevant Borrowing Date).
"Money Market Tranche": the collective reference to Money Market
Loans having the same Borrowing Date and Money Market Loan Maturity Date.
"Moody's": Moody's Investors Service, Inc. and its successors.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"NAREIT": The National Association of Real Estate Investment Trusts.
"Non-Excluded Taxes": as defined in Section 2.12(a).
"Non-Recourse Indebtedness": Indebtedness the documentation with
respect to which expressly provides that (a) the lender(s) thereunder
(and any agent for such lender(s)) may not seek a money judgment against
the Borrower and/or any Subsidiary and (b) recourse for payment in
respect of such Indebtedness is limited to those assets or Capital Stock
of the Person issuing such Indebtedness which secure such Indebtedness
(except in the case of customary indemnities contained in such
documentation, provided that if a claim is made in connection with such
indemnities, such claim shall not constitute Non-Recourse Indebtedness
for the purposes of this Agreement).
"Non-U.S. Lender": as defined in Section 2.12(b).
"Notes": the collective reference to the Facility A Revolving Credit
Notes and the Facility B Revolving Credit Notes.
"Operations and Maintenance Plan": the Borrower's operations and
maintenance plan with respect to environmental matters attached hereto as
Exhibit G.
"Owned Property": (a) each Property wholly owned in fee by the
Borrower or any Subsidiary or Joint Venture and (b) each Property
("Groundlease Properties") as to which (i) the improvements are wholly
owned in fee by the Borrower or any Subsidiary or Joint Venture and (ii)
the land is subject to a valid Qualified Leasehold Interest in favor of
the Borrower or such Subsidiary or Joint Venture, provided, that the
aggregate Property Net Operating Income in respect of Groundlease
Properties included in any calculation of Value of Unencumbered
Properties for any period shall not exceed 15% of the aggregate Property
Net Operating Income with respect to all Unencumbered Properties for such
period.
As used in this definition:
"Qualified Leasehold Interest" means any leasehold
interest (i) which may be transferred and/or assigned without the
consent of the lessor (or as to which the lease expressly provides
that (x) such lease may be transferred and/or assigned with the
consent of the lessor and (y) such consent shall not be unreasonably
withheld or delayed), (ii) with respect to the lease term, either (x)
more than 25 years remains in such lease term or (y) such lease term
is renewable in the sole discretion of the Borrower for one or more
successive periods aggregating (together with the remaining current
lease term) more than 25 years so long as, in the case of this clause
(y), periodic rent increases shall be at levels comparable to those
that are customarily applicable to leases having initial terms in
excess of 25 years, (iii) in which a security interest may be granted
without the consent of the lessor and (iv) as to which the lease
governing such leasehold interest expressly
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13
provides that (x) the lessor shall notify any holder of a security
interest in such leasehold interest of the occurrence of any default
by the lessee under such lease and shall afford such holder the right
to cure such default and (y) in the event that such lease is
terminated, such holder shall have the option to enter into a new
lease having terms substantially identical to those contained in the
terminated lease.
"Participant": as defined in Section 10.7.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA.
"Permitted Liens": (a) Liens for taxes not yet due or which are being
contested in good faith by appropriate proceedings, provided that adequate
reserves with respect thereto are maintained on the books of the Borrower
or its Subsidiaries, as the case may be, in conformity with GAAP; (b)
mechanics', materialmen's, repairmen's or other like Liens arising in the
ordinary course of business which are not overdue for a period of more
than 90 days or which are being contested in good faith by appropriate
proceedings; and (c) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business which, in
the aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Property": each parcel of real property (including the shopping
center thereon) owned or operated by the Borrower, any Subsidiary or any
Joint Venture.
"Property Gross Revenues": with respect to any Property, for any
period, all gross income, revenues and consideration, of whatever form or
nature, received by or paid to or for the account or benefit of the Person
owning such Property, in each instance during such period, in connection
with the ownership, operation, leasing and occupancy of such Property,
including, without limitation, the following: (a) amounts received under
the leases, including, without limitation base rent, escalation, overage,
additional, participation, percentage and similar rentals, late charges
and interest payments and amounts received on account of maintenance or
service charges, real estate taxes, assessments, utilities, air
conditioning and heating and other administrative, management, operating,
leasing and maintenance expenses for such property, but excluding until
earned security deposits, prepaid rents and other refundable receipts, (b)
rents and receipts from licenses, concessions, vending machines and
similar items, (c) parking fees and rentals, (d) other fees, charges or
payments not denominated as rental of office, retail, storage, parking or
other space in such property, and (e) payments received as consideration,
in whole or in part, for the cancellation, modification, extension or
renewal of leases; but in any event excluding the proceeds of any
financing or asset sales in respect of all or any portion of such
Property.
"Property Net Operating Income": with respect to any Property, for
any period, an amount equal to the excess, if any, of (a) Property Gross
Revenues in respect of such Property for such period over (b) Property
Operating Expenses in respect of such Property for such period; provided
that, in the case of Unconsolidated Subsidiaries and Joint Ventures, the
foregoing will be excluded to the extent not Distributable, and to the
extent Distributable will be included only to the extent of the Borrower's
Pro Rata Interest therein.
"Property Operating Expenses": with respect to any Property, for any
period, the sum of (I) all expenses incurred by the Borrower and its
Subsidiaries during such period with respect to the ownership, operation,
leasing and occupancy of such Property (including expenses payable by any
Joint Venture to the extent the Borrower or any of its Subsidiaries is
liable therefor), including, without limitation, the following: (a) real
estate taxes; (b) special assessments or similar charges paid during such
period; (c)
<PAGE>
14
personal property taxes; (d) costs of utilities, air conditioning and
heating; (e) maintenance and repair costs of a non-capital nature; (f)
operating expenses and fees; (g) wages and salaries of on-site employees
engaged in the operation and management of such Property, including
employers' social security taxes and other taxes, insurance benefits and
the like, levied on or with respect to such wages or salaries; (h)
premiums payable for insurance carried on or with respect to such
Property; (i) advertising and promotion costs; (j) rental expense and (k)
in the case of any Property owned or operated by a Joint Venture, any
obligation of the Borrower or any of its Subsidiaries (contingent or
otherwise) to contribute funds to such Joint Venture, (II) a reserve in
respect of management fees and expenses equal to 5% of Property Gross
Revenues for such period with respect to such Property. The following
shall be excluded from Property Operating Expenses: (1) foreign, U.S.,
state and local income taxes, franchise taxes or other taxes based on
income, (2) depreciation, amortization and any other non-cash deduction
for income tax purposes, (3) interest expenses of the Person owning such
Property and (4) any expenditures made for capital improvements and the
cost of leasing commissions and (III) an amount equal to 0.25 times the
aggregate gross leasable area (measured in square feet) of the shopping
center located on such Property as of the last day of such period.
"Pro Rata Interest": the Borrower's percentage economic equity
interest in any Joint Venture or Unconsolidated Subsidiary.
"Purchasing Lender": as defined in Section 10.8(a).
"Rating Agencies": the collective reference to S&P and Moody's.
"Recourse Secured Indebtedness": all Indebtedness of the Borrower and
its Affiliated Entities other than Non- Recourse Indebtedness.
"Register": as defined in Section 10.9(a).
"Regulation U": Regulation U of the Board as in effect from time to
time.
"Reimbursement Obligation": the obligation of the Borrower to
reimburse the Issuing Lender pursuant to Section 0 for amounts drawn under
Letters of Credit.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b) of
ERISA, other than those events as to which the thirty day notice period is
waived under Sections .13, .14, .16, .18, .19 or .20 of PBGC Reg. 2615.
"Required Lenders": at any date, the holders of 66- 2/3% of the
aggregate Commitments, or, if the Commitments have been terminated, of the
aggregate unpaid principal amount of the Revolving Credit Loans and L/C
Obligations.
"Required Remedial Lenders": at any date, the holders of 51% of the
aggregate Commitments.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation or determination
of an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Responsible Officer": the chief executive officer and the president
of the Borrower or, with respect to financial matters, the chief financial
officer of the Borrower.
"Revolving Credit Loan": any loan made by any Lender pursuant to this
Agreement.
"S&P": Standard & Poor's Ratings Services and its
successors.
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15
"Significant Subsidiary": at any date of determination, any
Subsidiary of the Borrower which at such date owns or operates one or more
Properties having an aggregate Equity Value in excess of $10,000,000. For
the purposes of this definition, "Equity Value" means:
(a) in the case of any Property owned or operated by the
Borrower or any of its Subsidiaries on January 1, 1998, (i) 2
multiplied by an amount equal to (x) Property Net Operating Income of
such Property for the period of two consecutive fiscal quarters of
the Borrower ending June 30, 1998 divided by (y) 0.10 minus (ii) the
aggregate outstanding principal amount of any Indebtedness secured by
such Property as of the last day of such period; and
(b) in the case of any other Property, the aggregate
purchase price paid by the Borrower or any of its Subsidiaries in
connection with the acquisition of such Property (excluding (i) the
principal amount of any Indebtedness secured by such Property and
assumed in connection with the acquisition thereof and (ii) if such
Property is acquired subject to Indebtedness, the principal amount of
such Indebtedness).
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Status": as to the Borrower, the existence of Level I Status, Level
II Status, Level III Status, Level IV Status or Level V Status, as the
case may be.
As used in this definition:
"Level I Status" exists at any date if, at such date, the
Borrower has a long-term senior unsecured debt rating of AA- or
better by S&P and Aa3 or better by Moody's;
"Level II Status" exists at any date if, at such date,
Level I Status does not exist and the Borrower has a long-term senior
unsecured debt rating of A-or better by S&P and A3 or better by
Moody's;
"Level III Status" exists at any date if, at such date,
neither Level I Status nor Level II Status exists and the Borrower
has a long-term senior unsecured debt rating of BBB or better by S&P
and Baa2 or better by Moody's;
"Level IV Status" exists at any date if, at such date,
neither Level I Status, Level II Status nor Level III Status exists
and the Borrower has a long-term senior unsecured debt rating of BBB-
or better by S&P and Baa3 or better by Moody's; and
"Level V Status" exists at any date if, at such date, none
of Level I Status, Level II Status, Level III Status or Level IV
Status exists;
provided that if S&P and/or Moody's shall cease to issue ratings of debt
securities of real estate investment trusts generally, then the
Administrative Agent and the Borrower shall negotiate in good faith to
agree upon a substitute rating agency or agencies (and to correlate the
system of ratings of each substitute rating agency with that of the rating
agency for which it is substituting) and (a) until such substitute rating
agency or agencies are agreed upon, Status shall be determined on the
basis of the rating assigned by the other rating agency (or, if both S&P
and Moody's shall have so ceased to issue such ratings, on the basis of
the Status in effect immediately prior thereto) and (b) after such
substitute rating agency or agencies are agreed upon, Status shall be
determined on the basis of the rating assigned by the other rating agency
and such substitute rating agency or the two substitute rating agencies,
as the case may be.
"Subsidiary": 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
<PAGE>
16
intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall
refer to a Subsidiary or Subsidiaries of the Borrower.
"Subsidiary Guarantee": the Guarantee to be executed and delivered by
each Subsidiary of the Borrower, substantially in the form of Exhibit C,
as the same may be amended, supplemented or otherwise modified from time
to time.
"Subsidiary Guarantor": each Subsidiary of the Borrower party to the
Subsidiary Guarantee.
"Total Adjusted EBITDA": for any period of two consecutive fiscal
quarters (a "Cash Flow Test Period"), an amount equal to (a) an amount
equal to (A) Total EBITDA for such period minus (B) the amount (if any) by
which (i) the sum of (x) management fee income of the Borrower and its
Affiliated Entities included in Total EBITDA for such period and (y) other
income of the Borrower and its Affiliated Entities included in Total
EBITDA for such period not attributable to the Properties exceeds (ii)
115% of the sum of (x) management fee income of the Borrower and its
Affiliated Entities included in Total EBITDA for the corresponding period
of two consecutive fiscal quarters of the Borrower ending on the date
which is one year prior to the last day of such Cash Flow Test Period and
(y) other income of the Borrower and its Affiliated Entities included in
Total EBITDA for such corresponding period not attributable to the
Properties for such period minus (b) an amount equal to 0.25 times the
aggregate gross leasable area (measured in square feet) of the shopping
centers located on the Properties as of the last day of such period,
adjusted for any non-cash revenue attributable to straight-lining of
rents.
"Total Debt Service": for any period of two consecutive fiscal
quarters (a "Debt Service Test Period"), (a) Total Interest Expense for
such period plus (b) the aggregate amount of scheduled principal payments
on Indebtedness (excluding optional prepayments and scheduled principal
payments in respect of any Indebtedness which is payable in a single
installment at final maturity) required to be made during such period by
the Borrower or any of its Affiliated Entities; provided, that, in the
case of any Indebtedness which amortizes in annual installments, (i) only
50% of the principal amount of any such annual installment which is
payable during any Debt Service Test Period shall be included in Total
Debt Service for such Debt Service Test Period and (ii) in the event that
no annual installment is payable in respect of a particular item of such
Indebtedness during a Debt Service Test Period, but an annual installment
in respect of such Indebtedness is payable during the period of two
consecutive fiscal quarters commencing immediately after such Debt Service
Test Period, 50% of the amount of such annual installment shall
nevertheless be included in Total Debt Service for such Debt Service Test
Period plus (c) the aggregate amount accrued for such period in respect of
cash dividends on preferred stock of the Borrower or any of its
Subsidiaries.
"Total EBITDA": for any period, (a) Adjusted Net Income for such
period without giving effect to Total Interest Expense, depreciation and
amortization, gains or losses from extraordinary items, gains or losses on
sales of real estate, gains or losses on investments in marketable
securities and any provisions/benefits for income taxes for such period
plus (b) the EBITDA (determined in a manner comparable to that set forth
in clause (a) above) of Unconsolidated Subsidiaries and Joint Ventures for
such period that is Distributable, all determined on a consistent basis
for such period; provided in the case of the Income REIT such EBITDA will
be included only to the extent of actual cash distributions to the
Borrower or any of its consolidated Subsidiaries.
"Total Indebtedness": as of any date of determination, all
Indebtedness of the Borrower and its Affiliated Entities outstanding at
such date.
"Total Interest Expense": for any period, the amount of interest
expense of the Borrower and its Affiliated Entities for such period on the
aggregate principal amount of their Indebtedness.
"Total Net Worth": at any date of determination, an amount equal to
(a) Gross Asset Value as of such date minus (b) Total Indebtedness as of
such date.
"Total Secured Indebtedness": as of any date of determination, the
sum of (a) the aggregate principal amount of all Indebtedness of the
Borrower and its Affiliated Entities outstanding at such date
<PAGE>
17
which does not constitute Unsecured Indebtedness and (b) the excess, if
any, of (i) the aggregate principal amount of all Unsecured Indebtedness
of the Affiliated Entities of the Borrower over (ii) $10,000,000.
"Total Senior Recourse Indebtedness": as of any date of
determination, the aggregate principal amount of all Indebtedness of the
Borrower and its Affiliated Entities outstanding at such date other than
Non-Recourse Indebtedness (excluding Indebtedness which is contractually
subordinated to the Indebtedness of the Borrower and its Affiliated
Entities under the Loan Documents on customary terms acceptable to the
Administrative Agent.
"Total Unsecured Interest Expense": for any period, the amount of
interest expense (whether accrued, paid or capitalized) of the Borrower
and its Affiliated Entities for such period on the aggregate principal
amount of their Unsecured Indebtedness.
"Tranches": the collective reference to Facility A Tranches and
Facility B Tranches.
"Transferee": as defined in Section 10.9(b).
"Type": as to any Revolving Credit Loan, its nature as an ABR Loan, a
Eurodollar Loan, a C/D Rate Loan or a Money Market Loan.
"Unconsolidated Subsidiary": any Subsidiary of the Borrower which is
not a consolidated Subsidiary of the Borrower under GAAP.
"Unencumbered": with respect to any asset, at any date of
determination, the circumstance that such asset on such date (a) is not
subject to any Liens or claims (including restrictions on transferability
or assignability) of any kind (including any such Lien, claim or
restriction imposed by the organizational documents of any Subsidiary or
Joint Venture, but excluding Permitted Liens and, in the case of any
Qualified Leasehold Interest (to the extent permitted by the definition
thereof), restrictions on transferability or assignability in respect of
such leasehold interest), (b) is not subject to any agreement (including
(i) any agreement governing Indebtedness incurred in order to finance or
refinance the acquisition of such asset and (ii) if applicable, the
organizational documents of any Subsidiary or Joint Venture) which
prohibits or limits the ability of the Borrower or any of its Subsidiaries
to create, incur, assume or suffer to exist any Lien upon, or convey,
sell, lease, transfer or otherwise dispose of, any assets or Capital Stock
of the Borrower or any of its Subsidiaries (excluding any agreement which
limits generally the amount of secured Indebtedness which may be incurred
by the Borrower and its Subsidiaries) and (c) is not subject to any
agreement (including any agreement governing Indebtedness incurred in
order to finance or refinance the acquisition of such asset) which
entitles any Person to the benefit of any Lien (other than Permitted
Liens) on any assets or Capital Stock of the Borrower or any of its
Subsidiaries, or would entitle any Person to the benefit of any Lien
(other than Permitted Liens) on such assets or Capital Stock upon the
occurrence of any contingency (including, without limitation, pursuant to
an "equal and ratable" clause). For the purposes of this Agreement, any
Owned Property of a Subsidiary which is not a Wholly Owned Subsidiary or
of a Joint Venture shall not be deemed to be Unencumbered unless both (i)
such Property and (ii) all Capital Stock of such Subsidiary or Joint
Venture owned by the Borrower or any of its Subsidiaries is Unencumbered.
