ATL01/10690729v10
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement") dated
as of July 21, 2000 by and among REGENCY CENTERS, L.P., a Delaware limited
partnership ("RCLP"), REGENCY REALTY GROUP, INC., a Florida corporation ("RRG"),
each Development Joint Venture (as defined below) which becomes a party hereto
pursuant to the execution and delivery of a Joinder Agreement substantially in
the form of Exhibit S (RCLP, RRG and each such Development Joint Venture a
"Borrower" and collectively, the "Borrowers"), REGENCY REALTY CORPORATION, a
Florida corporation (the "Parent"), each of the financial institutions initially
a signatory hereto together with their assignees under Section 12.8. (the
"Lenders"), FIRST UNION NATIONAL BANK, as Syndication Agent (the "Syndication
Agent"), WACHOVIA BANK, N.A., as Documentation Agent (the "Documentation
Agent"), each of COMMERZBANK AG, NEW YORK BRANCH and pnc bank, national
Association, as a Managing Agent (each a "Managing Agent"), and WELLS FARGO
BANK, NATIONAL ASSOCIATION, as contractual representative of the Lenders to the
extent and in the manner provided in Article XI. below (in such capacity, the
"Agent").
WHEREAS, certain of the Lenders and other financial institutions have made
available to RCLP a $635,000,000 revolving credit facility on the terms and
conditions contained in that certain Amended and Restated Credit Agreement dated
as of February 26, 1999 (as amended and in effect immediately prior to the date
hereof, the "Existing Regency Credit Agreement") by and among RCLP, the Parent,
such Lenders, such other financial institutions, First Union National Bank, as
Syndication Agent, Wachovia Bank, N.A., as Documentation Agent, each of
Commerzbank Aktiengesellschaft, New York Branch and pnc Bank, National
Association, as a Managing Agent, and Wells Fargo Bank, National Association, as
Agent;
WHEREAS, RCLP, the Lenders and the Agent desire to amend and restate the
terms of the Existing Regency Credit Agreement in order to make available to
Borrowers a $625,000,000 revolving credit facility, including a $40,000,000
swingline subfacility and a $10,000,000 letter of credit subfacility, all
pursuant to the terms hereof.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto agree that the Existing Regency Credit Agreement is amended and restated
in its entirety as follows:
ARTICLE I. DEFINITIONS
SECTION 1.1. Definitions.
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The following terms, as used herein, have the following meanings:
"Absolute Rate" has the meaning given that term in Section 2.2.(c)(ii)(C).
"Absolute Rate Auction" means a solicitation of Bid Rate Quotes setting
forth Absolute Rates pursuant to Section 2.2.
"Absolute Rate Loan" means a Bid Rate Loan the interest rate on which is
determined on the basis of an Absolute Rate pursuant to an Absolute Rate
Auction.
"Accession Agreement" means an Accession Agreement substantially in the
form of Annex I to the Guaranty.
"Acquisition" means any transaction, or any series of related
transactions, by which a Person directly or indirectly acquires any assets of
another Person, whether through purchase of assets, merger or otherwise.
"Additional Costs" has the meaning given that term in Section 5.1.
"Adjusted Base Rents" means the total rentals from a given Property which
are denominated as base rent or minimum rent under the applicable leases which
shall in any event exclude all percentage rent and reimbursements for operating
expenses, taxes or insurance, and shall be based on actual rents presently being
paid without any rent leveling adjustments.
"Affiliate" means any Person (other than the Agent or any Lender): (a)
directly or indirectly controlling, controlled by, or under common control with,
a Borrower; (b) directly or indirectly owning or holding ten percent (10%) or
more of any equity interest in a Borrower; or (c) ten percent (10%) or more of
whose voting stock or other equity interest is directly or indirectly owned or
held by a Borrower. For purposes of this definition, "control" (including with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with") means the possession directly or indirectly of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities or by contract or otherwise.
"Agreement Date" means the date as of which this Agreement is dated.
"Applicable Facility Fee" means the percentage set forth in the table
below corresponding to the Level at which the "Applicable Margin" is determined
in accordance with the definition thereof:
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Level Facility Fee
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1 0.10%
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2 0.15%
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3 0.20%
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4 0.30%
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5 0.40%
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As of the Agreement Date, the Applicable Facility Fee equals 0.20%.
"Applicable Law" means all applicable provisions of local, state, federal
and foreign constitutions, statutes, rules, regulations, ordinances, decrees,
permits, concessions and orders of all governmental bodies and all orders and
decrees of all courts, tribunals and arbitrators.
"Applicable Margin" shall mean, as of any date of determination, the
respective percentage rates set forth below corresponding to the Credit Ratings
of RCLP and the Parent as assigned by the applicable Rating Agencies:
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Level Credit Rating Applicable Applicable
(S&P/Moody's or equivalent) Margin for Margin for
LIBOR Loans Base Rate
Loans
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1 A-/A3 or equivalent or 0.85% 0.00%
higher
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2 BBB+/Baa1 or equivalent 0.90% 0.00%
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3 BBB/Baa2 or equivalent 1.00% 0.00%
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4 BBB-/Baa3 or equivalent 1.15% 0.00%
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5 Less than BBB-/Baa3 or 1.35% 0.00%
equivalent
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The Agent shall determine the Applicable Margin from time to time in
accordance with the above table and the provisions of this definition and notify
the Borrowers and the Lenders of such determination. If the Rating Agencies
assign Credit Ratings which correspond to different Levels in the above table
resulting in different Applicable Margin determinations, the Applicable Margin
will be determined based on the Level corresponding to the lower of the two
Credit Ratings. During any period that RCLP or the Parent receives more than two
Credit Ratings and such Credit Ratings are not equivalent, the Applicable Margin
shall equal the average of the Applicable Margins as determined in accordance
with the two lowest of such Credit Ratings; provided that one of such Credit
Ratings has been issued by either S&P or Moody's and such Credit Rating is an
Investment Grade Rating. Each change in the Applicable Margin resulting from a
change in a Credit Rating of RCLP or the Parent shall take effect on the first
calendar day of the month following the month in which such Credit Rating is
publicly announced by the relevant Rating Agency. As of the Agreement Date, the
Applicable Margin for LIBOR Loans equals 1.00% and for Base Rate Loans equals
0.0%.
"Approved Grocery Store" means any of the grocery store chains identified
on Schedule 1.1.(a).
"Asset Value" means
(a) with respect to any Consolidated Subsidiary at a given time, the sum
of (i) the Capitalized EBITDA of such Consolidated Subsidiary at such time, plus
(ii) the Capitalized Fee Income of such Subsidiary at such time, plus (iii) the
book value of all Construction in Process of such Consolidated Subsidiary as of
the end of the Parent's fiscal quarter most recently ended, and
(b) with respect to any Unconsolidated Affiliate at a given time the sum
of (i) with respect to any of such Unconsolidated Affiliate's Properties under
construction, the Parent's pro rata share of the book value of Construction in
Process for such Property as of the end of the Parent's fiscal quarter most
recently ended and (ii) with respect to any of such Unconsolidated Affiliate's
Properties which have been completed, the Parent's pro rata share of Capitalized
EBITDA of such Unconsolidated Affiliate attributable to such Properties.
"Assignee" has the meaning given that term in Section 12.8.(c).
"Assignment and Acceptance Agreement" means an Assignment and Acceptance
Agreement among a Lender, an Assignee and the Agent, substantially in the form
of Exhibit A.
"Base Rate" means the greater of (a) the rate of interest per annum
established from time to time by Wells Fargo, San Francisco, California and
designated as its prime rate (which rate of interest may not be the lowest rate
charged by such bank, the Agent or any of the Lenders on similar loans) and (b)
the Federal Funds Rate plus one-half of one percent (0.5%). Each change in the
Base Rate shall become effective without prior notice to any of the Borrowers or
the Lenders automatically as of the opening of business on the date of such
change in the Base Rate.
"Base Rate Loan" means any Revolving Loan or Term Loan hereunder with
respect to which the interest rate is calculated by reference to the Base Rate.
"Bid Rate Borrowing" has the meaning given that term in Section 2.2.(b).
"Bid Rate Loan" means a loan made by a Lender under Section 2.2.(b).
"Bid Rate Note" means, with respect to a Borrower, a promissory note of
such Borrower substantially in the form of Exhibit D, payable to the order of a
Lender and otherwise duly completed, and with respect to RCLP, shall also
include each Bid Rate Note (as defined in the Existing Credit Agreement) which
remains outstanding after the Effective Date.
"Bid Rate Quote" means an offer in accordance with Section 2.2.(c) by a
Lender to make a Bid Rate Loan with one single specified interest rate.
"Bid Rate Quote Request" has the meaning given that term in Section
2.2.(b).
"Borrowing Base" means, without duplication, (a) with respect to RCLP, the
sum of (i) the aggregate Unencumbered Pool Values of all Stabilized Retail
Operating Properties of RCLP and its Subsidiaries divided by 1.75 plus (ii) the
aggregate Unencumbered Pool Values of Qualified Development Properties and
Pre-Stabilized Retail Operating Properties of RCLP and its Subsidiaries divided
by 2.0 and (b) with respect to the Development Affiliates, the sum of (i) the
aggregate Unencumbered Pool Values of all Stabilized Retail Operating Properties
of the Development Affiliates divided by 1.75 plus (ii) the aggregate
Unencumbered Pool Values of Qualified Development Properties and Pre-Stabilized
Retail Operating Properties of the Development Affiliates divided by 2.0 plus
(iii) RCLP's Borrowing Base. Notwithstanding anything set forth in this
definition to the contrary, not more than 20.0% of the Borrowing Base of RCLP
can be attributable to Unencumbered Pool Properties owned by Subsidiaries of
RCLP that are not Wholly Owned Subsidiaries.
"Business Day" means (a) any day other than Saturday, Sunday or other day
on which commercial banks in Atlanta, Georgia or San Francisco, California are
authorized or required to close and (b) with reference to LIBOR Loans, any such
day on which dealings in Dollar deposits are carried out in the London interbank
market.
"Capitalized EBITDA" means, with respect to a Person and as of a given
date, (a) such Person's EBITDA for the fiscal quarter most recently ended times
(b) 4 and divided by (c) 9.25%. In determining Capitalized EBITDA (i) EBITDA
attributable to real estate properties either acquired or disposed of by such
Person during such fiscal quarter shall be disregarded, (ii) for each of the
first three fiscal quarters of each fiscal year, EBITDA shall include the lesser
of (A) 25% of the budgeted percentage rents for such fiscal year or (B) 25% of
the actual percentage rents received by such Person in the immediately preceding
fiscal year, (iii) for the fourth fiscal quarter of each fiscal year, EBITDA
shall include 25% of the percentage rents actually received by such Person in
such fiscal year, (iv) Fee Income for the applicable period shall be excluded
from EBITDA, (v) any amounts deducted from the net earnings of Properties owned
by Consolidated Subsidiaries in which a third party owns a minority equity
interest shall be included in EBITDA; and (vi) distributions of cash received by
such Person during such period from any of its Unconsolidated Affiliates shall
be excluded from EBITDA.
"Capitalized Fee Income" means, with respect to a Person and as of a given
date, (a) such Person's Fee Income for the fiscal quarter most recently ended
times (b) 4 and divided by (c) 20.0%.
"Capitalized Lease Obligation" means Indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP, and the amount of such Indebtedness
shall be the capitalized amount of such obligations determined in accordance
with such principles.
"Collateral Account" means a special non-interest bearing deposit account
maintained by the Agent under its sole dominion and control.
"Commitment" means, as to each Lender, such Lender's obligation to make
Revolving Loans pursuant to Section 2.1. and to issue (in the case of the Agent)
or participate in (in the case of the Lenders other than the Agent in such
capacity) Letters of Credit pursuant to Section 2.15.(a) and 2.15.(f)
respectively, in an amount up to, but not exceeding (but in the case of the
Agent, excluding the aggregate amount of participations in the Letters of Credit
held by other Lenders), the amount set forth for such Lender on its signature
page hereto as such Lender's "Commitment Amount" or as set forth in the
applicable Assignment and Acceptance Agreement, as the same may be reduced from
time to time pursuant to Section 2.9. or as appropriate to reflect any
assignments to or by such Lender effected in accordance with Section 12.8.
"Compliance Certificate" means the certificate described in Section
8.1.(c).
"Consolidated Subsidiary" means, with respect to a Person at any date, any
Subsidiary or other entity the accounts of which would be consolidated with
those of such Person in its consolidated financial statements in accordance with
GAAP, if such statements were prepared as of such date. The term "Consolidated
Subsidiary" shall also include any Preferred Stock Entity the accounts of which
are consolidated with those of such Person in its consolidated financial
statements in accordance with GAAP.
"Construction Budget" means the fully budgeted costs for the construction,
development and redevelopment of a given Development Property, such budget to
include an adequate operating deficiency reserve. For purposes of this
definition the "fully budgeted costs" of a Development Property to be acquired
by a Person upon completion pursuant to a contract in which the seller is
required to develop or renovate prior to, and as a condition precedent to, such
acquisition shall equal the maximum amount reasonably estimated to be payable by
such Person under the contract assuming performance by the seller of its
obligations under the contract which amount shall include, without limitation,
any amounts payable after consummation of such acquisition which may be based on
certain performance levels or other related criteria.
"Construction in Process" means construction in process as determined in
accordance with GAAP.
"Contingent Obligation" means, for any Person, any commitment,
undertaking, Guarantee or other obligation constituting a contingent liability
that must be accrued under GAAP.
"Continue", "Continuation" and "Continued" each refers to the continuation
of a LIBOR Loan from one Interest Period to the next Interest Period pursuant to
Section 2.5.
"Convert", "Conversion" and "Converted" each refers to the conversion of a
Revolving Loan of one Type into a Revolving Loan of another Type pursuant to
Section 2.6.
"Credit Rating" means the lowest rating assigned by a Rating Agency to
each series of rated senior unsecured long term indebtedness of RCLP or the
Parent, as the case may be.
"Credit Tenant" means any Person which has entered into, and continues to
be subject to, a lease of any portion of a Property and has a rating of at least
BBB- assigned to its senior long-term debt obligations by S&P or Moody's. For
purposes of this Agreement, Publix Super Markets, Inc. shall be deemed a Credit
Tenant.
"Debt Service" means, with respect to any Person and for any period, the
sum of (a) Interest Expense of such Person for such period plus (b) regularly
scheduled principal payments on Indebtedness of such Person during such period,
other than any balloon, bullet or similar principal payment payable on any
Indebtedness of such Person which repays such Indebtedness in full.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Defaulting Lender" has the meaning given that term in Section 3.5.
"Designated Lender" means a special purpose corporation which is an
affiliate of, or sponsored by, a Lender, that is engaged in making, purchasing
or otherwise investing in commercial loans in the ordinary course of its
business and that issues (or the parent of which issues) commercial paper rated
at least P-1 (or the then equivalent grade) by Moody's or A-1 (or the then
equivalent grade) by S&P that, in either case, (a) is organized under the laws
of the United States of America or any state thereof, (b) shall have become a
party to this Agreement pursuant to Section 12.8.(d) and (c) is not otherwise a
Lender.
"Designated Lender Note" means a Bid Rate Note of a Borrower evidencing
the obligation of a Borrower to repay Bid Rate Loans made by a Designated Lender
to such Borrower.
"Designating Lender" has the meaning given that term in Section 12.8.(d).
"Designation Agreement" means a Designation Agreement between a Lender and
a Designated Lender and accepted by the Agent, substantially in the form of
Exhibit B or such other form as may be agreed to by such Lender, such Designated
Lender and the Agent.
"Development Affiliate Accession Agreement" means an Accession Agreement
substantially in the form of Annex I to the Development Affiliate Guaranty.
"Development Affiliate Guarantor" means any Person that is party to the
Development Affiliate Guaranty as a "Guarantor".
"Development Affiliate Guaranty" means the Guaranty executed and delivered
by the Development Affiliate Guarantors substantially in the form of Exhibit
O-2.
"Development Affiliates" means each of RRG and any other Development Joint
Venture which has, at the time of determination, satisfied all conditions
contained in Section 12.15. to becoming a Borrower.
"Development Joint Venture" means a Person, all of the issued and
outstanding equity interests of which are held only by RCLP (or its Wholly Owned
Subsidiaries) or RRG, and which was formed or acquired for the purpose of
developing or redeveloping Properties and rendering services to tenants
permitted to be performed by a "taxable REIT subsidiary" within the meaning of
Section 856(e) of the Internal Revenue Code, which services, if performed by
RCLP or RRG, would cause income received from such tenant to fail to qualify as
"rents from real property" within the meaning of Section 856(d) of the Internal
Revenue Code.
"Development Property" means either (a) a real estate project acquired by
RCLP, any Subsidiary, any Development Affiliate, any Unconsolidated Affiliate or
any Preferred Stock Entity as unimproved real estate to be developed as a
Property or (b) a Property acquired by any such Person on which such Person is
to (A) partially or completely demolish and redevelop the improvements on such
Property, (B) substantially reconfigure the existing improvements on such
Property or (C) increase materially the rentable square footage of such
Property, in each case for which an 80% Occupancy Rate has not been achieved.
The term "Development Property" shall include real property of the type
described in the immediately preceding clause (a) or (b) to be (but not yet)
acquired by any such Person upon completion of construction pursuant to a
contract in which the seller of such real property is required to develop or
renovate prior to, and as a condition precedent to, such acquisition, but shall
not include any build-to-suit Property which is 100% preleased by a single
tenant having an investment grade rating assigned to its senior long-term
unsecured debt obligations by a nationally recognized securities rating agency.
"Dollars" or "$" means the lawful currency of the United States of
America.
"EBITDA" means, with respect to any Person for any period and without
duplication, net earnings (loss) of such Person for such period (excluding
equity in net earnings or net loss of Unconsolidated Affiliates) plus the sum of
the following amounts (but only to the extent included in determining net
earnings (loss) for such period): (a) depreciation and amortization expense and
other non-cash charges of such Person for such period plus (b) interest expense
of such Person for such period plus (c) income tax expense of such Person in
respect of such period plus (d) distributions of cash received by such Person
during such period from any of its Unconsolidated Affiliates. EBITDA shall
exclude extraordinary gains of such Person and gains from sales of assets of
such Person for such period but will include extraordinary losses of such
Person, losses from sales of assets of such Person and losses resulting from
forgiveness by such Person of Indebtedness for such period. For purposes of this
definition, net earnings (loss) shall be determined before minority interests
and distributions to holders of Preferred Stock.
"Effective Date" means the date this Agreement becomes effective in
accordance with Section 6.1.
"Eligible Assignee" means any Person who is, at the time of determination:
(a) a Lender; (b) a commercial bank, trust company, savings and loan
association, savings bank, insurance company, investment bank or pension fund
organized under the laws of the United States of America, or any state thereof,
and having total assets in excess of $5,000,000,000; or (c) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development ("OECD"), or a political
subdivision of any such country, and having total assets in excess of
$10,000,000,000, provided that such bank is acting through a branch or agency
located in the United States of America. If such Person is not currently a
Lender, such Person's senior unsecured long term indebtedness must be rated BBB
or higher by S&P, Baa2 or higher by Moody's, or the equivalent or higher of
either such rating by another rating agency acceptable to the Agent.
"Eligible Property" means a Property or real estate project which
satisfies all of the following requirements: (a) such Property or real estate
project is owned in fee simple by only RCLP, a Development Affiliate or a
Subsidiary of RCLP; (b) neither such Property or real estate project, nor any
interest of RCLP, such Development Affiliate or such Subsidiary therein, is
subject to any Lien other than Permitted Liens or to any agreement (other than
this Agreement or any other Loan Document) that prohibits the creation of any
Lien thereon as security for Indebtedness; (c) if such Property or real estate
project is owned by a Subsidiary of RCLP, (i) none of RCLP's or Parent's direct
or indirect ownership interest in such Subsidiary is subject to any Lien other
than Permitted Liens or to any agreement (other than this Agreement or any other
Loan Document) that prohibits the creation of any Lien thereon as security for
Indebtedness and (ii) RCLP directly, or indirectly through a Subsidiary, has the
right to take the following actions without the need to obtain the consent of
any Person: (A) to create Lien on such Property or real estate project as
security for Indebtedness of RCLP or such Subsidiary, as applicable and (B) to
sell, transfer or otherwise dispose of such Property or real estate project; (d)
such Property or real estate project is free of all structural defects or major
architectural deficiencies, title defects, environmental conditions or other
adverse matters except for defects, conditions or matters individually or
collectively which are not material to the profitable operation of such Property
or real estate project; and (e) such Property or real estate project is not
subject to a ground lease (other than (i) a lease of land on such Property or
real estate project owned by RCLP, such Subsidiary of RCLP or such Development
Affiliate and leased to a Person which is not an Affiliate and (ii) the ground
lease relating to the Property known as Heritage Plaza between Affiliates of
RCLP).
"Environmental Laws" means any Applicable Law relating to environmental
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protection or the manufacture, storage, disposal or clean-up of Hazardous
Materials including, without limitation, the following: Clean Air Act, 42
U.S.C.ss.7401 et seq.; Federal Water Pollution Control Act, 33 U.S.C.ss.1251 et
seq.; Solid Waste Disposal Act, 42 U.S.C.ss.6901 et seq.; Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C.ss. 9601 et
seq.; National Environmental Policy Act, 42 U.S.C.ss.4321 et seq.; regulations
of the Environmental Protection Agency and any applicable rule of common law and
any judicial interpretation thereof relating primarily to the environment or
Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA Group" means all members of a controlled group of corporations and
all trades or businesses (whether or not incorporated) under common control that
are treated as a single employer under Section 414 of the Internal Revenue Code.
"ERISA Plan" means any employee benefit plan subject to Title I of ERISA.
"Event of Default" means the occurrence of any of the events specified in
Section 10.1., whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
governmental or nongovernmental body; provided that any requirement for notice
or lapse of time or any other condition has been satisfied.
"Existing Regency Credit Agreement" is defined in the recitals herein.
"Extension Request" has the meaning given that term in Section 2.10.(a).
"Federal Funds Rate" means, on any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day, provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is published on such next succeeding Business Day, the
Federal Funds Rate for such day shall be the average rate quoted to the Agent on
such day on such transactions as reasonably determined by the Agent.
"Fee Income" means, with respect to a Person and for a given period, the
amount of net income accrued by such Person during such period from fees,
commissions and other compensation derived from (a) managing and/or leasing
properties owned by third parties; (b) developing properties for third parties;
(c) arranging for property acquisitions by third parties; (d) arranging
financing for third parties and (e) consulting and business services performed
for third parties.
"Funds From Operations" means, with respect to a Person and for a given
period, net income (loss) of such Person for such period determined in
accordance with GAAP (excluding equity in net earnings or net loss of
Unconsolidated Affiliates) plus the sum of the following amounts (but only to
the extent included in determining net income (loss) for such period): (a)
depreciation and amortization expense of such Person with respect to its real
estate assets for such period plus (b) losses from sales of assets of such
Person for such period minus (c) gains from sales of assets of such Person for
such period plus (d) such Person's pro rata share of Funds From Operations of
such Person's Unconsolidated Affiliates.
"GAAP" shall mean generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any national, state or local government
(whether domestic or foreign), any political subdivision thereof or any other
governmental, quasi-governmental, judicial, public or statutory instrumentality,
authority, body, agency, bureau or entity (including, without limitation, the
Federal Deposit Insurance Corporation, the Comptroller of the Currency or the
Federal Reserve Board, any central bank or any comparable authority) or any
arbitrator with authority to bind a party at law.
"Gross Asset Value" means, at a given time, the sum of (a) the Capitalized
EBITDA of the Parent and its Consolidated Subsidiaries at such time, plus (b)
the Capitalized Fee Income of the Parent and its Consolidated Subsidiaries at
such time, plus (c) the purchase price paid by the Parent or any Consolidated
Subsidiary (less any amounts paid to the Parent or such Consolidated Subsidiary
as a purchase price adjustment, held in escrow, retained as a contingency
reserve, or other similar arrangements) for any real property acquired by the
Parent or such Consolidated Subsidiary as a Property other than a Development
Property during the Parent's fiscal quarter most recently ended, plus (d) all of
Parent's and its Consolidated Subsidiaries' cash and cash equivalents as of the
end of such fiscal quarter (excluding tenant deposits and other cash and cash
equivalents the disposition of which is restricted in any way (excluding
restrictions in the nature of early withdrawal penalties and restrictions on
cash deposited into an escrow account for the payment of property taxes in
respect of real property but only to the extent the aggregate amount of cash
held in such account exceeds the amount of accrued property taxes at such
time)), plus (e) with respect to each of the Parent's Unconsolidated Affiliates,
(i) with respect to any of such Unconsolidated Affiliate's Properties under
construction, the Parent's pro rata share of the book value of Construction in
Process for such Property as of the end of such fiscal quarter and (ii) with
respect to any of such Unconsolidated Affiliate's Properties which have been
completed, the Parent's pro rata share of Capitalized EBITDA of such
Unconsolidated Affiliate attributable to such Properties, plus (f) the book
value of all Construction in Process for real property acquired for development
by the Parent or any Consolidated Subsidiary as a Property as such book value is
set forth on the Parent's consolidated balance sheet most recently delivered to
the Lenders under Section 8.1.(a) or (b) plus (g) the contractual purchase price
of any property subject to a purchase obligation, repurchase obligation or
forward commitment which at such time could be specifically enforced by the
seller of such property, but only to the extent such obligations are included in
the Parent's or any Consolidated Subsidiary's Total Liabilities plus (h) in the
case of any property subject to a purchase obligation, repurchase obligation or
forward commitment which at such time could not be specifically enforced by the
seller of such property, the aggregate amount of due diligence deposits, earnest
money payments and other similar payments made under the applicable contract
which, at such time, would be subject to forfeiture upon termination of the
contract, but only to the extent such amounts are included in the Parent's or
any Consolidated Subsidiary's Total Liabilities.
"Guarantee" by any Person means any obligation, contingent or otherwise,
of such Person directly or indirectly guaranteeing any Indebtedness or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (a) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (b) entered into for the purpose of assuring in any
other manner the obligee of such Indebtedness or other obligation of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part), provided that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Guarantor" means any Person that is party to the Guaranty as a
"Guarantor".
"Guaranty" means the Guaranty executed and delivered by the Guarantors
substantially in the form of Exhibit O-1.
"Hazardous Materials" means all or any of the following: (a) substances
that are defined or listed in, or otherwise classified pursuant to, any
applicable Environmental Laws as "hazardous substances", "hazardous materials",
"hazardous wastes", "toxic substances" or any other formulation intended to
define, list or classify substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity or
"TLCP" toxicity, "EP toxicity"; (b) oil, petroleum or petroleum derived
substances, natural gas, natural gas liquids or synthetic gas and drilling
fluids, produced waters and other wastes associated with the exploration,
development or production of crude oil, natural gas or geothermal resources; (c)
any flammable substances or explosives or any radioactive materials; and (d)
asbestos in any form or (e) electrical equipment which contains any oil or
dielectric fluid containing levels of polychlorinated biphenyls in excess of
fifty parts per million.
"Hedge Agreements" means, collectively, Interest Rate Agreements,
commodity future or option contracts, currency swap agreements, currency future
or option contracts and other similar agreements.
"Indebtedness" means, with respect to a Person, at the time of computation
thereof, all of the following (without duplication and determined on a
consolidated basis): (a) obligations of such Person in respect of money
borrowed; (b) obligations of such Person (other than trade debt incurred in the
ordinary course of business), whether or not for money borrowed (i) represented
by notes payable, or drafts accepted, in each case representing extensions of
credit, (ii) evidenced by bonds, debentures, notes or similar instruments, or
(iii) constituting purchase money indebtedness, conditional sales contracts,
title retention debt instruments or other similar instruments, upon which
interest charges are customarily paid or that are issued or assumed as full or
partial payment for property; (c) Capitalized Lease Obligations of such Person;
(d) all reimbursement obligations of such Person under any letters of credit or
acceptances (whether or not the same have been presented for payment); (e) all
Indebtedness of other Persons which (i) such Person has Guaranteed or which is
otherwise recourse to such Person or (ii) is secured by a Lien on any property
of such Person; (f) all Indebtedness of any other Person of which such Person is
a general partner; and (g) with respect to Indebtedness of an Unconsolidated
Affiliate, (i) all such Indebtedness which such Person has Guaranteed or is
otherwise obligated on a recourse basis and (ii) such Person's Ownership Share
of all other Indebtedness of such Unconsolidated Affiliate.
"Interest Expense" means, with respect to a Person and for any period, (a)
the total interest expense (including, without limitation, capitalized interest
expense and interest expense attributable to Capitalized Lease Obligations) of
such Person and in any event shall include all letter of credit fees and all
interest expense with respect to any Indebtedness in respect of which such
Person is wholly or partially liable whether pursuant to any repayment, interest
carry, performance Guarantee or otherwise, plus (b) to the extent not already
included in the foregoing clause (a) such Person's Ownership Share of all paid,
accrued or capitalized interest expense for such period of Unconsolidated
Affiliates of such Person.
"Interest Period" means,
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(a) with respect to any LIBOR Loan made, or to be made to, a Borrower,
each period commencing on the date such LIBOR Loan is made or the last day of
the next preceding Interest Period for such Loan and ending on the numerically
corresponding day in the first, second, third or sixth calendar month
thereafter, as such Borrower may select in a Notice of Borrowing, Notice of
Continuation or Notice of Conversion, as the case may be, except that each
Interest Period that commences on the last Business Day of a calendar month (or
on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month. In addition to such periods, a Borrower
may request Interest Periods for LIBOR Loans having durations of at least 7, but
not more than 30, days no more than ten times for all Borrowers collectively
during any 12-month period beginning during the term of this Agreement but only
in anticipation of (i) such Borrower's prepayment of such LIBOR Loans from
equity or debt offerings, financings or proceeds resulting from the sale or
other disposition of major assets of such Borrower or any of its Subsidiaries or
(ii) changes in the amount of the Lenders' Commitments associated with a
modification of this Agreement;
(b) with respect to any Absolute Rate Loan made, or to be made to, a
Borrower, the period commencing on the date such Absolute Rate Loan is made and
ending on the numerically corresponding day in the first, second, or third
calendar month thereafter, as such Borrower may select as provided in Section
2.2.(b), except that each Interest Period that commences on the last Business
Day of a calendar month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall end on the
last Business Day of the appropriate subsequent calendar month; and
(c) with respect to any LIBOR Margin Loan made, or to be made to, a
Borrower, each period commencing on the date such LIBOR Margin Loan is made and
ending on the numerically corresponding day in the first, second or third
calendar month thereafter, as such Borrower may select as provided in Section
2.2.(b), except that each Interest Period that commences on the last Business
Day of a calendar month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall end on the
last Business Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) if any Interest Period for a Revolving Loan
or a Bid Rate Loan would otherwise end after the Revolving Credit Termination
Date, such Interest Period shall end on the Revolving Credit Termination Date;
(ii) if any Interest Period would otherwise end after the Termination Date, such
Interest Period shall end on the Termination Date; (iii) each Interest Period
that would otherwise end on a day which is not a Business Day shall end on the
next succeeding Business Day (or, if such next succeeding Business Day falls in
the next succeeding calendar month, on the next preceding Business Day); and
(iv) notwithstanding either of the immediately preceding clauses (i) and (ii)
but except as otherwise provided in the second sentence of the immediately
preceding clause (a), no Interest Period for any LIBOR Loan shall have a
duration of less than one month and, if the Interest Period for any LIBOR Loan
would otherwise be a shorter period, such Loan shall not be available hereunder
for such period.
"Interest Rate Agreement" means any interest rate swap agreement, interest
rate cap agreement, interest rate collar agreement or other similar contractual
agreement or arrangement entered into by a Person with a nationally recognized
then rated investment grade financial institution for the purpose of protecting
such Person against fluctuations in interest rates.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"Investment" means, with respect to any Person and whether or not such
investment constitutes a controlling interest in such Person: (a) the purchase
or other acquisition of any share of capital stock or other equity interest,
evidence of Indebtedness or other security issued by any other Person; (b) any
loan, advance or extension of credit to, or contribution to the capital of, any
other Person; (c) any Guarantee of the Indebtedness of any other Person; (d) the
subordination of any claim against a Person to other Indebtedness of such
Person; and (e) any other investment in any other Person.
"Investment Grade Rating" means a Credit Rating of BBB- or higher by S&P
or Baa3 or higher by Moody's.
"Joinder Agreement" means a Joinder Agreement executed by a Development
Joint Venture and substantially in the form of Exhibit S.
"L/C Commitment Amount" means an amount equal to $10,000,000.
"Lender" means each financial institution from time to time party hereto
as a "Lender" or a "Designated Lender," together with its respective successors
and assigns; provided, however, that the term "Lender" shall exclude each
Designated Lender when used in reference to any Loan other than a Bid Rate Loan,
the Commitments or terms relating to any Loan other than a Bid Rate Loan and the
Commitments and shall further exclude each Designated Lender for all other
purposes hereunder except that any Designated Lender which funds a Bid Rate Loan
shall, subject to Section 12.8.(d), have the rights (including the rights given
to a Lender contained in Sections 12.3. and 12.5.) and obligations of a Lender
associated with holding such Bid Rate Loan.
"Lending Office" means, for each Lender and for each Type of Loan, the
office of such Lender specified as such on its signature page hereto, or in any
applicable Assignment or Acceptance Agreement or such other office of such
Lender as such Lender may notify the Agent from time to time.
"Letter of Credit" has the meaning set forth in Section 2.15.(a).
"Letter of Credit Documents" means, with respect to any Letter of Credit,
collectively, any application therefor, any certificate or other document
presented in connection with a drawing under such Letter of Credit and any other
agreement, instrument or other document governing or providing for (a) the
rights and obligations of the parties concerned or at risk with respect to such
Letter of Credit or (b) any collateral security for any of such obligations.
"Letter of Credit Liabilities" shall mean, without duplication, at any
time and in respect of any Letter of Credit, the sum of (a) the Stated Amount of
such Letter of Credit plus (b) the aggregate unpaid principal amount of all
Reimbursement Obligations of the Borrower for whose account such Letter of
Credit was issued at such time due and payable in respect of all drawings made
under such Letter of Credit. For purposes of this Agreement, a Lender (other
than the Agent in its capacity as such) shall be deemed to hold a Letter of
Credit Liability in an amount equal to its participation interest in the related
Letter of Credit under Section 2.15.(f), and the Agent shall be deemed to hold a
Letter of Credit Liability in an amount equal to its retained interest in the
related Letter of Credit after giving effect to the acquisition by the Lenders
other than the Agent of their participation interests under such Section.
"LIBO Rate" means, with respect to each Interest Period, for any LIBOR
Loan or LIBOR Margin Loan, the average rate of interest per annum (rounded
upwards, if necessary, to the next highest 1/16th of 1%) at which deposits in
immediately available funds in Dollars are offered to Wells Fargo Bank, National
Association (at approximately 9:00 a.m., two Business Days prior to the first
day of such Interest Period) by first class banks in the interbank Eurodollar
market, for delivery on the first day of such Interest Period, such deposits
being for a period of time equal or comparable to such Interest Period and in an
amount equal to or comparable to the principal amount of the LIBOR Loan to which
such Interest Period relates. Each determination of the LIBO Rate by the Agent
shall, in absence of demonstrable error, be conclusive and binding.
"LIBOR Auction" means a solicitation of Bid Rate Quotes setting forth
LIBOR Margins based on the LIBO Rate pursuant to Section 2.2.
"LIBOR Loan" means any Revolving Loan or Term Loan hereunder with respect
to which the interest rate is calculated by reference to the LIBO Rate for a
particular Interest Period.
"LIBOR Margin" shall have the meaning assigned to such term in Section
2.2.(c)(ii)(D).
"LIBOR Margin Loan" means a Bid Rate Loan the interest rate on which is
determined on the basis of the LIBO Rate pursuant to a LIBOR Auction.
"Lien" as applied to the property of any Person means: (a) any mortgage,
deed to secure debt, deed of trust, pledge, lien, charge or lease constituting a
Capitalized Lease Obligation, conditional sale or other title retention
agreement, or other security interest, security title or encumbrance of any kind
in respect of any property of such Person, or upon the income or profits
therefrom; (b) any arrangement, express or implied, under which any property of
such Person is transferred, sequestered or otherwise identified for the purpose
of subjecting the same to the payment of Indebtedness or performance of any
other obligation in priority to the payment of the general, unsecured creditors
of such Person; and (c) the filing of, or any agreement to give, any financing
statement under the Uniform Commercial Code or its equivalent in any
jurisdiction.
"Loan" means a Revolving Loan, a Bid Rate Loan, a Swingline Loan or a Term
Loan.
"Loan Document" means this Agreement, each of the Notes, each Letter of
Credit Document, the Guaranty, each Accession Agreement, the Development
Affiliate Guaranty, each Development Affiliate Accession Agreement, any
agreement evidencing the fees referred to in Section 3.1.(e) and each other
document or instrument executed and delivered by a Borrower or any other Loan
Party in connection with this Agreement or any of the other foregoing documents.
"Loan Party" means each Borrower, each Guarantor and each Development
Affiliate Guarantor.
"Majority Lenders" means, as of any date, (a) all Lenders, if there are
fewer than three Lenders party hereto at such time and (b) the Lenders whose
combined Pro Rata Shares equal or exceed 66-2/3%, if there are three or more
Lenders party hereto at such time.
"Material Contract" means any agreement, lease, Mortgage, indenture, or
other contract or other arrangement (other than Loan Documents), whether written
or oral, to which any Borrower, any Guarantor or any other Subsidiary of the
Parent or any Borrower is a party as to which the breach, nonperformance,
cancellation or failure to renew by any party thereto could have a Materially
Adverse Effect.
"Materially Adverse Effect" means a materially adverse effect on (a) the
business, assets, liabilities, financial condition, results of operations or
business prospects of RCLP and its Consolidated Subsidiaries, or the Parent and
its Consolidated Subsidiaries, taken as a whole, (b) the ability of any Borrower
or any other Loan Party to perform its obligations under any Loan Document to
which it is a party, (c) the validity or enforceability of any of such Loan
Documents, (d) the rights and remedies of the Lenders and the Agent under any of
such Loan Documents or (e) the timely payment of the principal of or interest on
the Loans or other amounts payable in connection therewith. Except with respect
to representations made or deemed made by the Borrowers under Article VII. or in
any of the other Loan Documents to which it is a party, all determinations of
materiality shall be made by the Agent in its reasonable judgment unless
expressly provided otherwise.
"Maximum Loan Availability" means, at any time, (a) with respect to RCLP,
the lesser of (i) an amount equal to the positive difference, if any, of (x)
RCLP's Borrowing Base minus (y) all Unsecured Liabilities (other than the Loans
and the Letter of Credit Liabilities), of the Parent and its Consolidated
Subsidiaries and (ii) the aggregate amount of the Commitments at such time; and
(b) with respect to the Development Affiliates, the lesser of (i) an amount
equal to the positive difference, if any, of (x) the Development Affiliates'
Borrowing Base minus (y) the sum of (A) all Unsecured Liabilities (other than
the Loans and the Letter of Credit Liabilities), of the Parent and its
Consolidated Subsidiaries and (B) all Loans and Letter of Credit Liabilities
owing by RCLP (except to the extent resulting from its obligations in respect of
its Guarantee of the Obligations of the Development Affiliates) and (ii) the
aggregate amount of the Commitments at such time.
"Moody's" means Moody's Investors Services, Inc.
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"Mortgage" means a mortgage, deed of trust, deed to secure debt or similar
security instrument made or to be made by a Person owning an interest in real
estate granting a Lien on such interest in real estate as security for the
payment of Indebtedness.
"Multiemployer Plan" means a multiemployer plan defined as such in Section
3(37) of ERISA to which contributions have been made by any Borrower or any
ERISA Affiliate and which is covered by Title IV of ERISA.
"Net Operating Income" means, for any Property and for a given period, the
sum of the following (without duplication): (a) rents and other revenues
received in the ordinary course from such Property (including proceeds of rent
loss insurance but excluding pre-paid rents and revenues and security deposits
except to the extent applied in satisfaction of tenants' obligations for rent)
minus (b) all expenses paid or accrued related to the ownership, operation or
maintenance of such property, including but not limited to taxes, assessments
and the like, insurance, utilities, payroll costs, maintenance, repair and
landscaping expenses, marketing expenses, and general and administrative
expenses (including an appropriate allocation for legal, accounting,
advertising, marketing and other expenses incurred in connection with such
property, but specifically excluding general overhead expenses of any Borrower
and any property management fees) minus (c) the Reserve for Replacements for
such Property as of the end of such period minus (d) the greater of (i) the
actual property management fee paid during such period and (ii) an imputed
management fee in the amount of four percent (4.0%) of the gross revenues for
such Property for such period.
"Net Worth" means, for any Person and as of a given date, such Person's
total consolidated stockholders' equity plus, in the case of the Parent and its
Consolidated Subsidiaries, increases in accumulated depreciation accrued after
the Agreement Date minus (to the extent reflected in determining stockholders'
equity of such Person): (a) the amount of any write-up in the book value of any
assets contained in any balance sheet resulting from revaluation thereof or any
write-up in excess of the cost of such assets acquired, and (b) the aggregate of
all amounts appearing on the assets side of any such balance sheet for
franchises, licenses, permits, patents, patent applications, copyrights,
trademarks, trade names, goodwill, treasury stock, experimental or
organizational expenses and other like assets which would be classified as
intangible assets under GAAP, all determined on a consolidated basis.
"Non-ERISA Plan" means any Plan subject to Section 4975 of the Internal
Revenue Code.
"Non-Guarantor Entity" means: (a) any Subsidiary that is not required to
become a party to the Guaranty under Section 8.24.(a); (b) any Unconsolidated
Affiliate of the Parent or RCLP; (c) any Preferred Stock Entity, any other
Development Affiliate, and any Subsidiary or Unconsolidated Affiliate of any
Preferred Stock Entity or other Development Affiliate; and (d) any other
Affiliate of the Parent or any Borrower in which the Parent or such Borrower
holds an Investment.
"Nonrecourse Indebtedness" means, with respect to a Person, Indebtedness
for borrowed money in respect of which recourse for payment (except for
customary exceptions for fraud, environmental matters, waste, misapplication of
insurance proceeds, and other similar exceptions acceptable to the Agent in its
sole discretion) is contractually limited to specific assets of such Person
encumbered by a Lien securing such Indebtedness.
"Note" means a Revolving Note, a Bid Rate Note or a Swingline Note.
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"Notice of Borrowing" means a notice in the form of Exhibit F to be
delivered to the Agent pursuant to Section 2.1. evidencing a Borrower's request
for a borrowing of Revolving Loans.
"Notice of Continuation" means a notice in the form of Exhibit G to be
delivered to the Agent pursuant to Section 2.5. evidencing a Borrower's request
for the Continuation of a borrowing of Revolving Loans borrowed by such
Borrower.
"Notice of Conversion" means a notice in the form of Exhibit H to be
delivered to the Agent pursuant to Section 2.6. evidencing a Borrower's request
for the Conversion of a borrowing of Revolving Loans borrowed by such Borrower.
"Notice of Swingline Borrowing" means a notice in the form of Exhibit L to
be delivered to the Swingline Lender pursuant to Section 2.3.(b) evidencing a
Borrower's request for a Swingline Loan.
"Obligations" means with respect to a Borrower, individually and
collectively: (a) the aggregate principal balance of, and all accrued and unpaid
interest on, all Loans owing by such Borrower; (b) all Reimbursement Obligations
and all other Letter of Credit Liabilities owing by such Borrower; (c) any and
all renewals and extensions of any of the foregoing and (d) all other
indebtedness, liabilities, obligations, covenants and duties of such Borrower
owing to the Agent and/or the Lenders and/or the Swingline Lender of every kind,
nature and description, under or in respect of this Agreement or any of the
other Loan Documents, whether direct or indirect, absolute or contingent, due or
not due, contractual or tortious, liquidated or unliquidated, and whether or not
evidenced by any promissory note.
"Occupancy Rate" means, with respect to a Property at any time, the ratio,
expressed as a percentage, of (a) the net rentable square footage of such
Property actually occupied by tenants paying rent pursuant to binding leases as
to which no monetary default has occurred and is continuing to (b) the aggregate
net rentable square footage of such Property.
"Ownership Share" means, with respect to any Subsidiary of a Person that
is not a Wholly Owned Subsidiary, and any Preferred Stock Entity or any
Unconsolidated Affiliate of a Person, the greater of (a) such Person's relative
nominal direct and indirect ownership interest (expressed as a percentage) in
such Subsidiary, Preferred Stock Entity or Unconsolidated Affiliate or (b)
subject to compliance with Section 8.1.(t), such Person's relative direct and
indirect economic interest (calculated as a percentage) in such Subsidiary,
Preferred Stock Entity or Unconsolidated Affiliate determined in accordance with
the applicable provisions of the declaration of trust, articles or certificate
of incorporation, articles of organization, partnership agreement, joint venture
agreement or other applicable organizational document of such Subsidiary,
Preferred Stock Entity or Unconsolidated Affiliate.
"Parent" means Regency Realty Corporation, a Florida corporation, together
with its successors and assigns.
"Participant" has the meaning given that term in Section 12.8.(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Liens" means (a) pledges or deposits made to secure payment of
worker's compensation (or to participate in any fund in connection with worker's
compensation insurance), unemployment insurance, pensions or social security
programs; (b) encumbrances consisting of zoning restrictions, easements, or
other restrictions on the use of real property, provided that such items do not
materially impair the use of such property for the purposes intended and none of
which is violated in any material respect by existing or proposed structures or
land use; (c) the following to the extent no Lien has been filed in any
jurisdiction or agreed to: (i) Liens for taxes not yet due and payable; or (ii)
Liens imposed by mandatory provisions of Applicable Law such as for
materialmen's, mechanic's, warehousemen's and other like Liens arising in the
ordinary course of business, securing payment of Indebtedness the payment of
which is not yet due; (d) Liens for taxes, assessments and governmental charges
or assessments that are being contested in good faith by appropriate proceedings
diligently conducted, and in which reserves acceptable to the Agent have been
provided; (e) Liens expressly permitted under the terms of the Loan Documents;
and (f) any extension, renewal or replacement of the foregoing to the extent
such Lien as so extended, renewed or replaced would otherwise be permitted
hereunder.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Plan" means at any time an employee pension benefit plan which is covered
by Title IV of ERISA or subject to the minimum funding standards under Section
412 of the Internal Revenue Code.
"Preferred Stock" means, with respect to any Person, shares of capital
stock of, or other equity interests in, such Person which are entitled to
preference or priority over any other capital stock of, or other equity interest
in, such Person in respect of the payment of dividends or distribution of assets
upon liquidation or both.
"Preferred Stock Entity" means any Person (other than a Subsidiary) in
whom RCLP or the Parent owns, directly or indirectly, at least 95% of the
Preferred Stock or other equity interests which are not Voting Stock and which
Preferred Stock or other equity interests entitle RCLP to receive the majority
of all economic benefits associated with ownership of all equity interests
issued by such Person.
"Pre-Stabilized Retail Operating Property" means an Eligible Property
which satisfies all of the requirements in order to be a Stabilized Retail
Operating Property except that it has an Occupancy Rate which equals or exceeds
65% but is less than 80%. For purposes of this definition only, when determining
the Occupancy Rate for a given Eligible Property which is a retail shopping
center, an anchor tenant who has vacated its space shall nonetheless be deemed
to occupy such space if such tenant is continuing to pay all rental payments
when due under its lease and either of the following two conditions apply, as
the case may be: (i) if such Eligible Property has two or more anchor tenants
and the other anchor tenants still actually occupy their respective spaces or
(ii) such space is undergoing construction to meet the specific needs of a new
anchor tenant who has either subleased the space from the existing tenant or who
is obligated to lease such space upon substantial completion of such
construction.
"Principal Office" means the office of the Agent located at 2120 E. Park
Place, Suite 100, El Segundo, California 90245, or such other office of the
Agent as the Agent may designate from time to time.
"Pro Rata Share" means, with respect to any Lender, the percentage
obtained by dividing (a) the amount of such Lender's Commitment by (b) the
aggregate amount of Commitments of all the Lenders, or, if the Commitments shall
have been terminated, the percentage obtained by dividing (i) the aggregate
unpaid principal amount of Loans and Letter of Credit Liabilities owing to such
Lender by (ii) the aggregate unpaid principal amount of all Loans and Letter of
Credit Liabilities.
"Property" means real property improved with (a) one or more operating
retail shopping centers or (b) a stand-alone building containing a grocery store
occupied by a Credit Tenant, in either case that is owned directly or
indirectly, in whole or in part, by a Borrower, or solely for purposes of
determining Unencumbered NOI, owned directly or indirectly, in whole or in part,
by the Parent.
"Property Certificate" means a certificate substantially in the form of
Exhibit R.
"Qualified Development Property" means an Eligible Property which
satisfies all of the following requirements: (a) such Eligible Property is
either (i) a real estate project acquired as unimproved real estate and in the
process of being developed as a Property or (ii) a Property on which RCLP, a
Subsidiary of RCLP or a Development Affiliate, as the case may be, has begun to
(A) partially or completely demolish and redevelop the improvements on such
Property, (B) substantially reconfigure the existing improvements on such
Property or (C) increase materially the rentable square footage of such
Property; (b) at least 65% of the aggregate net rentable square footage of such
Eligible Property is preleased or leased to tenants under fully executed leases;
and (c) will, upon completion, be (i) a grocery store-anchored retail shopping
center, (ii) a stand alone, build-to-suit building leased to Walgreen's,
Eckerds, Office Depot or CVS, (iii) a stand-alone grocery store occupied by a
grocery store tenant that is a party to a fully executed lease with at least two
years of occupancy remaining in the lease term, or (iv) a "side shop center"
located on real property adjacent to a third party-owned, stand-alone grocery
store.
"Rating Agencies" means any two nationally recognized securities rating
agencies designated by RCLP and acceptable to the Agent. One of such ratings
agencies must be either (a) Moody's or (b) S&P, but if both such corporations
cease to act as a securities rating agency or cease to provide ratings with
respect to the senior long-term unsecured debt obligations of RCLP, RCLP may
designate as a replacement Rating Agency any nationally recognized securities
rating agency acceptable to the Agent.
"Regulations U and X" means Regulations U and X of the Board of Governors
of the Federal Reserve System, as in effect from time to time.
"Regulatory Change" means, with respect to any Lender, any change
effective after the Agreement Date in Applicable Law (including without
limitation, Regulation D of the Board of Governors of the Federal Reserve
System) or the adoption or making after such date of any interpretation,
directive or request applying to a class of banks, including such Lender, of or
under any Applicable Law (whether or not having the force of law and whether or
not failure to comply therewith would be unlawful) by any Governmental Authority
or monetary authority charged with the interpretation or administration thereof
or compliance by any Lender with any request or directive regarding capital
adequacy.
"Reimbursement Obligation" means the absolute, unconditional and
irrevocable obligation of a Borrower to reimburse the Agent for any drawing
honored by the Agent under a Letter of Credit issued for the account of such
Borrower.
"REIT" means a Person qualifying for treatment as a "real estate
investment trust" under the Internal Revenue Code.
"Reportable Event" has the meaning set forth in Section 4043(b) of ERISA,
but shall not include a Reportable Event as to which the provision for 30 days'
notice to the PBGC is waived under applicable regulations.
"Reserve for Replacements" means, for any period and with respect to any
Property, an amount equal to (a)(i) the aggregate square footage of all
completed space of such Property if such Property is owned by the Parent or any
of its Subsidiaries or (ii) the Parent's or such Subsidiary's Ownership Share of
the aggregate square footage of all completed space of such Property if such
Property is owned by an Unconsolidated Affiliate or Preferred Stock Entity times
(b) $0.15 times (c) the number of days in such period divided by (d) 365.