"Uniform Customs": the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No.
500, as the same may be amended from time to time.
"Unrestricted Cash and Cash Equivalents": at any date of
determination, the sum of (a) the aggregate amount of Unrestricted cash
then held by the Borrower or any of its consolidated Subsidiaries and (b)
the aggregate amount of Unrestricted Cash Equivalents (valued at the lower
of cost and fair market value) then held by the Borrower or any of its
consolidated Subsidiaries. As used in this definition, "Unrestricted"
means, with respect to any asset, the circumstance that such asset is not
subject to any Liens or claims of any kind in favor of any Person. It is
understood that, for the purposes of this definition, any asset held by
the Borrower or any of its Subsidiaries as security for any obligations
owing to the Borrower or any of its Subsidiaries by any other Person shall
not be deemed to be Unrestricted.
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18
"Unsecured Indebtedness": all Indebtedness of the Borrower and its
Affiliated Entities which is not secured by a Lien on any income, Capital
Stock, property or asset of the Borrower or any of its Affiliated
Entities.
"Value of Unencumbered Assets": for any period of two consecutive
fiscal quarters, Value of Unencumbered Properties for such period plus
Unrestricted Cash and Cash Equivalents as of the last day of such period in
excess of $15,000,000.
"Value of Unencumbered Properties": for any period of two
consecutive fiscal quarters, an amount equal to 2 multiplied by (a) the
aggregate Property Net Operating Income with respect to the Unencumbered
Owned Properties for such period divided by (b) 0.10.
"Wholly Owned Subsidiary": as to any Person, any other Person all of
the Capital Stock of which (other than directors' qualifying shares
required by law) is owned by such Person directly and/or through other
Wholly Owned Subsidiaries.
"Wholly Owned Subsidiary Guarantor": any Subsidiary Guarantor which
is a Wholly Owned Subsidiary of the Borrower.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any other Loan Document or any certificate or other document made
or delivered pursuant hereto or thereto.
(b) As used herein and in any other Loan Document, and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Borrower and its Subsidiaries not defined in
Section 1.1 and accounting terms partly defined in Section 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, Schedule and
Exhibit references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF CREDIT FACILITIES
2.1 Facility A Commitments. (a) Facility A Revolving Credit Loans.
(i) Subject to the terms and conditions hereof, each Facility A Lender
severally agrees to make revolving credit loans ("Facility A Revolving Credit
Loans") to the Borrower from time to time during the Facility A Commitment
Period in an aggregate principal amount at any one time outstanding which does
not exceed the amount of such Lender's Facility A Commitment. During the
Facility A Commitment Period the Borrower may use the Facility A Commitments by
borrowing, prepaying the Facility A Revolving Credit Loans in whole or in part,
and reborrowing, all in accordance with the terms and conditions hereof.
Notwithstanding anything to the contrary contained in this Agreement, in no
event shall, at any time, the aggregate outstanding principal amount of
Facility A Revolving Credit Loans exceed the aggregate Facility A Commitments
then in effect. No borrowing may be made under the Facility A Commitments to
the extent there are any Available Facility B Commitments.
(ii) The Facility A Revolving Credit Loans may from time to time be
(v) Eurodollar Loans, (w) ABR Loans, (x) C/D Rate Loans, (y) Money Market Loans
or (z) a combination thereof, as determined by the Borrower and notified to the
Administrative Agent in accordance with Sections 2.1(d) and 2.4, provided that
no Revolving Credit Loan shall be made as a Eurodollar Loan or a C/D Rate Loan
after the day that is one month or 30 days, respectively, prior to the Facility
A Termination Date.
(b) Facility A Revolving Credit Notes. The Facility A Revolving
Credit Loans made by each Facility A Lender shall be evidenced by a promissory
note of the Borrower at the request of such Facility A Lender, substantially in
the form of Exhibit A-1, with appropriate insertions as to payee, date and
principal amount (a
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19
"Facility A Revolving Credit Note"), payable to the order of such Lender and in
a principal amount equal to the lesser of (i) the amount of the initial
Facility A Commitment of such Lender and (ii) the aggregate unpaid principal
amount of all Facility A Revolving Credit Loans made by such Lender. Each
Facility A Lender is hereby authorized to record the date, Type and amount of
each Facility A Revolving Credit Loan made by such Lender, each continuation
thereof, each conversion of all or a portion thereof to another Type, the date
and amount of each payment or prepayment of principal thereof and, in the case
of Eurodollar Loans and C/D Rate Loans, the length of each Interest Period with
respect thereto and, in the case of Money Market Loans, the Money Market Loan
Maturity Date with respect thereto, on the schedule annexed to and constituting
a part of its Facility A Revolving Credit Note, and any such recordation shall
constitute prima facie evidence of the accuracy of the information so recorded;
provided that the failure by any Lender to make any such recordation or any
error in such recordation shall not affect the obligations of the Borrower
under this Agreement or the Facility A Revolving Credit Notes. Each Facility A
Revolving Credit Note so requested shall (x) be dated the Closing Date, (y) be
stated to have a final maturity on the Facility A Termination Date and (z)
provide for the payment of interest in accordance with Section 2.6.
(c) Repayment of Facility A Revolving Credit Loans. The Borrower
shall repay all then outstanding Facility A Revolving Credit Loans on the
Facility A Termination Date or such earlier date as the Facility A Commitments
shall terminate as provided herein; provided, that each Money Market Loan
shall, in any event, be repaid on the Money Market Loan Maturity Date in
respect thereof.
(d) Procedure for Borrowing Facility A Revolving Credit Loans. The
Borrower may borrow under the Facility A Commitments during the Facility A
Commitment Period on any Business Day, provided that the Borrower shall give
the Administrative Agent irrevocable notice (which notice must be received by
the Administrative Agent prior to 10:00 A.M., New York City time, (i) three
Business Days prior to the requested Borrowing Date, if all or any part of the
requested Facility A Revolving Credit Loans are to be initially Eurodollar
Loans or Money Market Loans having a Money Market Loan Maturity Date of more
than six days from the relevant Borrowing Date, (ii) two Business Days prior to
the requested Borrowing Date, if all or any part of the requested Revolving
Credit Loans are to be initially C/D Rate Loans or Money Market Loans having a
Money Market Loan Maturity Date of six days or less from the relevant Borrowing
Date, or (iii) one Business Day prior to the requested Borrowing Date,
otherwise), specifying (w) the amount to be borrowed, (x) the requested
Borrowing Date and, in the case of each Money Market Loan, the requested Money
Market Loan Maturity Date, (y) whether the borrowing is to be of Eurodollar
Loans, ABR Loans, C/D Rate Loans, Money Market Loans or a combination thereof
and (z) if the borrowing is to be entirely or partly of Eurodollar Loans or C/D
Rate Loans, the respective amounts of each such Type of Revolving Credit Loan
and the respective lengths of the initial Interest Periods therefor. Each
borrowing under the Facility A Commitments shall be in an amount equal to (i)
in the case of ABR Loans, $500,000 or a whole multiple of $100,000 in excess
thereof (or, if the then aggregate Available Facility A Commitments are less
than $500,000, such lesser amount) and (ii) in the case of Eurodollar Loans,
C/D Rate Loans or Money Market Loans, $3,000,000 or a whole multiple of
$100,000 in excess thereof. Upon receipt of any such notice from the Borrower,
the Administrative Agent shall promptly notify each Lender thereof. Each Lender
will make the amount of its pro rata share of each such borrowing available to
the Administrative Agent for the account of the Borrower at the office of the
Administrative Agent specified in Section 10.2 prior to 11:00 A.M., New York
City time (or in the case of Money Market Loans having a Money Market Loan
Maturity Date of six days or less from the relevant Borrowing Date, 3:00 P.M.,
New York City time), on the Borrowing Date requested by the Borrower in funds
immediately available to the Administrative Agent. Such borrowing will then be
made available to the Borrower by the Administrative Agent crediting the
account of the Borrower on the books of such office with the aggregate of the
amounts made available to the Administrative Agent by the Lenders and in like
funds as received by the Administrative Agent. In no event may the number of
Money Market Loans requested in any calendar month pursuant to this Section
2.1(d), when added to the number of Money Market Loans requested in such
calendar month pursuant to Section 2.2(d), exceed four. Excepting any Money
Market Loans requested in connection with the first funding on the Closing
Date, in no event may the number of Money Market Loans requested in any
consecutive twelve months pursuant to this Section 2.1(d), when added to the
number of Money Market Loans requested in such calendar month pursuant to
Section 2.2(d), exceed twelve.
(e) Facility A Tranches. Notwithstanding anything to the contrary in
this Agreement, all borrowings, prepayments, conversions and continuations of
Facility A Revolving Credit Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, (i) the aggregate principal
amount of the Facility A Revolving Credit Loans comprising each Facility A
Tranche shall be equal to $3,000,000 or a whole multiple of $100,000 in excess
thereof, (ii) no
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20
Lender's share of any Facility A Tranche shall be less than $500,000 and (iii)
there shall be no more than five Tranches outstanding at any one time.
(f) Termination or Reduction of Facility A Commitments. The Borrower
shall have the right, upon not less than three Business Days' irrevocable
notice to the Administrative Agent, to terminate the Facility A Commitments or,
from time to time, to reduce the amount of the Facility A Commitments; provided
that no such termination or reduction shall be permitted if, after giving
effect thereto and to any payments of the Facility A Revolving Credit Loans
made on the effective date thereof, (i) the aggregate principal amount of the
Facility A Revolving Credit Loans then outstanding would exceed the Facility A
Commitments then in effect or (ii) the Available Facility A Commitment of any
Lender would be less than zero. Any such reduction shall be in an amount equal
to $1,000,000 or a whole multiple thereof and shall reduce permanently the
Facility A Commitments then in effect.
(g) Renewal of Facility A Commitments. If the Borrower desires to
extend the Facility A Termination Date, then the Borrower shall notify the
Administrative Agent 60 days prior to the Facility A Termination Date then in
effect of its desire to extend the Facility A Termination Date for a period of
not more than 364 days from the Facility A Termination Date then in effect,
whereupon the Administrative Agent shall notify each Facility A Lender of the
Borrower's desire to so extend the Facility A Termination Date. The date
specified for response by each Facility A Lender to such request for an
extension of the Facility A Termination Date shall be no earlier than 30 days
prior to the Facility A Termination Date then in effect; provided, however,
that failure by a Facility A Lender to respond to such request shall not be
construed as a consent by such Facility A Lender to such extension. The
decision to extend or not extend shall be made by each Facility A Lender in its
sole discretion. Each consent by a Facility A Lender to an extension shall be
in writing signed by such Facility A Lender. If each of the Facility A Lenders
agrees to an extension, the Facility A Termination Date shall be so extended
and, on the Facility A Termination Date in effect prior to giving effect to
such extension, the Borrower shall pay to each Facility A Lender an extension
fee equal to 0.05% of its Facility A Commitment.
2.2 Facility B Commitments. (a) Facility B Revolving Credit Loans (i)
Subject to the terms and conditions hereof, each Facility B Lender severally
agrees to make revolving credit loans ("Facility B Revolving Credit Loans") to
the Borrower from time to time during the Facility B Commitment Period in an
aggregate principal amount at any one time outstanding which, when added to
such Lender's Facility B Commitment Percentage of the then outstanding L/C
Obligations, does not exceed the amount of such Lender's Facility B Commitment.
During the Facility B Commitment Period the Borrower may use the Facility B
Commitments by borrowing, prepaying the Facility B Revolving Credit Loans in
whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. Notwithstanding anything to the contrary contained in this
Agreement, in no event shall, at any time, the sum of the Aggregate Outstanding
Facility B Revolving Extensions of Credit of all of the Lenders exceed the
aggregate Facility B Commitments then in effect.
(ii) The Facility B Revolving Credit Loans may from time to time be
(v) Eurodollar Loans, (w) ABR Loans, (x) C/D Rate Loans, (y) Money Market Loans
or (z) a combination thereof, as determined by the Borrower and notified to the
Administrative Agent in accordance with Sections 2.2(d) and 2.4, provided that
no Revolving Credit Loan shall be made as a Eurodollar Loan or a C/D Rate Loan
after the day that is one month or 30 days, respectively, prior to the Facility
B Termination Date.
(b) Facility B Revolving Credit Notes. The Facility B Revolving
Credit Loans made by each Facility B Lender shall be evidenced by a promissory
note of the Borrower at the request of such Facility B Lender, substantially in
the form of Exhibit A-2, with appropriate insertions as to payee, date and
principal amount (a "Facility B Revolving Credit Note"), payable to the order
of such Lender and in a principal amount equal to the lesser of (i) the amount
of the initial Facility B Commitment of such Lender and (ii) the aggregate
unpaid principal amount of all Facility B Revolving Credit Loans made by such
Lender. Each Facility B Lender is hereby authorized to record the date, Type
and amount of each Facility B Revolving Credit Loan made by such Lender, each
continuation thereof, each conversion of all or a portion thereof to another
Type, the date and amount of each payment or prepayment of principal thereof
and, in the case of Eurodollar Loans and C/D Rate Loans, the length of each
Interest Period with respect thereto and, in the case of Money Market Loans,
the Money Market Loan Maturity Date with respect thereto, on the schedule
annexed to and constituting a part of its Facility B Revolving Credit Note, and
any such recordation shall constitute prima facie evidence of the accuracy of
the information so recorded; provided that the failure by any Lender to make
any such recordation or any error in such recordation shall not affect the
obligations of the Borrower under this Agreement or the Facility B Revolving
Credit Notes. Each Facility B
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21
Revolving Credit Note so requested shall (x) be dated the Closing Date, (y) be
stated to have a final maturity on the Facility B Termination Date and (z)
provide for the payment of interest in accordance with Section 2.6.
(c) Repayment of Facility B Revolving Credit Loans. The Borrower
shall repay all then outstanding Facility B Revolving Credit Loans on the
Facility B Termination Date or such earlier date as the Facility B Commitments
shall terminate as provided herein; provided, that each Money Market Loan
shall, in any event, be repaid on the Money Market Loan Maturity Date in
respect thereof.
(d) Procedure for Borrowing Facility B Revolving Credit Loans. The
Borrower may borrow under the Facility B Commitments during the Facility B
Commitment Period on any Business Day, provided that the Borrower shall give
the Administrative Agent irrevocable notice (which notice must be received by
the Administrative Agent prior to 10:00 A.M., New York City time, (i) three
Business Days prior to the requested Borrowing Date, if all or any part of the
requested Facility B Revolving Credit Loans are to be initially Eurodollar
Loans or Money Market Loans having a Money Market Loan Maturity Date of more
than six days from the relevant Borrowing Date, (ii) two Business Days prior to
the requested Borrowing Date, if all or any part of the requested Revolving
Credit Loans are to be initially C/D Rate Loans or Money Market Loans having a
Money Market Loan Maturity Date of six days or less from the relevant Borrowing
Date, or (iii) one Business Day prior to the requested Borrowing Date,
otherwise), specifying (w) the amount to be borrowed, (x) the requested
Borrowing Date and, in the case of each Money Market Loan, the requested Money
Market Loan Maturity Date, (y) whether the borrowing is to be of Eurodollar
Loans, ABR Loans, C/D Rate Loans, Money Market Loans or a combination thereof
and (z) if the borrowing is to be entirely or partly of Eurodollar Loans or C/D
Rate Loans, the respective amounts of each such Type of Revolving Credit Loan
and the respective lengths of the initial Interest Periods therefor. Each
borrowing under the Facility B Commitments shall be in an amount equal to (i)
in the case of ABR Loans, $500,000 or a whole multiple of $100,000 in excess
thereof (or, if the then aggregate Available Facility B Commitments are less
than $500,000, such lesser amount) and (ii) in the case of Eurodollar Loans,
C/D Rate Loans or Money Market Loans, $3,000,000 or a whole multiple of
$100,000 in excess thereof. Upon receipt of any such notice from the Borrower,
the Administrative Agent shall promptly notify each Lender thereof. Each Lender
will make the amount of its pro rata share of each such borrowing available to
the Administrative Agent for the account of the Borrower at the office of the
Administrative Agent specified in Section 10.2 prior to 11:00 A.M., New York
City time (or in the case of Money Market Loans having a Money Market Loan
Maturity Date of six days or less from the relevant Borrowing Date, 3:00 P.M.,
New York City time), on the Borrowing Date requested by the Borrower in funds
immediately available to the Administrative Agent. Such borrowing will then be
made available to the Borrower by the Administrative Agent crediting the
account of the Borrower on the books of such office with the aggregate of the
amounts made available to the Administrative Agent by the Lenders and in like
funds as received by the Administrative Agent. In no event may the number of
Money Market Loans requested in any calendar month pursuant to this Section
2.2(d), when added to the number of Money Market Loans requested in such
calendar month pursuant to Section 2.1(d), exceed four. In no event may the
number of Money Market Loans requested in any consecutive twelve months
pursuant to this Section 2.2(d), when added to the number of Money Market Loans
requested in such calendar month pursuant to Section 2.1(d), exceed twelve.
(e) Facility B Tranches. Notwithstanding anything to the contrary in
this Agreement, all borrowings, prepayments, conversions and continuations of
Facility B Revolving Credit Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, (i) the aggregate principal
amount of the Facility B Revolving Credit Loans comprising each Facility B
Tranche shall be equal to $3,000,000 or a whole multiple of $100,000 in excess
thereof, (ii) no Lender's share of any Facility B Tranche shall be less than
$500,000 and (iii) there shall be no more than five Tranches outstanding at any
one time.
(f) Termination or Reduction of Facility B Commitments. The Borrower
shall have the right, upon not less than three Business Days' irrevocable
notice to the Administrative Agent, to terminate the Facility B Commitments or,
from time to time, to reduce the amount of the Facility B Commitments; provided
that no such termination or reduction shall be permitted if, after giving
effect thereto and to any payments of the Facility B Revolving Credit Loans
made on the effective date thereof, (i) the aggregate principal amount of the
Facility B Revolving Credit Loans then outstanding, when added to the aggregate
L/C Obligations then outstanding, would exceed the Facility B Commitments then
in effect or (ii) the Available Facility B Commitment of any Lender would be
less than zero. Any such reduction shall be in an amount equal to $1,000,000 or
a whole multiple thereof and shall reduce permanently the Facility B
Commitments then in effect.
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22
2.3 Optional Prepayments. The Borrower may at any time and from time
to time prepay the Revolving Credit Loans (subject, in the case of Eurodollar
Loans, C/D Rate Loans and Money Market Loans, to compliance with the terms of
Sections 2.1(e), 2.2(e) and 2.13), in whole or in part, without premium or
penalty, upon at least three Business Days' irrevocable notice to the
Administrative Agent, specifying the date and amount of prepayment and whether
the prepayment is of Eurodollar Loans, C/D Rate Loans, ABR Loans, Money Market
Loans or a combination thereof, and, if of a combination thereof, the amount
allocable to each, provided that such prepayments shall be applied, first, to
the Facility A Revolving Credit Loans and, second, to the Facility B Revolving
Credit Loans. Upon receipt of any such notice the Administrative Agent shall
promptly notify each Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified
therein, together with any amounts payable pursuant to Section 2.13. Partial
prepayments shall be in an aggregate principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof (or, if less, the aggregate outstanding
principal amount of Facility A Revolving Credit Loans or Facility B Revolving
Credit Loans, as the case may be).
2.4 Conversion and Continuation Options. (a) The Borrower may elect
from time to time to convert Eurodollar Loans or C/D Rate Loans to ABR Loans,
and/or to convert Eurodollar Loans or ABR Loans to C/D Rate Loans, by giving
the Administrative Agent at least two Business Days' prior irrevocable notice
of such election, provided that any such conversion of Eurodollar Loans or C/D
Rate Loans may only be made on the last day of an Interest Period with respect
thereto. The Borrower may elect from time to time to convert ABR Loans or C/D
Rate Loans to Eurodollar Loans by giving the Administrative Agent at least
three Business Days' prior irrevocable notice of such election, provided that
any such conversion of C/D Rate Loans may, subject to the third succeeding
sentence, only be made on the last day of an Interest Period with respect
thereto. Any such notice of conversion to Eurodollar Loans or C/D Rate Loans
shall specify the length of the initial Interest Period or Interest Periods
therefor. Upon receipt of any such notice the Administrative Agent shall
promptly notify each affected Lender thereof. If the last day of the then
current Interest Period with respect to C/D Rate Loans that are to be converted
to Eurodollar Loans is not a Business Day, such conversion shall be made on the
next succeeding Business Day, and during the period from such last day to such
succeeding Business Day such Loans shall bear interest as if they were ABR
Loans. All or any part of outstanding Eurodollar Loans, ABR Loans and C/D Rate
Loans may be converted as provided herein, provided that (i) no Loan may be
converted into a Eurodollar Loan or a C/D Rate Loan when any Event of Default
has occurred and is continuing and the Administrative Agent has or the Required
Lenders have determined in its or their sole discretion that such a conversion
is not appropriate, (ii) any such conversion may only be made if, after giving
effect thereto, Sections 2.1(e) and 2.2(e) would not be contravened and (iii)
no Revolving Credit Loan may be converted into a Eurodollar Loan or a C/D Rate
Loan after the date that is one month or 30 days, respectively, prior to the
Facility A Termination Date (in the case of Facility A Revolving Credit Loans)
or the Facility B Termination Date (in the case of Facility B Revolving Credit
Loans).
(b) Any Eurodollar Loans or C/D Rate Loans may be continued as such
upon the expiration of the then current Interest Period with respect thereto by
the Borrower giving irrevocable notice to the Administrative Agent, in
accordance with the applicable provisions of the term "Interest Period" set
forth in Section 1.1, of the length of the next Interest Period to be
applicable to such Loans, provided that no Eurodollar Loan or C/D Rate Loan may
be continued as such (i) when any Event of Default has occurred and is
continuing and the Administrative Agent has or the Required Lenders have
determined in its or their sole discretion that such a continuation is not
appropriate, (ii) if, after giving effect thereto, Sections 2.1(e) and 2.2(e)
would be contravened or (iii) after the date that is one month or 30 days,
respectively, prior to the Facility A Termination Date (in the case of Facility
A Revolving Credit Loans) or the Facility B Termination Date (in the case of
Facility B Revolving Credit Loans), and provided, further, that if the Borrower
shall fail to give any required notice as described above in this paragraph or
if such continuation is not permitted pursuant to the preceding proviso such
Loans shall be automatically converted to ABR Loans on the last day of such
then expiring Interest Period.
2.5 Fees. (a) The Borrower agrees to pay to the Administrative Agent
for the account of each Facility A Lender a commitment fee (the "Facility A
Commitment Fee") for the period from and including the first day of the
Facility A Commitment Period to the Facility A Termination Date, computed at
the Facility A Commitment Fee Rate on the average daily amount of the Available
Facility A Commitment of such Lender during the period for which payment is
made (taking into consideration any reductions in the Facility A Commitment of
such Lender pursuant to Section 2.1(f) occurring during such period), payable
monthly in arrears and on the Facility A Termination Date or such earlier date
as the Facility A Commitments shall terminate as provided herein, commencing on
the first of such dates to occur after the Closing Date.
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23
(b) The Borrower agrees to pay to the Administrative Agent for the
account of each Facility B Lender a commitment fee (the "Facility B Commitment
Fee") for the period from and including the first day of the Facility B
Commitment Period to the Facility B Termination Date, computed at the Facility
B Commitment Fee Rate on the average daily amount of the Available Facility B
Commitment of such Lender during the period for which payment is made (taking
into consideration any reductions in the Facility B Commitment of such Lender
pursuant to Section 2.2(f) occurring during such period), payable monthly in
arrears and on the Facility B Termination Date or such earlier date as the
Facility B Commitments shall terminate as provided herein, commencing on the
first of such dates to occur after the Closing Date.
(c) The Borrower shall pay to the Administrative Agent, for its own
account, and, to the extent mutually agreed upon by the Administrative Agent
and the Lenders, for the account of the Lenders, the fees in the amounts and on
the dates previously agreed to in writing by the Borrower.
2.6 Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall
bear interest for each day during each Interest Period with respect thereto at
a rate per annum equal to the Eurodollar Rate determined for such day plus the
Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to
the ABR plus the Applicable Margin.
(c) Each C/D Rate Loan shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal to the C/D Rate
determined for such day plus the Applicable Margin.
(d) Each Money Market Loan shall bear interest at a rate per annum
equal to the Money Market Rate applicable thereto plus the Applicable Margin.
(e) If all or a portion of (i) the principal amount of any Revolving
Credit Loan, (ii) any interest payable thereon or (iii) any commitment fee or
other amount payable hereunder shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum which is (x) in the case of overdue principal
(except as otherwise specified in clause (y) below), the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
Section 2.6 plus 3% or (y) in the case of any overdue principal with respect to
Money Market Loans or any overdue interest, commitment fee or other amount, the
rate described in Section 2.6(b) plus 3%, in each case from the date of such
non-payment to the date on which such amount is paid in full (as well after as
before judgment).
(f) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to Section 2.6(e) shall be
payable from time to time on demand.
2.7 Computation of Interest and Fees. (a) Commitment fees and
interest (other than interest calculated on the basis of the Prime Rate) shall
be calculated on the basis of a 360-day year for the actual days elapsed.
Interest calculated on the basis of the Prime Rate shall be calculated on the
basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed. The Administrative Agent shall as soon as practicable notify the
Borrower and the Lenders of each determination of a Eurodollar Rate, C/D Rate
or Money Market Rate. Any change in the interest rate on a Revolving Credit
Loan resulting from a change in the ABR or the C/D Assessment Rate shall become
effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify the
Borrower and the Lenders of the effective date and the amount of each such
change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate with respect to any Eurodollar Loan or C/D Rate
Loan.
2.8 Inability to Determine Interest Rate; Unavailability of C/D Rate
Option. If prior to the first day of any Interest Period:
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24
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate or the
C/D Rate for such Interest Period,
(b) the Administrative Agent shall have received notice from the
Required Lenders that the Eurodollar Rate or the C/D Rate determined or to
be determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Revolving Credit Loans
during such Interest Period, or
(c) the Administrative Agent shall have received notice from any
Lender that it is unable to fund Revolving Credit Loans hereunder on the
basis of the C/D Rate,
the Administrative Agent shall give telecopy or telephonic notice thereof to
the Borrower and the Lenders as soon as practicable thereafter. If such notice
is given (x) any Eurodollar Loans or C/D Rate Loans, as the case may be,
requested to be made on the first day of such Interest Period shall be made as
ABR Loans, (y) any Revolving Credit Loans that were to have been converted on
the first day of such Interest Period to Eurodollar Loans or C/D Rate Loans, as
the case may be, shall be converted to or continued as ABR Loans and (z) any
outstanding Eurodollar Loans or C/D Rate Loans, as the case may be, shall be
converted, on the first day of such Interest Period, to ABR Loans. Until such
notice has been withdrawn by the Administrative Agent, no further Eurodollar
Loans or C/D Rate Loans, as the case may be, shall be made or continued as
such, nor shall the Borrower have the right to convert Revolving Credit Loans
to Eurodollar Loans or C/D Rate Loans, as the case may be.
2.9 Pro Rata Treatment and Payments. (a) Each borrowing by the
Borrower from the Facility A Lenders hereunder, each payment by the Borrower on
account of any Facility A Commitment Fee hereunder and any reduction of the
Facility A Commitments of the Facility A Lenders shall be made pro rata
according to the respective Facility A Commitment Percentages of the Facility A
Lenders. Each payment (including each prepayment) by the Borrower on account of
principal of and interest on the Facility A Revolving Credit Loans shall be
made pro rata according to the respective outstanding principal amounts of the
Facility A Revolving Credit Loans then held by the Facility A Lenders. Each
borrowing by the Borrower from the Facility B Lenders hereunder, each payment
by the Borrower on account of any Facility B Commitment Fee hereunder and any
reduction of the Facility B Commitments of the Facility B Lenders shall be made
pro rata according to the respective Facility B Commitment Percentages of the
Facility B Lenders. Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Facility B Revolving Credit Loans
shall be made pro rata according to the respective outstanding principal
amounts of the Facility B Revolving Credit Loans then held by the Facility B
Lenders. All payments (including prepayments) to be made by the Borrower
hereunder and under the Notes, whether on account of principal, interest, fees
or otherwise, shall be made without setoff or counterclaim and shall be made
prior to 12:00 Noon, New York City time, on the due date thereof to the
Administrative Agent, for the account of the Lenders, at the Administrative
Agent's office specified in Section 10.2, in Dollars and in immediately
available funds. It is understood that, if any payment of principal is made on
any day in accordance with the preceding sentence, no interest shall accrue on
such day in respect of such principal. The Administrative Agent shall
distribute such payments to the Lenders promptly upon receipt in like funds as
received. If any payment hereunder (other than payments on Eurodollar Loans)
becomes due and payable on a day other than a Business Day, such payment shall
be extended to the next succeeding Business Day, and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate
during such extension. If any payment on a Eurodollar Loan becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day (and, with respect to any such
payments of principal, interest thereon shall be payable at the then applicable
rate during such extension) unless the result of such extension would be to
extend such payment into another calendar month, in which event such payment
shall be made on the immediately preceding Business Day.
(b) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If such amount is not made available to
the Administrative Agent by the required time on the Borrowing Date therefor,
such Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Effective
Rate for the period until such Lender makes such amount immediately available
to the Administrative Agent. A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts owing under this Section
2.9(b) shall be
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25
conclusive in the absence of manifest error. If such Lender's share of such
borrowing is not made available to the Administrative Agent by such Lender
within three Business Days of such Borrowing Date, the Administrative Agent
shall also be entitled to recover such amount with interest thereon at the rate
per annum applicable to ABR Loans hereunder, on demand, from the Borrower.
2.10 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such
Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such
and convert C/D Rate Loans or ABR Loans to Eurodollar Loans shall forthwith be
cancelled and (b) such Lender's Revolving Credit Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to ABR Loans on the
respective last days of the then current Interest Periods with respect to such
Loans or within such earlier period as required by law. If any such conversion
of a Eurodollar Loan occurs on a day which is not the last day of the then
current Interest Period with respect thereto, the Borrower shall pay to such
Lender such amounts, if any, as may be required pursuant to Section 2.13.
2.11 Requirements of Law. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the Closing Date:
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement, any Note, any Letter of Credit or any
Application or any Eurodollar Loan, C/D Rate Loan or Money Market Loan
made by it, or change the basis of taxation of payments to such Lender in
respect thereof (except in each case for Non-Excluded Taxes covered by
Section 2.12 and changes in the rate of tax on the overall net income of
such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
relevant office of such Lender which is not otherwise included in the
determination of the Eurodollar Rate, the C/D Rate or the Money Market
Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting
into, continuing or maintaining Eurodollar Loans, C/D Rate Loans or Money
Market Loans or issuing or participating in Letters of Credit or to reduce any
amount receivable hereunder in respect thereof, then, in any such case, the
Borrower shall promptly pay such Lender, upon its demand, any additional
amounts necessary to compensate such Lender for such increased cost or reduced
amount receivable. If any Lender becomes entitled to claim any additional
amounts pursuant to this Section 2.11(a), it shall promptly notify the
Borrower, through the Administrative Agent, of the event by reason of which it
has become so entitled.
(b) If any Lender shall have determined that the application of any
Requirement of Law regarding capital adequacy or compliance by such Lender or
any corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority does or shall have the effect of reducing the rate of return on such
Lender's or such corporation's capital as a consequence of its obligations
hereunder or under any Letter of Credit to a level below that which such Lender
or such corporation could have achieved but for such application or compliance
(taking into consideration such Lender's or such corporation's policies with
respect to capital adequacy and such Lender's treatment of its Commitments for
internal purposes as of the date on which it became a party hereto) by an
amount deemed by such Lender to be material, then from time to time, after
submission by such Lender to the Borrower (with a copy to the Administrative
Agent) of a written request therefor (setting forth in reasonable detail the
basis for such request), the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender for such reduction.