"Restricted Payment" means, with respect to a Person: (a) any dividend or
other distribution, direct or indirect, on account of any shares or other equity
units of any class of stock, partnership interest or other equity interest, as
applicable, of such Person now or hereafter outstanding, except a dividend
payable solely in shares or other equity units of that class of stock,
partnership interest or other equity interest, as applicable, to the holders of
that class; (b) any redemption, conversion, exchange, retirement, sinking fund
or similar payment, purchase or other acquisition for value, direct or indirect,
of any shares or other equity units of any class of stock, partnership interests
or other equity interests, as applicable, of such Person now or hereafter
outstanding, except, in the case of RCLP, for any conversion or exchange of
partnership units in RCLP solely for shares of capital stock of the Parent; and
(c) any payment made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire shares or other equity units of any
class of stock, partnership interests or other equity interests, as applicable,
of such Person now or hereafter outstanding.
"Revolving Credit Termination Date" means the earlier to occur of (a)
March 26, 2002, or such later date to which such date may be extended in
accordance with Section 2.10. or (b) the date on which the Revolving Loans are
converted into Term Loans pursuant to Section 2.11.
"Revolving Loan" means a loan made by a Lender under Section 2.1.
"Revolving Note" means, with respect to a Borrower, a promissory note of
such Borrower substantially in the form of Exhibit C, payable to the order of a
Lender in a principal amount equal to the amount of such Lender's Commitment as
originally in effect and otherwise duly completed, and with respect to RCLP,
shall also include each Revolving Note (as defined in the Existing Credit
Agreement) which remains outstanding after the Effective Date.
"Revolving Period" means the period commencing on the Effective Date and
ending on the earlier of (a) the Revolving Credit Termination Date or (b) the
date on which any of the Revolving Loans are converted into the Term Loan
pursuant to Section 2.11.
"Secured Indebtedness" means, with respect to any Person, any Indebtedness
of such Person that is secured in any manner by any Lien on any real property
and shall include such Person's Ownership Share of the Secured Indebtedness of
any of such Person's Unconsolidated Affiliates.
"Securities Act" means the Securities Act of 1933, as amended, and all
rules and regulations issued pursuant thereto.
"Security Capital Group" means Security Capital Group Incorporated, a
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Maryland corporation.
"Single Asset Subsidiary" means a Subsidiary that meets all of the
following requirements: (a) such Subsidiary only owns a single Property; (b)
such Subsidiary is engaged only in the business of leasing such Property to
other Persons; (c) such Subsidiary receives substantially all of its gross
revenues from the leasing of such Property; and (d) such Subsidiary is not
obligated in respect of any Indebtedness other than Indebtedness for borrowed
money secured by a Lien encumbering such Property.
"Solvent" means, when used with respect to any Person, that (a) the fair
value and the fair salable value of its assets (excluding any Indebtedness due
from any Affiliate of such Person) are each in excess of the fair valuation of
its total liabilities (including all contingent liabilities); and (b) such
Person is able to pay its debts or other obligations in the ordinary course as
they mature and (c) that the Person has capital not unreasonably small to carry
on its business and all business in which it proposes to be engaged.
"S&P" means Standard & Poor's Rating Services, a division of McGraw-Hill
Companies, Inc.
"Stabilized Retail Operating Property" means an Eligible Property which
satisfies both of the following requirements: (a) such Eligible Property is not
a Development Property and has an Occupancy Rate which equals or exceeds 80% and
(b) such Property or real estate project is (i) a grocery store-anchored retail
shopping center, (ii) a stand alone, build-to-suit building leased to
Walgreen's, Eckerds, Office Depot or CVS, (iii) a stand-alone grocery store
occupied by a grocery store tenant that is a party to a fully executed lease
with at least two years of occupancy remaining in the lease term, or (iv) a
"side shop center" located on real property adjacent to a third party-owned,
stand-alone grocery store.
"Stated Amount" means the amount available to be drawn by a beneficiary
under a Letter of Credit from time to time, as such amount may be increased or
reduced from time to time in accordance with the terms of such Letter of Credit.
"Stein Parties" means (a) (i) Joan Newton, Richard Stein, Robert Stein
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and Martin E. Stein, Jr., (ii) any of their immediate family members consisting
of spouses and lineal descendants (whether natural or adopted) and (iii) any
trusts established for the benefit of any of the foregoing and (b) The Regency
Group, Inc., The Regency Group II, Ltd. and Regency Square II but only so long
as the foregoing individuals or such trusts own, directly or indirectly, all of
the capital stock of any such entity.
"Subsidiary" means, for any Person, any corporation, partnership or other
entity of which at least a majority of the securities or other ownership
interests having by the terms thereof ordinary voting power to elect a majority
of the board of directors or other persons performing similar functions of such
corporation, partnership or other entity (without regard to the occurrence of
any contingency) is at the time directly or indirectly owned or controlled by
such Person or one or more Subsidiaries of such Person or by such Person and one
or more Subsidiaries of such Person. "Wholly Owned Subsidiary" means any such
corporation, partnership or other entity of which all of the equity securities
or other ownership interests (other than, in the case of a corporation,
directors' qualifying shares) are so owned or controlled.
"Swingline Commitment" means the Swingline Lender's obligation to make
Swingline Loans pursuant to Section 2.3. in an amount up to, but not exceeding,
$40,000,000, as such amount may be reduced from time to time in accordance with
the terms hereof.
"Swingline Lender" means Wells Fargo Bank, National Association, together
with its respective successors and assigns.
"Swingline Loan" means a loan made by the Swingline Lender to a Borrower
pursuant to Section 2.3.(a).
"Swingline Note" means, with respect to a Borrower, a promissory note of
such Borrower substantially in the form of Exhibit E, payable to the order of
the Swingline Lender in a principal amount equal to the amount of the Swingline
Commitment as originally in effect and otherwise duly completed.
"Swingline Termination Date" means the date which is seven Business Days
prior to the Revolving Credit Termination Date.
"Taxes" has the meaning given that term in Section 3.10.
"Term Loan" has the meaning given that term in Section 2.11.
"Termination Date" means the date two years after the Revolving Credit
Termination Date.
"Termination Event" means (a) a Reportable Event; (b) the filing of a
notice of intent to terminate a Plan or the treatment of a Plan amendment as a
termination under Section 4041 of ERISA or (c) the institution of proceedings to
terminate a Plan by the PBGC under Section 4042 of ERISA, or the appointment of
a trustee to administer any Plan.
"Total Liabilities" means, as to any Person as of a given date, all
liabilities which would, in conformity with GAAP, be properly classified as a
liability on the consolidated balance sheet of such Person as of such date, and
in any event shall include (without duplication): (a) all Indebtedness of such
Person; (b) all accounts payable of such Person; (c) all purchase and repurchase
obligations and forward commitments of such Person to the extent such
obligations or commitments are evidenced by a binding purchase agreement
(forward commitments shall include without limitation (i) forward equity
commitments and (ii) commitments to purchase any real property under
development, redevelopment or renovation); (d) all unfunded obligations of such
Person; (e) all lease obligations of such Person (including ground leases) to
the extent required under GAAP to be classified as a liability on the balance
sheet of such Person; (f) all Contingent Obligations of such Person including,
without limitation, all Guarantees of Indebtedness by such Person; and (g) all
liabilities of any Unconsolidated Affiliate of such Person, which liabilities
such Person has Guaranteed or is otherwise obligated on a recourse basis. For
purposes of clauses (c) and (d) of this definition, the amount of Total
Liabilities of a Person at any given time in respect of a contract to purchase
or otherwise acquire unimproved or fully developed real property shall be equal
to (i) the total purchase price payable by such Person under the contract if, at
such time, the seller of such real property would be entitled to specifically
enforce the contract against such Person, otherwise, (ii) the aggregate amount
of due diligence deposits, earnest money payments and other similar payments
made by such Person under the contract which, at such time, would be subject to
forfeiture upon termination of the contract. For purposes of clauses (c) and (d)
of this definition, the amount of Total Liabilities of a Person at any given
time in respect of a contract relating to the acquisition of real property which
the seller is required to develop or renovate prior to, and as a condition
precedent to, such acquisition shall equal the maximum amount reasonably
estimated to be payable by such Person under the contract assuming performance
by the seller of its obligations under the contract which amount shall include,
without limitation, any amounts payable after consummation of such acquisition
which may based on certain performance levels or other related criteria.
"Type" with respect to any Revolving Loan or Term Loan, refers to whether
such Loan is a LIBOR Loan or a Base Rate Loan, or in the case of a Bid Rate Loan
only, an Absolute Rate Loan or a LIBOR Margin Loan.
"Unconsolidated Affiliate" shall mean, with respect to any Person, any
other Person in whom such Person holds an Investment, which Investment is
accounted for in the financial statements of such Person on an equity basis of
accounting and whose financial results would not be consolidated under GAAP with
the financial results of such Person on the consolidated financial statements of
such Person. The term "Unconsolidated Affiliate" shall also include any
Preferred Stock Entity in which a Person has made an Investment, which
Investment is accounted for in the financial statements of such Person on an
equity basis of accounting and whose financial results would not be consolidated
under GAAP with the financial results of such Person on the consolidated
financial statements of such Person.
"Unencumbered NOI" means, for any period, the aggregate Net Operating
Income for such period of Unencumbered Pool Properties and any other Property
which satisfies the following requirements: (a) such Property is owned in fee
simple by only the Parent or a Subsidiary; (b) neither such Property, nor any
interest of the Parent or such Subsidiary therein, is subject to any Lien other
than Permitted Liens or to any agreement (other than this Agreement or any other
Loan Document) that prohibits the creation of any Lien thereon as security for
Indebtedness; (c) if such Property is owned by a Subsidiary, (i) none of the
Parent's direct or indirect ownership interest in such Subsidiary is subject to
any Lien other than Permitted Liens or to any agreement (other than this
Agreement or any other Loan Document) that prohibits the creation of any Lien
thereon as security for Indebtedness and (ii) the Parent directly, or indirectly
through a Subsidiary, has the right to take the following actions without the
need to obtain the consent of any Person: (A) to create Lien on such Property as
security for Indebtedness of the Parent or such Subsidiary, as applicable and
(B) to sell, transfer or otherwise dispose of such Property; and (d) such
Property is free of all structural defects, title defects, environmental
conditions or other adverse matters except for defects, conditions or matters
individually or collectively which are not material to the profitable operation
of such Property.
"Unencumbered Pool Certificate" means a report, certified by the chief
financial officer of RCLP in the manner provided for in Exhibit P, setting forth
the calculations required to establish the Borrowing Bases of RCLP and of the
Development Affiliates as of a specified date, all in form and detail
satisfactory to the Agent.
"Unencumbered Pool Properties" means those Eligible Properties that have
been approved pursuant to Article IV. for inclusion when calculating the Maximum
Loan Availability.
"Unencumbered Pool Value" means, at any time, the following amount as
determined for an Unencumbered Pool Property: if such Unencumbered Pool Property
is (a) a Stabilized Retail Operating Property, (i) the Net Operating Income of
such Unencumbered Pool Property for the fiscal quarter most recently ended times
(ii) 4 and divided by (iii) 9.25%; (b) a Pre-Stabilized Retail Operating
Property, (i) from the date such Unencumbered Pool Property is accepted as
Unencumbered Pool Property pursuant to Section 4.1. through the last day of the
eighteenth full calendar month thereafter, the book value of such Unencumbered
Pool Property, and (ii) from and after that time: (A) the Net Operating Income
of such Unencumbered Pool Property for the fiscal quarter most recently ended
times (B) 4 and divided by (C) 9.25%; and (c) a Qualified Development Property,
the book value of Construction in Process for such Unencumbered Pool Property.
For purposes of this definition, the Unencumbered Pool Value for any period for
any Unencumbered Pool Property owned by a Subsidiary of RCLP which is not a
Wholly Owned Subsidiary shall be limited to RCLP's Ownership Share of (x) if
such Unencumbered Pool Property is a Stabilized Retail Operating Property or
Pre-Stabilized Retail Operating Property whose value is calculated under clause
(b)(ii) above, the Unencumbered Pool Value calculated using only the Net
Operating Income of such Unencumbered Pool Property distributed to RCLP for such
period, (y) if such Unencumbered Pool Property is a Qualified Development
Property, the book value of Construction in Process for such Unencumbered Pool
Property or (z) if such Unencumbered Pool Property is a Pre-Stabilized Retail
Operating Property whose value is calculated under clause (b)(i) above, the book
value of such Unencumbered Pool Property.
"Unprotected Floating Rate Debt" means all Indebtedness of a Person
(including, without limitation, Indebtedness of Unconsolidated Affiliates of
such Person which Indebtedness is recourse to such Person) which bears interest
at a variable rate that fluctuates during the scheduled life of such
Indebtedness and for which such Person has not obtained Interest Rate Agreements
which effectively cause such variable rates to be equivalent to fixed rates less
than or equal to 9% per annum.
"Unsecured Indebtedness" means, with respect to a Person, all Indebtedness
of such Person that is not Secured Indebtedness.
"Unsecured Liabilities" means, as to any Person as of a given date, (a)
all liabilities which would, in conformity with GAAP, be properly classified as
a liability on the consolidated balance sheet of such Person as at such date
plus (b) all Indebtedness of such Person (to the extent not included in the
preceding clause (a)) minus (c) all Secured Indebtedness of such Person. When
determining the Unsecured Liabilities of the Parent and its Subsidiaries: (i)
the following (to the extent not in excess of $1,500,000 in the aggregate) shall
be excluded: (A) any amounts related to contributions by RCLP paid in RCLP's
capital stock to the 401(k) plan maintained by RCLP and (B) contributions paid
by RCLP to RCLP's Long-term Omnibus Plan; (ii) accounts payable and accrued
dividends payable shall be included only to the extent the aggregate amount
thereof exceeds the aggregate amount of unrestricted cash then reportable on a
consolidated balance sheet of RCLP; (iii) accrued property taxes in respect of
real property shall be included only to the extent the aggregate amount thereof
exceeds the aggregate amount of cash held by RCLP and its Subsidiaries in escrow
for the payment of such taxes at such time and (iv) all Unsecured Liabilities of
the Development Affiliates shall be included to the extent not otherwise
included herein.
"Unsecured Interest Expense" means, with respect to a Person and for a
given period, all Interest Expense for such period attributable the Unsecured
Indebtedness of such Person.
"U.S. Realty" means Security Capital U.S. Realty, a Luxembourg societe
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d'investment a capital variable.
"Voting Stock" means capital stock issued by a corporation, or equivalent
interests in any other Person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors (or
persons performing similar functions) of such Person, even if the right so to
vote has been suspended by the happening of such a contingency
"Wells Fargo" means Wells Fargo Bank, National Association, together with
its successors and assigns.
SECTION 1.2. General; References to Time.
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Unless otherwise indicated, all accounting terms, ratios and measurements
shall be interpreted or determined in accordance with, and all financial
statements required to be delivered under any Loan Document shall be prepared in
accordance with, GAAP. With respect to any Property which has not been owned by
a Loan Party for a full fiscal quarter, financial amounts with respect to such
Property shall be adjusted appropriately to account for such lesser period of
ownership unless specifically provided otherwise herein. References in this
Agreement to "Sections", "Articles", "Exhibits" and "Schedules" are to sections,
articles, exhibits and schedules herein and hereto unless otherwise indicated.
references in this Agreement to any document, instrument or agreement (a) shall
include all exhibits, schedules and other attachments thereto, (b) shall include
all documents, instruments or agreements issued or executed in replacement
thereof, and (c) shall mean such document, instrument or agreement, or
replacement or predecessor thereto, as amended, supplemented, restated or
otherwise modified from time to time and in effect at any given time. Wherever
from the context it appears appropriate, each term stated in either the singular
or plural shall include the singular and plural, and pronouns stated in the
masculine, feminine or neuter gender shall include the masculine, the feminine
and the neuter. Unless explicitly set forth to the contrary, a reference to
"Subsidiary" means a Subsidiary of the Parent or a Subsidiary of such Subsidiary
and a reference to an "Affiliate" means a reference to an Affiliate of any
Borrower. Unless otherwise indicated, all references to time are references to
San Francisco, California time.
ARTICLE II. CREDIT FACILITY
SECTION 2.1. Revolving Loans.
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(a) Making of Revolving Loans. Subject to the terms and conditions set
forth in this Agreement and the limitations set forth in Section 2.14., each
Lender severally and not jointly agrees to make Revolving Loans during the
period from and including the Effective Date to but excluding the Revolving
Credit Termination Date, (i) to RCLP in an aggregate principal amount at any one
time outstanding up to, but not exceeding, such Lender's Pro Rata Share of
RCLP's Maximum Loan Availability and (ii) to the Development Affiliates in an
aggregate principal amount at any one time outstanding up to, but not exceeding,
such Lender's Pro Rata Share of the Development Affiliates' Maximum Loan
Availability. Each borrowing of Revolving Loans hereunder shall be in an
aggregate principal amount of $1,000,000 and integral multiples of $100,000 in
excess of that amount (except that any such borrowing of Revolving Loans may be
in the aggregate amount of the unused Commitments, which Revolving Loans, if
less than $1,000,000, must be Base Rate Loans). Within the foregoing limits and
subject to the other terms of this Agreement, the Borrowers may borrow, repay
and reborrow Revolving Loans. Upon the Effective Date, all Revolving Loans (as
defined under the Existing Regency Credit Agreement) then outstanding under the
Existing Regency Credit Agreement shall be deemed to be Revolving Loans to RCLP
outstanding hereunder being of the same Types, and in the case of LIBOR Loans,
having the same Interest Periods. As of the Effective Date, such Revolving Loans
shall be allocated among the Lenders in accordance with their respective Pro
Rata Shares. Each Lender agrees to make such payments to the other Lenders and
any Person who ceased to be a "Lender" under the Existing Regency Credit
Agreement upon the Effective Date in such amounts as are necessary to effect
such allocation. All such payments shall be made to the Agent for the account of
the Person to be paid.
(b) Requests for Revolving Loans. Not later than 9:00 a.m. at least two
Business Days prior to a borrowing of Base Rate Loans and not later than 9:00
a.m. at least three Business Days prior to a borrowing of LIBOR Loans, a
Borrower shall deliver to the Agent a Notice of Borrowing. Each Notice of
Borrowing shall specify the identity of the Borrower, the principal amount of
the Revolving Loan to be borrowed, the date such Revolving Loan is to be
borrowed (which must be a Business Day), the use of the proceeds of such
Revolving Loan, the Type of the requested Revolving Loan and if such Revolving
Loan is to be a LIBOR Loan, the initial Interest Period for such Revolving Loan.
Each Notice of Borrowing shall be irrevocable once given and binding on such
Borrower. Prior to delivering a Notice of Borrowing, a Borrower may (without
specifying whether a Revolving Loan will be a Base Rate Loan or a LIBOR Loan)
request that the Agent provide such Borrower with the most recent LIBO Rate
available to the Agent. The Agent shall provide such quoted rate to such
Borrower and to the Lenders on the date of such request or as soon as possible
thereafter.
(c) Funding of Revolving Loans. Promptly after receipt of a Notice of
Borrowing under Section 2.1.(b), the Agent shall notify each Lender by telex or
telecopy, or other similar form of transmission of the proposed borrowing. Each
Lender shall deposit an amount equal to its Pro Rata Share of the Revolving Loan
requested by the applicable Borrower with the Agent at the Principal Office, in
immediately available funds not later than 9:00 a.m. on the date of such
proposed Revolving Loan. Upon fulfillment of all applicable conditions set forth
herein, the Agent shall make available to such Borrower at the Principal Office,
not later than 12:00 noon on the date of the requested Revolving Loan, the
proceeds of such amounts received by the Agent. The failure of any Lender to
deposit the amount described above with the Agent shall not relieve any other
Lender of its obligations hereunder to make its Pro Rata Share of a Revolving
Loan.
(d) Unless the Agent shall have been notified by any Lender that such
Lender will not make available to the Agent such Lender's Pro Rata Share of a
proposed Revolving Loan, the Agent may in its discretion assume that such Lender
has made such Pro Rata Share of such Revolving Loan available to the Agent in
accordance with this Section and the Agent may, if it chooses, in reliance upon
such assumption, make such Pro Rata Share of such Revolving Loan available to
the applicable Borrower.
SECTION 2.2. Bid Rate Loans.
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(a) Bid Rate Loans. In addition to borrowings of Revolving Loans, at any
time during the period from the Effective Date to but excluding the Revolving
Credit Termination Date, and so long as RCLP or the Parent, as the case may be,
continues to maintain an Investment Grade Rating from both S&P and Moody's, each
Borrower may, as set forth in this Section, request the Lenders to make offers
to make Bid Rate Loans to such Borrowers in Dollars. The Lenders may, but shall
have no obligation to, make such offers and a Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this Section.
Upon the Effective Date, all Bid Rate Loans owing to a Lender then outstanding
under the Existing Credit Agreement shall be deemed to be Bid Rate Loans to RCLP
and made by such Lender outstanding hereunder being of the same Types and having
the same Interest Periods.
(b) Requests for Bid Rate Loans. When a Borrower wishes to request from
the Lenders offers to make Bid Rate Loans, it shall give the Agent notice (a
"Bid Rate Quote Request") so as to be received no later than 9:00 a.m. on (x)
the Business Day immediately preceding the date of borrowing proposed therein,
in the case of an Absolute Rate Auction and (y) on the date four Business Days
prior to the proposed date of borrowing, in the case of a LIBOR Auction. The
Agent shall deliver to each Lender a copy of each Bid Rate Quote Request
promptly upon receipt thereof by the Agent. A Borrower may request offers to
make Bid Rate Loans for up to 3 different Interest Periods in each Bid Rate
Quote Request (for which purpose Interest Periods in different lettered clauses
of the definition of the term "Interest Period" shall be deemed to be different
Interest Periods even if they are coterminous); provided that the request for
each separate Interest Period shall be deemed to be a separate Bid Rate Quote
Request for a separate borrowing (a "Bid Rate Borrowing"). Each Bid Rate Quote
Request shall be substantially in the form of Exhibit I and shall specify as to
each Bid Rate Borrowing, in addition to the identity of the Borrower, all of the
following:
(i) the proposed date of such borrowing, which shall be a
Business Day;
(ii) the aggregate amount of such Bid Rate Borrowing which shall be
in a minimum amount of $15,000,000 and integral multiples of $1,000,000 in
excess thereof which shall not cause any of the limits specified in
Section 2.14. to be violated;
(iii) whether the Bid Rate Quote Request is for LIBOR Margin Loans
or Absolute Rate Loans; and
(iv) the duration of the Interest Period applicable thereto.
Each Borrower shall deliver no more than one Bid Rate Quote Request in any
calendar month and no Bid Rate Quote Request by a Borrower shall be delivered
within five Business Days of the giving of any other Bid Rate Quote Request by
such Borrower or any other Borrower, except that the Borrowers shall be
permitted to deliver Bid Rate Quote Requests together on the same day.
(c) Bid Rate Quotes.
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(i) Each Lender may submit one or more Bid Rate Quotes, each
containing an offer to make a Bid Rate Loan in response to any Bid Rate
Quote Request; provided that, if a Borrower's request under Section
2.2.(b) specified more than one Interest Period, such Lender may make a
single submission containing only one Bid Rate Quote for each such
Interest Period. Each Bid Rate Quote must be submitted to the Agent not
later than 7:30 a.m. (x) on the proposed date of borrowing, in the case of
an Absolute Rate Auction and (y) on the date three Business Days prior to
the proposed date of borrowing, in the case of a LIBOR Auction, and in
either case the Agent shall disregard any Bid Rate Quote received after
such time; provided that the Lender then acting as the Agent may submit a
Bid Rate Quote only if it notifies the applicable Borrower of the terms of
the offer contained therein not later than 30 minutes prior to the latest
time by which the Lenders must submit applicable Bid Rate Quotes. Subject
to Articles VI. and X., any Bid Rate Quote so made shall be irrevocable.
Such Bid Rate Loans may be funded by a Lender's Designated Lender (if any)
as provided in Section 12.8.(d), however such Lender shall not be required
to specify in its Bid Rate Quote whether such Bid Rate Loan will be funded
by such Designated Lender.
(ii) Each Bid Rate Quote shall be substantially in the form of
Exhibit J and shall specify:
(A) the proposed date of borrowing and the Interest Period
therefor;
(B) the principal amount of the Bid Rate Loan for which each
such offer is being made; provided that the aggregate principal
amount of all Bid Rate Loans for which a Lender submits Bid Rate
Quotes (x) may be greater or less than the Commitment of such Lender
but (y) shall not exceed the principal amount of the Bid Rate
Borrowing for a particular Interest Period for which offers were
requested;
(C) in the case of an Absolute Rate Auction, the rate of
interest per annum (rounded upwards, if necessary, to the nearest
1/1,000th of 1%) offered for each such Absolute Rate Loan (the
"Absolute Rate");
(D) in the case of a LIBOR Auction, the margin above or below
applicable LIBOR (the "LIBOR Margin") offered for each such LIBOR
Margin Loan, expressed as a percentage (rounded upwards, if
necessary, to the nearest 1/1,000th of 1%) to be added to (or
subtracted from) the applicable LIBOR;
(E) the identity of the quoting Lender; and
(F) any Bid Rate Quote shall be in a minimum amount of
$5,000,000 and integral multiples of $1,000,000 in excess thereof.
No Bid Rate Quote shall contain qualifying, conditional or similar
language or propose terms other than or in addition to those set forth in
the applicable Bid Rate Quote Request and, in particular, no Bid Rate
Quote may be conditioned upon acceptance by the applicable Borrower of all
(or some specified minimum) of the principal amount of the Bid Rate Loan
for which such Bid Rate Quote is being made.
(d) Notification by Agent. The Agent shall, as promptly as practicable
after the Bid Rate Quotes are submitted (but in any event not later than 8:30
a.m. (x) on the proposed date of borrowing, in the case of an Absolute Rate
Margin and (y) on the date three Business Days prior to the proposed date of
borrowing, in the case of a LIBOR Auction), notify the applicable Borrower of
the terms (i) of any Bid Rate Quote submitted by a Lender that is in accordance
with Section 2.2.(c) and (ii) of any Bid Rate Quote that amends, modifies or is
otherwise inconsistent with a previous Bid Rate Quote submitted by such Lender
with respect to the same Bid Rate Quote Request. Any such subsequent Bid Rate
Quote shall be disregarded by the Agent unless such subsequent Bid Rate Quote is
submitted solely to correct a manifest error in such former Bid Rate Quote. The
Agent's notice to the applicable Borrower shall specify (A) the aggregate
principal amount of the Bid Rate Borrowing for which offers have been received
and (B) the principal amounts and Absolute Rates or LIBOR Margins, as
applicable, so offered by each Lender.