(c) The Borrower agrees to pay to each Lender which requests
compensation under this Section 2.11(c) (by notice to the Borrower), on the
last day of each Interest Period with respect to any Eurodollar Loan made
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26
by such Lender, so long as such Lender shall be required to maintain reserves
against "Eurocurrency liabilities" under Regulation D of the Board (or, so long
as such Lender may be required by the Board or by any other Governmental
Authority to maintain reserves against any other category of liabilities which
includes deposits by reference to which the interest rate on Eurodollar Loans
is determined as provided in this Agreement or against any category of
extensions of credit or other assets of such Lender which includes any
Eurodollar Loans), an additional amount (determined by such Lender and notified
to the Borrower) representing such Lender's calculation or, if an accurate
calculation is impracticable, reasonable estimate (using such reasonable means
of allocation as such Lender shall determine) of the actual costs, if any,
incurred by such Lender during such Interest Period, as a result of the
applicability of the foregoing reserves to such Eurodollar Loans, which amount
in any event shall not exceed the product of the following for each day of such
Interest Period:
(i) the principal amount of the Eurodollar Loans made by
such Lender to which such Interest Period relates and outstanding on
such day; and
(ii) the difference between (x) a fraction the numerator of
which is the Eurodollar Rate (expressed as a decimal) applicable to
such Eurodollar Loan, and the denominator of which is one minus the
maximum rate (expressed as a decimal) at which such reserve
requirements are imposed by the Board or other Governmental Authority
on such date minus (y) such numerator; and
(iii) a fraction the numerator of which is one and the
denominator of which is 360.
Any Lender which gives notice under this Section 2.11(c) shall promptly
withdraw such notice (by written notice of withdrawal given to the
Administrative Agent and the Borrower) in the event such Lender is no longer
required to maintain such reserves or the circumstances giving rise to such
notice shall otherwise cease to exist.
(d) The Borrower agrees to pay to each Lender which requests
compensation under this Section 2.11(d) (by notice to the Borrower), on the
last day of each Interest Period with respect to any C/D Rate Loan made by such
Lender, so long as such Lender shall be required to maintain reserves against
"non-personal time deposits" under Regulation D of the Board (or, so long as
such Lender may be required by the Board or by any other Governmental Authority
to maintain reserves against any other category of liabilities which includes
deposits by reference to which the interest rate on C/D Rate Loans is
determined as provided in this Agreement or against any category of extensions
of credit or other assets of such Lender which includes any C/D Rate Loans), an
additional amount (determined by such Lender and notified to the Borrower)
representing such Lender's calculation or, if an accurate calculation is
impracticable, reasonable estimate (using such reasonable means of allocation
as such Lender shall determine) of the actual costs, if any, incurred by such
Lender during such Interest Period, as a result of the applicability of the
foregoing reserves to such C/D Rate Loans, which amount in any event shall not
exceed the product of the following for each day of such Interest Period:
(i) the principal amount of the C/D Rate Loans made by such
Lender to which such Interest Period relates and outstanding on such
day; and
(ii) the difference between (x) a fraction the numerator of
which is the C/D Rate (expressed as a decimal) applicable to such C/D
Rate Loan, and the denominator of which is one minus the maximum rate
(expressed as a decimal) at which such reserve requirements are
imposed by the Board or other Governmental Authority on such date
minus (y) such numerator; and
(iii) a fraction the numerator of which is one and the
denominator of which is 360.
Any Lender which gives notice under this Section 2.11(d) shall promptly
withdraw such notice (by written notice of withdrawal given to the
Administrative Agent and the Borrower) in the event such Lender is no longer
required to maintain such reserves or the circumstances giving rise to such
notice shall otherwise cease to exist.
(e) A certificate as to any additional amounts payable pursuant to
this Section 2.11 submitted by any Lender, through the Administrative Agent, to
the Borrower shall be conclusive in the absence of manifest error.
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27
The agreements in this Section 2.11 shall survive the termination of this
Agreement and the payment of the Revolving Credit Loans and all other amounts
payable hereunder (the date on which all of the foregoing shall have occurred,
the "Final Date") until the first anniversary of the Final Date.
2.12 Taxes. (a) All payments made by the Borrower under this
Agreement and the Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, excluding net income taxes and franchise taxes
(imposed in lieu of net income taxes) imposed on the Administrative Agent or
any Lender as a result of a present or former connection between the
Administrative Agent or such Lender and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from the
Administrative Agent or such Lender having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or the
Notes). If any such non-excluded taxes, levies, imposts, duties, charges, fees
deductions or withholdings ("Non-Excluded Taxes") are required to be withheld
from any amounts payable to the Administrative Agent or any Lender hereunder or
under the Notes, the amounts so payable to the Administrative Agent or such
Lender shall be increased to the extent necessary to yield to the
Administrative Agent or such Lender (after payment of all Non- Excluded Taxes)
interest or any such other amounts payable hereunder at the rates or in the
amounts specified in this Agreement and the Notes, provided, however, that the
Borrower shall not be required to increase any such amounts payable to any
Non-U.S. Lender if such Lender fails to comply with the requirements of Section
2.12(b). Whenever any Non-Excluded Taxes are payable by the Borrower, as
promptly as possible thereafter the Borrower shall send to the Administrative
Agent for its own account or for the account of such Lender, as the case may
be, a certified copy of an original official receipt received by the Borrower
showing payment thereof. If the Borrower fails to pay any Non-Excluded Taxes
when due to the appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required documentary
evidence, the Borrower shall indemnify the Administrative Agent and the Lenders
for any incremental taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure. The
agreements in this Section 2.12(a) shall survive the termination of this
Agreement and the payment of the Revolving Credit Loans and all other amounts
payable hereunder.
(b) Each Lender (or Transferee) that is not a citizen or resident of
the United States of America, a corporation, partnership or other entity
created or organized in or under the laws of the United States of America, or
any estate or trust that is subject to federal income taxation regardless of
the source of its income (a "Non-U.S. Lender") shall deliver to the Borrower
and the Administrative Agent (or, in the case of a Participant, to the Lender
from which the related participation shall have been purchased) two copies of
either U.S. Internal Revenue Service Form 1001 or Form 4224, or, in the case of
a Non-U.S. Lender claiming exemption from U.S. federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of "portfolio
interest", a Form W-8, or any subsequent versions thereof or successors thereto
(and, if such Non-U.S. Lender delivers a Form W-8, an annual certificate
representing under penalty of perjury that such Non-U.S. Lender is not a "bank"
for purposes of Section 881(c) of the Code, is not a 10-percent shareholder
(within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is
not a controlled foreign corporation related to the Borrower (within the
meaning of Section 864(d)(4) of the Code)), properly completed and duly
executed by such Non-U.S. Lender claiming complete exemption from, or a reduced
rate of, U.S. federal withholding tax on all payments by the Borrower under
this Agreement and the other Loan Documents. Such forms shall be delivered by
each Non-U.S. Lender on or before the date it becomes a party to this Agreement
(or, in the case of any Participant, on or before the date such Participant
purchases the related participation). In addition, each Non-U.S. Lender shall
deliver such forms promptly upon the obsolescence or invalidity of any form
previously delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall
promptly notify the Borrower at any time it determines that it is no longer in
a position to provide any previously delivered certificate to the Borrower (or
any other form of certification adopted by the U.S. taxing authorities for such
purpose). Notwithstanding any other provision of this Section 2.12(b), a
Non-U.S. Lender shall not be required to deliver any form pursuant to this
Section 2.12(b) that such Non-U.S. Lender is not legally able to deliver.
2.13 Indemnity. The Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of Eurodollar Loans, C/D Rate Loans or Money Market Loans, or in the
conversion into or continuation of Eurodollar Loans or C/D Rate Loans, after
the Borrower has given a notice requesting or accepting the same in accordance
with the provisions of this Agreement, (b) default by the Borrower in making
any prepayment after the Borrower has given a notice thereof in accordance with
the provisions of this Agreement, or (c) the making of a prepayment of
Eurodollar Loans, C/D Rate Loans or Money Market Loans on a
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28
day which is not the last day of an Interest Period, or the Money Market Loan
Maturity Date, as the case may be, with respect thereto. Such indemnification
may, at the option of any Lender, include an amount equal to the excess, if
any, of (i) the amount of interest which would have accrued on the amount so
prepaid, or not so borrowed, converted or continued, for the period from the
date of such prepayment or of such failure to borrow, convert or continue to
the last day of the relevant Interest Period or the relevant Money Market Loan
Maturity Date, as the case may be (or proposed Interest Period or proposed
Money Market Loan Maturity Date, as the case may be), in each case at the
applicable rate of interest for such Loans provided for herein (excluding,
however, the Applicable Margin) over (ii) the amount of interest (as reasonably
determined by such Lender) which would have accrued to such Lender on such
amount by placing such amount on deposit for a comparable period with leading
banks in the interbank eurodollar market or other relevant market. This
covenant shall survive the termination of this Agreement and the payment of the
Revolving Credit Loans and all other amounts payable hereunder until the first
anniversary of the Final Date.
2.14 Change of Lending Office. Each Lender and each Transferee agrees
that, upon the occurrence of any event giving rise to the operation of Section
2.10, 2.11 or 2.12 with respect to such Lender or Transferee, it will, if
requested by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Lender or Transferee) to designate another lending
office for any Loans affected by such event with the object of avoiding the
consequences of such event; provided, that such designation is made on terms
that, in the sole judgment of such Lender or Transferee, cause such Lender or
Transferee and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section 2.14 shall
affect or postpone any of the obligations of any Borrower or the rights of any
Lender or Transferee pursuant to Sections 2.10, 2.11 and 2.12.
2.15 Replacement of Lenders under Certain Circumstances. The Borrower
shall be permitted to replace any Lender which (a) requests reimbursement for
amounts owing pursuant to Section 2.11 or 2.12, (b) is affected in the manner
described in Section 2.10 and as a result thereof any of the actions described
in Section 2.10 is required to be taken or (c) defaults in its obligation to
make Revolving Credit Loans hereunder, with a replacement bank or other
financial institution; provided that (i) such replacement does not conflict
with any Requirement of Law, (ii) no Event of Default shall have occurred and
be continuing at the time of such replacement, (iii) the Borrower shall repay
(or the replacement bank or institution shall purchase, at par) all Revolving
Credit Loans and other amounts owing to such replaced Lender prior to the date
of replacement, (iv) the Borrower shall be liable to such replaced Lender under
Section 2.13 if any Eurodollar Loan, C/D Rate Loan or Money Market Loan owing
to such replaced Lender shall be prepaid (or purchased) other than on the last
day of the Interest Period or the Money Market Loan Maturity Date, as the case
may be, relating thereto, (v) the replacement bank or institution, if not
already a Lender, and the terms and conditions of such replacement, shall be
satisfactory to the Administrative Agent and the Issuing Lender, (vi) the
replaced Lender shall be obligated to make such replacement in accordance with
the provisions of Section 10.8 (provided that the Borrower shall be obligated
to pay the registration and processing fee referred to therein), (vii) until
such time as such replacement shall be consummated, the Borrower shall pay all
additional amounts (if any) required pursuant to Section 2.11 or 2.12, as the
case may be, and (viii) any such replacement shall not be deemed to be a waiver
of any rights which the Borrower, the Administrative Agent or any other Lender
shall have against the replaced Lender.
2.16 Facility B Extension Procedure. On any Business Day which is at
least 90 days (but no more than 150 days) prior to the date (the "Renewal
Date") which is two years prior to the then current Facility B Termination
Date, the Borrower may notify the Administrative Agent in writing of the
Borrower's desire to extend the Facility B Termination Date to a date which is
the anniversary of such then current Facility B Termination Date, and upon (a)
consent in writing given to the Administrative Agent and the Borrower by each
Lender on or prior to a date which is thirty days before the applicable Renewal
Date and (b) receipt by each Lender of an extension fee to be agreed upon by
each Lender, the Facility B Termination Date shall be extended to such
requested date. If any Lender does not consent to the extension of the Facility
B Termination Date pursuant to this Section 2.16 (which determination shall be
made by each Lender in its sole discretion), all of the Facility B Commitments
shall terminate on the Facility B Termination Date in effect prior to the
request for extension.
SECTION 3. LETTERS OF CREDIT
3.1. L/C Commitment. (a) Subject to the terms and conditions hereof,
the Issuing Lender, in reliance on the agreements of the other Facility B
Lenders set forth in Section 0, agrees to issue letters of credit
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29
("Letters of Credit") for the account of the Borrower on any Business Day
during the Facility B Commitment Period in such form as may be approved from
time to time by the Issuing Lender; provided that the Issuing Lender shall have
no obligation to issue any Letter of Credit if, after giving effect to such
issuance, (i) the L/C Obligations would exceed the L/C Commitment or (ii) the
Available Facility B Commitment of any Facility B Lender would be less than
zero.
(b) Each Letter of Credit (i) shall be denominated in Dollars, (ii)
shall be a standby letter of credit issued to support obligations of the
Borrower and its Subsidiaries, contingent or otherwise, incurred in the
ordinary course of business and (iii) shall expire no later than the earlier of
the first anniversary of the date of issuance thereof or five Business Days
prior to the Facility B Termination Date (or, in the case of any Letter of
Credit with automatic renewal or evergreen provisions, shall have a final
expiration date no later than five Business Days prior to the Facility B
Termination Date).
(c) Each Letter of Credit shall be subject to the Uniform Customs
and, to the extent not inconsistent therewith, the laws of the State of New
York.
(d) The Issuing Lender shall not at any time be obligated to issue
any Letter of Credit hereunder if such issuance would conflict with, or cause
the Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
3.2. Procedure for Issuance of Letters of Credit. The Borrower may
from time to time request that the Issuing Lender issue a Letter of Credit by
delivering to the Issuing Lender at its address for notices specified herein an
Application therefor, completed to the satisfaction of the Issuing Lender, and
such other certificates, documents and other papers and information as the
Issuing Lender may request. Upon receipt of any Application, the Issuing Lender
will process such Application and the certificates, documents and other papers
and information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby (but in no event shall the Issuing Lender be required to issue any
Letter of Credit earlier than three Business Days after its receipt of the
Application therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the original of such Letter
of Credit to the beneficiary thereof or as otherwise may be agreed by the
Issuing Lender and the Borrower. The Issuing Lender shall furnish a copy of
such Letter of Credit to the Borrower promptly following the issuance thereof.
3.3. Fees and Other Charges. (a) The Borrower shall pay to the
Administrative Agent, for the account of the Issuing Lender and the L/C
Participants, a letter of credit fee with respect to each Letter of Credit at a
per annum rate, for each day during the period from the date of issuance of
such Letter of Credit to the first date thereafter on which such Letter of
Credit shall expire or be cancelled or fully drawn (the "L/C Termination
Date"), equal to the L/C Fee Rate in effect on such day, calculated on the
basis of a 360-day year, of the aggregate amount available to be drawn under
such Letter of Credit on such day. In addition, the Borrower shall pay to the
Issuing Lender for its own account a fronting fee of 0.10% per annum on the
undrawn and unexpired amount of each Letter of Credit. Letter of credit fees
and fronting fees pursuant to this paragraph shall be payable quarterly in
arrears on each L/C Fee Payment Date to occur while the relevant Letter of
Credit is outstanding and shall be nonrefundable.
(b) In addition to the foregoing fees, the Borrower shall pay or
reimburse the Issuing Lender for such normal and customary costs and expenses
as are incurred or charged by the Issuing Lender in issuing, effecting payment
under, amending or otherwise administering any Letter of Credit.
(c) The Administrative Agent shall, promptly following its receipt
thereof, distribute to the Issuing Lender and the L/C Participants all fees
received by the Administrative Agent for their respective accounts pursuant to
this Section 3.3.
3.4. L/C Participations. (a) The Issuing Lender irrevocably agrees to
grant and hereby grants to each L/C Participant, and, to induce the Issuing
Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from the Issuing
Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Commitment Percentage in the Issuing Lender's obligations and
rights under each Letter of Credit issued hereunder and the amount of each
draft paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if a draft
is paid under any Letter of Credit for which the Issuing Lender is not
reimbursed in full by the Borrower in accordance with the terms of this
Agreement,
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such L/C Participant shall pay to the Issuing Lender upon demand at the Issuing
Lender's address for notices specified herein an amount equal to such L/C
Participant's Facility B Commitment Percentage of the amount of such draft, or
any part thereof, which is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to the
Issuing Lender pursuant to Section 0 in respect of any unreimbursed portion of
any payment made by the Issuing Lender under any Letter of Credit is paid to
the Issuing Lender within three Business Days after the date such payment is
due, such L/C Participant shall pay to the Issuing Lender on demand an amount
equal to the product of (i) such amount, times (ii) the daily average Federal
funds rate, as quoted by the Issuing Lender, during the period from and
including the date such payment is required to the date on which such payment
is immediately available to the Issuing Lender, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. If any such amount required to be paid by any L/C
Participant pursuant to Section 0 is not in fact made available to the Issuing
Lender by such L/C Participant within three Business Days after the date such
payment is due, the Issuing Lender shall be entitled to recover from such L/C
Participant, on demand, such amount with interest thereon calculated from such
due date at the rate per annum applicable to ABR Loans hereunder. A certificate
of the Issuing Lender submitted to any L/C Participant with respect to any
amounts owing under this Section shall be conclusive in the absence of manifest
error.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its pro
rata share of such payment in accordance with this Section 3.4, the Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise, including proceeds of collateral applied
thereto by the Issuing Lender), or any payment of interest on account thereof,
the Issuing Lender will promptly distribute to such L/C Participant its pro
rata share thereof; provided, however, that in the event that any such payment
received by the Issuing Lender shall be required to be returned by the Issuing
Lender, such L/C Participant shall return to the Issuing Lender the portion
thereof previously distributed by the Issuing Lender to it.