(e) Acceptance by Borrower.
----------------------
(i) Not later than 9:30 a.m. (x) on the proposed date of borrowing,
in the case of an Absolute Rate Margin and (y) on the date three Business
Days prior to the proposed date of borrowing, in the case of LIBOR
Auction, the applicable Borrower shall notify the Agent of its acceptance
or nonacceptance of the offers so notified to it pursuant to Section
2.2.(d) which notice shall be in the form of Exhibit K. In the case of
acceptance, such notice shall specify the aggregate principal amount of
offers for each Interest Period that are accepted. The failure of the
applicable Borrower to give such notice by such time shall constitute
nonacceptance. A Borrower may accept any Bid Rate Quote in whole or in
part; provided that:
(A) the aggregate principal amount of each Bid Rate Borrowing
may not exceed the applicable amount set forth in the related Bid
Rate Quote Request;
(B) the aggregate principal amount of each Bid Rate Borrowing
shall comply with the provisions of Section 2.2.(b)(ii) but shall
not cause the limits specified in Section 2.14. to be violated;
(C) acceptance of offers may be made only in ascending order
of Absolute Rates or LIBOR Margins, as applicable, in each case
beginning with the lowest rate so offered;
(D) any acceptance in part by a Borrower shall be in a minimum
amount of $5,000,000 and integral multiples of $1,000,000 in excess
thereof; and
(E) no Borrower may accept any offer that fails to comply with
Section 2.2.(c) or otherwise fails to comply with the requirements
of this Agreement.
(ii) If offers are made by two or more Lenders with the same
Absolute Rates or LIBOR Margins, as applicable, for a greater aggregate
principal amount than the amount in respect of which offers are accepted
for the related Interest Period, the principal amount of Bid Rate Loans in
respect of which such offers are accepted shall be allocated by the Agent
among such Lenders in proportion to the aggregate principal amount of such
offers. Determinations by the Agent of the amounts of Bid Rate Loans shall
be conclusive in the absence of manifest error.
(f) Obligation to Make Bid Rate Loans. The Agent shall promptly (and in
any event not later than (x) 10:00 a.m. on the proposed date of borrowing of
Absolute Rate Loans and (y) on the date three Business Days prior to the
proposed date of borrowing of LIBOR Margin Loans) notify each Lender that
submitted a Bid Rate Quote as to whose Bid Rate Quote has been accepted and the
amount and rate thereof. A Lender who is notified that it has been selected to
make a Bid Rate Loan may designate its Designated Lender (if any) to fund such
Bid Rate Loan on its behalf, as described in Section 12.8. Any Designated Lender
which funds a Bid Rate Loan shall on and after the time of such funding become
the obligee under such Bid Rate Loan and be entitled to receive payment thereof
when due. No Lender shall be relieved of its obligation to fund a Bid Rate Loan,
and no Designated Lender shall assume such obligation, prior to the time the
applicable Bid Rate Loan is funded. Any Lender whose offer to make any Bid Rate
Loan has been accepted shall, not later than 11:00 a.m. on the date specified
for the making of such Loan, make the amount of such Loan available to the Agent
at its Principal Office in immediately available funds, for the account of the
applicable Borrower. The amount so received by the Agent shall, subject to the
terms and conditions of this Agreement, be made available to such Borrower not
later than 12:00 noon on such date by depositing the same, in immediately
available funds, in an account of such Borrower designated by such Borrower.
(g) No Effect on Commitment. Except for the purpose and to the extent
-----------------------
expressly stated in Section 2.9., the amount of any Bid Rate Loan made by any
Lender shall not constitute a utilization of such Lender's Commitment.
SECTION 2.3. Swingline Loans.
---------------
(a) Swingline Loans. Subject to the terms and conditions hereof,
including, without limitation Section 2.14., if necessary to meet the various
funding deadlines of the respective Borrowers, the Swingline Lender agrees to
make Swingline Loans to the Borrowers, during the period from the Effective Date
to but excluding the Swingline Termination Date, in an aggregate principal
amount at any one time outstanding up to, but not exceeding, the amount of the
Swingline Commitment. If at any time the aggregate principal amount of the
Swingline Loans outstanding at such time exceeds the Swingline Commitment in
effect at such time, the Borrowers shall immediately pay the Agent for the
account of the Swingline Lender the amount of such excess. Subject to the terms
and conditions of this Agreement, the Borrowers may borrow, repay and reborrow
Swingline Loans hereunder.
(b) Procedure for Borrowing Swingline Loans. A Borrower requesting a
Swingline Loan shall give the Agent and the Swingline Lender notice pursuant to
a Notice of Swingline Borrowing delivered to the Swingline Lender no later than
9:00 a.m. on the proposed date of such borrowing. Any such telephonic notice
shall include all information to be specified in a written Notice of Swingline
Borrowing. Not later than 11:00 a.m. on the date of the requested Swingline Loan
and subject to satisfaction of the applicable conditions set forth in Article
VI. for such borrowing, the Swingline Lender will make the proceeds of such
Swingline Loan available to such Borrower in Dollars, in immediately available
funds, at the account specified by such Borrower in the Notice of Swingline
Borrowing.
(c) Interest. Swingline Loans owing by a Borrower shall bear interest at a
per annum rate equal to the Base Rate as in effect from time to time or at such
other rate or rates as such Borrower and the Swingline Lender may agree from
time to time in writing. Interest payable on Swingline Loans is solely for the
account of the Swingline Lender. All accrued and unpaid interest on Swingline
Loans shall be payable on the dates and in the manner provided in Section 2.8.
with respect to interest on Base Rate Loans (except as the Swingline Lender and
a Borrower may otherwise agree in writing in connection with any particular
Swingline Loan).
(d) Swingline Loan Amounts, Etc. Each Swingline Loan shall be in the
minimum amount of $1,000,000 and integral multiples of $100,000 in excess
thereof, or such other minimum amounts agreed to by the Swingline Lender and a
Borrower. Any voluntary prepayment of a Swingline Loan must be in integral
multiples of $100,000 or the aggregate principal amount of all outstanding
Swingline Loans (or such other minimum amounts upon which the Swingline Lender
and a Borrower may agree) and in connection with any such prepayment, a Borrower
must give the Swingline Lender prior written notice thereof no later than 10:00
a.m. on the day prior to the date of such prepayment. The Swingline Loans shall,
in addition to this Agreement, be evidenced by the Swingline Notes.
(e) Repayment and Participations of Swingline Loans. Each Borrower agrees
to repay each Swingline Loan borrowed by it within one Business Day of demand
therefor by the Swingline Lender and in any event, within 5 Business Days after
the date such Swingline Loan was made. Notwithstanding the foregoing, each
Borrower shall repay the entire outstanding principal amount of, and all accrued
but unpaid interest on, the Swingline Loans borrowed by it on the Swingline
Termination Date (or such earlier date as the Swingline Lender and a Borrower
may agree in writing). In lieu of demanding repayment of any outstanding
Swingline Loan from a Borrower, the Swingline Lender may, on behalf of such
Borrower (which hereby irrevocably directs the Swingline Lender to act on its
behalf), request a borrowing of Base Rate Loans from the Lenders in an amount
equal to the principal balance of such Swingline Loan. The amount limitations
contained in the second sentence of Section 2.1.(a) shall not apply to any
borrowing of Base Rate Loans made pursuant to this subsection. The Swingline
Lender shall give notice to the Agent of any such borrowing of Base Rate Loans
not later than 9:00 a.m. at least one Business Day prior to the proposed date of
such borrowing. Each Lender will make available to the Agent at the Principal
Office for the account of Swingline Lender, in immediately available funds, the
proceeds of the Base Rate Loan to be made by such Lender. The Agent shall pay
the proceeds of such Base Rate Loans to the Swingline Lender, which shall apply
such proceeds to repay such Swingline Loan. If the Lenders are prohibited from
making Loans required to be made under this subsection for any reason
whatsoever, including without limitation, the occurrence of any of the Defaults
or Events of Default described in Sections 10.1.(g) or 10.1.(h), each Lender
shall purchase from the Swingline Lender, without recourse or warranty, an
undivided interest and participation to the extent of such Lender's Pro Rata
Share of such Swingline Loan, by directly purchasing a participation in such
Swingline Loan in such amount and paying the proceeds thereof to the Agent for
the account of the Swingline Lender in Dollars and in immediately available
funds. A Lender's obligation to purchase such a participation in a Swingline
Loan shall be absolute and unconditional and shall not be affected by any
circumstance whatsoever, including without limitation, (i) any claim of setoff,
counterclaim, recoupment, defense or other right which such Lender or any other
Person may have or claim against the Agent, the Swingline Lender or any other
Person whatsoever, (ii) the occurrence or continuation of a Default or Event of
Default (including without limitation, any of the Defaults or Events of Default
described in Sections 10.1.(g) or 10.1.(h)) or the termination of any Lender's
Commitment, (iii) the existence (or alleged existence) of an event of condition
which has had or could have a Materially Adverse Effect, (iv) any breach of any
Loan Document by the Agent, any Lender or any Borrower or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing. If such amount is not in fact made available to the Swingline
Lender by any Lender, the Swingline Lender shall be entitled to recover such
amount on demand from such Lender, together with accrued interest thereon for
each day from the date of demand thereof, at the Federal Funds Rate. If such
Lender does not pay such amount forthwith upon the Swingline Lender's demand
therefor, and until such time as such Lender makes the required payment, the
Swingline Lender shall be deemed to continue to have outstanding Swingline Loans
in the amount of such unpaid participation obligation for all purposes of the
Loan Documents (other than those provisions requiring the other Lenders to
purchase a participation therein). Further, such Lender shall be deemed to have
assigned any and all payments made of principal and interest on its Loans, and
any other amounts due to it hereunder, to the Swingline Lender to fund Swingline
Loans in the amount of the participation in Swingline Loans that such Lender
failed to purchase pursuant to this Section until such amount has been purchased
(as a result of such assignment or otherwise).
SECTION 2.4. Number of Interest Periods.
--------------------------
Anything herein to the contrary notwithstanding, there may be no more than
8 different Interest Periods with respect to the LIBOR Loans and Bid Rate Loans
of all of the Borrowers on a collective basis outstanding at the same time.
SECTION 2.5. Continuation.
------------
So long as no Default or Event of Default shall have occurred and be
continuing, each Borrower may on any Business Day, with respect to any LIBOR
Loan borrowed by it, elect to maintain such LIBOR Loan or any portion thereof as
a LIBOR Loan by selecting a new Interest Period for such LIBOR Loan. Each new
Interest Period selected under this Section shall commence on the last day of
the immediately preceding Interest Period. Each selection of a new Interest
Period shall be made by a Borrower's giving of a Notice of Continuation not
later than 9:00 a.m. on the third Business Day prior to the date of any such
Continuation by such Borrower to the Agent. Promptly after receipt of a Notice
of Continuation, the Agent shall notify each Lender by telex or telecopy, or
other similar form of transmission of the proposed Continuation. Such notice by
a Borrower of a Continuation shall be by telephone or telecopy, confirmed
immediately in writing if by telephone, in the form of a Notice of Continuation,
specifying, in addition to the identity of the Borrower, (a) the date of such
Continuation, (b) the LIBOR Loan and portion thereof subject to such
Continuation and (c) the duration of the selected Interest Period, all of which
shall be specified in such manner as is necessary to comply with all limitations
on Loans outstanding hereunder. Each Notice of Continuation shall be irrevocable
by and binding on the Borrowers once given. If a Borrower shall fail to select
in a timely manner a new Interest Period for any LIBOR Loan borrowed by it in
accordance with this Section, such Loan will automatically, on the last day of
the current Interest Period therefore, Convert into a Base Rate Loan
notwithstanding failure of such Borrower to comply with Section 2.6. In the case
of the Continuation of only a portion of a LIBOR Loan, such portion shall be in
the aggregate amount for all of the Lenders of $1,000,000 or integral multiples
of $100,000 in excess of that amount.
SECTION 2.6. Conversion.
----------
So long as no Default or Event of Default shall have occurred and be
continuing, each Borrower may on any Business Day, upon such Borrower's giving
of a Notice of Conversion to the Agent, Convert the entire amount of all or a
portion of a Revolving Loan borrowed by it of one Type into a Revolving Loan of
another Type. Promptly after receipt of a Notice of Conversion, the Agent shall
notify each Lender by telex or telecopy, or other similar form of transmission
of the proposed Conversion. Any Conversion of a LIBOR Loan into a Base Rate Loan
shall be made on, and only on, the last day of an Interest Period for such LIBOR
Loan. Each such Notice of Conversion shall be given not later than 9:00 a.m. on
the Business Day prior to the date of any proposed Conversion into Base Rate
Loans and on the third Business Day prior to the date of any proposed Conversion
into LIBOR Loans. Subject to the restrictions specified above, each Notice of
Conversion shall be by telephone or telecopy confirmed immediately in writing if
by telephone in the form of a Notice of Conversion specifying, in addition to
the identity of the Borrower, (a) the requested date of such Conversion, (b) the
Type of Revolving Loan to be Converted, (c) the portion of such Type of
Revolving Loan to be Converted, (d) the Type of Revolving Loan such Revolving
Loan is to be Converted into and (e) if such Conversion is into a LIBOR Loan,
the requested duration of the Interest Period of such Revolving Loan. Each
Notice of Conversion shall be irrevocable by and binding on the Borrowers once
given. Each Conversion from a Base Rate Loan to a LIBOR Loan shall be in an
aggregate amount for the Revolving Loans of all the Lenders of not less than
$1,000,000 or integral multiples of $100,000 in excess of that amount.
SECTION 2.7. Interest Rate.
-------------
(a) All Loans. The unpaid principal of each Base Rate Loan shall bear
interest from the date of the making of such Loan to but not including the date
of repayment thereof at a rate per annum equal to the Base Rate in effect from
day to day plus the Applicable Margin. The unpaid principal of each LIBOR Loan
shall bear interest from the date of the making of such Loan to but not
including the date of repayment thereof at a rate per annum equal to the LIBO
Rate for such Loan for the Interest Period therefor plus the Applicable Margin.
The unpaid principal of each Absolute Rate Loan shall bear interest at the
Absolute Rate for such Loan for the Interest Period therefor quoted by the
Lender making such Loan in accordance with Section 2.2. The unpaid principal of
each LIBOR Margin Loan shall bear interest at the LIBO Rate for such Loan for
the Interest Period therefor plus the LIBOR Margin quoted by the Lender making
such Loan in accordance with Section 2.2.
(b) Default Rate. All past-due principal of, and to the extent permitted
by Applicable Law, interest on, the Loans and all Reimbursement Obligations
shall bear interest until paid at the Base Rate from time to time in effect plus
four percent (4%).
SECTION 2.8. Repayment of Loans.
------------------
(a) Payment of Interest. All accrued and unpaid interest on the unpaid
principal amount of each Loan shall be payable (i) in the case of a Base Rate
Loan or a LIBOR Loan, monthly in arrears on the first day of each month,
commencing with the first full calendar month occurring after the Effective
Date, (ii) in the case of a Bid Rate Loan, on the last day of each Interest
Period therefor and, if such Interest Period is longer than a month, monthly in
arrears on the first day of each month, commencing with the first full calendar
month following the first day of such Interest Period, and (iii) for all Loans,
(A) on the Revolving Credit Termination Date, (B) on the Termination Date and
(C) on any date on which the principal balance of such Loan is due and payable
in full.
(b) Payment of Principal of Revolving Loans. Subject to Section 2.11.,
---------------------------------------
each Borrower shall repay the aggregate outstanding principal balance of all
Revolving Loans borrowed by it in full on the Revolving Credit Termination Date.
(c) Bid Rate Loans. Each Borrower shall repay the entire outstanding
principal amount of each Bid Rate Loan borrowed by it on the last day of the
Interest Period of such Bid Rate Loan.
(d) Payment of Principal of Term Loans. Each Borrower shall repay the
aggregate principal balance of the Term Loans owing by it in eight equal
consecutive quarterly installments due on the first day of June first following
the date of conversion of such Borrower's Revolving Loans into such Term Loans
and on the first day of each subsequent September, December, March and June
until such Term Loans are paid in full. Each installment owing by a Borrower
shall be in an amount equal to one-eighth of the initial aggregate principal
balance of the Term Loans owing by such Borrower. Notwithstanding the foregoing,
the entire outstanding principal balance of each Term Loan shall be due and
payable in full on the Termination Date.
(e) Optional Prepayments. A Borrower may, upon at least one Business Day's
prior notice to the Agent, prepay any Revolving Loan or Term Loan owing by such
Borrower in whole at any time, or from time to time in part in an amount equal
to $500,000 or integral multiples of $100,000 in excess of that amount, by
paying the principal amount to be prepaid. If a Borrower shall prepay the
principal of any LIBOR Loan on any date other than the last day of the Interest
Period applicable thereto, such Borrower shall pay the amounts, if any, due
under Section 5.4. Bid Rate Loans may not be prepaid at the option of the
Borrowers.
(f) Mandatory Prepayments.
---------------------
(i) If at any time the aggregate outstanding principal balance of
Loans and the aggregate amount of Letter of Credit Liabilities owing by
RCLP exceeds RCLP's Maximum Loan Availability, then RCLP shall, within 15
days of RCLP obtaining actual knowledge of the occurrence of such excess,
deliver to the Agent and each Lender a written plan acceptable to the
Lenders to eliminate such excess, whether by the designation of additional
Properties as Unencumbered Pool Properties, by RCLP repaying an
appropriate amount of Loans, or otherwise. If such excess is not
eliminated within 45 days of RCLP obtaining actual knowledge of the
occurrence thereof, then the entire outstanding principal balance of all
Loans, together with all accrued interest thereon, and an amount equal to
all Letter of Credit Liabilities for deposit into the Collateral Account,
shall be immediately due and payable in full.
(ii) If at any time the aggregate outstanding principal balance of
Loans and the aggregate amount of Letter of Credit Liabilities owing by
the Development Affiliates exceeds the Development Affiliates' Maximum
Loan Availability, then the Development Affiliates shall, within 15 days
of any Development Affiliate obtaining actual knowledge of the occurrence
of such excess, deliver to the Agent and each Lender a written plan
acceptable to the Lenders to eliminate such excess, whether by the
designation of additional Properties as Unencumbered Pool Properties, by
the Development Affiliates or RCLP repaying an appropriate amount of
Loans, or otherwise. If such excess is not eliminated within 45 days of
any Development Affiliate obtaining actual knowledge of the occurrence
thereof, then the entire outstanding principal balance of all Loans,
together with all accrued interest thereon, and an amount equal to all
Letter of Credit Liabilities for deposit into the Collateral Account,
shall be immediately due and payable in full.
(iii) If at any time the aggregate principal amount of all
outstanding Bid Rate Loans exceeds the lesser of (A) $250,000,000 or (B)
one-half of the aggregate amount of all Commitments at such time, then the
Borrowers obligated in respect of any Bid Rate Loans shall immediately pay
to the Agent for the accounts of the applicable Lenders the amount of such
excess. Such payment shall be applied as provided in Section 3.3.(f).
(g) General Provisions as to Payments. Except to the extent otherwise
provided herein, all payments of principal, interest and other amounts to be
made by a Borrower under this Agreement, the Notes or any other Loan Document
shall be made in Dollars, in immediately available funds, without setoff,
deduction or counterclaim, to the Agent at the Principal Office, not later than
11:00 a.m. on the date on which such payment shall become due (each such payment
made after such time on such due date to be deemed to have been made on the next
succeeding Business Day). Each payment received by the Agent for the account of
a Lender under this Agreement or any Note shall be paid to such Lender (i) on
the date of receipt by the Agent if received not later than 11:00 a.m. on the
due date of such payment or (ii) not later than the Business Day immediately
following the date of receipt by the Agent if received after 11:00 a.m. on the
due date of such payment. Such payments by the Agent shall be paid to a Lender
by wire transfer of immediately available funds in accordance with the wiring
instructions provided by such Lender to the Agent from time to time, for the
account of such Lender at the applicable Lending Office of such Lender. In the
event the Agent fails to pay such amounts to such Lender within the time period
provided in the immediately preceding clause (i) or (ii), as applicable, the
Agent shall pay interest on such amount at a rate per annum equal to the Federal
Funds rate from time to time in effect. If the due date of any payment under
this Agreement or any other Loan Document would otherwise fall on a day which is
not a Business Day such date shall be extended to the next succeeding Business
Day and interest shall continue to accrue at the rate, if any, applicable to
such payment for the period of such extension.
SECTION 2.9. Voluntary Reductions of the Commitments.
---------------------------------------
The Borrowers may terminate or reduce the amount of the Commitments (for
which purpose use of the Commitments shall be deemed to include the aggregate
principal amount of all outstanding Bid Rate Loans and Swingline Loans and the
aggregate amount of all Letter of Credit Liabilities) at any time and from time
to time without penalty or premium upon not less than five Business Days prior
notice from all of the Borrowers to the Agent of each such termination or
reduction, which notice shall specify the effective date thereof and the amount
of any such reduction (which in the case of any partial reduction of the
Commitments shall not be less than $5,000,000 and integral multiples of
$5,000,000 in excess of that amount in the aggregate) and shall be irrevocable
once given and effective only upon receipt by the Agent. The Commitments, once
reduced pursuant to this Section, may not be increased. Each Borrower shall pay
all interest and fees on the Revolving Loans borrowed by it accrued to the date
of such reduction or termination of the Commitments to the Agent for the account
of the Lenders. Any reduction in the aggregate amount of the Commitments shall
result in a proportionate reduction (rounded to the next lowest integral
multiple of multiple of $100,000) in the Swingline Commitment and the L/C
Commitment Amount.
SECTION 2.10. Extension of Revolving Credit Termination Date.
----------------------------------------------
(a) The Borrowers may request that the Agent and the Lenders extend the
current Revolving Credit Termination Date by successive one-year intervals by
all of the Borrowers executing and delivering to the Agent at least 60 days but
no more than 90 days prior to the date one year prior to the current Revolving
Credit Termination Date, a written request in the form of Exhibit M (an
"Extension Request"). The Agent shall forward to each Lender a copy of each
Extension Request delivered to the Agent promptly upon receipt thereof. If all
of the Lenders shall have notified the Agent on or prior to the date which is 30
days prior to the date one year prior to the current Revolving Credit
Termination Date that they accept such Extension Request, the Revolving Credit
Termination Date shall be extended for one year. If any Lender shall not have
notified the Agent on or prior to the date which is 30 days prior to the date
one year prior to the Revolving Credit Termination Date that it accepts such
Extension Request, the Revolving Credit Termination Date shall not be extended
except as otherwise permitted under the immediately following subsection (b).
The Agent shall promptly notify the Borrowers whether the Extension Request has
been accepted or rejected as well as which Lender or Lenders rejected Borrowers'
Extension Request (each such Lender, a "Rejecting Lender"). Each Borrower
understands that this Section has been included in this Agreement for the
Borrowers' convenience in requesting an extension and acknowledges that none of
the Lenders nor the Agent has promised (either expressly or impliedly), nor has
any obligation or commitment whatsoever, to extend the Revolving Credit
Termination Date at any time.
(b) Notwithstanding the preceding subsection (a), if the Borrowers receive
notification from the Agent that an Extension Request has been rejected (a
"Notice of Rejection"), and provided that the aggregate amount of all
Commitments of the Rejecting Lenders does not exceed 20% of the aggregate amount
of Commitments then outstanding, the Borrowers may elect, with respect to each
such Rejecting Lender, by giving written notice from all of the Borrowers to the
Agent of any such election within 15 days after receipt by the Borrowers of a
Notice of Rejection, to either (i) require such Rejecting Lender to assign its
respective Commitment to an Eligible Assignee as contemplated in the immediately
following clause (x) or (ii) pay in full the amount of Loans, interest and fees,
together with all amounts, if any, payable under Section 5.4., owing to such
Rejecting Lender and terminate such Rejecting Lender's Commitment as
contemplated in the immediately following clause (y). If the Borrowers have made
a timely election as permitted by the preceding sentence, then the Borrowers
shall take either of the following actions as specified in such election: (x)
demand that such Rejecting Lender, and upon such demand such Rejecting Lender
shall be obligated to, assign its respective Commitment to an Eligible Assignee
subject to and in accordance with the provisions of Section 12.8.(c) for a
purchase price equal to the aggregate principal balance of Loans then
outstanding and owing to such Rejecting Lender plus any accrued but unpaid
interest thereon and accrued but unpaid fees owing to such Rejecting Lender, any
such assignment to be effective as of the current Revolving Credit Termination
Date without having given effect to the pending Extension Request (the "Current
Revolving Credit Termination Date") or (y) effective as of the Current Revolving
Credit Termination Date, pay to such Rejecting Lender the aggregate principal
balance of Loans then outstanding and owing to such Rejecting Lender plus any
accrued but unpaid interest thereon and accrued but unpaid fees owing to such
Rejecting Lender, together with all amounts, if any, payable under Section 5.4.,
whereupon such Rejecting Lender's Commitment shall terminate, and such Rejecting
Lender shall no longer be a party hereto or have any rights or obligations
hereunder or under any of the other Loan Documents. None of the Agent, such
Rejecting Lender, or any other Lender shall be obligated in any way whatsoever
to initiate any such replacement or to assist in finding an Assignee. If the
Borrowers have elected to cause all Rejecting Lenders either to assign their
Commitments to Eligible Assignees as contemplated by the preceding clause (x) or
to be paid the amounts specified in the preceding clause (y), then the
Borrowers' Extension Request which was initially rejected shall be deemed to
have been granted and accordingly the Revolving Credit Termination Date shall be
extended by one year, otherwise the Revolving Credit Termination Date shall not
be extended. If the aggregate amount of Commitments of the Rejecting Lenders
exceeds 20% of the aggregate amount of Commitments then outstanding, the
Revolving Credit Termination Date shall not be extended.
SECTION 2.11. Term Loan Conversion.