3.5. Reimbursement Obligation of the Borrower. (a) The Borrower
agrees to reimburse the Issuing Lender on each date on which the Issuing Lender
notifies the Borrower of the date and amount of a draft presented under any
Letter of Credit and paid by the Issuing Lender for the amount of (i) such
draft so paid (which reimbursement may be effected through the procedure
described in Section 3.5(c)) and (ii) any taxes, fees, charges or other costs
or expenses incurred by the Issuing Lender in connection with such payment.
Each such payment shall be made to the Issuing Lender at its address for
notices specified herein in lawful money of the United States of America and in
immediately available funds.
(b) Interest shall be payable on any and all amounts remaining unpaid
by the Borrower under this Section 3 from the date such amounts become payable
(whether at stated maturity, by acceleration or otherwise) until payment in
full at the rate which would be payable on any outstanding ABR Loans which were
then overdue.
(c) Each drawing under any Letter of Credit shall constitute a
request by the Borrower to the Administrative Agent for a borrowing pursuant to
Section 2.2(d) of ABR Loans in the amount of such drawing. The Borrowing Date
with respect to such borrowing shall be the date of such drawing.
3.6. Obligations Absolute. (a) The Borrower's obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against the Issuing Lender or any beneficiary of
a Letter of Credit.
(b) The Borrower also agrees with the Issuing Lender that the Issuing
Lender shall not be responsible for, and the Borrower's Reimbursement
Obligations under Section 0 shall not be affected by, among other things, (i)
the validity or genuineness of documents or of any endorsements thereon, even
though such documents shall in fact prove to be invalid, fraudulent or forged,
or (ii) any dispute between or among the Borrower and any beneficiary of any
Letter of Credit or any other party to which such Letter of Credit may be
transferred or (iii) any claims whatsoever of the Borrower against any
beneficiary of such Letter of Credit or any such transferee.
(c) The Issuing Lender shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit, except
for errors or omissions caused by the Issuing Lender's gross negligence or
willful misconduct.
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(d) The Borrower agrees that any action taken or omitted by the
Issuing Lender under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence of willful
misconduct and in accordance with the standards of care specified in the
Uniform Commercial Code of the State of New York, shall be binding on the
Borrower and shall not result in any liability of the Issuing Lender to the
Borrower.
3.7. Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the Issuing Lender shall promptly notify
the Borrower of the date and amount thereof. The responsibility of the Issuing
Lender to the Borrower in connection with any draft presented for payment under
any Letter of Credit shall, in addition to any payment obligation expressly
provided for in such Letter of Credit, be limited to determining that the
documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are in conformity with such Letter of Credit.
3.8. Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
3.9. Subsidiary Account Party. Notwithstanding anything to the
contrary in this Agreement, it is understood that (a) Kimco Development of
Kettering, Inc., a Wholly Owned Subsidiary Guarantor, rather than the Borrower,
shall be the account party with respect to the Letter of Credit identified on
Schedule 3.9, (b) all of the provisions of this Agreement relating to the
Letters of Credit shall apply, mutatis mutandis, to such Subsidiary Guarantor
in respect of such Letter of Credit and (c) the Borrower shall be jointly and
severally liable, unconditionally, for all of the obligations of such
Subsidiary Guarantor arising in respect of such Letter of Credit.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement, to make or maintain the Revolving Credit Loans, and to issue or
participate in the Letters of Credit, the Borrower hereby represents and
warrants to the Administrative Agent and each Lender that:
4.1 Financial Condition. The consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at December 31, 1997 and the
related consolidated statements of income and of cash flows for the fiscal year
ended on such date, reported on by Pricewaterhouse Coopers, LLP, copies of
which have heretofore been furnished to the Lenders, are complete and correct
and present fairly the consolidated financial condition of the Borrower and its
consolidated Subsidiaries as at such dates, and the consolidated results of
their operations and their consolidated cash flows for the fiscal year then
ended. The unaudited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at June 30, 1998 and the related unaudited
consolidated statements of income and of cash flows for the six-month period
ended on such date, certified by a Responsible Officer, copies of which have
heretofore been furnished to the Lenders, are complete and correct and present
fairly the consolidated financial condition of the Borrower and its
consolidated Subsidiaries as at such date, and the consolidated results of
their operations and their consolidated cash flows for the six-month period
then ended (subject to normal year-end audit adjustments). All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved (except as approved by such accountants or Responsible Officer, as the
case may be, and as disclosed therein). Except as set forth on Schedule 4.1,
neither the Borrower nor any of its consolidated Subsidiaries has, at the
Closing Date, any material Indebtedness, Guarantee Obligation, contingent
liability or liability for taxes, or any unusual forward or long-term
commitment, including, without limitation, any interest rate or foreign
currency swap or exchange transaction, which is not reflected in the foregoing
statements or in the notes thereto. Except as set forth on Schedule 4.1, during
the period from December 31, 1997 to and including the Closing Date there has
been no sale, transfer or other disposition by the Borrower or any of its
consolidated Subsidiaries of any material part of its business or property and
no purchase or other acquisition of any business or property (including any
capital stock of any other Person) material in relation to the consolidated
financial condition of the Borrower and its consolidated Subsidiaries at
December 31, 1997.
4.2 No Change. Since December 31, 1997 (a) there has been no
development or event nor any prospective development or event, which has had or
could reasonably be expected to have a Material Adverse Effect and (b) except
for regular quarterly dividends, no dividends or other distributions have been
declared, paid or made
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upon the Capital Stock of the Borrower nor has any of the Capital Stock of the
Borrower been redeemed, retired, purchased or otherwise acquired for value by
the Borrower or any of its Subsidiaries.
4.3 Corporate Existence; Compliance with Law. (a) The Borrower (i) is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has the corporate power and authority,
and the legal right, to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently
engaged, (iii) is duly qualified as a foreign corporation and in good standing
under the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification, except to
the extent the failure to be so qualified and in good standing could not, in
the aggregate, reasonably be expected to have a Material Adverse Effect, and
(iv) is in compliance with all Requirements of Law except to the extent that
the failure to comply therewith could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(b) Each Subsidiary of the Borrower (i) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (ii) has the corporate power and authority, and the legal right,
to own and operate its property, to lease the property it operates as lessee
and to conduct the business in which it is currently engaged, (iii) is duly
qualified as a foreign corporation and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification, and (iv) is in compliance with all
Requirements of Law except, in the case of clauses (i), (ii), (iii) or (iv)
above, as could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations. Each
Loan Party has the corporate power and authority, and the legal right, to make,
deliver and perform each Loan Document to which it is a party and, in the case
of the Borrower, to borrow hereunder and each Loan Party has taken all
necessary corporate action to authorize the execution, delivery and performance
of each Loan Document to which it is a party and, in the case of the Borrower,
the borrowings on the terms and conditions of this Agreement. No consent or
authorization of, filing with or other act by or in respect of, any
Governmental Authority or any other Person is required in connection with the
borrowings hereunder or with the execution, delivery, performance, validity or
enforceability of any Loan Document. Each Loan Document has been duly executed
and delivered on behalf of each Loan Party party thereto. Each Loan Document
constitutes a legal, valid and binding obligation of each Loan Party party
thereto enforceable against each such Loan Party in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
4.5 No Legal Bar. The execution, delivery and performance of the Loan
Documents and the borrowings hereunder and the use of the proceeds thereof will
not violate any Requirement of Law or any Contractual Obligation of the
Borrower or of any of its Subsidiaries and will not result in, or require, the
creation or imposition of any Lien on any of its or their respective properties
or revenues pursuant to any such Requirement of Law or Contractual Obligation.
4.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, threatened by or against the Borrower or any
of its Subsidiaries or against any of its or their respective properties or
revenues (a) with respect to this Agreement, the other Loan Documents or any of
the transactions contemplated hereby, or (b) which could reasonably be expected
to have a Material Adverse Effect.
4.7 No Default. Neither the Borrower nor any of its Subsidiaries is
in default under or with respect to any of its Contractual Obligations in any
respect which could reasonably be expected to have a Material Adverse Effect.
No Default or Event of Default has occurred and is continuing.
4.8 Ownership of Property. Each of the Borrower and its Subsidiaries
has good record title in fee simple to, or a valid leasehold interest in, all
its material real property, and good title to all its other material property.
4.9 Intellectual Property. The Borrower and each of its Subsidiaries
owns, or is licensed to use, all trademarks, tradenames, copyrights,
technology, know-how and processes ("Intellectual Property") necessary for the
conduct of its business as currently conducted except for those the failure to
own or license which could not reasonably be expected to have a Material
Adverse Effect. No claim has been asserted and is pending by any Person
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33
challenging or questioning the use of any Intellectual Property or the validity
or effectiveness of any Intellectual Property, nor does the Borrower know of
any valid basis for any such claim. The use of such Intellectual Property by
the Borrower and its Subsidiaries does not infringe on the rights of any
Person, except for such claims and infringements that, in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.
4.10 No Burdensome Restrictions. No Requirement of Law or Contractual
Obligation of the Borrower or any of its Subsidiaries could reasonably be
expected to have a Material Adverse Effect.
4.11 Taxes. Each of the Borrower and its Subsidiaries has filed or
caused to be filed all tax returns which, to the knowledge of the Borrower, are
required to be filed and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower or its Subsidiaries, as the case may be); no tax Lien has
been filed, and, to the knowledge of the Borrower, no claim is being asserted,
with respect to any such tax, fee or other charge.
4.12 Federal Regulations. No part of the proceeds of any Revolving
Credit Loans will be used for "purchasing" or "carrying" any "margin stock"
within the respective meanings of each of the quoted terms under Regulation U
of the Board as now and from time to time hereafter in effect or for any
purpose which violates the provisions of the Regulations of the Board. If
requested by the Administrative Agent, the Borrower will furnish to the
Administrative Agent a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in said Regulation U.
4.13 ERISA. No Reportable Event has occurred during the five-year
period prior to the date on which this representation is made or deemed made
with respect to any Plan, and each Plan has complied in all material respects
with the applicable provisions of ERISA and the Code. The present value of all
accrued benefits under each Single Employer Plan maintained by the Borrower or
any Commonly Controlled Entity (based on those assumptions used to fund the
Plans) did not, as of the last annual valuation date prior to the date on which
this representation is made or deemed made, exceed the value of the assets of
such Plan allocable to such accrued benefits. Neither the Borrower nor any
Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan, and neither the Borrower nor any Commonly Controlled Entity
would become subject to any liability under ERISA if the Borrower or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made. No such Multiemployer Plan is in
Reorganization or Insolvent. The present value (determined using actuarial and
other assumptions which are reasonable in respect of the benefits provided and
the employees participating) of the liability of the Borrower and each Commonly
Controlled Entity for post retirement benefits to be provided to their current
and former employees under Plans which are welfare benefit plans (as defined in
Section 3(1) of ERISA) equals or exceeds the assets under all such Plans
allocable to such benefits.
4.14 Investment Company Act; Other Regulations. The Borrower is not
an "investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. The
Borrower is not subject to regulation under any Federal or State statute or
regulation which limits its ability to incur Indebtedness.
4.15 Subsidiaries. The corporations listed on Schedule 4.15
constitute all the Subsidiaries of the Borrower at the Closing Date.
4.16 Purpose of Loans. The proceeds of the Revolving Credit Loans
shall be used by the Borrower for general corporate purposes (excluding
commercial paper back-up).
4.17 Environmental Matters. Each of the following representations and
warranties is true and correct on and as of the Closing Date except to the
extent that the facts and circumstances giving rise to any such failure to be
so true and correct, in the aggregate, could not reasonably be expected to have
a Material Adverse Effect:
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34
(a) To the best knowledge of the Borrower, the Properties do not
contain, and have not previously contained, any Materials of Environmental
Concern in amounts or concentrations which constitute or constituted a
violation of, or could reasonably give rise to liability under,
Environmental Laws.
(b) To the best knowledge of the Borrower, the Properties and all
operations at the Properties are in compliance, and have in the last two
years been in compliance, with all applicable Environmental Laws, and
there is no contamination at, under or about the Properties, or violation
of any Environmental Law with respect to the Properties.
(c) Neither the Borrower nor any of its Subsidiaries has received any
notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties, nor does the
Borrower have knowledge or reason to believe that any such notice will be
received or is being threatened.
(d) To the best knowledge of the Borrower, Materials of Environmental
Concern have not been transported or disposed of from the Properties in
violation of, or in a manner or to a location which could reasonably give
rise to liability under, Environmental Laws, nor have any Materials of
Environmental Concern been generated, treated, stored or disposed of at,
on or under any of the Properties in violation of, or in a manner that
could give rise to liability under, any applicable Environmental Laws.
(e) No judicial proceedings or governmental or administrative action
is pending, or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower is or, to the knowledge of the
Borrower, will be named as a party with respect to the Properties, nor are
there any consent decrees or other decrees, consent orders, administrative
order or other orders, or other administrative of judicial requirements
outstanding under any Environmental Law with respect to the Properties.
(f) To the best knowledge of the Borrower, there has been no release
or threat of release of Materials of Environmental Concern at or from the
Properties, or arising from or related to the operations of the Borrower
and its Subsidiaries in connection with the Properties in violation of or
in amounts or in a manner that could give rise to liability under
Environmental Laws.
4.18 Year 2000 Matters. Any reprogramming required to permit the
proper functioning (but only to the extent that such proper functioning would
otherwise be impaired by the occurrence of the year 2000) in and following the
year 2000 of computer systems and other equipment containing embedded
microchips, in either case owned or operated by the Borrower or any of its
Subsidiaries or used or relied upon in the conduct of their business (including
any such systems and other equipment supplied by others or with which the
computer systems of the Borrower or any of its Subsidiaries interface), and the
testing of all such systems and other equipment as so reprogrammed, will be
completed by June 1, 1999. The costs to the Borrower and its Subsidiaries that
have not been incurred as of the date hereof for such reprogramming and testing
and for the other reasonably foreseeable consequences to them of any improper
functioning of other computer systems and equipment containing embedded
microchips due to the occurrence of the year 2000 could not reasonably be
expected to result in a Default or Event of Default or to have a Material
Adverse Effect. Except for such reprogramming and testing and other reasonably
foreseeable consequences above, the computer systems of the Borrower and its
Subsidiaries are and, with ordinary course upgrading and maintenance, will
continue for the term of this Agreement to be, sufficient for the conduct of
their business as currently conducted.
4.19 Insurance. The Borrower and each Subsidiary maintains with
insurance companies rated at least A- by A.M. Best & Co., with premiums at all
times currently paid, insurance upon fixed assets and inventories, including
public liability insurance, fire and all other risks insured against by
extended coverage, fidelity bond coverage, business interruption insurance, and
all insurance required by law, all in form and amounts required by law and
customary to the respective natures of their businesses and properties, except
in cases where failure to maintain such insurance will not have or potentially
have a Material Adverse Effect.
4.20 Condition of Properties. Each of the following representations
and warranties is true and correct except to the extent that the facts and
circumstances giving rise to any such failure to be so true and correct, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect:
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35
(a) All of the improvements located on the Properties and the use of
said improvements shall comply and shall continue to comply in all
respects with all applicable zoning resolutions, building codes,
subdivision and other similar applicable laws, rules and regulations and
are covered by existing valid certificates of occupancy and all other
certificates and permits required by applicable laws, rules, regulations
and ordinances or in connection with the use, occupancy and operation
thereof.
(b) No material portion of any of the Properties, nor any
improvements located on said Properties that are material to the
operation, use or value thereof have been damaged in any respect as a
result of any fire, explosion, accident, flood or other casualty.
(c) No condemnation or eminent domain proceeding has been commenced
or to the knowledge of the Borrower is about to be commenced against any
portion of any of the Properties, or any improvements located thereon that
are material to the operation, use or value of said Properties except as
set forth and described in Schedule 4.19 attached hereto.
(d) No notices of violation of any federal, state or local law or
ordinance or order or requirement have been issued with respect to any
Properties.
4.21 Benefit of Loans. The Borrower and each Subsidiary are engaged
as an integrated corporate group in the business of acquiring, owning,
developing and operating shopping centers and of providing the required
services and other facilities for those integrated operations. The Borrower and
each Subsidiary require financing on such a basis that funds can be made
available to the Borrower and each Subsidiary to the extent required for the
continued operation of their integrated activities and each of them expect to
derive benefit, directly or indirectly, in return for undertaking their
respective obligations under this Agreement and the other Loan Documents, both
individually and as members of the integrated group.
4.22 REIT. The Borrower is an equity-oriented real estate investment
trust under Sections 856 through 860 of the Code.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Extension of Credit. The agreement of each
Lender to make the initial extension of credit requested to be made by it is
subject to the satisfaction, on or prior to the Closing Date, of the following
conditions precedent:
(a) Agreement; Notes. The Administrative Agent shall have received
(i) this Agreement, executed and delivered by a duly authorized officer of
the Borrower, with a counterpart for each Lender and (ii) for the account
of each Lender who requests one, a Facility A Revolving Credit Note and a
Facility B Revolving Credit Note in each case conforming to the
requirements hereof and executed by a duly authorized officer of the
Borrower.
(b) Closing Certificate. The Administrative Agent shall have
received, with a copy for each Lender, a certificate of each Loan Party,
dated the Closing Date, substantially in the form of Exhibit D, with
appropriate insertions and attachments, satisfactory in form and substance
to the Administrative Agent, executed by the President or any Vice
President and the Secretary or any Assistant Secretary of such Loan Party,
and attaching the documents referred to in Sections 5.1(c) and (d).
(c) Corporate Proceedings of the Loan Parties. The Administrative
Agent shall have received, with a copy for each Lender, a copy of the
resolutions, in form and substance satisfactory to the Administrative
Agent, of the Board of Directors of each Loan Party authorizing (i) the
execution, delivery and performance of each Loan Document to which it is a
party and (ii) in the case of the Borrower, the borrowings contemplated
hereunder.
(d) Corporate Documents. The Administrative Agent shall have
received, with a copy for each Lender, true and complete copies of the
certificate of incorporation and by-laws of the Borrower.
(e) Fees. The Administrative Agent shall have received an extension
fee payable for the ratable benefit of the Lenders in the amount
previously disclosed to each Lender.
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36
(f) Approvals. Any governmental and third party approvals necessary
in connection with the transactions contemplated hereby shall have been
obtained and be in full force and effect.
(g) Legal Opinions. The Administrative Agent shall have received,
with a counterpart for each Lender, the executed legal opinion of Robert
P. Schulman, Esq., counsel to the Borrower, substantially in the form of
Exhibit E.
(h) Subsidiary Guarantee. The Administrative Agent shall have
received the Subsidiary Guarantee, executed and delivered by a duly
authorized officer of each Subsidiary of the Borrower, with a counterpart
for each Lender.
(i) Termination of Existing Credit Agreement. The Administrative
Agent shall have received satisfactory evidence that the Existing Credit
Agreement shall have been terminated and that any amounts owing thereunder
by the Borrower shall have been (or shall upon the occurrence of the
Closing Date be) paid in full.
5.2 Conditions to Each Extension of Credit. The agreement of each
Lender to make any extension of credit requested to be made by it on any date
(including, without limitation, its initial extension of credit) is subject to
the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by any Loan Party in or pursuant to the Loan Documents
shall be true and correct in all material respects on and as of such date
as if made on and as of such date.
(b) No Default. (i) No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extension of credit requested to be made on such date and (ii) the
Borrower would be in compliance with each financial covenant set forth in
paragraphs (a) through (d) of Section 7.1 if the ratio or amount referred
to therein were to be calculated as of such date (provided, that for the
purposes of determining such compliance, Gross Asset Value and Value of
Unencumbered Properties shall be determined for the most recent period of
two consecutive fiscal quarters of the Borrower as to which a compliance
certificate has been delivered pursuant to Section 6.2(b)).
(c) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents
shall be satisfactory in form and substance to the Administrative Agent,
and the Administrative Agent shall have received such other documents and
legal opinions in respect of any aspect or consequence of the transactions
contemplated hereby or thereby as it shall reasonably request.
Each borrowing by, or issuance of a Letter of Credit on behalf of, the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the conditions contained in this
Section 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect, any Revolving Credit Loan or any Letter of Credit remains outstanding
and unpaid or any other amount is owing to any Lender or the Administrative
Agent hereunder, the Borrower shall and (except in the case of delivery of
financial information, reports and notices) shall cause each of its
Subsidiaries to:
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37
6.1 Financial Statements. Furnish to the Administrative Agent (with
sufficient copies for each Lender):
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrower, a copy of the consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at the
end of such year and the related consolidated statements of income and
retained earnings and of cash flows for such year, setting forth in each
case in comparative form the figures for the previous year, reported on
without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by Pricewaterhouse
Coopers, LLP or other independent certified public accountants of
nationally recognized standing; and
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, the unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such quarter
and the related unaudited consolidated statements of income and retained
earnings and of cash flows of the Borrower and its consolidated
Subsidiaries for such quarter and the portion of the fiscal year through
the end of such quarter, setting forth in each case in comparative form
the figures for the previous year, certified by a Responsible Officer as
being fairly stated in all material respects (subject to normal year-end
audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
6.2 Certificates; Other Information. Furnish to the Administrative
Agent (with sufficient copies for each Lender (in the case of clauses (a)-(c)
below) or each relevant Lender (in the case of clauses (d)-(e) below)):
(a) concurrently with the delivery of the financial statements
referred to in Section 6.1(a), a certificate of the independent certified
public accountants reporting on such financial statements stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in Sections 6.1(a) and 6.1(b), a compliance certificate of a
Responsible Officer of the Borrower substantially in the form of Exhibit
F;
(c) within ten days after the same are sent, copies of all financial
statements and reports which the Borrower sends to its stockholders, and
within ten days after the same are filed, copies of all financial
statements, reports or other documents which the Borrower may make to, or
file with, the Securities and Exchange Commission or any successor or
analogous Governmental Authority;
(d) promptly upon request of any Lender (through the Administrative
Agent), copies of any environmental report prepared pursuant to Section
6.8(d); and
(e) promptly, such additional financial information, information with
respect to any Property and other information as any Lender may from time
to time reasonably request (through the Administrative Agent).
6.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, except (a) where the amount or validity thereof
is currently being contested in good faith by appropriate proceedings and
reserves in conformity with GAAP with respect thereto have been provided on the
books of the Borrower or its Subsidiaries, as the case may be or (b) (i)
Non-Recourse Indebtedness and (ii) other obligations which aggregate not more
than $5,000,000, in each case to the extent the Borrower or the relevant
Subsidiary has determined in good faith that it is in its best interests not to
pay or contest such Non-Recourse Indebtedness or such other obligations, as the
case may be.
6.4 Maintenance of Existence, etc. (a) Preserve, renew and keep in
full force and effect its corporate existence and take all reasonable action to
maintain all rights, privileges and franchises necessary or desirable in the
normal conduct of its business except as otherwise permitted pursuant to
Section 7.2.
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(b) Comply with all Contractual Obligations and Requirements of Law
except to the extent that failure to comply therewith could not, in the
aggregate, be reasonably expected to have a Material Adverse Effect.
6.5 Maintenance of Property; Insurance. Keep all property useful and
necessary in its business in good working order and condition; maintain
insurance with financially sound and reputable insurance companies rated at
least A- by A.M. Best & Co. on all its property in at least such amounts and
against at least such risks (but including in any event public liability,
product liability and business interruption) as are usually insured against in
the same general area by companies engaged in the same or a similar business;
and furnish to each Lender, upon written request, full information as to the
insurance carried.
6.6 Inspection of Property; Books and Records; Discussions. Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and as often as may reasonably be desired and to discuss the business,
operations, properties and financial and other condition of the Borrower and
its Subsidiaries with officers and employees of the Borrower and its
Subsidiaries and with its independent certified public accountants.
6.7 Notices. Promptly give notice to the Administrative Agent and
each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the
Borrower or any of its Subsidiaries and any Governmental Authority, which
in either case, if not cured or if adversely determined, as the case may
be, could reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any of its
Subsidiaries in which the amount involved is $5,000,000 or more and not
covered by insurance or in which material injunctive or similar relief is
sought;
(d) the following events, as soon as possible and in any event within
30 days after the Borrower knows or has reason to know thereof: (i) the
occurrence or expected occurrence of any Reportable Event with respect to
any Plan, a failure to make any required contribution to a Plan, the
creation of any Lien in favor of the PBGC or a Plan or any withdrawal
from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or the taking of
any other action by the PBGC or the Borrower or any Commonly Controlled
Entity or any Multiemployer Plan with respect to the withdrawal from, or
the terminating, Reorganization or Insolvency of, any Plan; and
(e) any development or event which has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section 6.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower proposes to take with respect
thereto.
6.8 Environmental Laws. (a) Comply with, and use its best efforts to
ensure compliance by all tenants and subtenants, if any, with, all applicable
Environmental Laws and obtain and comply with and maintain, and use its best
efforts to ensure that all tenants and subtenants obtain and comply with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws, except to the extent that
failure to do so could not be reasonably expected to have a Material Adverse
Effect.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws, except to the extent that (i) the same are being contested in good faith
by appropriate proceedings and the pendency of such proceedings could not be
reasonably expected to have a Material Adverse Effect or (ii) the Borrower has
determined in good
<PAGE>
39
faith that contesting the same is not in the best interests of the Borrower and
its Subsidiaries and the failure to contest the same could not be reasonably
expected to have a Material Adverse Effect.
(c) Defend, indemnify and hold harmless the Administrative Agent and
each Lender, and their respective employees, agents, officers and directors,
from and against any claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature known or
unknown, contingent or otherwise, arising out of, or in any way relating to the
violation of, noncompliance with or liability under any Environmental Laws
applicable to the operations of the Borrower, its Subsidiaries or the
Properties, or any orders, requirements or demands of Governmental Authorities
related thereto, including, without limitation, attorney's and consultant's
fees, investigation and laboratory fees, response costs, court costs and
litigation expenses, except to the extent that any of the foregoing arise out
of the gross negligence or willful misconduct of the party seeking
indemnification therefor. This indemnity shall continue in full force and
effect regardless of the termination of this Agreement.
(d) Comply in all material respects with the Operations and
Maintenance Plan.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect, any Revolving Credit Loan or any Letter of Credit remains outstanding
and unpaid or any other amount is owing to any Lender or the Administrative
Agent hereunder, the Borrower shall not, and, in the case of Sections 7.2
through 7.7, shall not permit any of its Subsidiaries to, directly or
indirectly:
7.1 Financial Covenants.
(a) Total Indebtedness. Permit, at the last day of any period of two
consecutive fiscal quarters of the Borrower, Total Indebtedness as of such
day to exceed an amount equal to 55% of Gross Asset Value as of such day.
(b) Total Secured Indebtedness. Permit, at the last day of any period
of two consecutive fiscal quarters of the Borrower, Total Secured
Indebtedness as of such day to exceed an amount equal to 25% of Gross
Asset Value as of such day.
(c) Total Net Worth. Permit, at the last day of any fiscal quarter of
the Borrower, Total Net Worth as of such day to be less than an amount
equal to the sum of (i) $900,000,000 and (ii) 50% of the aggregate
proceeds received by the Borrower (net of customary related fees and
expenses) in connection with any offering of Capital Stock of the Borrower
consummated after the Closing Date.
(d) Value of Unencumbered Properties. Permit, for any period of two
consecutive fiscal quarters of the Borrower, the ratio of (i) Total Senior
Recourse Indebtedness as of the last day of such period to (ii) the Value
of Unencumbered Assets for such period to exceed 0.55 to 1.0.
(e) Minimum Unsecured Interest Coverage Ratio. Permit, for any period
of two consecutive fiscal quarters of the Borrower, the ratio of Property
Net Operating Income for such period to Total Unsecured Interest Expense
for such period to be less than 2.5 to 1.0.
(f) Minimum Total Adjusted EBITDA. Permit, for any period of two
consecutive fiscal quarters of the Borrower, the ratio of Total Adjusted
EBITDA for such period to Total Debt Service for such period to be less
than 2.0 to 1.0.
(g) Limitation on Recourse Secured Indebtedness. Permit, at any time,
the aggregate outstanding principal amount of Recourse Secured
Indebtedness to exceed $100,000,000.
For the purposes of this Section 7.1, amounts associated solely with
Unconsolidated Subsidiaries and Joint Ventures shall be included only to the
extent of the Borrower's Pro Rata Interest in the relevant Unconsolidated
Subsidiary or Joint Venture.
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7.2 Limitation on Fundamental Changes. Excepting the transactions
contemplated in the Confidential Memorandum in connection with the Income REIT,
(a) Enter into any merger, consolidation or amalgamation, or liquidate, wind up
or dissolve itself (or suffer any liquidation or dissolution), or (b) in the
case of the Borrower, convey, sell, lease, assign, transfer or otherwise
dispose of, all or a substantial portion (determined on a consolidated basis
with respect to the Borrower and its Subsidiaries taken as a whole) of the
property, business or assets owned or leased by the Borrower (directly or
through a Subsidiary or Joint Venture), except that any Subsidiary of the
Borrower may be merged or consolidated with or into the Borrower (provided that
the Borrower shall be the continuing or surviving corporation) or with or into
any one or more Wholly Owned Subsidiary Guarantors (provided that the Wholly
Owned Subsidiary Guarantor(s) shall be the continuing or surviving
corporation).
7.3 Limitation on Restricted Payments. Unless otherwise required in
order to maintain the Borrower's status as a real estate investment trust,
declare or pay any dividend (other than dividends payable solely in the same
class of Capital Stock) on, or make any payment on account of, or set apart
assets for a sinking or other analogous fund for, the purchase, redemption,
defeasance, retirement or other acquisition of, any shares of any class of
Capital Stock of the Borrower or any warrants or options to purchase any such
Capital Stock, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property or in obligations of the Borrower or any Subsidiary (collectively,
"Restricted Payments"); provided that, notwithstanding the foregoing, during
any period of four consecutive fiscal quarters of the Borrower, the Borrower
may pay dividends on its Capital Stock in an aggregate amount not to exceed the
greater of (a) an amount equal to the lesser of 90% of FFO for such period and
100% of FAD for such period, and (b) the amount of dividends required to be
paid by the Borrower in order to maintain its status as a REIT.
7.4 Limitation on Investments, Loans and Advances. Make any advance,
loan, extension of credit or capital contribution to any Person, or purchase
any stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or otherwise make any investment in, any
Person, or acquire or otherwise make any investment in any real property
(collectively, "Investments"), except:
(a) Investments in Cash Equivalents;
(b) Investments in (i) any Property now or hereafter owned or leased
by the Borrower or any Subsidiary or (ii) any present or future
consolidated Subsidiary of the Borrower engaged principally in the
ownership, operation and management of shopping centers;
(c) (i) Investments by the Borrower in any present or future Wholly
Owned Subsidiary Guarantor and (ii) Investments by any Subsidiary in the
Borrower or any present or future Wholly Owned Subsidiary Guarantor;
(d) Investments in the Income REIT, so long as, after giving effect
thereto, the Borrower is in pro forma compliance with Section 7.1, as
demonstrated by an officer's certificate furnished to the Administrative
Agent concurrently with the making of such Investment;
(e) Investments made pursuant to Section 7.3; and
(f) Investments not otherwise permitted by this Section 7.4 so long
as, on the date any such Investment is made and after giving effect
thereto, the aggregate amount of Investments made pursuant to this clause
(f) since the Closing Date (valued at cost) shall not exceed 10% of Gross
Asset Value as of the last day of the most recently ended period of two
consecutive fiscal quarters of the Borrower;
provided, that in no event shall the aggregate amount of Investments made
pursuant to this Section 7.4 in any single Property (including Investments in
any Subsidiary or Joint Venture owning or operating such Property) exceed
$75,000,000.
7.5 Limitation on Transactions with Affiliates. Excepting the
transactions contemplated in the Confidential Memorandum in connection with the
Income REIT, enter into any transaction, including, without limitation, any
purchase, sale, lease or exchange of property or the rendering of any service,
with any Affiliate (other than any Wholly Owned Subsidiary Guarantor) unless
(a) no Default or Event of Default would occur as a result thereof and (b) such
transaction is (i) in the ordinary course of the Borrower's or such
Subsidiary's business and
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41
(ii) upon fair and reasonable terms no less favorable to the Borrower or such
Subsidiary, as the case may be, than it would obtain in a comparable arm's
length transaction with a Person which is not an Affiliate.
7.6 Limitation on Changes in Fiscal Year. Permit the fiscal year of
the Borrower to end on a day other than December 31, unless otherwise required
by any applicable law, rule or regulation.
7.7 Limitation on Lines of Business, Issuance of Commercial Paper,
Creation of Subsidiaries, Negative Pledges. (a) Fail to continue to engage
principally in business of the same general type as now conducted by it (which
is the ownership, operation and management of shopping centers and related
services).
(b) Issue any commercial paper in an aggregate principal amount
exceeding the aggregate unused and available commitments under any revolving
credit facility (other than the Commitments hereunder) entered into by the
Borrower and not prohibited by this Agreement. For the purposes of this
paragraph, commitments shall be deemed to be available to the extent that, on
any date of determination, assuming timely delivery of a borrowing notice by
the Borrower, the lender(s) thereunder would be obligated to fund loans
pursuant thereto.