--------------------
Subject to the terms and conditions of this Agreement, if any Extension
Request of the Borrowers shall be denied, all (but not less than all) of the
Borrowers may then elect to convert each Lender's Pro Rata Share of the
aggregate principal amount of Revolving Loans of each such Borrower outstanding
on the date one year prior to the current Revolving Credit Termination Date into
a term loan owing by such Borrower to such Lender (each a "Term Loan") provided
(a) the Borrowers have given the Agent at least 15 days prior notice of the
Borrowers' intention to so convert the Revolving Loans and (b) the conditions
set forth in Section 6.3. have been satisfied as of the date one year prior to
the current Revolving Credit Termination Date. Subject to the terms and
conditions hereof, any such conversion shall be effective as of the date one
year prior to the current Revolving Credit Termination Date. Upon the
effectiveness of the conversion of the outstanding principal balance of
Revolving Loans of the Borrowers into Term Loans as contemplated by this
Section, no Borrower shall have any right to borrow, and no Lender shall have
any obligation to make, any Revolving Loans.
SECTION 2.12. Notes.
-----
The Revolving Loans and the Term Loan owing by a Borrower and made by each
Lender shall, in addition to this Agreement, also be evidenced by such
Borrower's Revolving Note. The Bid Rate Loans made by any Lender to a Borrower
shall, in addition to this Agreement, also be evidenced by such Borrower's Bid
Rate Note.
SECTION 2.13. Option to Replace Lenders.
-------------------------
If any Lender, other than the Agent in its capacity as such, shall:
(a) have notified Agent of a determination under Section 5.1.(a) or
become subject to the provisions of Section 5.3.; or
(b) make any demand for payment or reimbursement pursuant to Section
5.1.(c) or Section 5.4.;
then, provided that (x) there does not then exist any Default or Event of
Default and (y) the circumstances resulting in such demand for payment or
reimbursement under Section 5.1.(c) or Section 5.4. or the applicability of
Section 5.1.(a) or Section 5.3. are not applicable to the Majority Lenders
generally, the Borrowers may either (x) demand that such Lender, and upon such
demand such Lender shall promptly, assign its respective Commitment to an
Eligible Assignee subject to and in accordance with the provisions of Section
12.8.(c) for a purchase price equal to the aggregate principal balance of Loans
then outstanding and owing to such Lender plus any accrued but unpaid interest
thereon and accrued but unpaid fees owing to such Lender, any such assignment to
be completed within 30 days after the making by such Lender of such
determination or demand for payment or (y) within 30 days after the making by
such Lender of such determination or demand for payment, pay to Agent, for
deposit into the Collateral Account, an amount equal to such Lender's Pro Rata
Share of all outstanding Letter of Credit Liabilities and pay to such Lender the
aggregate principal balance of Loans then outstanding and owing to such Lender
plus any accrued but unpaid interest thereon and accrued but unpaid fees owing
to such Lender, whereupon such Lender's Commitment shall terminate, and such
Lender shall no longer be a party hereto or have any rights or obligations
hereunder or under any of the other Loan Documents. None of the Agent, such
Lender, or any other Lender shall be obligated in any way whatsoever to initiate
any such replacement or to assist in finding an Assignee.
SECTION 2.14. Amount Limitations.
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Notwithstanding any other term of this Agreement or any other Loan
Document, at no time may:
(a) The aggregate principal amount of all outstanding Revolving Loans,
together with the aggregate principal amount of all outstanding Swingline Loans,
the aggregate amount of all outstanding Bid Rate Loans and the aggregate amount
of all Letter of Credit Liabilities, in each case owing by RCLP (excluding
Obligations of the Development Affiliates for which RCLP is obligated pursuant
to Section 12.16.), exceed RCLP's Maximum Loan Availability at such time; or
(b) The aggregate principal amount of all outstanding Revolving Loans,
together with the aggregate principal amount of all outstanding Swingline Loans,
the aggregate amount of all outstanding Bid Rate Loans and the aggregate amount
of all Letter of Credit Liabilities, in each case owing by the Development
Affiliates, exceed the Development Affiliates' Maximum Loan Availability at such
time; or
(c) The aggregate principal amount of all outstanding Bid Rate Loans
exceed the lesser of (i) $250,000,000 or (ii) one-half of the aggregate amount
of all Commitments at such time.
SECTION 2.15. Letters of Credit.
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(a) Letters of Credit. Subject to the terms and conditions of this
Agreement including, without limitation, Section 2.14., the Agent, on behalf of
Lenders, agrees to issue for the account of the Borrowers during the period from
and including the Effective Date to, but excluding, the Revolving Credit
Termination Date one or more letters of credit (each a "Letter of Credit") in
such form and containing such terms as may be requested from time to time by a
Borrower and acceptable to the Agent, up to a maximum aggregate Stated Amount at
any one time outstanding not to exceed the L/C Commitment Amount.
(b) Terms of Letters of Credit. At the time of issuance, the amount, terms
and conditions of each Letter of Credit, and of any drafts or acceptances
thereunder, shall be subject to approval by the Agent and the Borrower
requesting such Letter of Credit. Notwithstanding the foregoing, in no event may
(i) the expiration date of any Letter of Credit extend beyond the Revolving
Credit Termination Date, (ii) any Letter of Credit have an initial duration in
excess of one year or (iii) a Letter of Credit be issued within 30 days of the
Revolving Credit Termination Date. The initial Stated Amount of each Letter of
Credit shall be at least $25,000.
(c) Requests for Issuance of Letters of Credit. In connection with the
proposed issuance of a Letter of Credit, a Borrower shall give Agent written
notice (or telephonic notice promptly confirmed in writing) prior to the
requested date of issuance of a Letter of Credit, such notice to describe in
reasonable detail the proposed terms of such Letter of Credit and the nature of
the transactions or obligations proposed to be supported by such Letter of
Credit, and in any event shall set forth with respect to such Letter of Credit,
in addition to the identity of the Borrower requesting such Letter of Credit,
(i) the proposed initial Stated Amount, (ii) the beneficiary, (iii) whether such
Letter of Credit is a commercial or standby letter of credit and (iv) the
proposed expiration date. A Borrower requesting a Letter of Credit shall also
execute and deliver such customary applications and agreements for standby
letters of credit, standby letter of credit agreements, applications for
amendment to letter of credit, and other forms as requested from time to time by
the Agent. Provided such Borrower has given the notice prescribed by the first
sentence of this subsection and such Borrower has executed and delivered to the
Agent the agreements, applications and other forms as required by the
immediately preceding sentence of this subsection, and subject to the terms and
conditions of this Agreement, including the satisfaction of any applicable
conditions precedent set forth in Article VI., the Agent agrees to issue the
requested Letter of Credit on the requested date of issuance for the benefit of
the stipulated beneficiary but in no event prior to the date 5 Business Days
following the date after which the Agent received the items required to be
delivered to it under this subsection. Upon the written request of a Borrower,
the Agent shall deliver to such Borrower a copy of (i) any Letter of Credit
proposed to be issued hereunder at the request of such Borrower prior to the
issuance thereof and (ii) each Letter of Credit issued at the request of such
Borrower within a reasonable time after the date of issuance thereof. To the
extent any term of a Letter of Credit Document is inconsistent with a term of
any Loan Document, the term of the Letter of Credit Document shall control.
(d) Reimbursement Obligations. Upon receipt by the Agent from the
beneficiary of a Letter of Credit of any demand for payment under such Letter of
Credit, the Agent shall promptly notify the Borrower for whose account such
Letter of Credit was issued of the amount to be paid by the Agent as a result of
such demand and the date on which payment is to be made by the Agent to such
beneficiary in respect of such demand. Each Borrower hereby unconditionally and
irrevocably agrees to pay and reimburse the Agent for the amount of each demand
for payment under each Letter of Credit issued for the account of such Borrower
at or prior to the date on which payment is to be made by the Agent to the
beneficiary thereunder, without presentment, demand, protest or other
formalities of any kind. Upon receipt by the Agent of any payment in respect of
any Reimbursement Obligation, the Agent agrees to pay to each Lender that has
acquired a participation therein under the second sentence of Section 2.15.(f)
such Lender's Pro Rata Share of such payment.
(e) Manner of Reimbursement. Upon its receipt of a notice referred to in
the immediately preceding subsection (d), the Borrower for whose account such
Letter of Credit was issued shall advise the Agent whether or not such Borrower
intends to borrow hereunder to finance its obligation to reimburse the Agent for
the amount of the related demand for payment and, if it does, such Borrower
shall submit a timely request for such borrowing as provided in the applicable
provisions of this Agreement. If a Borrower fails to reimburse the Agent for a
demand for payment under a Letter of Credit by the date of such payment, the
Agent shall give each Lender prompt notice thereof and of the amount of the
demand for payment, specifying such Lender's Pro Rata Share of the amount of the
related demand for payment.
(f) Lenders' Participation in Letters of Credit. Immediately upon the
issuance by the Agent of any Letter of Credit each Lender shall be deemed to
have irrevocably and unconditionally purchased and received from the Agent,
without recourse or warranty, an undivided interest and participation to the
extent of such Lender's Pro Rata Share of the liability of the Agent with
respect to such Letter of Credit and each Lender thereby shall absolutely,
unconditionally and irrevocably assume, as primary obligor and not as surety,
and shall be unconditionally obligated to the Agent to pay and discharge when
due, such Lender's Pro Rata Share of the Agent's liability under such Letter of
Credit. In addition, upon the making of each payment by a Lender to the Agent in
respect of any Letter of Credit pursuant to the immediately following subsection
(g), such Lender shall, automatically and without any further action on the part
of the Agent or such Lender, acquire (i) a participation in an amount equal to
such payment in the Reimbursement Obligation owing to the Agent by the
applicable Borrower in respect of such Letter of Credit and (ii) a participation
in a percentage equal to such Lender's Pro Rata Share in any interest or other
amounts payable by such Borrower in respect of such Reimbursement Obligation
(other than fees owing only to the Agent).
(g) Payment Obligation of Lenders. Each Lender severally agrees to pay to
the Agent on demand in immediately available funds in Dollars the amount of such
Lender's Pro Rata Share of each drawing paid by the Agent under each Letter of
Credit to the extent such amount is not reimbursed by a Borrower pursuant to
Section 2.15.(d) and (e) or the other Letter of Credit Documents. Each such
Lender's obligation to make such payments to the Agent under this subsection,
and the Agent's right to receive the same, shall be absolute, irrevocable and
unconditional and shall not be affected in any way by any circumstance
whatsoever, including without limitation, (i) the failure of any other Lender to
make its payment under this subsection, (ii) the financial condition of any
Borrower, (iii) the existence of any Default or Event of Default, including any
Event of Default described in Section 10.1.(g) or (h) or (iv) the termination of
the Commitments. Each such payment to the Agent shall be made without any
offset, abatement, withholding or deduction whatsoever.
(h) Agent's Duties Regarding Letters of Credit; Unconditional Nature of
Reimbursement Obligation. In examining documents presented in connection with
drawings under Letters of Credit and making payments under such Letters of
Credit against such documents, the Agent shall only be required to use the same
standard of care as it uses in connection with examining documents presented in
connection with drawings under letters of credit in which it has not sold
participations and making payments under such letters of credit. The Borrowers
assume all risks of the acts and omissions of, or misuse of the Letters of
Credit by, the respective beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the foregoing, neither the Agent nor any of
Lenders shall be responsible (i) for the form, validity, sufficiency, accuracy,
genuineness or legal effects of any document submitted by any party in
connection with the application for and issuance of or any drawing honored under
any Letter of Credit even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit, or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (iii) for failure of the beneficiary of
any Letter of Credit to comply fully with conditions required in order to draw
upon such Letter of Credit; (iv) for errors, omissions, interruptions or delays
in transmission or delivery of any messages, by mail, cable, telex, telecopy or
otherwise, whether or not they be in cipher; (v) for errors in interpretation of
technical terms; (vi) for any loss or delay in the transmission or otherwise of
any document required in order to make a drawing under any Letter of Credit, or
of the proceeds thereof; (vii) for the misapplication by the beneficiary of any
such Letter of Credit, or the proceeds of any drawing under such Letter of
Credit; and (viii) for any consequences arising from causes beyond the control
of the Agent or the Lenders. None of the above shall affect, impair or prevent
the vesting of any of the Agent's rights or powers hereunder. Any action taken
or omitted to be taken by the Agent under or in connection with any Letter of
Credit, if taken or omitted in the absence of gross negligence or willful
misconduct, shall not create against the Agent any liability to any Borrower or
any Lender. In this connection, the obligation of a Borrower to reimburse the
Agent for any drawing made under any Letter of Credit issued for the account of
such Borrower shall be absolute, unconditional and irrevocable and shall be paid
strictly in accordance with the terms of this Agreement or any other applicable
Letter of Credit Document under all circumstances whatsoever, including without
limitation, the following circumstances: (i) any lack of validity or
enforceability of any Letter of Credit Document or any term or provisions
therein; (ii) any amendment or waiver of or any consent to departure from all or
any of the Letter of Credit Documents; (iii) the existence of any claim, setoff,
defense or other right which any Borrower may have at any time against the
Agent, any Lender, any beneficiary of a Letter of Credit or any other Person,
whether in connection with this Agreement, the transactions contemplated hereby
or in the Letter of Credit Documents or any unrelated transaction; (iv) any
breach of contract or dispute between any Borrower, the Agent, any Lender or any
other Person; (v) any demand, statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein or made in connection therewith being
untrue or inaccurate in any respect whatsoever; (vi) any non-application or
misapplication by the beneficiary of a Letter of Credit of the proceeds of any
drawing under such Letter of Credit; (vii) payment by the Agent under the Letter
of Credit against presentation of a draft or certificate which does not strictly
comply with the terms of the Letter of Credit; and (viii) any other act,
omission to act, delay or circumstance whatsoever that might, but for the
provisions of this Section, constitute a legal or equitable defense to or
discharge of any Borrower's Reimbursement Obligations.
(i) Amendments, Etc. The issuance by the Agent of any amendment,
supplement or other modification to any Letter of Credit shall be subject to the
same conditions applicable under this Agreement to the issuance of new Letters
of Credit, and no such amendment, supplement or other modification shall be
issued unless either (i) the respective Letter of Credit affected thereby would
have complied with such conditions had it originally been issued hereunder in
such amended, supplemented or modified form or (ii) the Majority Lenders shall
have consented thereto.
(j) Information to Lenders. Promptly following the issuance of any Letters
of Credit, the Agent shall deliver to the Borrower for whose account such Letter
of Credit was issued, and each Lender a notice describing the aggregate amount
of all Letters of Credit outstanding at such time. Upon the request of any
Lender from time to time, the Agent shall deliver any other information
reasonably requested by such Lender with respect to each Letter of Credit then
outstanding. Other than as set forth in this subsection, the Agent shall have no
duty to notify Lenders regarding the issuance or other matters regarding Letters
of Credit issued hereunder. The failure of the Agent to perform its requirements
under this subsection shall not relieve any Lender from its obligations under
Section 2.15.(g).
(k) Effect of Letters of Credit on Commitments. Upon the issuance by the
Agent of any Letter of Credit and until such Letter of Credit shall have expired
or been terminated, the Commitment of each Lender shall be deemed to be utilized
for all purposes of this Agreement in an amount equal to such Lender's Pro Rata
Share of the Stated Amount of such Letter of Credit plus any related
Reimbursement Obligations then outstanding.
(l) Termination of Agreement Prior to Expiration of Letters of Credit;
Letter of Credit Liabilities in Excess of L/C Commitment Amount. If on the date
(the "Facility Termination Date") this Agreement is terminated (whether
voluntarily, by reason of the occurrence of an Event of Default or otherwise)
any Letters of Credit are outstanding, each Borrower shall, on the Facility
Termination Date, pay to the Agent an amount of money equal to the Stated Amount
of such Letter(s) of Credit issued for the account of such Borrower, together
with the amount of any fees which would otherwise be payable by such Borrower to
the Agent or the Lenders in respect of such Letters of Credit but for the
occurrence of the Facility Termination Date for deposit into a the Collateral
Account. If at any time the aggregate Stated Amount of all outstanding Letters
of Credit shall exceed the L/C Commitment Amount then in effect, the Borrowers
shall pay on demand to the Agent for deposit into the Collateral Account an
amount equal to such excess. If a drawing pursuant to any such Letter of Credit
occurs on or prior to the expiration date of such Letter of Credit, each
Borrower authorizes the Agent to disburse the monies deposited in the Collateral
Account to make payment to the beneficiary with respect to such drawing. If no
drawing occurs on or prior to the expiration date of any such Letter of Credit,
the Agent shall return to the Borrower for whose account such Letter of Credit
was issued the monies deposited in the Collateral Account with respect to such
outstanding Letter of Credit on or before the date 30 Business Days after the
expiration date with respect to such Letter of Credit.
(m) Additional Costs in Respect of Letters of Credit. If as a result of
the adoption of any Applicable Law or guideline of general applicability
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or if as a result of any risk-based capital guideline or other
requirement heretofore or hereafter issued by any Governmental Authority, there
shall be imposed, modified or deemed applicable any tax, reserve, special
deposit, capital adequacy or similar requirement against or with respect to or
measured by reference to Letters of Credit and the result shall be to increase
the cost to the Agent of issuing (or any Lender purchasing participations in) or
maintaining its obligation hereunder to issue (or purchase participations in)
any Letter of Credit or reduce any amount receivable by the Agent or any Lender
hereunder in respect of any Letter of Credit, then, upon demand by the Agent or
such Lender, the applicable Borrowers shall pay immediately to the Agent or such
Lender, as applicable, from time to time as specified by the Agent or a Lender,
such additional amounts as shall be sufficient to compensate the Agent or such
Lender for such increased costs or reductions in amount.
ARTICLE III. GENERAL LOAN PROVISIONS
SECTION 3.1. Fees.
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(a) Facility Fee. During the period commencing on the Agreement Date to
but excluding the Revolving Credit Termination Date, the Borrowers jointly and
severally agree to pay the Agent for the account of the Lenders a facility fee
equal to the daily aggregate amount of the Commitments (whether or not utilized)
times a rate per annum equal to the Applicable Facility Fee. Such fee shall
accrue through the last day of each calendar quarter and shall be payable in
arrears on the fifth day following the end of such calendar quarter. Each
Borrower acknowledges that the fee payable hereunder is a bona fide commitment
fee and is intended as reasonable compensation to the Lenders for committing to
make funds available to the Borrowers as described herein and for no other
purposes.
(b) Extension Fee. If, pursuant to Section 2.10., the Revolving Credit
Termination Date is extended, the Borrowers jointly and severally agree to pay
to the Agent for the account of each Lender (other than a Rejecting Lender) an
extension fee equal to one-fifth of one percent (0.20%) of the amount of such
Lender's Commitment at such time. Such fee shall be payable on the date five
days following the sooner of the date on which the Agent notified the Borrowers
of such extension or the date on which such extension is effective.
(c) Term Loan Conversion Fee. If, pursuant to Section 2.11., the
outstanding balance of Revolving Loans owing by a Borrower is converted into
Term Loans, such Borrower agrees to pay to the Agent for the account of each
Lender a conversion fee equal to one-quarter of one percent (0.25%) per annum of
the outstanding principal balance of such Lender's Term Loan to such Borrower on
the first anniversary of the date of the conversion of the Revolving Loans into
the Term Loans, such fee to be payable on such anniversary date.
(d) Bid Rate Loan Fees. Each Borrower agrees to pay to the Agent such fees
for services rendered by the Agent in connection with the Bid Rate Loans as
shall be separately agreed upon between such Borrower and the Agent.
(e) Agent's Fees. The Borrowers jointly and severally agree to pay to
------------
the Agent such fees for services rendered by the Agent as shall be separately
agreed upon between the Borrowers and the Agent.
(f) Letter of Credit Fees. Each Borrower agrees to pay to the Agent for
account of each Lender and the Agent a letter of credit fee at a rate per annum
equal to the Applicable Margin for LIBOR Loans multiplied by the Stated Amount
of each Letter of Credit issued for the account of such Borrower, on the date of
issuance of such Letter of Credit and on each annual anniversary of the date of
issuance thereof until such Letter of Credit has expired. The fee provided for
in the immediately preceding sentence shall be nonrefundable. The Agent shall be
entitled to deduct from such Letter of Credit fees, and retain for its own
account, an amount equal to one-quarter of one percent (0.25%) of the Stated
Amount of each Letter of Credit. Each Borrower shall also directly pay to the
Agent all commissions, charges, costs and expenses in the amounts customarily
charged by the Agent from time to time in like circumstances with respect to the
issuance of each Letter of Credit issued for the account of such Borrower,
drawings, amendments and other transactions relating thereto.
SECTION 3.2. Computation of Interest and Fees.
--------------------------------
Unless set forth to the contrary herein, accrued interest on the Loans and
the Letter of Credit Liabilities and all fees due hereunder shall be computed on
the basis of a year of 360 days and paid for the actual number of days elapsed
(including the first day but excluding the last day of a period).
SECTION 3.3. Pro Rata Treatment.
------------------
Except to the extent otherwise provided herein: (a) each borrowing from
the Lenders under Section 2.1.(a) and Section 2.3.(e) shall be made from the
Lenders, each payment of the fees under Sections 3.1.(a) through (c) and the
first sentence of Section 3.1. (f) shall be made for account of the Lenders, and
each termination or reduction of the amount of the Commitments under Section
2.9. shall be applied to the respective Commitments of the Lenders, pro rata
according to the amounts of their respective Commitments; (b) each payment or
prepayment of principal of Revolving Loans by a Borrower shall be made for
account of the Lenders pro rata in accordance with the respective unpaid
principal amounts of the Revolving Loans held by them, provided that if
immediately prior to giving effect to any such payment in respect of any
Revolving Loans the outstanding principal amount of the Revolving Loans shall
not be held by the Lenders pro rata in accordance with their respective
Commitments in effect at the time such Loans were made, then such payment shall
be applied to the Revolving Loans in such manner as shall result, as nearly as
is practicable, in the outstanding principal amount of the Revolving Loans being
held by the Lenders pro rata in accordance with their respective Commitments;
(c) each payment or prepayment of principal of Term Loans by a Borrower shall be
made for account of the Lenders pro rata in accordance with the respective
unpaid principal amounts of the Term Loan then owing to each of them by such
Borrower; (d) each payment of interest on Revolving Loans and Term Loans by a
Borrower shall be made for account of the Lenders pro rata in accordance with
the amounts of interest on such Loans then due and payable to the respective
Lenders; (e) the making of Revolving Loans, and the Conversion and Continuation
of Revolving Loans and Term Loans of a particular Type (other than Conversions
provided for by Section 5.5.), shall be made pro rata among the Lenders
according to the amounts of their respective Commitments (in the case of making
of Revolving Loans) or their respective Loans (in the case of Conversions and
Continuations of Revolving Loans or Term Loans) and the then current Interest
Period for each Lender's portion of each Revolving Loan or Term Loan of such
Type shall be coterminous; (f) each prepayment of principal of Bid Rate Loans by
a Borrower pursuant to Section 2.8.(f) shall be made for account of the Lenders
then owed Bid Rate Loans by such Borrower pro rata in accordance with the
respective unpaid principal amounts of the Bid Rate Loans then owing to each
such Lender by such Borrower; (g) the Lenders' participation in, and payment
obligations in respect of, Swingline Loans under Section 2.3., shall be in
accordance with their respective Pro Rata Shares, and (h) the Lenders'
participation in, and payment obligations in respect of, Letters of Credit under
Section 2.15., shall be pro rata in accordance with their respective
Commitments. All payments of principal, interest, fees and other amounts in
respect of the Swingline Loans shall be for the account of the Swingline Lender
only (except to the extent any Lender shall have acquired a participating
interest in any such Swingline Loan pursuant to Section 2.3.(e)).
SECTION 3.4. Sharing of Payments, Etc.
------------------------
Each Borrower agrees that, in addition to (and without limitation of) any
right of set-off, bankers' lien or counterclaim a Lender may otherwise have,
each Lender shall be entitled, at its option, upon the occurrence and during the
continuance of an Event of Default but subject to the Agent's prior written
consent, to offset balances held by it for the account of such Borrower at any
of such Lender's offices, in Dollars or in any other currency, against any
principal of, or interest on, any of such Lender's Loans owing by such Borrower
hereunder (or other Obligations owing by such Borrower to such Lender hereunder)
which is not paid when due (regardless of whether such balances are then due to
such Borrower), in which case such Lender shall promptly notify such Borrower,
all other Lenders and the Agent thereof; provided, however, such Lender's
failure to give such notice shall not affect the validity of such offset. If a
Lender shall obtain payment of any principal of, or interest on, any Loan under
this Agreement, or shall obtain payment on any other Obligation owing by a
Borrower or any other Loan Party through the exercise of any right of set-off,
banker's lien or counterclaim or similar right or otherwise or through voluntary
prepayments directly to a Lender or other payments made by a Borrower or any
other Loan Party to a Lender not in accordance with the terms of this Agreement
and such payment, pursuant to the immediately preceding Section, should be
distributed to all or some of the Lenders in accordance with such Section, such
Lender shall promptly purchase from such other Lenders participations in (or, if
and to the extent specified by such Lender, direct interests in) the Loans made
by the other Lenders or other Obligations owed to such other Lenders in such
amounts, and make such other adjustments from time to time as shall be
equitable, to the end that all the Lenders shall share the benefit of such
payment (net of any expenses which may be incurred by such Lender in obtaining
or preserving such benefit) in accordance with the requirements of such Section.
To such end, all the Lenders shall make appropriate adjustments among themselves
(by the resale of participations sold or otherwise) if such payment is rescinded
or must otherwise be restored. Each Borrower agrees that any Lender so
purchasing a participation (or direct interest) in the Loans or other
Obligations owed by such Borrower to such other Lenders may exercise all rights
of set-off, bankers' lien, counterclaim or similar rights with respect to such
participation as fully as if such Lender were a direct holder of Loans in the
amount of such participation. Nothing contained herein shall require any Lender
to exercise any such right or shall affect the right of any Lender to exercise,
and retain the benefits of exercising, any such right with respect to any other
indebtedness or obligation of any Borrower.
SECTION 3.5. Defaulting Lenders.