(c) Create or acquire any Subsidiary after the Closing Date unless,
no later than the date of the first delivery of financial statements pursuant
to Section 6.1(a) or 6.1(b) occurring after such creation or acquisition, such
Subsidiary executes a supplement to the Subsidiary Guarantee in form and
substance satisfactory to the Administrative Agent pursuant to which such
Subsidiary shall become a party to the Subsidiary Guarantee.
(d) Enter into with any Person, or suffer to exist, any agreement,
other than (i) this Agreement and the other Loan Documents or (ii) any
agreements governing any purchase money Liens, Financing Leases or mortgage
financings not prohibited by this Agreement (in which cases, any prohibition or
limitation referred to below shall only be effective against the assets
financed thereby) which prohibits or limits the ability of the Borrower or any
of its Subsidiaries to create, incur, assume or suffer to exist any Lien upon
any of its property, assets or revenues, whether now owned or hereafter
acquired.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Note or any
Reimbursement Obligation when due in accordance with the terms thereof or
hereof; or the Borrower shall fail to pay any interest on any Note, or any
other amount payable hereunder, within five Business Days after any such
interest or other amount becomes due in accordance with the terms thereof
or hereof; or
(b) Any representation or warranty made or deemed made by the
Borrower or any other Loan Party herein or in any other Loan Document or
which is contained in any certificate, document or financial or other
statement furnished by it at any time under or in connection with this
Agreement or any other Loan Document shall prove to have been incorrect in
any material respect on or as of the date made or deemed made; or
(c) The Borrower shall default in the observance or performance of
any agreement contained in Section 6.7(a) or Section 7; or
(d) The Borrower or any other Loan Party shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Loan Document (other than as provided in paragraphs
(a) through (c) of this Section 8), and such default shall continue
unremedied for a period of 30 days after notice from the Administrative
Agent or the Required Lenders; or
(e) The Borrower or any of its Subsidiaries shall (i) default in
making any payment of any principal of any Indebtedness (including,
without limitation, any Guarantee Obligation, but excluding the Notes and
any Non-Recourse Indebtedness) on the scheduled or original due date with
respect thereto; or (ii) default in making any payment of any interest on
any such Indebtedness beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created; or
(iii) default in the observance or performance of any other agreement or
condition relating to any such Indebtedness or
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42
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect of
which default or other event or condition is to cause, or to permit the
holder or beneficiary of such Indebtedness (or a trustee or agent on
behalf of such holder or beneficiary) to cause, with the giving of notice
if required, such Indebtedness to become due prior to its stated maturity
or (in the case of any such Indebtedness constituting a Guarantee
Obligation) to become payable; provided, that a default, event or
condition described in clause (i), (ii) or (iii) of this paragraph (e)
shall not at any time constitute an Event of Default under this Agreement
unless, at such time, one or more defaults, events or conditions of the
type described in clauses (i), (ii) and (iii) of this paragraph (e) shall
have occurred and be continuing with respect to Indebtedness the
outstanding principal amount of which exceeds in the aggregate $5,000,000;
or
(f) (i) The Borrower or any of its Significant Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial part of its assets,
or the Borrower or any of its Significant Subsidiaries shall make a
general assignment for the benefit of its creditors; or (ii) there shall
be commenced against the Borrower or any of its Significant Subsidiaries
any case, proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced
against the Borrower or any of its Significant Subsidiaries any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial
part of its assets which results in the entry of an order for any such
relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) the Borrower
or any of its Significant Subsidiaries shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence
in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v)
the Borrower or any of its Significant Subsidiaries shall generally not,
or shall be unable to, or shall admit in writing its inability to, pay its
debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan shall arise on the assets of the
Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate,
any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of
the Required Remedial Lenders, likely to result in the termination of such
Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan
shall terminate for purposes of Title IV of ERISA, (v) the Borrower or any
Commonly Controlled Entity shall, or in the reasonable opinion of the
Required Remedial Lenders is likely to, incur any liability in connection
with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through (vi)
above, such event or condition, together with all other such events or
conditions, if any, could reasonably be expected to have a Material
Adverse Effect; or
(h) One or more judgments or decrees shall be entered against the
Borrower or any of its Subsidiaries involving in the aggregate a liability
(not paid or fully covered by insurance) of $5,000,000 or more, and all
such judgments or decrees shall not have been vacated, discharged, stayed
or bonded pending appeal within 60 days from the entry thereof; or
(i) The Subsidiary Guarantee shall cease, for any reason, to be in
full force and effect or any Loan Party or any Affiliate of any Loan Party
shall so assert; or
(j) The Borrower shall cease, for any reason, to maintain its status
as an equity-oriented real estate investment trust under Sections 856
through 860 of the Code; or
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43
(k) At any time the Borrower and its Subsidiaries shall be required
to take any actions in respect of environmental remediation and/or
environmental compliance, the aggregate expenses, fines, penalties or
other charges with respect to which, in the judgment of the Required
Remedial Lenders, could reasonably be expected to exceed $20,000,000;
provided, that any such remediation or compliance shall not be taken into
consideration for the purposes of determining whether an Event of Default
has occurred pursuant to this paragraph (k) if (i) such remediation or
compliance is being contested by the Borrower or the applicable Subsidiary
in good faith by appropriate proceedings or (ii) such remediation or
compliance is satisfactorily completed within 90 days from the date on
which the Borrower or the applicable Subsidiary receives notice that such
remediation or compliance is required, unless such remediation or
compliance cannot reasonably be completed within such 90 day period in
which case such time period shall be extended for a period of time
reasonably necessary to perform such compliance or remediation using
diligent efforts (not to exceed 180 days if the continuance of such
remediation or compliance beyond such 180 day period, in the judgment of
the Required Remedial Lenders, could reasonably be expected to have a
Material Adverse Effect;
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (f) above with respect to the Borrower, automatically the
Commitments shall immediately terminate and the Revolving Credit Loans
hereunder (with accrued interest thereon) and all other amounts owing under
this Agreement (including, without limitation, all amounts of L/C Obligations,
whether or not the beneficiaries of the then outstanding Letters of Credit
shall have presented the documents required thereunder) and the Notes shall
immediately become due and payable, and (B) if such event is any other Event of
Default, either or both of the following actions may be taken: (i) with the
consent of the Required Remedial Lenders, the Administrative Agent may, or upon
the request of the Required Remedial Lenders, the Administrative Agent shall,
by notice to the Borrower declare the Commitments to be terminated forthwith,
whereupon the Commitments shall immediately terminate; and (ii) with the
consent of the Required Remedial Lenders, the Administrative Agent may, or upon
the request of the Required Remedial Lenders, the Administrative Agent shall,
by notice to the Borrower, declare the Revolving Credit Loans hereunder (with
accrued interest thereon) and all other amounts owing under this Agreement
(including, without limitation, all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have
presented the documents required thereunder) and the Notes to be due and
payable forthwith, whereupon the same shall immediately become due and payable.
With respect to all Letters of Credit with respect to which presentment
for honor shall not have occurred at the time of an acceleration pursuant to
the preceding paragraph, the Borrower shall at such time deposit in a cash
collateral account opened by the Administrative Agent an amount equal to the
aggregate then undrawn and unexpired amount of such Letters of Credit. The
Borrower hereby grants to the Administrative Agent, for the benefit of the
Issuing Lender and the L/C Participants, a security interest in such cash
collateral to secure all obligations of the Borrower under this Agreement and
the other Loan Documents. Amounts held in such cash collateral account shall be
applied by the Administrative Agent to the payment of drafts drawn under such
Letters of Credit, and the unused portion thereof after all such Letters of
Credit shall have expired or been fully drawn upon, if any, shall be applied to
repay other obligations of the Borrower hereunder and under the other Loan
Documents. After all such Letters of Credit shall have expired or been fully
drawn upon, all Reimbursement Obligations shall have been satisfied and all
other obligations of the Borrower hereunder and under the other Loan Documents
shall have been paid in full, the balance, if any, in such cash collateral
account shall be returned to the Borrower. The Borrower shall execute and
deliver to the Administrative Agent, for the account of the Issuing Lender and
the L/C Participants, such further documents and instruments as the
Administrative Agent may request to evidence the creation and perfection of the
within security interest in such cash collateral account.
Except as expressly provided above in this Section 8, presentment, demand,
protest and all other notices of any kind are hereby expressly waived.
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SECTION 9. THE ADMINISTRATIVE AGENT
9.1 Appointment. Each Lender hereby irrevocably designates and
appoints The Chase Manhattan Bank as the Administrative Agent for such Lender
under this Agreement and the other Loan Documents, and each such Lender
irrevocably authorizes The Chase Manhattan Bank, as the Administrative Agent
for such Lender, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the Administrative Agent by the terms
of this Agreement and the other Loan Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Administrative Agent shall not have
any duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations, liabilities or standard of care shall be
read into this Agreement or any other Loan Document or otherwise exist against
the Administrative Agent.
9.2 Delegation of Duties. The Administrative Agent may execute any of
its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to rely upon advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents
or attorneys in-fact selected by it with reasonable care.
9.3 Exculpatory Provisions. Neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or Affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or any other Loan
Document (except for its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by any Loan Party or
any officer thereof contained in this Agreement or any other Loan Document or
in any certificate, report, statement or other document referred to or provided
for in, or received by the Administrative Agent under or in connection with,
this Agreement or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or for any failure of any Loan Party to perform its
obligations hereunder or thereunder. The Administrative Agent shall not be
under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of any Loan Party.
9.4 Reliance by Administrative Agent. The Administrative Agent shall
be entitled to rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrower), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take
any action under this Agreement or any other Loan Document unless it shall
first receive such advice or concurrence of the Required Lenders or the
Required Remedial Lenders, as the case may be, as it deems appropriate or it
shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this
Agreement and the Notes and the other Loan Documents in accordance with a
request of the Required Lenders or the Required Remedial Lenders, as the case
may be, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
Notes.
9.5 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Lenders. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders or the Required Remedial Lenders,
as the case may be; provided that unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
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9.6 Non-Reliance on Administrative Agent and Other Lenders. Each
Lender expressly acknowledges that neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
any Loan Party, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Loan Parties and made its own decision to
make its Revolving Credit Loans hereunder and enter into this Agreement. Each
Lender also represents 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 analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties. Except
for notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent hereunder, the Administrative Agent
shall not have any duty or responsibility to provide any Lender with any credit
or other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of the Loan Parties
which may come into the possession of the Administrative Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
9.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Commitment Percentages in effect on the
date on which indemnification is sought under this Section 9.7 (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Revolving Credit Loans shall have been paid in full, ratably
in accordance with their Commitment Percentages immediately prior to such
date), from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Commitments and the Notes) be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of this Agreement, any of the other Loan Documents or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting solely from the
Administrative Agent's gross negligence or willful misconduct. The agreements
in this Section 9.7 shall survive the termination of this Agreement and the
payment of the Revolving Credit Loans and all other amounts payable hereunder.
9.8 Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower as though the
Administrative Agent were not the Administrative Agent hereunder and under the
other Loan Documents. With respect to its Revolving Credit Loans made or
renewed by it and any Note issued to it, and with respect to any Letter of
Credit issued or participated in by it, the Administrative Agent shall have the
same rights and powers under this Agreement and the other Loan Documents as any
Lender and may exercise the same as though it were not the Administrative
Agent, and the terms "Lender" and "Lenders" shall include the Administrative
Agent in its individual capacity.
9.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 10 days' notice to the Lenders, in which
case the Required Lenders shall appoint from among the Lenders a successor
agent for the Lenders. In addition, in the event that the Administrative Agent,
in its capacity as a Lender, shall have assigned all of its outstanding
Commitments and Loans to another bank, financial institution or other entity
pursuant to Section 10.8, then the Required Lenders may, upon 10 days' notice
to the Administrative Agent, replace the Administrative Agent with a successor
agent appointed from among the remaining Lenders. Upon approval of any such
successor agent by the Borrower, such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Notes. After any
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46
Administrative Agent's resignation or replacement as Administrative Agent, the
provisions of this Section 9 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent under this
Agreement and the other Loan Documents.
9.10 The Syndication Agent, the Arranger and the Book Manager. Each
of the Syndication Agent, the Arranger and the Book Manager in its capacity as
such shall have no rights, duties or responsibilities hereunder, nor any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Syndication Agent, the Arranger and
the Book Manager in their respective capacities as such.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement nor any other
Loan Document, nor any terms hereof or thereof, may be amended, supplemented or
modified except in accordance with the provisions of this Section 10.1. The
Required Lenders may, or, with the written consent of the Required Lenders, the
Administrative Agent may, from time to time, (a) enter into with the relevant
Loan Parties written amendments, supplements or modifications hereto and to the
other Loan Documents for the purpose of adding any provisions to this Agreement
or the other Loan Documents or changing in any manner the rights of the Lenders
or of the Loan Parties hereunder or thereunder or (b) waive, on such terms and
conditions as the Required Lenders or the Administrative Agent, as the case may
be, may specify in such instrument, any of the requirements of this Agreement
or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) reduce the amount or extend the scheduled
date of maturity of any Revolving Credit Loan or Note, or reduce the stated
rate of any interest or fee payable hereunder or extend the scheduled date of
any payment thereof or increase the amount or extend the expiration date of any
Lender's Commitment, in each case without the consent of each Lender directly
affected thereby, or (ii) amend, modify or waive any provision of this Section
10.1, reduce the percentage specified in the definition of Required Lenders or
Required Remedial Lenders, consent to the assignment or transfer by the
Borrower of any of its rights and obligations under this Agreement and the
other Loan Documents, or release all or substantially all of the Subsidiaries
from the Subsidiary Guarantee, in each case without the written consent of all
the Lenders, or (iii) amend, modify or waive any provision of Section 3 without
the written consent of the Issuing Lender, or (iv) amend, modify or waive any
provision of Section 9 without the written consent of the then Administrative
Agent. Any such waiver and any such amendment, supplement or modification shall
apply equally to each of the Lenders and shall be binding upon the Borrower,
the other Loan Parties, the Lenders, the Administrative Agent and all future
holders of the Notes. In the case of any waiver, the Borrower, the other Loan
Parties, the Lenders and the Administrative Agent shall be restored to their
former position and rights hereunder and under any outstanding Notes and any
other Loan Documents, and any Default or Event of Default waived shall be
deemed to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any right consequent
thereon.
10.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or three Business Days
after being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, addressed as follows in the case of the Borrower and the
Administrative Agent, and as notified to the Administrative Agent pursuant to
an administrative questionnaire in the case of the other parties hereto, or to
such other address as may be hereafter notified by the respective parties
hereto and any future holders of the Notes:
The Borrower: Kimco Realty Corporation
3333 New Hyde Park Road, Suite 100
New Hyde Park, New York 11042
Attention: Michael V. Pappagallo
Telecopy: 516-869-9001
<PAGE>
47
The Administrative Agent: The Chase Manhattan Bank
380 Madison Avenue, 10th Floor
New York, New York 10017
Attention: Charles Hoagland
Telecopy: 212-622-3395
with a copy to: The Chase Manhattan Bank
380 Madison Avenue, 10th Floor
New York, New York 10017
Attention: Investor Relations Group
Telecopy: 212-622-3553
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to Section 2.1, 2.2, 2.3 or 2.4 shall not be effective
until received.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Loan Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
10.4 Survival of Representations and Warranties. All representations
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the other Loan
Documents and the making of the extensions of credit hereunder.
10.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse the Administrative Agent for all its out-of-pocket costs and expenses
incurred in connection with the development, preparation and execution of, and
any amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, including, without limitation, the fees and disbursements of
counsel to the Administrative Agent; (b) to pay or reimburse each Lender and
the Administrative Agent for all its costs and expenses incurred in connection
with the enforcement or preservation of any rights under this Agreement, the
other Loan Documents and any such other documents, including, without
limitation, the fees and disbursements of counsel to the Administrative Agent
and to the several Lenders; (c) to pay, indemnify, and hold each Lender and the
Administrative Agent harmless from, any and all recording and filing fees and
any and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other documents; and (d)
to pay, indemnify, and hold each Lender and the Administrative Agent harmless
from and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the other Loan Documents and
any such other documents, including, without limitation, any of the foregoing
relating to the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower, any of its
Subsidiaries or any of the Properties (all the foregoing in this clause (d),
collectively, the "indemnified liabilities"), provided, that the Borrower shall
have no obligation hereunder to the Administrative Agent or any Lender with
respect to indemnified liabilities arising from the gross negligence or willful
misconduct of the Administrative Agent or such Lender, as the case may be. The
agreements in this Section 10.5 shall survive repayment of the Revolving Credit
Loans and all other amounts payable hereunder.
10.6 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Borrower, the Lenders, the Administrative Agent,
all future holders of the Notes and their respective successors and assigns,
except that the Borrower may not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender.
<PAGE>
48
10.7 Participations. 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 (each, a "Participant") participating interests in any
Revolving Credit Loan owing to such Lender, any Note held by such Lender, any
Commitment of such Lender or any other interest of such Lender hereunder and
under the other Loan Documents. In the event of any such sale by a Lender of a
participating interest to a Participant, such Lender's obligations under this
Agreement to the other parties to this Agreement shall remain unchanged, such
Lender shall remain solely responsible for the performance thereof, such Lender
shall remain the holder of any such Note for all purposes under this Agreement
and such Notes, and the Borrower and the Administrative Agent shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement and the Notes. In no event shall
any Participant under any such participation have any right to approve any
amendment or waiver of any provision of this Agreement or any other Loan
Document, or any consent to any departure by any Loan Party therefrom, except
to the extent that such amendment, waiver or consent would reduce the principal
of, or interest on, any Revolving Credit Loan or Note or any fees payable
hereunder, or postpone the date of the final maturity of any Revolving Credit
Loan or Note, in each case to the extent subject to such participation. The
Borrower agrees that, while an Event of Default shall have occurred and be
continuing, if amounts outstanding under this Agreement and the Notes are due
or unpaid, or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant shall be deemed to
have the right of setoff in respect of its participating interest in amounts
owing under this Agreement and any Note to the same extent as if the amount of
its participating interest were owing directly to it as a Lender under this
Agreement or any Note, provided that, in purchasing such participating
interest, such Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in Section 10.10(a) as fully as if it
were a Lender hereunder. The Borrower also agrees that each Participant shall
be entitled to the benefits of Sections 2.10, 2.11, 2.12 and 2.13 with respect
to its participation in the Commitments and the Revolving Credit Loans
outstanding from time to time as if it was a Lender; provided that, in the case
of Section 2.12, such Participant shall have complied with the requirements of
said Section and provided, further, that no Participant shall be entitled to
receive any greater amount pursuant to any such Section than the transferor
Lender would have been entitled to receive in respect of the amount of the
participation transferred by such transferor Lender to such Participant had no
such transfer occurred. Promptly after selling any participation pursuant to
this Section 10.7, each Lender shall notify the Administrative Agent in writing
of the identity of the Participant and the amount of such participation.
10.8 Assignments. (a) Any Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time and from time to
time assign to any Lender or any affiliate of any Lender or, with the consent
of the Borrower (unless an Event of Default has occurred and is continuing) and
the Administrative Agent, which consents in each case shall not be unreasonably
withheld, to an additional bank, financial institution or other entity (each, a
"Purchasing Lender") all or any part of its rights and obligations under this
Agreement and the other Loan Documents pursuant to an Assignment and
Acceptance, substantially in the form of Exhibit B, executed by such Purchasing
Lender, such assigning Lender (and, in the case of a Purchasing Lender that is
not a Lender or an affiliate thereof, by the Issuing Lender and the
Administrative Agent) and delivered to the Administrative Agent for its
acceptance and recording in the Register, provided, that (i) except in the case
of an assignment of all of a Lender's rights and obligations under this
Agreement, the aggregate amount of the Commitments of the assigning Lender
being assigned pursuant to each such assignment (determined as of the date of
the Assignment and Acceptance with respect to such assignment) shall in no
event be less than $5,000,000 or such lesser amount as may be consented to by
the Administrative Agent (which consent shall not be unreasonably withheld) and
(ii) each such assignment shall be of a uniform, and not a varying, percentage
of the assigning Lender's Facility A Commitment and Facility B Commitment. Upon
such execution, delivery, acceptance and recording, from and after the
effective date determined pursuant to such Assignment and Acceptance, (x) the
Purchasing Lender thereunder shall be a party hereto and, to the extent
provided in such Assignment and Acceptance, have the rights and obligations of
a Lender hereunder with a Facility A Commitment and a Facility B Commitment as
set forth therein, and (y) the assigning Lender thereunder shall, to the extent
provided in such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Lender's rights and obligations
under this Agreement, such assigning Lender shall cease to be a party hereto).
(b) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and a Purchasing Lender (and, in the case of a Purchasing
Lender that is not a Lender or an affiliate thereof, by the Issuing Lender and
the Administrative Agent) together with payment to the Administrative Agent of
a registration and processing fee of $4,000 (which shall not be payable by the
Borrower), the Administrative Agent shall (i) promptly accept such Assignment
and Acceptance and (ii) promptly after the effective date determined pursuant
thereto,
<PAGE>
49
record the information contained therein in the Register and give
notice of such acceptance and recordation to the Lenders and the Borrower. On
or prior to such effective date, the Borrower, at its own expense, upon the
request of the relevant Lenders shall execute and deliver to the Administrative
Agent a new Facility A Revolving Credit Note and Facility B Revolving Credit
Note (in exchange for the Facility A Revolving Credit Note and Facility B
Revolving Credit Note, if any, of the assigning Lender) in respective amounts
equal to the Facility A Commitment and the Facility B Commitment assumed by the
relevant Purchasing Lender pursuant to such Assignment and Acceptance, and, if
the assigning Lender has retained a Facility A Commitment and a Facility B
Commitment hereunder, a new Facility A Revolving Credit Note and Facility B
Revolving Credit Note to the order of the assigning Lender upon such Lender's
request in respective amounts equal to the Facility A Commitment and the
Facility B Commitment retained by it hereunder. Any such new Notes shall be
dated the Closing Date and shall otherwise be in the form of the Notes replaced
thereby.
10.9 The Register; Disclosure; Pledges to Federal Reserve Banks. (a)
The Administrative Agent shall maintain at its address referred to in Section
10.2 copy of each Assignment and Acceptance delivered to it and a register (the
"Register") for the recordation of the names and addresses of the Lenders, the
Commitments of the Lenders, and the principal amount of the Revolving Credit
Loans owing to each Lender from time to time. The entries in the Register shall
be conclusive, in the absence of clearly demonstrable error, and the Borrower,
the Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as the owner of the Revolving Credit Loans recorded
therein for all purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time
to time upon reasonable prior notice.
(b) Subject to Section 10.18, the Borrower authorizes each Lender to
disclose to any Participant or Purchasing Lender (each, a "Transferee") and any
prospective Transferee any and all financial information in such Lender's
possession concerning the Borrower and its Affiliates which has been delivered
to such Lender by or on behalf of the Borrower pursuant to this Agreement or
which has been delivered to such Lender by or on behalf of the Borrower in
connection with such Lender's credit evaluation of the Borrower and its
Affiliates prior to becoming a party to this Agreement.
(c) Nothing herein shall prohibit any Lender from pledging or
assigning any Note to any Federal Reserve Bank in accordance with applicable
law.
10.10 Commitment Increases. (a) In the event that the Borrower wishes
to increase the aggregate Commitments, it shall notify the Lenders (through the
Administrative Agent) of the amount of such proposed increase (such notice, a
"Commitment Increase Offer"). Each Commitment Increase Offer shall offer the
Lenders the opportunity to participate in the increased Commitments ratably in
accordance with their respective Facility A Commitment Percentages and Facility
B Commitment Percentages. In the event that any Lender (each, a "Declining
Lender") shall fail to accept in writing a Commitment Increase Offer within 10
Business Days after receiving notice thereof, all or any portion of the
proposed increase in the Commitments offered to the Declining Lenders (the
aggregate of such offered amounts, the "Declined Amount") may instead be
allocated to any one or more additional banks, financial institutions or other
entities, pursuant to paragraph (b) below and/or to any one or more existing
Lenders pursuant to paragraph (c)(ii) below.
(b) Any additional bank, financial institution or other entity which,
with the consent of the Borrower and the Administrative Agent (which consent,
in the case of the Administrative Agent, shall not be unreasonably withheld),
elects to become a party to this Agreement and obtain a Commitment in an amount
equal to all or any portion of a Declined Amount shall execute a New Lender
Supplement (each, a "New Lender Supplement") with the Borrower and the
Administrative Agent, substantially in the form of Exhibit G-1, whereupon such
bank, financial institution or other entity (herein called a "New Lender")
shall become a Lender for all purposes and to the same extent as if originally
a party hereto and shall be bound by and entitled to the benefits of this
Agreement, and Schedule 1.1A shall be deemed to be amended to add the name and
Commitment of such New Lender.
(c) Any Lender which (i) accepts a Commitment Increase Offer pursuant
to Section 10.10(a) or (ii) with the consent of the Borrower, elects to
increase its Commitment by an amount equal to all or any portion of a Declined
Amount shall, in each case, execute a Commitment Increase Supplement (each, a
"Commitment Increase Supplement") with the Borrower and the Administrative
Agent, substantially in the form of Exhibit G-2, whereupon such Lender shall be
bound by and entitled to the benefits of this Agreement with respect to the
full amount of its
<PAGE>
50
Commitment as so increased, and Schedule 1.1A shall be deemed to be amended to
so increase the Commitment of such Lender.
(d) If on the date upon which a bank, financial institution or other
entity becomes a New Lender pursuant to Section 10.10(b) or upon which a
Lender's Commitment is increased pursuant to Section 10.10(a) or (c) there is
an unpaid principal amount of Revolving Credit Loans, the Borrower shall borrow
Revolving Credit Loans from such Lender in an amount determined by reference to
the amount of each Type of Revolving Credit Loan (and, in the case of
Eurodollar Loans, of each Eurodollar Tranche) which would then have been
outstanding from such Lender if (i) each such Type or Eurodollar Tranche had
been borrowed on the date such bank, financial institution or other entity
became a Lender or such Lender's Commitment was increased, as the case may be,
in each case after giving effect to such transaction and (ii) the aggregate
amount of each such Type or Eurodollar Tranche requested to be so borrowed had
been increased to the extent necessary to give effect, with respect to such
Lender, to the borrowing allocation provisions of Section 2.1 or 2.2, as
applicable. Any Eurodollar Loan borrowed pursuant to the preceding sentence
shall bear interest at a rate equal to the respective interest rates then
applicable to the Revolving Credit Loans of the other Lenders in the same
Eurodollar Tranche or such other rate as shall be acceptable to the relevant
Lender.
(e) Notwithstanding anything to the contrary in this Section 10.10,
(i) in no event shall any transaction effected pursuant to this Section 10.10
cause the aggregate Facility A Commitments to exceed $116,279,070 or the
aggregate Facility B Commitments to exceed $133,720,930, (ii) the aggregate
amount of any increase in Commitments pursuant to Section 10.10(b) or (c)(ii)
shall be limited to the relevant Declined Amount and (iii) no Lender shall have
any obligation to increase its Commitment unless it agrees to do so in its sole
discretion.
10.11 Adjustments; Set-off. (a) If any Lender (a "benefitted Lender")
shall at any time receive any payment of all or part of its Revolving Credit
Loans or the Reimbursement Obligations owing to it, or interest thereon, or
receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 8(f), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of such other Lender's Revolving Credit Loans or the Reimbursement Obligations
owing to it, or interest thereon, such benefitted Lender shall purchase for
cash from the other Lenders a participating interest in such portion of each
such other Lender's Revolving Credit Loans or the Reimbursement Obligations
owing to it, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
benefitted Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; provided, however, that if all or
any portion of such excess payment or benefits is thereafter recovered from
such benefitted Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without
interest.
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to the Borrower,
any such notice being expressly waived by the Borrower to the extent permitted
by applicable law, upon any amount becoming due and payable by the Borrower
hereunder or under the Notes (whether at the stated maturity, by acceleration
or otherwise) to set off and appropriate and apply against such amount any and
all deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower. Each Lender agrees
promptly to notify the Borrower and the Administrative Agent after any such
setoff and application made by such Lender, provided that the failure to give
such notice shall not affect the validity of such setoff and application.
10.12 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
10.13 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
<PAGE>
51
10.14 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.
10.15 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
10.16 Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgement
in respect thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts from
any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in Section 10.2 or at such other address
of which the Administrative Agent shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this Section any special, exemplary, punitive or consequential damages.
10.17 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower arising out of or in connection
with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and Lenders, on one hand, and
the Borrower, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Borrower and the Lenders.
10.18 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT
AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR THE NOTES OR ANY
OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
10.19 Confidentiality. Each of the Administrative Agent and each
Lender agrees to keep confidential all non-public information provided to it by
any Loan Party pursuant to this Agreement that is designated by such Loan Party
as confidential; provided that nothing herein shall prevent the Administrative
Agent or any Lender from disclosing any such information (a) to the
Administrative Agent, any other Lender or any
<PAGE>
52
affiliate of any Lender, (b) to any Transferee or prospective Transferee which
agrees to comply with the provisions of this Section 10.19, (c) to the
employees, directors, agents, attorneys, accountants and other professional
advisors of such Lender or its affiliates, (d) upon the request or demand of
any Governmental Authority having jurisdiction over the Administrative Agent or
such Lender, (e) in response to any order of any court or other Governmental
Authority or as may otherwise be required pursuant to any Requirement of Law,
(f) if requested or required to do so in connection with any litigation or
similar proceeding, (g) which has been publicly disclosed other than in breach
of this Section 10.19, or (h) in connection with the exercise of any remedy
hereunder or under any other Loan Document.
<PAGE>
53
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
KIMCO REALTY CORPORATION
By: /s/ Michael
-------------------------------------------
Title: VP/CFO
THE CHASE MANHATTAN BANK,
as Administrative Agent
By: /s/ Robert V. Mathews
-------------------------------------------
Title:
By: Vice President
-------------------------------------------
Title:
The Lenders:
------------
THE CHASE MANHATTAN BANK
By: /s/ C.E.
-------------------------------------------
Title: Vice-President
<PAGE>
54
THE FIRST NATIONAL BANK OF CHICAGO
By: illegible signature
-------------------------------------------
Title: Corporate banking office
<PAGE>
55
FIRST UNION NATIONAL BANK
By: illegible signature
-------------------------------------------
Title: Vice-President
<PAGE>
56
BAYERISCHE LANDESBANK GIROZENTRALE
(CAYMAN ISLANDS BRANCH)
By: illegible signature
-------------------------------------------
Title: Executive President/General Manager
By: illegible signature
-------------------------------------------
Title: First Vice-President
<PAGE>
57
CIBC INC.
By: Michael S. Nadler
-------------------------------------------
Title: as agent
By:
-------------------------------------------
Title:
<PAGE>
58
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN AG
By: /s/ Paul Judicke
-------------------------------------------
Title: Vice President Erste Bank, New York
By: /s/ John S. Runnion
-------------------------------------------
Title: First Vice President
<PAGE>
59
FLEET NATIONAL BANK
By: /s/ Thomas T. Harold
-------------------------------------------
Title: Vice President
<PAGE>
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Thomas Nastarouz
-------------------------------------------
Title: Vice President
<PAGE>
61
Kimco Realty Corporation Credit Agreement,
dated as of August 21, 1998
$215,000,000 Credit Facility
BANKERS TRUST COMPANY
By: /s/ Alexander B.V. Johnson
-------------------------------------------
Title: Managing Director
<PAGE>
Schedule 1.1A
NAMES AND COMMITMENTS OF LENDERS
I. FACILITY A
Facility A Commitment
---------------------
THE CHASE MANHATTAN BANK ................................. $ 13,953,488.37
THE FIRST NATIONAL BANK OF CHICAGO ....................... $ 13,953,488.37
FLEET NATIONAL BANK ...................................... $ 13,953,488.37
FIRST UNION NATIONAL BANK ................................ $ 11,627,906.98
PNC BANK, NATIONAL ASSOCIATION ........................... $ 11,627,906.98
BANKERS TRUST COMPANY .................................... $ 9,302,325.58
BAYERISCHE LANDESBANK GIROZENTRALE ....................... $ 9,302,325.58
CIBC OPPENHEIMER CORP .................................... $ 9,302,325.58
ERSTE BANK DER OESTERREICHISCHEN SPARKASSEN AG ........... $ 6,976,744.19
TOTAL: ............................... $ 100,000,000
-1-
<PAGE>
II. FACILITY B
Facility B Commitment
---------------------
THE CHASE MANHATTAN BANK ................................. $ 16,046,511.63
THE FIRST NATIONAL BANK OF CHICAGO ....................... $ 16,046,511.63
FLEET NATIONAL BANK ...................................... $ 16,046,511.63
FIRST UNION NATIONAL BANK ................................ $ 13,372,093.02
PNC BANK, NATIONAL ASSOCIATION ........................... $ 13,372,093.02
BANKERS TRUST COMPANY .................................... $ 10,697674.42
BAYERISCHE LANDESBANK GIROZENTRALE ....................... $ 10,697674.42
CIBC OPPENHEIMER CORP .................................... $ 10,697674.42
ERSTE BANK DER OESTERREICHISCHEN SPARKASSEN AG ........... $ 8,023,255.81
TOTAL: ........................... $ 115,000,000
-2-