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If for any reason any Lender (a "Defaulting Lender") shall fail or refuse
to perform its obligations under this Agreement or any other Loan Document to
which it is a party within the time period specified for performance of such
obligation or, if no time period is specified, if such failure or refusal
continues for a period of 5 Business Days after notice from the Agent, then, in
addition to the rights and remedies that may be available to the Agent or the
Borrowers under this Agreement or Applicable Law, such Defaulting Lender's right
to participate in the administration of the Loans, this Agreement and the other
Loan Documents, including without limitation, any right to vote in respect of,
to consent to or to direct any action or inaction of the Agent or to be taken
into account in the calculation of Majority Lenders, shall be suspended during
the pendency of such failure or refusal. If for any reason a Lender fails to
make timely payment to the Agent of any amount required to be paid to the Agent
hereunder (without giving effect to any notice or cure periods), in addition to
other rights and remedies which the Agent or the Borrowers may have under the
immediately preceding provisions or otherwise, the Agent shall be entitled (i)
to collect interest from such Defaulting Lender on such delinquent payment for
the period from the date on which the payment was due until the date on which
the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to
apply in satisfaction of the defaulted payment and any related interest, any
amounts otherwise payable to such Lender under this Agreement or any other Loan
Document and (iii) to bring an action or suit against such Lender in a court of
competent jurisdiction to recover the defaulted amount and any related interest.
Any amounts received by the Agent in respect of a Defaulting Lender's Pro Rata
Share of the Loans shall not be paid to such Defaulting Lender and shall be held
by the Agent and paid to such Defaulting Lender upon the Defaulting Lender's
curing of its default.
SECTION 3.6. Usury.
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In no event shall the amount of interest due or payable on the Loans
exceed the maximum rate of interest allowed by Applicable Law and, in the event
any such payment is paid by a Borrower or received by any Lender, then such
excess sum shall be credited as a payment of principal. It is the express intent
of the parties hereto that the Borrowers not pay and the Lenders not receive,
directly or indirectly, in any manner whatsoever, interest in excess of that
which may be lawfully paid by the Borrowers under Applicable Law.
SECTION 3.7. Agreement Regarding Interest and Charges.
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THE PARTIES HERETO HEREBY AGREE AND STIPULATE THAT THE ONLY CHARGE IMPOSED
UPON THE BORROWERS FOR THE USE OF MONEY IN CONNECTION WITH THIS AGREEMENT IS AND
SHALL BE THE INTEREST DESCRIBED IN SECTION 2.7. AND WITH RESPECT TO SWINGLINE
LOANS, IN SECTION 2.3.(C). THE PARTIES HERETO FURTHER AGREE AND STIPULATE THAT
ALL OTHER CHARGES IMPOSED BY LENDERS AND THE AGENT ON THE BORROWERS IN
CONNECTION WITH THIS AGREEMENT, INCLUDING ALL AGENCY FEES, COMMITMENT FEES,
FACILITY FEES, UNUSED FACILITY FEES, EXTENSION FEES, UNDERWRITING FEES, LETTER
OF CREDIT FEES, DEFAULT CHARGES, LATE CHARGES, ATTORNEYS' FEES AND REIMBURSEMENT
FOR COSTS AND EXPENSES PAID BY THE AGENT OR ANY LENDER TO THIRD PARTIES OR FOR
DAMAGES INCURRED BY THE AGENT OR ANY LENDER, ARE CHARGES MADE TO COMPENSATE THE
AGENT OR ANY SUCH LENDER FOR UNDERWRITING OR ADMINISTRATIVE SERVICES AND COSTS
OR LOSSES PERFORMED OR INCURRED, AND TO BE PERFORMED OR INCURRED, BY THE AGENT
AND LENDERS IN CONNECTION WITH THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND
SHALL UNDER NO CIRCUMSTANCES BE DEEMED TO BE CHARGES FOR THE USE OF MONEY
PURSUANT TO OFFICIAL CODE OF GEORGIA ANNOTATED SECTION 7-4-2 OR 7-4-18. ALL
CHARGES OTHER THAN CHARGES FOR THE USE OF MONEY SHALL BE FULLY EARNED AND
NONREFUNDABLE WHEN DUE.
SECTION 3.8. Statements of Account.
---------------------
The Agent will account to the Borrowers monthly with a statement of Loans,
Letters of Credit, charges and payments made pursuant to this Agreement and the
other Loan Documents, and such account rendered by the Agent shall be deemed
final, binding and conclusive upon each of the Borrowers absent demonstrable
error. The failure of the Agent or any Lender to maintain or deliver such a
statement of accounts shall not relieve or discharge any Borrower from its
obligations hereunder.
SECTION 3.9. Reliance.
--------
Neither the Agent nor any Lender shall incur any liability to any Borrower
for acting upon any telephonic notice permitted under this Agreement which the
Agent or such Lender believes reasonably and in good faith to have been given by
an individual authorized to deliver a Notice of Borrowing, Notice of Conversion,
Notice of Continuation, Extension Request or a request for issuance of a Letter
of Credit on behalf of a Borrower.
SECTION 3.10. Taxes.
-----
(a) Taxes Generally. All payments by the Borrowers of principal of, and
interest on, the Loans and all other Obligations shall be made free and clear of
and without deduction for any present or future excise, stamp or other taxes,
fees, duties, levies, imposts, charges, deductions, withholdings or other
charges of any nature whatsoever imposed by any taxing authority, but excluding
(without duplication): (i) franchise taxes, (ii) any taxes (other than
withholding taxes) that would not be imposed but for a connection between the
Agent or a Lender and the jurisdiction imposing such taxes (other than a
connection arising solely by virtue of the activities of the Agent or such
Lender pursuant to or in respect of this Agreement or any other Loan Document),
(iii) any withholding taxes payable with respect to payments hereunder or under
any other Loan Document under Applicable Law in effect on the Agreement Date,
(iv) any taxes imposed on or measured by any Lender's assets, net income,
receipts or branch profits and (v) any taxes arising after the Agreement Date
solely as a result of or attributable to a Lender changing its designated
Lending Office after the date such Lender becomes a party hereto (such
non-excluded items being collective called "Taxes"). If any withholding or
deduction from any payment to be made by a Borrower hereunder is required in
respect of any Taxes pursuant to any Applicable Law, then such Borrower will:
(i) pay directly to the relevant Governmental Authority the full
amount required to be so withheld or deducted;
(ii) promptly forward to the Agent an official receipt or other
documentation satisfactory to the Agent evidencing such payment to such
Governmental Authority; and
(iii) pay to the Agent for its account or the account of the
applicable Lender, as the case may be, such additional amount or amounts
as is necessary to ensure that the net amount actually received by the
Agent or such Lender will equal the full amount that the Agent or such
Lender would have received had no such withholding or deduction been
required.
(b) Tax Indemnification. If a Borrower fails to pay any Taxes when due to
the appropriate Governmental Authority or fails to remit to the Agent, for its
account or the account of the respective Lender, as the case may be, the
required receipts or other required documentary evidence, such Borrower shall
indemnify the Agent and the Lenders for any incremental Taxes, interest or
penalties that may become payable by the Agent or any Lender as a result of any
such failure. For purposes of this Section, a distribution hereunder by the
Agent or any Lender to or for the account of any Lender shall be deemed a
payment by a Borrower.
(c) Tax Forms. Each Lender or Participant organized under the laws of a
jurisdiction other than the United States of America agrees to deliver to the
Borrowers and the Agent such certificates, documents or other evidence, as
required by the Internal Revenue Code, correctly completed and executed by such
Lender or Participant establishing that such payment is not subject to United
States federal withholding tax under the Internal Revenue Code because such
payment is either effectively connected with the conduct by such Lender or
Participant of a trade or business in the United States or totally exempt from
United States federal withholding tax by reason of the application of the
provisions of a treaty to which the United States is a party or such Lender is
otherwise exempt.
(d) Refunds. If the Agent or any Lender shall become aware that it is
entitled to a refund in respect of Taxes for which it has been indemnified by a
Borrower pursuant to this Section, the Agent or such Lender shall promptly
notify such Borrower of the availability of such refund and shall, within 30
days after receipt of a written request by such Borrower, apply for such refund
at such Borrower's sole cost and expense. So long as no Event of Default shall
have occurred and be continuing, if the Agent or any Lender shall receive a
refund in respect of any such Taxes as to which it has been indemnified by a
Borrower pursuant to this Section, the Agent or such Lender shall promptly
notify such Borrower of such refund and shall, within 30 days of receipt, pay
such refund (to the extent of amounts that have been paid by such Borrower under
this Section with respect to such refund and not previously reimbursed) to such
Borrower, net of all reasonable out-of-pocket expenses of such Lender or the
Agent and without interest (other than the interest, if any, included in such
refund).
ARTICLE IV. UNENCUMBERED POOL PROPERTIES
SECTION 4.1. Acceptance of Unencumbered Pool Properties.
------------------------------------------
(a) Existing Unencumbered Pool Properties. Subject to compliance with
-------------------------------------
the terms and conditions of Section 6.1. and subject to any limitations set
forth on Schedule 4.1., as of the Effective Date the Lenders have accepted the
Properties listed on Schedule 4.1. as Unencumbered Pool Properties and Schedule
4.1 designates as to each such Unencumbered Pool Property, the owner of such
Property and whether such Unencumbered Pool Property is a Qualified Development
Property, Stabilized Retail Operating Property or Pre-Stabilized Retail
Operating Property.
(b) Submission of Additional Properties. If any Borrower desires that the
Lenders accept an additional Eligible Property as an Unencumbered Pool Property
after the Effective Date, such Borrower shall so notify the Agent in writing and
shall deliver to the Agent the following:
(i) An Unencumbered Pool Certificate setting forth (A) on a pro
forma basis the Maximum Loan Availability of both RCLP and the Development
Affiliates, assuming that such Eligible Property is accepted as an
Unencumbered Pool Property, (B) the Occupancy Rate of such Eligible
Property, (C) calculations evidencing continued compliance with Sections
4.3. and 9.10., assuming that such Eligible Property is an Unencumbered
Pool Property, (D) the percentage amount of the Borrowing Base of both
RCLP and the Development Affiliates, assuming that such Eligible Property
is an Unencumbered Pool Property, attributable to such Eligible Property
(which percentage amount shall not exceed 5%) and (E) if such Eligible
Property is owned by RCLP or one of its Subsidiaries, the amount of the
Borrowing Base of both RCLP and the Development Affiliates, assuming that
such Eligible Property is accepted as an Unencumbered Pool Property,
attributable to all Unencumbered Pool Properties which are owned by
Subsidiaries of RCLP that are not Wholly Owned Subsidiaries;
(ii) copy of the most recent ALTA Owner's Policy of Title Insurance
(or commitment to issue such a policy to the Loan Party owning or to own
such Eligible Property) relating to such Eligible Property showing the
identity of the fee titleholder thereto and all matters of record; and
(iii) A Property Certificate executed by the chief financial officer
or controller of RCLP (which officer shall be authorized to execute such
certificate).
Upon the Agent's receipt of such items in form and substance satisfactory
to the Agent, the Eligible Property shall be accepted as an Unencumbered Pool
Property.
Upon any acceptance of an Eligible Property pursuant to this subsection
(b), and upon execution and delivery of all of the following, such Eligible
Property shall become an Unencumbered Pool Property:
(1) If such Eligible Property is owned (or is being acquired) by a
Subsidiary of RCLP that is not yet a party to the Guaranty and such
Subsidiary has incurred, acquired or suffered to exist any Indebtedness
other than Nonrecourse Indebtedness, an Accession Agreement executed by
such Subsidiary and all other items required to be delivered by a under
Section 8.24.;
(2) If RCLP does not cause such Subsidiary to become a party to the
Guaranty pursuant to Section 8.24. because RCLP determines that such
Person cannot become a party to the Guaranty without violating: (A) terms
of its articles of incorporation, bylaws, operating agreement, partnership
agreement, declaration of trust or other similar organizational document,
which terms expressly prohibit such Subsidiary from providing Guarantees
of Indebtedness of any other Person or otherwise incurring any
Indebtedness or (B) fiduciary obligations owing by such Subsidiary to the
holders of equity interest in such Subsidiary and imposed under Applicable
Law, then RCLP shall promptly deliver to the Agent and its counsel such
documentation as is reasonably necessary for the Agent and its counsel to
confirm (I) such potential violation and (II) that RCLP directly, or
indirectly through a Subsidiary, has the right to take the following
actions with respect to the Eligible Property owned by such Subsidiary
without the need to obtain the consent of any other Person: (A) to create
Lien on such Eligible Property as security for Indebtedness of RCLP or
such Subsidiary, as applicable and (B) to sell, transfer or otherwise
dispose of such Eligible Property; and
(3) Such other items or documents as may be appropriate under the
circumstances as requested by the Agent.
Notwithstanding anything herein to the contrary, no Borrower shall submit any
Eligible Property for acceptance under this subsection (b) if such Eligible
Property (x) was previously submitted for consideration to and rejected by the
Agent and Lenders under the Existing Credit Agreement; (y) is a "side shop
center" unless the tenant of the adjacent stand-alone grocery store is an
Approved Grocery Store or (z) is a stand-alone grocery store unless the tenant
is an Approved Grocery Store and the corporate parent of the Approved Grocery
Store is fully obligated (either directly or by way of guaranty) in respect of
the applicable lease.
(c) Alternative Acceptance Procedure. If an Eligible Property does not
satisfy all of the requirements for acceptance as an Unencumbered Pool Property
pursuant to the immediately preceding subsection (b), a Borrower may submit such
Eligible Property for consideration by notifying the Agent in writing of such
Borrower's intent to submit such Eligible Property and by delivering the
following additional items, in form and substance satisfactory to the Agent:
(i) A description of such Eligible Property, such description to
include the age, location, site plan and current occupancy rate of such
Eligible Property;
(ii) Operating statements for such Eligible Property for the
immediately preceding fiscal year and for current fiscal year through the
fiscal quarter most recently ending, in each case audited or certified by
a representative of such Borrower as being true and correct in all
material respects and prepared in accordance with GAAP, provided that,
with respect to (A) any period such Eligible Property was not owned by a
Loan Party or (B) any Qualified Development Property, such information
shall only be required to be delivered to the extent reasonably available
to such Borrower and such certification may be based upon the best of such
Borrower's knowledge;
(iii) If prepared by such Borrower, a pro forma operating statement
for such Eligible Property;
(iv) A current rent roll and occupancy report for such Eligible
Property, certified by a representative of such Borrower as being true and
correct in all material respects, and a two-year occupancy history of such
Eligible Property, certified by a representative of such Borrower to be
true and correct, provided that, with respect to (A) any period such
Eligible Property was not owned by a Loan Party or (B) any Qualified
Development Property, such information shall only be required to be
delivered to the extent reasonably available to such Borrower and such
certification may be based upon the best of such Borrower's knowledge;
(v) An operating budget for such Eligible Property with respect
to the current fiscal year if available;
(vi) If such Eligible Property is a Qualified Development Property,
a capital expenditure plan with respect to such Eligible Property showing
all hard and soft costs budgeted to be paid, incurred or otherwise
expended or accrued for such Eligible Property to complete such Eligible
Property and convert such Eligible Property into a Stabilized Retail
Operating Property; and
(vii) Copies of all Material Contracts affecting such Eligible
Property;
(viii) Copies of all engineering, mechanical, structural and
maintenance studies performed with respect to such Eligible Property;
(ii) A "Phase I" environmental assessment of such Eligible Property
not more than 12 months old prepared by an environmental engineering firm
acceptable to the Agent, and any additional environmental studies or
assessments available to such Borrower performed with respect to such
Eligible Property;
(ix) With respect to any Eligible Property being acquired by a Loan
Party, a copy of the materials relating to such Eligible Property
submitted by such Borrower to its board of directors for their approval of
such Eligible Property (but only to the extent such materials have not
already been provided under any of the preceding subsections);
(x) An Unencumbered Pool Certificate setting forth (A) on a pro
forma basis the Maximum Loan Availability of both RCLP and the Development
Affiliates, assuming that such Eligible Property is accepted as an
Unencumbered Pool Property, (B) the Occupancy Rate of such Eligible
Property, (C) calculations evidencing continued compliance with Sections
4.3. and 9.10., assuming that such Eligible Property is accepted as an
Unencumbered Pool Property, (D) the percentage amount of the Borrowing
Base of both RCLP and the Development Affiliates, assuming that such
Eligible Property is an Unencumbered Pool Property, attributable to such
Eligible Property (which percentage amount shall not exceed 5%) and (E) if
such Eligible Property is owned by RCLP or one of its Subsidiaries, the
amount of the Borrowing Base of both RCLP and the Development Affiliates,
assuming that such Eligible Property is accepted as an Unencumbered Pool
Property, attributable to all Unencumbered Pool Properties which are owned
by Subsidiaries of RCLP that are not Wholly Owned Subsidiaries; and
(xi) Such other information the Agent may reasonably request in
order to evaluate the Eligible Property.
Following receipt of the foregoing documents and information, the Agent
shall promptly submit such documents and information to the Lenders for
approval. Upon approval by the Majority Lenders (which must include the Agent in
its capacity as a Lender), and upon execution and delivery of all of the
following, such Eligible Property shall become an Unencumbered Pool Property:
(1) A copy of the most recent ALTA Owner's Policy of Title Insurance
(or commitment to issue such a policy to the Loan Party owning or to own
such Eligible Property) relating to such Eligible Property showing the
identity of the fee titleholder thereto and all matters of record;
(2) If such Eligible Property is owned (or is being acquired) by a
Subsidiary of RCLP that is not yet a party to the Guaranty and such
Subsidiary has incurred, acquired or suffered to exist any Indebtedness
other than Nonrecourse Indebtedness, an Accession Agreement executed by
such Subsidiary and all other items required to be delivered by a
Subsidiary under Section 8.24.;
(3) If RCLP does not cause such Subsidiary to become a party to the
Guaranty pursuant to Section 8.24. because RCLP determines that such
Person cannot become a party to the Guaranty without violating: (A) terms
of its articles of incorporation, bylaws, operating agreement, partnership
agreement, declaration of trust or other similar organizational document,
which terms expressly prohibit such Subsidiary from providing Guarantees
of Indebtedness of any other Person or otherwise incurring any
Indebtedness or (B) fiduciary obligations owing by such Subsidiary to the
holders of equity interest in such Subsidiary and imposed under Applicable
Law, then RCLP shall promptly deliver to the Agent and its counsel such
documentation as is reasonably necessary for the Agent and its counsel to
confirm (I) such potential violation and (II) that RCLP directly, or
indirectly through a Subsidiary, has the right to take the following
actions with respect to the Eligible Property owned by such Subsidiary
without the need to obtain the consent of any other Person: (A) to create
Lien on such Eligible Property as security for Indebtedness of RCLP or
such Subsidiary, as applicable and (B) to sell, transfer or otherwise
dispose of such Eligible Property; and
(4) Such other items or documents as may be appropriate under the
circumstances as requested by the Agent.
SECTION 4.2. Termination of Designation as Unencumbered Pool
Property.
From time to time a Borrower may request, upon not less than 20 days prior
written notice to the Agent and the Lenders, that an Unencumbered Pool Property
cease to be an Unencumbered Pool Property. The Agent shall grant such request if
all of the following conditions are satisfied:
(a) no Default or Event of Default shall have occurred and be continuing
both at the time of such request and immediately after giving effect to such
request; and
(b) such Borrower shall have delivered to the Agent an Unencumbered Pool
Certificate demonstrating on a pro forma basis, and the Agent shall have
determined, that none of the conditions referred to in Section 2.14. exists or
will exist after giving effect to such request and any prepayment to be made
and/or the acceptance of any Property as an additional or replacement
Unencumbered Pool Property to be given concurrently with such request.
After giving effect to any request that an Unencumbered Pool Property
cease to be designated as such, RCLP may request in writing that the Agent
release, and upon receipt of such request the Agent shall release, a Guarantor
from the Guaranty so long as: (i) such Guarantor is not the Parent; (ii) such
Guarantor owns no other Unencumbered Pool Property, nor any direct or indirect
equity interest in any Subsidiary that does own an Unencumbered Pool Property;
(iii) such Guarantor is not otherwise required to be a party to the Guaranty
under Section 8.24.; and (iv) no Default or Event of Default shall then be in
existence or would occur as a result of such release.
SECTION 4.3. Additional Requirements of Unencumbered Pool Properties.
-------------------------------------------------------
The ratio (expressed as a percentage) of (a) the net rentable square
footage of all Unencumbered Pool Properties which are Stabilized Retail
Operating Properties actually occupied by tenants paying rent pursuant to
binding leases as to which no monetary default has occurred and is continuing to
(b) the aggregate net rentable square footage of all Unencumbered Pool
Properties which are Stabilized Retail Operating Properties shall at all times
equal or exceed 90%. A Property shall cease to be an Unencumbered Pool Property
if it shall cease to be an Eligible Property.
ARTICLE V. YIELD PROTECTION, ETC.
SECTION 5.1. Additional Costs; Capital Adequacy.
----------------------------------
(a) Additional Costs. Each Borrower shall promptly pay to the Agent for
the account of a Lender from time to time such amounts as such Lender may
determine to be necessary to compensate such Lender for any costs incurred by
such Lender that it determines are attributable to its making or maintaining of
any LIBOR Loans or its obligation to make any LIBOR Loans hereunder, any
reduction in any amount receivable by such Lender under this Agreement or any of
the other Loan Documents in respect of any of such LIBOR Loans or such
obligation or the maintenance by such Lender of capital in respect of its LIBOR
Loans or its Commitment (such increases in costs and reductions in amounts
receivable being herein called "Additional Costs"), resulting from any
Regulatory Change that: (i) changes the basis of taxation of any amounts payable
to such Lender under this Agreement or any of the other Loan Documents in
respect of any of such LIBOR Loans or its Commitments (other than taxes imposed
on or measured by the overall net income of such Lender or of its Lending Office
for any of such LIBOR Loans by the jurisdiction in which such Lender has its
principal office or such Lending Office); or (ii) imposes or modifies any
reserve, special deposit or similar requirements relating to any extensions of
credit or other assets of, or any deposits with or other liabilities of, or
other credit extended by, or any other acquisition of funds by such Lender (or
its parent corporation), or any commitment of such Lender (including, without
limitation, the Commitment of such Lender hereunder); or (iii) has or would have
the effect of reducing the rate of return on capital of such Lender to a level
below that which such Lender could have achieved but for such Regulatory Change
(taking into consideration such Lender's policies with respect to capital
adequacy).
(b) Lender's Suspension of LIBOR Loans. Without limiting the effect of the
provisions of the immediately preceding subsection (a), if by reason of any
Regulatory Change, any Lender either (i) incurs Additional Costs based on or
measured by the excess above a specified level of the amount of a category of
deposits or other liabilities of such Lender that includes deposits by reference
to which the interest rate on LIBOR Loans is determined as provided in this
Agreement or a category of extensions of credit or other assets of such Lender
that includes LIBOR Loans or (ii) becomes subject to restrictions on the amount
of such a category of liabilities or assets that it may hold, then, if such
Lender so elects by notice to the Borrowers (with a copy to the Agent), the
obligation of such Lender to make or Continue, or to Convert Base Rate Loans
into, LIBOR Loans hereunder shall be suspended until such Regulatory Change
ceases to be in effect (in which case the provisions of Section 5.5. shall
apply).
(c) Notification and Determination of Additional Costs. Each of the Agent
and each Lender, as the case may be, agrees to notify the Borrowers of any event
occurring after the Agreement Date entitling the Agent or such Lender to
compensation under any of the preceding subsections of this Section as promptly
as practicable; provided, however, that the failure of the Agent or any Lender
to give such notice shall not release any Borrower from any of its obligations
hereunder. Each Lender agrees to furnish to the Borrowers and the Agent a
certificate setting forth the basis and amount of each request for compensation
under this Section. Determinations by such Lender of the effect of any
Regulatory Change shall be conclusive, provided that such determinations are
made on a reasonable basis and in good faith.
SECTION 5.2. Suspension of LIBOR Loans.
-------------------------
Anything herein to the contrary notwithstanding, if, on or prior to the
determination of any LIBO Rate for any Interest Period:
(a) the Agent reasonably determines (which determination shall be
conclusive) that quotations of interest rates for the relevant deposits
referred to in the definition of LIBO Rate are not being provided in the
relevant amounts or for the relevant maturities for purposes of
determining rates of interest for LIBOR Loans as provided herein or is
otherwise unable to determine the LIBO Rate, or
(b) any Lender reasonably determines (which determination shall be
conclusive) that the relevant rates of interest referred to in the
definition of LIBO Rate upon the basis of which the rate of interest for
LIBOR Loans for such Interest Period is to be determined are not likely
adequately to cover the cost to such Lender of making or maintaining LIBOR
Loans for such Interest Period; or
(c) any Lender that has outstanding a Bid Rate Quote with respect to
a LIBOR Margin Loan reasonably determines (which determination shall be
conclusive) that the LIBO Rate will not adequately and fairly reflect the
cost to such Lender of making or maintaining such LIBOR Margin Loan;
then the Agent shall give the Borrowers and each Lender prompt notice
thereof and, so long as such condition remains in effect, (i) in the case of
clause (a) or (b) above, the Lenders shall be under no obligation to, and shall
not, make additional LIBOR Loans, Continue LIBOR Loans or Convert Loans into
LIBOR Loans and each Borrower shall, on the last day of each current Interest
Period for each outstanding LIBOR Loan owing by such Borrower, either prepay
such Loan or Convert such Loan into a Base Rate Loan and (ii) in the case of
clause (c) above, no Lender that has outstanding a Bid Rate Quote with respect
to a LIBOR Margin Loan shall be under any obligation to make such Loan.
SECTION 5.3. Illegality.
----------
Notwithstanding any other provision of this Agreement, if any Lender shall
determine (which determination shall be conclusive and binding) that it is
unlawful for such Lender to honor its obligation to make or maintain LIBOR Loans
hereunder, then such Lender shall promptly notify the Borrowers thereof (with a
copy of such notice to the Agent) and such Lender's obligation to make or
Continue, or to Convert Revolving Loans of any other Type into, LIBOR Loans
shall be suspended until such time as such Lender may again make and maintain
LIBOR Loans (in which case the provisions of Section 5.5. shall be applicable).
SECTION 5.4. Compensation.
------------
Each Borrower shall pay to the Agent for account of each Lender, upon the
request of such Lender through the Agent, such amount or amounts as shall be
sufficient to compensate such Lender for any loss, cost or expense that such
Lender reasonably determines is attributable to:
(a) any payment or prepayment (whether mandatory or optional) of a
LIBOR Loan or Bid Rate Loan, or Conversion of a LIBOR Loan, made by such
Lender to such Borrower for any reason (including, without limitation,
acceleration) on a date other than the last day of the Interest Period for
such Loan; or
(b) any failure by such Borrower for any reason (including, without
limitation, the failure of any of the applicable conditions precedent
specified in Article VI. to be satisfied) to borrow a LIBOR Loan or Bid
Rate Loan from such Lender on the date for such borrowing, or to Convert a
Base Rate Loan into a LIBOR Loan or Continue a LIBOR Loan on the requested
date of such Conversion or Continuation.
Not in limitation of the foregoing, such compensation shall include, but
shall not be limited to: (i) in the case of a LIBOR Loan, an amount equal to the
then present value of (A) the amount of interest that would have accrued on such
LIBOR Loan for the remainder of the Interest Period at the rate applicable to
such LIBOR Loan, less (B) the amount of interest that would accrue on the same
LIBOR Loan for the same period if the LIBO Rate were set on the date on which
such LIBOR Loan was repaid, prepaid or Converted or the date on which such
Borrower failed to borrow, Convert or Continue such LIBOR Loan, as applicable,
calculating present value by using as a discount rate the LIBO Rate quoted on
such date; and (ii) in the case of a Bid Rate Loan, the sum of such losses and
expenses as the Lender or Designated Lender who made such Bid Rate Loan may
reasonably incur by reason of such prepayment, including without limitation any
losses or expenses incurred in obtaining, liquidating or employing deposits from
third parties.
Upon a Borrower's request, any Lender requesting compensation under this
Section shall provide such Borrower with a statement setting forth the basis for
requesting such compensation and the method for determining the amount thereof.
Any such statement shall be conclusive absent manifest error.
SECTION 5.5. Treatment of Affected Loans.
---------------------------
If the obligation of any Lender to make LIBOR Loans or to Continue, or to
Convert Base Rate Loans into, LIBOR Loans shall be suspended pursuant to Section
5.1.(b), Section 5.2. or Section 5.3., then such Lender's LIBOR Loans shall be
automatically Converted into Base Rate Loans on the last day(s) of the then
current Interest Period(s) for LIBOR Loans (or, in the case of a Conversion
required by Section 5.1.(b) or 5.3., on such earlier date as such Lender may
specify to the Borrowers with a copy to the Agent) and, unless and until such
Lender gives notice as provided below that the circumstances specified in
Section 5.1., Section 5.2. or 5.3. that gave rise to such Conversion no longer
exist:
(a) to the extent that such Lender's LIBOR Loans have been so Converted,
all payments and prepayments of principal that would otherwise be applied to
such Lender's LIBOR Loans shall be applied instead to its Base Rate Loans; and
(b) all Revolving Loans that would otherwise be made or Continued by such
Lender as LIBOR Loans shall be made or Continued instead as Base Rate Loans, and
all Base Rate Loans of such Lender that would otherwise be Converted into LIBOR
Loans shall remain as Base Rate Loans.
If such Lender gives notice to the Borrowers (with a copy to the Agent)
that the circumstances specified in Section 5.1. or 5.3. that gave rise to the
Conversion of such Lender's LIBOR Loans pursuant to this Section no longer exist
(which such Lender agrees to do promptly upon such circumstances ceasing to
exist) at a time when LIBOR Loans made by other Lenders are outstanding, then
such Lender's Base Rate Loans shall be automatically Converted, on the first
day(s) of the next succeeding Interest Period(s) for such outstanding LIBOR
Loans, to the extent necessary so that, after giving effect thereto, all Loans
held by the Lenders holding LIBOR Loans and by such Lender are held pro rata (as
to principal amounts, Types and Interest Periods) in accordance with their
respective Commitments.
SECTION 5.6. Change of Lending Office.
------------------------
Each Lender agrees that it will use reasonable efforts to designate an
alternate Lending Office with respect to any of its Loans affected by the
matters or circumstances described in Sections 3.10., 5.1. or 5.3. to reduce the
liability of a Borrower or avoid the results provided thereunder, so long as
such designation is not disadvantageous to such Lender as determined by such
Lender in its sole discretion, except that such Lender shall have no obligation
to designate a Lending Office located in the United States of America.
ARTICLE VI. CONDITIONS
SECTION 6.1. Effectiveness.
-------------
The effectiveness of the amendment and restatement of the Existing Regency
Credit Agreement contemplated hereby, as well as the obligation of the Lenders
to make any Revolving Loans, of the Swingline Lender to make any Swingline
Loans, and of the Agent to issue Letters of Credit, to or for the account of the
Borrowers in accordance with the terms hereof, are subject to the condition
precedent that the Borrowers deliver to the Agent each of the following, each of
which shall be in form and substance satisfactory to the Agent:
(a) counterparts of this Agreement executed by each of the parties
hereto;
(b) Revolving Notes and Bid Rate Notes executed by each Borrower other
than RCLP, payable to all Lenders or any Designated Lender, if applicable, and
Swingline Notes executed by the Borrowers other than RCLP;
(c) (i) the Guaranty executed by each "Guarantor" under the Existing
Credit Agreement and any other Person that would be required under Section
8.24.(a) to become a party to the Guaranty as of the Effective Date and (ii) the
Development Affiliate Guaranty executed by each Person that would be required
under Section 8.24.(a) to become a party to the Development Affiliate Guaranty
as of the Effective Date;
(d) an opinion of Foley & Lardner, counsel to the Borrowers, the
Guarantors and the Development Affiliate Guarantors, and addressed to the Agent
and the Lenders in substantially the form of Exhibit N-1;
(e) an opinion of Alston & Bird LLP, counsel to the Agent, and
addressed to the Agent and the Lenders in substantially the form of Exhibit N-2;
(f) all of the documents and information required to be delivered under
Section 4.1. with respect to each of the Properties listed on Schedule 4.1. and
which have not previously been delivered to the Agent;
(g) an Unencumbered Pool Certificate dated the Agreement Date;
(h) the certificate of limited partnership of RCLP certified as of a
recent date by the Secretary of State of the State of Delaware;
(i) a Certificate of Good Standing issued as of a recent date by the
Secretary of State of the State of Delaware and certificates of qualification to
transact business or other comparable certificates issued by each Secretary of
State (and any state department of taxation, as applicable) of each state in
which RCLP is required to be so qualified;
(j) a certificate of incumbency signed by the Secretary or Assistant
Secretary of the general partner of RCLP with respect to each of the officers of
the general partner of RCLP authorized to execute and deliver the Loan Documents
to which RCLP is a party;
(k) certified copies (certified by the Secretary or Assistant Secretary of
the general partner of RCLP) of the partnership agreement of RCLP and of all
necessary action taken by RCLP (and any of the partners of RCLP) to authorize
the execution, delivery and performance of the Loan Documents to which it is a
party;
(l) the articles of incorporation, articles of organization, certificate
of limited partnership or other comparable organizational instrument (if any) of
each other Borrower and each Guarantor certified as of a recent date by the
respective Secretary of State of the State of formation of such Borrower or
Guarantor;
(m) a Certificate of Good Standing or certificate of similar meaning with
respect to each other Borrower and each Guarantor issued as of a recent date by
the respective Secretary of State of the State of formation of each such
Borrower or Guarantor and certificates of qualification to transact business or
other comparable certificates issued by each Secretary of State (and any state
department of taxation, as applicable) of each state in which such Borrower or
Guarantor is required to be so qualified;
(n) a certificate of incumbency signed by the Secretary or Assistant
Secretary (or other individual performing similar functions) of each other
Borrower and each Guarantor with respect to each of the officers of such
Borrower or Guarantor authorized to execute and deliver the Loan Documents to
which such Borrower or Guarantor is a party;
(o) copies certified by the Secretary or Assistant Secretary of each other
Borrower and each Guarantor (or other individual performing similar functions)
of (i) the by-laws of such Borrower or Guarantor, if a corporation, the
operating agreement, if a limited liability company, the partnership agreement,
if a limited or general partnership, or other comparable document in the case of
any other form of legal entity and (ii) all corporate, partnership, member or
other necessary action taken by such Borrower or Guarantor to authorize the
execution, delivery and performance of the Loan Documents to which it is a
party;
(p) all loan closing fees and any other fees then due and payable to
the Agent and the Lenders in connection with this Agreement; and
(q) such other documents, instruments and agreements as the Agent or
any Lender may reasonably request.
SECTION 6.2. Conditions to All Loans and Letters of Credit.
---------------------------------------------
The obligation of the Lenders to make any Revolving Loans, and of the
Swingline Lender to make any Swingline Loans, and of the Agent to issue Letters
of Credit is subject to the condition precedent that the following conditions be
satisfied in the judgment of the Agent:
(a) in the case of a Revolving Loan, timely receipt by the Agent of a
Notice of Borrowing, or in the case of a Swingline Loan, timely receipt by the
Swingline Lender of a Notice of Swingline Borrowing;
(b) the proposed use of proceeds of such Loan or Letter of Credit, as the
case may be, set forth in the Notice of Borrowing or Notice of Swingline
Borrowing, as the case may be, is consistent with the provisions of Section
8.14.;
(c) immediately before and after the making of such Loan or the issuance
of such Letter of Credit, no Default (including without limitation, the
existence of the condition described in Section 2.8.(f)) or Event of Default
shall have occurred and be continuing; and
(d) the representations and warranties of the Borrowers and the Guarantors
contained in the Loan Documents shall be true in all material respects on and as
of the date of such Loan or issuance of such Letter of Credit, as applicable,
except to the extent such representations or warranties specifically relate to
an earlier date or such representations or warranties become untrue by reason of
events or conditions otherwise permitted hereunder and the other Loan Documents.
The delivery of each Notice of Borrowing and each Notice of Swingline Borrowing
and the making of each Loan and the issuance of each Letter of Credit shall
constitute a certification by the Borrowers to the Agent and the Lenders that
the statements in the immediately preceding clauses (b) through (d) are true.
SECTION 6.3. Conditions to Conversion to Term Loans.
--------------------------------------
The right of a Borrower to convert Revolving Loans owing by it into Term
Loans under Section 2.11. is subject to the condition precedent that the
following conditions be satisfied in the judgment of the Agent:
(a) timely receipt by the Agent of the notice from such Borrower
required under such Section;
(b) immediately before and after such conversion, no Default (including
without limitation, the existence of the condition described in Section 2.8.(f))
or Event of Default shall have occurred and be continuing; and
(c) the representations and warranties of each Borrower contained in the
Loan Documents to which it is a party shall be true in all material respects on
and as of the date of such conversion except to the extent such representations
or warranties specifically relate to an earlier date or such representations or
warranties become untrue by reason of events or conditions otherwise permitted
hereunder and the other Loan Documents.
The delivery of the notice required under such Section shall constitute a
certification by such Borrower to the Agent and the Lenders that the statements
in the immediately preceding clauses (b) and (c) are true.
ARTICLE VII. REPRESENTATIONS AND WARRANTIES
Each of the Borrowers represents and warrants to the Agent and the
Lenders as follows (except that each Development Affiliate shall only be deemed
to make the following representations and warranties to the extent relating to
or concerning such Development Affiliate):
SECTION 7.1. Existence and Power.
-------------------
Each of the Borrowers, each Guarantor, each Development Affiliate
Guarantor and its other Subsidiaries is a corporation, partnership or other
legal entity, duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, and has all requisite power and
authority and all governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted and is duly qualified and is
in good standing, authorized to do business, in each jurisdiction in which the
character of its properties or the nature of its business requires such
qualification or authorization.
SECTION 7.2. Ownership Structure.
-------------------
Part I of Schedule 7.2. is a complete and correct list of all Subsidiaries
of the Parent (including all Subsidiaries of RCLP) and the Borrowers other than
RCLP, setting forth for each such Subsidiary, (a) the jurisdiction of
organization of such Subsidiary, (b) each Person holding ownership interests in
such Subsidiary and (c) the nature of the ownership interests held by each such
Person and (d) the percentage of ownership of such Subsidiary represented by
such ownership interests. Except as disclosed in such Schedule (i) each of the
Parent, its Subsidiaries and the Subsidiaries of the Borrowers owns, free and
clear of all Liens, and has the unencumbered right to vote, all outstanding
ownership interests in each Person shown to be held by it on such Schedule, (ii)
all of the issued and outstanding capital stock of each such Person organized as
a corporation is validly issued, fully paid and nonassessable and (iii) there
are no outstanding subscriptions, options, warrants, commitments, preemptive
rights or agreements of any kind (including, without limitation, any
stockholders' or voting trust agreements) for the issuance, sale, registration
or voting of, or outstanding securities convertible into, any additional shares
of capital stock of any class, or partnership or other ownership interests of
any type in, any such Person. Part II of Schedule 7.2. correctly sets forth all
Unconsolidated Affiliates and Preferred Stock Entities of the Parent, including
the correct legal name of such Person, the type of legal entity which each such
Person is, and all ownership interests in such Person held directly or
indirectly by the Parent.
SECTION 7.3. Authorization of Agreement, Notes, Loan Documents and
Borrowings.
Each Borrower, each Guarantor and each Development Affiliate Guarantor has
the right and power, and has taken all necessary action to authorize it, to
borrow hereunder (in the case of a Borrower) and to execute, deliver and perform
this Agreement, the Notes and the other Loan Documents to which it is a party in
accordance with their respective terms and to consummate the transactions
contemplated hereby and thereby, as the case may be. This Agreement, the Notes
and each of the other Loan Documents to which a Borrower, a Guarantor or a
Development Affiliate Guarantor is a party have been duly executed and delivered
by such Loan Party and each is a legal, valid and binding obligation of such
Loan Party enforceable against such Loan Party in accordance with its respective
terms, except as the same may be limited by bankruptcy, insolvency, and other
similar laws affecting the rights of creditors generally and the availability of
equitable remedies for the enforcement of certain obligations (other than the
payment of principal) contained herein or therein may be limited by equitable
principles generally.
SECTION 7.4. Compliance of Agreement, Notes, Loan Documents and
--------------------------------------------------
Borrowing with Laws, etc.
------------------------
The execution, delivery and performance of this Agreement, the Notes and
the other Loan Documents to which any Borrower, any Guarantor or any Development
Affiliate Guarantor is a party in accordance with their respective terms and the
borrowing of Loans hereunder do not and will not, by the passage of time, the
giving of notice or otherwise (a) require any Governmental Approval or violate
any Applicable Law relating to any Borrower, any Guarantor or any Development
Affiliate Guarantor the failure to possess or to comply with which would have a
Materially Adverse Effect; (b) conflict with, result in a breach of or
constitute a default under the articles of incorporation, bylaws, operating
agreement, partnership agreement or other organizational or constituent
documents of any Borrower, any Guarantor or any Development Affiliate Guarantor,
or any indenture, agreement or other instrument to which any Borrower, any
Guarantor or any Development Affiliate Guarantor is a party or by which it or
any of its properties may be bound and the violation of which would have a
Materially Adverse Effect; or (c) result in or require the creation or
imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by any Borrower, any Guarantor or any Development Affiliate
Guarantor other than Permitted Liens.
SECTION 7.5. Compliance with Law; Governmental Approvals.
-------------------------------------------
Each of the Borrowers, the Guarantors and the Development Affiliate
Guarantors is in compliance with each Governmental Approval applicable to it and
in compliance with all other Applicable Law relating to it, except for
noncompliances which, and Governmental Approvals the failure to possess which,
would not, singly or in the aggregate, cause a Default or Event of Default or
have a Materially Adverse Effect and in respect of which (if a Borrower has
actual knowledge of such Applicable Law or Governmental Approval) adequate
reserves have been established on the books of such Loan Party.
SECTION 7.6. Existing Indebtedness.
---------------------
Other than the Indebtedness hereunder and as set forth on Schedule 7.6.,
neither any Borrower, any Guarantor, any Development Affiliate Guarantor nor any
of such Borrower's other Subsidiaries, Preferred Stock Entities or any
Non-Guarantor Entity has any Indebtedness. Each Borrower, each Guarantor, each
Development Affiliate Guarantor and each of the other Subsidiaries of the Parent
or of any Borrower, Preferred Stock Entities and Affiliates have performed and
are in compliance with all of the terms of such Indebtedness and all instruments
and agreements relating thereto, and no default or event of default, or event or
condition which with the giving of notice, the lapse of time, a determination of
materiality, the satisfaction of any other condition or any combination of the
foregoing, would constitute such a default or event of default, exists with
respect to any such Indebtedness.
SECTION 7.7. Title to Properties; Liens.
--------------------------
Each of the Borrowers, each Guarantor, each Development Affiliate
Guarantor and its other Subsidiaries has good, marketable and legal title to, or
a valid leasehold interest in, its respective assets. Each of the Unencumbered
Pool Properties is free and clear of all Liens except for Permitted Liens.
SECTION 7.8. Unencumbered Pool Properties.
----------------------------
Each of the Unencumbered Pool Properties qualifies as an Eligible
Property. Each of the Stabilized Retail Operating Properties, Qualified
Development Properties and Pre-Stabilized Retail Operating Properties satisfies
all of the requirements of a Stabilized Retail Operating Property, Qualified
Development Property and Pre-Stabilized Retail Operating Property, respectively.
SECTION 7.9. Leases.
------
Except as reflected on the most current rent rolls delivered to the Agent,
all tenant leases of any Unencumbered Pool Property are in full force and effect
and no default or event of default (or event or occurrence which upon with the
passage of time or the giving of notice, or both, will constitute a default or
event of default) exists or will exist thereunder as a result of the
consummation of the transactions contemplated by the Loan Documents.
SECTION 7.10. Material Contracts.
------------------
Schedule 7.10. is a true, correct and complete listing of all Material
Contracts. Each of the Borrowers, each Guarantor, each Development Affiliate
Guarantor and the other Subsidiaries of the Parent or any Borrower that are
parties to any Material Contract has performed and is in compliance with all of
the terms of such Material Contract, and no default or event of default, or
event or condition which with the giving of notice, the lapse of time, a
determination of materiality, the satisfaction of any other condition or any
combination of the foregoing, would constitute such a default or event of
default, exists with respect to any such Material Contract.
SECTION 7.11. Margin Stock.
------------
Neither any Borrower, any Guarantor, any Development Affiliate Guarantor
nor any other Subsidiary of the Parent or any Borrower is engaged principally,
or as one of its important activities, in the business of extending credit for
the purpose, whether immediate, incidental or ultimate, of buying or carrying
"margin stock" within the meaning of Regulations U and X, and no part of the
proceeds of any extension of credit hereunder will be used to buy or carry any
such "margin stock."
SECTION 7.12. Transactions with Affiliates.
----------------------------
Except as set forth on Schedule 7.12., no Borrower, any Guarantor, any
Development Affiliate Guarantor nor any other Subsidiary of the Parent or any
Borrower is a party to any transaction with any Affiliate which is in violation
of Section 8.20.
SECTION 7.13. Absence of Defaults.
-------------------
None of the Borrowers, any Guarantor or any Development Affiliate
Guarantor is in default under its articles of incorporation, bylaws, operating
agreement, partnership agreement or other organizational or constituent
document, and no event has occurred, which has not been remedied, cured or
waived (a) which constitutes a Default or an Event of Default; or (b) which
constitutes, or which with the passage of time, the giving of notice or
otherwise, would constitute, a default or event of default by any Borrower, any
Guarantor, any Development Affiliate Guarantor or any other Subsidiary of the
Parent or any Borrower under any Material Contract (other than this Agreement or
any other Loan Document) or judgment, decree or order to which any Borrower, any
Guarantor, any Development Affiliate Guarantor or any other Subsidiary of the
Parent or any Borrower is a party or by which it or any of its properties may be
bound.
SECTION 7.14. Financial Information.
---------------------
RCLP and the Parent have furnished to each Lender copies of their
respective audited consolidated balance sheets dated December 31, 1998 and 1999,
and the related consolidated related statements of operations, stockholders'
equity and cash flows for the periods then ended (the "Financial Statements").
The chief financial officer of the Parent has certified that the Financial
Statements have been prepared in accordance with GAAP, are complete and correct
and present fairly the financial position of RCLP and the Parent as of their
respective dates. RRG has furnished to each Lender copies of its unaudited
consolidated balance sheet dated December 31, 1999, and the related statements
of income and cash flow for the periods then ended, but excluding all footnotes
(the "RRG Financial Statements"). The chief financial officer of RRG has
certified that the RRG Financial Statements have been prepared in accordance
with GAAP, are complete and correct, and present fairly the financial position
of RRG as of its date. Each of the operating statements pertaining to each of
the Unencumbered Pool Properties delivered by any Borrower to the Agent was
prepared in accordance with GAAP and fairly presents the Net Operating Income of
such Unencumbered Pool Property for the period then ended. Each of the financial
projections delivered, or required to be delivered, by any Borrower to the Agent
or any Lender, whether prior to, on or after, the date hereof (a) has been, or
will be, as applicable, prepared for each Unencumbered Pool Property in light of
the past business and performance of such Unencumbered Pool Property and (b)
represents or will represent, as of the date thereof, the reasonable good faith
estimates of such Borrower's financial performance. None of the Borrowers, the
Parent nor any of its Consolidated Subsidiaries has on the Agreement Date any
material contingent liabilities, liabilities, liabilities for taxes, unusual or
long-term commitments or unrealized or forward anticipated losses from any
unfavorable commitments, except as referred to or reflected or provided for in
said financial statements. Since December 31, 1999, there has been no material
adverse change in the financial condition, operations, business or prospects of
the Parent or any of its Subsidiaries. Each of the Parent, RCLP, the
Subsidiaries and the Development Affiliates is Solvent.
SECTION 7.15. Litigation.
----------
Except as set forth on Schedule 7.15., there are no actions, suits or
proceedings pending against, or to the knowledge of the Parent threatened
against or affecting, any Borrower, any Guarantor, any Development Affiliate
Guarantor or any of the other Subsidiaries of the Parent or any Borrower before
any court or arbitrator or any governmental body, agency or official (a) which
could reasonably be expected to have a Materially Adversely Effect or (b) which
in any manner draws into question the validity or enforceability of any Loan
Document.
SECTION 7.16. ERISA.
-----
(a) Existing Plans. Except for Plans as set forth on Schedule 7.16., no
Borrower nor any Guarantor maintains, nor has any Borrower, any Guarantor or any
Development Affiliate Guarantor at any time maintained, any Plan subject to the
provisions of ERISA. None of any Borrower, any Guarantor or any Development
Affiliate Guarantor is, nor has at any time been, a member of any ERISA Group
with any Person that has at any time maintained any such Plan.
(b) ERISA and Internal Revenue Code Compliance and Liability. Each of the
Borrowers, the Guarantors and the Development Affiliate Guarantors is in
compliance with all applicable provisions of ERISA and the regulations and
published interpretations thereunder with respect to all Plans except where
failure to comply would not result in a Materially Adverse Effect and except for
any required amendments for which the remedial amendment period as defined in
Section 401(b) of the Code has not yet expired. Each Plan that is intended to be
qualified under Section 401(a) of the Internal Revenue Code has been determined
by the Internal Revenue Service to be so qualified, and each trust related to
such plan has been determined to be exempt under Section 501(a) of the Internal
Revenue Code. No material liability has been incurred by any Borrower or any
Guarantor which remains unsatisfied for any taxes or penalties with respect to
any Plan or any Multiemployer Plan.
(c) Funding. No Plan has been terminated, nor has any accumulated funding
deficiency (as defined in Section 412 of the Internal Revenue Code) been
incurred (without regard to any waiver granted under Section 412 of the Internal
Revenue Code), nor has any funding waiver from the IRS been received or
requested with respect to any Plan, nor has any Borrower, any Guarantor or any
Development Affiliate Guarantor failed to make any contributions or to pay any
amounts due and owing as required by Section 412 of the Internal Revenue Code,
Section 302 of ERISA or the terms of any Plan prior to the due dates of such
contributions under Section 412 of the Internal Revenue Code or Section 302 of
ERISA, nor has there been any event requiring any disclosure under Section
4041(c)(3)(C), 4063(a) or 4068(f) of ERISA with respect to any Plan.
(d) Prohibited Transactions and Payments. None of any Borrower, any
Guarantor or any Development Affiliate Guarantor has: (1) engaged in a nonexempt
prohibited transaction described in Section 406 of ERISA or Section 4975 of the
Internal Revenue Code; (2) incurred any liability to the PBGC which remains
outstanding other than the payment of premiums and there are no prepayments
which are due and unpaid; (3) failed to make a required contribution or payment
to a Multiemployer Plan; or (4) failed to make a required installment or other
required payment under Section 412 of the Internal Revenue Code.
(e) No ERISA Termination Event. No Termination Event has occurred or
--------------------------
is reasonably expected to occur.
(f) ERISA Litigation. No material proceeding, claim, lawsuit and/or
investigation is existing or, to the best knowledge of RCLP after due inquiry,
threatened concerning or involving any (1) employee welfare benefit plan (as
defined in Section 3(1) of ERISA) currently maintained or contributed to by any
Borrower, (2) Plan or (3) Multiemployer Plan.
SECTION 7.17. Environmental Matters.
---------------------
Each of the Borrowers, the Guarantors, the Development Affiliate
Guarantors and the other Subsidiaries of the Parent or any Borrower has obtained
all Governmental Approvals which are required under Environmental Laws and is in
compliance in all material respects with all terms and conditions of such
Governmental Approvals and all such Environmental Laws. The Parent is not aware
of, and has not received notice of, any past, present, or future events,
conditions, circumstances, activities, practices, incidents, actions, or plans
which, with respect to any Borrower, the Guarantors, the Development Affiliate
Guarantors or any of the other Subsidiaries of the Parent or any Borrower, may
interfere with or prevent compliance or continued compliance with Environmental
Laws, or may give rise to any common-law or legal liability, or otherwise form
the basis of any claim, action, demand, suit, proceeding, hearing, study, or
investigation, based on or related to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport, or handling or the emission,
discharge, release or threatened release into the environment, of any pollutant,
contaminant, chemical, or industrial, toxic, or other Hazardous Material. There
is no civil, criminal, or administrative action, suit, demand, claim, hearing,
notice, or demand letter, notice of violation, investigation, or proceeding
pending or, to the Parent's knowledge, threatened, against any Borrower, any
Guarantor, any Development Affiliate Guarantor or any other Subsidiary of the
Parent or any Borrower relating in any way to Environmental Laws.
SECTION 7.18. Taxes.
-----
All federal, state and other tax returns of the Borrowers, the Guarantors,
the Development Affiliate Guarantors and the other Subsidiaries of the Parent or
any Borrower required by Applicable Law to be filed have been duly filed, and
all federal, state and other taxes, assessments and other governmental charges
or levies upon any Borrower, any Guarantor, any Development Affiliate Guarantor
or any other Subsidiary of the Parent or any Borrower and their respective
properties, income, profits and assets which are due and payable have been paid,
except any such nonpayment which is at the time permitted under Section 8.3.
None of the United States income tax returns of any Borrower, any Guarantor, any
Development Affiliate Guarantor or any other Subsidiary of the Parent or any
Borrower are under audit. No tax liens have been filed and no claims are being
asserted with respect to any such taxes. All charges, accruals and reserves on
the books of each Borrower, each Guarantor, each Development Affiliate Guarantor
and each other Subsidiary of the Parent or any Borrower in respect of any taxes
or other governmental charges are in accordance with GAAP.
SECTION 7.19. Investment Company; Public Utility Holding Company.
--------------------------------------------------
No Borrower, no Guarantor, no Development Affiliate Guarantor nor any
other Subsidiary of the Parent or any Borrower is (i) an "investment company" or
a company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, (ii) a "holding company" or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company", within the meaning
of the Public Utility Holding Company Act of 1935, as amended, or (iii) subject
to any other Applicable Law which purports to regulate or restrict its ability
to borrow money or to consummate the transactions contemplated by this Agreement
or to perform its obligations under any Loan Document to which it is a party.
SECTION 7.20. Full Disclosure.
---------------
All written information furnished by or on behalf of any Borrower, any
Guarantor or any Development Affiliate Guarantor to the Agent and the Lenders
for purposes of or in connection with this Agreement and the other Loan
Documents or any transaction contemplated hereby is, and all such information
hereafter furnished by or on behalf of any Borrower, any Guarantor or any
Development Affiliate Guarantor to the Agent or any of the Lenders will be true
and accurate in all material respects on the date as of which such information
is stated or certified and does not, and will not, fail to state any material
facts necessary to make the statements contained therein not misleading. The
Parent has disclosed to the Agent in writing any and all facts known to the
Parent which materially and adversely affect or may affect (to the extent the
Parent can now reasonably foresee), the business, operations or financial
condition of each Borrower, each Guarantor, each Development Affiliate Guarantor
and each of the other Consolidated Subsidiaries, or the ability of any Borrower,
any Guarantor or any Development Affiliate Guarantor to perform its obligations
under the Loan Documents to which it is a party.
SECTION 7.21. Not Plan Assets.
---------------
None of the assets of any Borrower, any Guarantor or any Development
Affiliate Guarantor constitute, nor will constitute, plan assets, within the
meaning of ERISA, the Internal Revenue Code and the respective regulations
promulgated thereunder, of any ERISA Plan or Non-ERISA Plan. The execution,
delivery and performance of this Agreement, and the borrowing and repayment of
amounts thereunder, do not and will not constitute "prohibited transactions"
under ERISA or the Internal Revenue Code.
SECTION 7.22. Business.
--------
The Parent and its Consolidated Subsidiaries, and each Borrower and its
Consolidated Subsidiaries, are engaged in the business of owning, managing and
developing community and neighborhood shopping centers and other activities
incidental thereto.
SECTION 7.23. Title to Properties; Necessary Agreements, Licenses,
----------------------------------------------------
Permits; Adverse Contracts.
Each of the Borrowers, the Guarantors, the Development Affiliate
Guarantors and the other Subsidiaries of the Parent or any Borrower (i) has good
and marketable title to its assets and properties except as disclosed in the
consolidated financial statements of the Parent delivered to the Agent and the
Lenders, (ii) is in compliance with all real and personal property leases where
the failure to so be in compliance would have a Materially Adverse Effect, (iii)
possess all necessary and appropriate agreements, contracts, franchise
arrangements, patents, trademarks, licenses, permits and other intellectual
property rights free from burdensome or undue restriction and (iv) has not
infringed upon or otherwise violated any trademark, patent, license or other
intellectual property agreement where such infringement would have a Materially
Adverse Effect. No Borrower, no Guarantor, no Development Affiliate Guarantor
nor any of the other Subsidiaries of the Parent or any Borrower has assumed
liability under or is a party to nor is it or any of its property subject to or
bound by any forward purchase contract, futures contract, covenant not to
compete, unconditional purchase, take or pay or other agreement which restricts
its ability to conduct its business or, either individually or in the aggregate,
has a Materially Adverse Effect or could reasonably be expected to have a
Materially Adverse Effect.
SECTION 7.24. Non-Guarantor Entities.
----------------------
Schedule 7.24. is as of the date hereof a complete and correct list of all
Non-Guarantor Entities, setting forth for each such Person, the correct legal
name of such Person, the type of legal entity which each such Person is, and all
equity interests in such Person held directly or indirectly by the Parent. No
Non-Guarantor Entity satisfies any condition contained in clause (i) or (ii) of
Section 8.24.(a).
ARTICLE VIII. COVENANTS
SECTION 8.1. Information.
-----------
The Borrowers and the Parent, as applicable, will deliver to the Agent:
(a) Within 100 days after the end of each fiscal year of the Parent, the
audited consolidated balance sheet of the Parent and its Consolidated
Subsidiaries as of the end of such fiscal year and the related consolidated
statements of operations, stockholders' equity and cash flows of the Parent and
its Consolidated Subsidiaries for such fiscal year (the "Parent Financial
Statements"), setting forth in comparative form the figures as of the end of and
for the previous fiscal year. The chief financial officer of the Parent shall
certify that the Parent Financial Statements have been prepared in accordance
with GAAP and present fairly the financial position of the Parent and its
Consolidated Subsidiaries, as applicable, as of the date thereof. The audit of
the Parent Financial Statements shall be performed by independent certified
public accountants of recognized national standing acceptable to the Agent (the
"Audit Firm"). In addition, within 100 days after the end of each fiscal year of
the Parent, each Development Affiliate shall deliver to the Agent and each
Lender the unaudited consolidated balance sheet of such Development Affiliate
and its Subsidiaries as of the end of such fiscal year and the related
consolidated statements of operations of such Development Affiliate and its
Subsidiaries for such fiscal year (the "Development Affiliate Financial
Statements"), setting forth in comparative form the figures as of the end of and
for the previous fiscal year. The chief financial officer of the Parent shall
certify that the Development Affiliate Financial Statements have been prepared
in accordance with GAAP (except for tax provisions and related liabilities
determined in accordance with Financial Accounting Standards Board Statement of
Financial Accounting Standards 109), and present fairly the financial position
of the Development Affiliate and their respective Subsidiaries, as applicable,
as of the date thereof. The Development Affiliate Financial Statements shall be
accompanied by a letter prepared by the Audit Firm stating that they have
performed certain agreed upon procedures that verify (i) the Net Operating
Income of each Property owned by each Development Affiliate and which is
included in determinations of the Borrowing Base, (ii) the cost basis of the
real estate assets of each Development Affiliate, and (iii) the outstanding
liabilities (other than liabilities related to deferred taxes) and intercompany
balances of each Development Affiliate;
(b) Within 50 days after the close of each of the first, second and third
fiscal quarters of the Parent, the unaudited consolidated balance sheet of the
Parent and RCLP as of the end of such period and the related consolidated
statements of operations, stockholders' equity and cash flows of the Parent and
RCLP for such period (the "Quarterly Financial Statements"), setting forth in
each case in comparative form the figures for the corresponding periods of the
previous fiscal year. The chief financial officer of the Parent shall certify
that the Quarterly Financial Statements have been prepared in accordance with
GAAP and present fairly the financial position of the Parent and RCLP, as
applicable, as of the date thereof;
(c) simultaneously with the delivery of each set of financial statements
of the Parent referred to in the immediately preceding clauses (a) and (b), a
certificate of the chief financial officer of the Parent substantially in the
form of Exhibit Q (i) setting forth in reasonable detail the calculations
required to establish whether the Parent was in compliance with the requirements
of Sections 8.12., 8.23. , 8.28. and Article IX. on the date of such financial
statements, (ii) setting forth a schedule of all current Contingent Obligations
of the Parent, each Borrower, all Subsidiaries of the Parent or any Borrower,
all Preferred Stock Entities and all Unconsolidated Affiliates and (iii) stating
whether any Default or Event of Default exists on the date of such certificate
and, if any Default or Event of Default then exists, setting forth the details
thereof and the action which the Parent and the Borrowers are taking or proposes
to take with respect thereto;
(d) as soon as available and in any event within 50 days after the end of
each fiscal quarter of RCLP, (i) an Unencumbered Pool Certificate setting forth
the information to be contained therein as of the last day of such fiscal
quarter and (ii) (A) a list of all Non-Guarantor Entities as of the last day of
such fiscal quarter, setting forth for each such Person, the correct legal name
of such Person, the type of legal entity which each such Person is, and all
equity interests in such Person held directly or indirectly by the Parent and
RCLP and (B) a certification by RCLP for each such Non-Guarantor Entity of the
amount of Indebtedness of such Non-Guarantor Entity and what amount, if any, of
such Indebtedness is not Nonrecourse Indebtedness.
(e) simultaneously with the delivery of each set of financial statements
referred to in the immediately preceding clause (a), a statement of the firm of
independent public accountants which reported on such statements whether
anything has come to their attention to cause them to believe that any Default
or Event of Default existed on the date of such statements;
(f) simultaneously with the delivery of each set of financial statements
referred to in the immediately preceding clauses (a) and (b), a report of
"funding capacity" of the Parent, certified by the chief financial officer of
the Parent, providing a comparison of the costs to complete developments in
process, the costs of developments under contract and approved by the Parent's
capital allocation committee, and loans maturing during the next 12 months, and
any other significant capital commitments;
(g) no later than December 1 of each calendar year, the annual plan of the
Parent and its Consolidated Subsidiaries which plan shall at least include
capital and operating expense budgets, projections of sources and applications
of funds, a projected balance sheet, profit and loss projections of the Parent
and its Consolidated Subsidiaries for each quarter of the next succeeding fiscal
year and a update copy of Schedule 7.6., all itemized in reasonable detail and
shall also set forth the pro forma calculations required (including any
assumptions, where appropriate) to establish whether or not the Parent, and when
appropriate its Consolidated Subsidiaries, will be in compliance with the
covenants contained in Sections 8.12. and 8.23., 8.28. and Article IX. at the
end of each fiscal quarter of the next succeeding fiscal year;
(h) promptly upon receipt thereof, copies of all reports submitted to any
Borrower or the Parent or the Board of Directors of the Parent or any Borrower
by its independent public accountants, including without limitation, any
management report;
(i) within five days after any executive officer of any Borrower or the
Parent obtains knowledge of any Default or Event of Default, a certificate of
the president or chief financial officer of such Borrower or Parent, as
applicable, setting forth the details thereof and the action which such Borrower
or Parent is taking or proposes to take with respect thereto;
(j) promptly upon the mailing thereof to the shareholders of the Parent
generally, copies of all financial statements, reports, offering memoranda and
proxy statements so mailed;
(k) within 10 days of the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent), reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) and all other periodic reports which the Parent or RCLP shall file
with the Securities and Exchange Commission (or any Governmental Authority
substituted therefor) or any national securities exchange;
(l) promptly upon the release thereof, copies of all press releases of
any Borrower and the Parent and any Subsidiary;
(m) promptly upon obtaining knowledge thereof, a description in reasonable
detail of any action, suit or proceeding commenced or threatened against any
Borrower, any Guarantor, any Development Affiliate Guarantor, any Subsidiary of
the Parent or any Borrower or any Unencumbered Pool Property which is reasonably
likely to have a Materially Adverse Effect;
(n) promptly upon the occurrence thereof, written notice of any
material change in the senior management of any Borrower or the Parent;
(o) promptly upon the occurrence thereof, a copy of any amendment to the
articles of incorporation, bylaws, operating agreement, partnership agreement or
other organizational or constituent document of the Parent, any Borrower, any
Guarantor or any Development Affiliate Guarantor;
(p) upon request by the Agent, all financial information maintained on the
Parent, any Borrower, any Guarantor, any Development Affiliate Guarantor and the
individual real estate projects owned by the Parent, any Borrower, any Guarantor
or any Development Affiliate Guarantor, including, but not limited to, property
cash flow reports, property budgets, operating statements, leasing status
reports (both actual occupancy and leased occupancy), contingent liability
summary, note receivable summary, summary of cash and cash equivalents and
overhead and capital improvement budgets;
(q) within 10 days of the filing thereof, each federal or state income tax
return of the Parent, each Borrower, each Guarantor , each Development Affiliate
Guarantor and each other Subsidiary of the Parent or any Borrower;
(r) written notice not later than public disclosure of any material
Investments, material acquisitions, dispositions, disposals, divestitures or
similar transactions involving Property, the raising of additional equity or the
incurring or repayment of material Indebtedness, by or with the Parent, any
Borrower, any Guarantor, any Development Affiliate Guarantor or any other
Subsidiary of the Parent or any Borrower;
(s) if, in connection with a request by a Borrower that a Property be
accepted as an Unencumbered Pool Property, such Borrower was unable to provide
any operating statement or occupancy report for the entire period called for
under clause (ii) or (iv) of Section 4.1.(c) because such information was not
reasonably available to such Borrower but such information does later become
available to such Borrower, such Borrower will promptly provide such reports to
the Agent and the Lenders;
(t) promptly upon the request of the Agent, evidence of RCLP's calculation
of the Ownership Share with respect to a Subsidiary or an Unconsolidated
Affiliate, such evidence to be in form and detail satisfactory to the Agent and
the Majority Lenders; and
(u) from time to time and promptly upon each request, such data,
certificates, reports, statements, opinions of counsel, documents or further
information regarding the business, assets, liabilities, financial condition,
results of operations or business prospects of the Parent, any Borrower, any
Guarantor, any Development Affiliate Guarantor or any other Subsidiary of the
Parent or any Borrower as the Agent or any Lender may reasonably request.
SECTION 8.2. ERISA Reporting.
---------------
Each Borrower shall deliver to the Agent as soon as possible, and in any
event within 10 Business Days after such Borrower knows that any of the events
or conditions specified below with respect to any Plan or Multiemployer Plan has
occurred or exists, a statement signed by the chief financial officer of such
Borrower setting forth details respecting such event or condition and the
action, if any, that such Borrower or its ERISA Affiliate proposes to take with
respect thereto (and a copy of any report or notice required to be filed with or
given to PBGC by such Borrower or an ERISA Affiliate with respect to such event
or condition):
(a) any reportable event, as defined in Section 4043(b) of ERISA and the
regulations issued thereunder, with respect to a Plan, as to which PBGC has not
by regulation waived the requirement of Section 4043(a) of ERISA that it be
notified within 30 days of the occurrence of such event (provided that a failure
to meet the minimum funding standard of Section 412 of the Internal Revenue Code
or Section 302 of ERISA, including, without limitation, the failure to make on
or before its due date a required installment under Section 412(m) of the
Internal Revenue Code or Section 302(e) of ERISA, shall be a reportable event
regardless of the issuance of any waivers in accordance with Section 412(d) of
the Internal Revenue Code); and any request for a waiver under Section 412(d) of
the Internal Revenue Code for any Plan;
(b) the distribution under Section 4041 of ERISA of a notice of intent to
terminate any Plan or any action taken by such Borrower or an ERISA Affiliate to
terminate any Plan;
(c) the institution by PBGC of proceedings under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any Plan, or
the receipt by such Borrower or any ERISA Affiliate of a notice from a
Multiemployer Plan that such action has been taken by PBGC with respect to such
Multiemployer Plan;
(d) the complete or partial withdrawal from a Multiemployer Plan by such
Borrower or any ERISA Affiliate that results in liability under Section 4201 or
4204 of ERISA (including the obligation to satisfy secondary liability as a
result of a purchaser default) or the receipt by such Borrower or any ERISA
Affiliate of notice from a Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA or that it intends to
terminate or has terminated under Section 4041A of ERISA;
(e) the institution of a proceeding by a fiduciary of any Multiemployer
Plan against such Borrower or any ERISA Affiliate to enforce Section 515 of
ERISA, which proceeding is not dismissed within 30 days; and
(f) the adoption of an amendment to any Plan that, pursuant to Section 401
(a)(29) of the Internal Revenue Code or Section 307 of ERISA, would result in
the loss of tax-exempt status of the trust of which such Plan is a part if such
Borrower or an ERISA Affiliate fails to timely provide security to the Plan in
accordance with the provisions of said Sections.
SECTION 8.3. Payment of Obligations.
----------------------
Each Borrower and the Parent will pay and discharge, and will cause each
Guarantor, each Development Affiliate Guarantor and each other Subsidiary of the
Parent or any Borrower to pay and discharge, at or before maturity, all their
respective material obligations and liabilities, including, without limitation,
tax liabilities, except where the same may be contested in good faith by
appropriate proceedings unless the contest thereof would have a Materially
Adverse Effect, and will maintain, and will cause each Guarantor, each
Development Affiliate Guarantor and each other Subsidiary of the Parent or any
Borrower to maintain, in accordance with GAAP, appropriate reserves for the
accrual of any of the same.
SECTION 8.4. Preservation of Existence and Similar Matters.
---------------------------------------------
Except as otherwise permitted under Section 8.13., each Borrower and the
Parent shall preserve and maintain, and cause each Guarantor, each Development
Affiliate Guarantor and each other Subsidiary of the Parent or any Borrower to
preserve and maintain, its respective existence, rights, franchises, licenses
and privileges in the jurisdiction of its formation and qualify and remain
qualified and authorized to do business in each jurisdiction in which the
character of its properties or the nature of its business requires such
qualification and authorization and where the failure to be so authorized and
qualified would have a Materially Adverse Effect.
SECTION 8.5. Maintenance of Property.
-----------------------
Each Borrower and the Parent shall, and shall cause each other Guarantor,
each Preferred Stock Entity, each Development Joint Venture, each Development
Affiliate Guarantor and each other Subsidiary of the Parent or any Borrower to,
(a) protect and preserve all of its material properties, including without
limitation, all Unencumbered Pool Properties, and maintain in good repair,
working order and condition all tangible properties, and (b) from time to time
make or cause to be made all needed and appropriate repairs, renewals,
replacements and additions to such properties.
SECTION 8.6. Conduct of Business.
-------------------
Each Borrower and the Parent shall at all times carry on, and cause each
other Guarantor, each Development Affiliate Guarantor and each other Subsidiary
of the Parent or any Borrower to carry on, its respective businesses in the same
fields as engaged in on the Agreement Date and not enter, and not permit any
other Guarantor, any Development Affiliate Guarantor or any other Subsidiary of
the Parent or any Borrower to enter, into any line of business not otherwise
engaged in by such Person as of the Agreement Date.
SECTION 8.7. Insurance.
---------
Each Borrower and the Parent shall maintain, and cause each other
Guarantor, each Development Affiliate Guarantor and each other Subsidiary of any
Borrower or the Parent to maintain, insurance with financially sound and
reputable insurance companies against such risks and in such amounts as is
customarily maintained by similar businesses or as may be required by Applicable
Law. Such insurance shall, in any event, include fire and extended coverage,
public liability, property damage, workers' compensation and flood insurance (if
required under Applicable Law). Each Borrower and the Parent shall from time to
time deliver to the Agent or any Lender upon its request a detailed list,
together with copies of all policies of the insurance then in effect, stating
the names of the insurance companies, the amounts and rates of the insurance,
the dates of the expiration thereof and the properties and risks covered
thereby.
SECTION 8.8. Modifications to Material Contracts.
-----------------------------------
Except as otherwise provided in Section 8.22., the Borrowers and the
Parent shall not enter into, or permit any other Guarantor, any Development
Affiliate Guarantor or any other Subsidiary of the Parent or any Borrower to
enter into, any amendment or modification to any Material Contract or default in
the performance of any obligations of the Parent, any Borrower, any other
Guarantor, any Development Affiliate Guarantor or any other Subsidiary of the
Parent or any Borrower in any Material Contract or permit any Material Contract
to be canceled or terminated prior to its stated maturity.
SECTION 8.9. Environmental Laws.
------------------
Each Borrower and the Parent shall comply, and cause all other Guarantors,
all Development Affiliate Guarantors and all other Subsidiaries of the Parent or
any Borrower to comply, in all material respects with all Environmental Laws. If
the Parent, any Borrower, any other Guarantor, any Development Affiliate
Guarantor or any other such Subsidiary shall (a) receive notice that any
violation of any Environmental Law may have been committed or is about to be
committed by such Person, (b) receive notice that any administrative or judicial
complaint or order has been filed or is about to be filed against any such
Person alleging violations of any Environmental Law or requiring any such Person
to take any action in connection with the release of Hazardous Materials or (c)
receive any notice from a Governmental Authority or private party alleging that
any such Person may be liable or responsible for costs associated with a
response to or cleanup of a release of Hazardous Materials or any damages caused
thereby, the Parent shall promptly provide the Agent with a copy of such notice
and in any event within 10 days after the receipt thereof by any such Person.
Each Borrower and the Parent shall, and shall cause each other Guarantor, each
Development Affiliate Guarantor and each other Subsidiary of the Parent or any
Borrower to, promptly take all actions necessary to prevent the imposition of
any Liens on any of their respective properties arising out of or related to any
Environmental Laws.
SECTION 8.10. Compliance with Laws and Material Contracts.
-------------------------------------------
Each Borrower and the Parent will comply, and cause each other Guarantor,
each Development Affiliate Guarantor and each other Subsidiary of the Parent or
any Borrower to comply, with (a) all Applicable Laws, except where the failure
to so comply would not have a Materially Adverse Effect and (b) all terms and
conditions of all Material Contracts to which it is a party.
SECTION 8.11. Inspection of Property, Books and Records.
-----------------------------------------
Each Borrower and the Parent will keep, and will cause each other
Guarantor, each Development Affiliate Guarantor and each other Subsidiary of the
Parent or any Borrower to keep, proper books of record and account in which
full, true and correct entries shall be made of all dealings and transactions in
relation to its business and activities; and will permit, and will cause each
other Guarantor, each Development Affiliate Guarantor and each other Subsidiary
of the Parent or any Borrower to permit, representatives of the Agent or any
Lender to visit and inspect any of their respective properties, to examine and
make abstracts from any of their respective books and records and to discuss
their respective affairs, finances and accounts with their respective officers,
employees and independent public accountants in the Parent's presence prior to
an Event of Default, all at such reasonable times during business hours and as
often as may reasonably be desired and with reasonable notice so long as no
Event of Default shall have occurred and be continuing.
SECTION 8.12. Indebtedness.
------------
Each Borrower and the Parent will not, and will not permit any other
Guarantor, any Development Affiliate Guarantor or any Subsidiary of the Parent
or any Borrower to, incur, assume or suffer to exist any Indebtedness other
than:
(a) Indebtedness under this Agreement;
(b) Indebtedness set forth in Schedule 7.6.;
(c) Indebtedness represented by declared but unpaid dividends; and
(d) Secured Indebtedness and other Unsecured Indebtedness that is pari
passu with and is not subordinate in right of payment or otherwise to the Loans
and the other Obligations, so long as (i) no Default or Event of Default shall
have occurred and be continuing and (ii) the incurrence of such Secured
Indebtedness or other Unsecured Indebtedness would not cause the occurrence of a
Default or Event of Default, including without limitation, a Default or Event of
Default resulting from a violation of Section 9.2. or 9.3.
SECTION 8.13. Consolidations, Mergers and Sales of Assets.
-------------------------------------------
The Borrowers and the Parent shall not, and shall not permit any other
Guarantor, any Development Affiliate Guarantor or any other Subsidiary of the
Parent or any Borrower to, (a) enter into any transaction of merger or
consolidation; (b) liquidate, wind-up or dissolve itself (or suffer any
liquidation or dissolution) or (c) convey, sell, lease, sublease, transfer or
otherwise dispose of, in one or a series of transactions, any Unencumbered Pool
Property or any interest therein, or all or any substantial part of its business
or assets, or the capital stock of or other equity interests in any Subsidiary,
except that (i) a Subsidiary of a Borrower may merge or consolidate with such
Borrower or a Wholly Owned Subsidiary of such Borrower, (ii) a Subsidiary of a
Borrower may sell, transfer or dispose of its assets to such Borrower or a
Wholly Owned Subsidiary of such Borrower, (iii) a Development Joint Venture that
is a Borrower may (x) merge with and into RCLP or (y) liquidate, so long as
after giving effect to any such merger or liquidation (A) all Unencumbered Pool
Properties of such Development Joint Venture immediately prior to such merger or
liquidation are owned by RCLP immediately after giving effect to such merger or
liquidation and (B) all Loans and other Obligations of such Development Joint
Venture are either assumed by RCLP or repaid prior to or simultaneously with
such merger or liquidation, and (iv) any Subsidiary of the Parent identified in
Section 8.27. may (x) merge with and into RCLP or any other Subsidiary of the
Parent identified in such Section, (y) liquidate, so long as such Subsidiary is
a Wholly Owned Subsidiary of the Parent and (z) sell, transfer or dispose of its
assets to RCLP or any other Subsidiary of the Parent identified in such Section,
so long as any such merger, liquidation, sale, transfer or disposition referred
to in this clause (iv) is being effected in connection with the Parent's
compliance with its obligations under the first sentence of such Section.
Further, the Borrowers and the Parent shall not, and shall not permit any
Guarantor, any Development Affiliate Guarantor nor any other Subsidiary of the
Parent or any Borrower to, enter into any sale-leaseback transactions or other
transaction by which any such Person shall remain liable as lessee (or the
economic equivalent thereof) of any real or personal property that it has sold
or leased to another Person.
SECTION 8.14. Use of Proceeds and Letters of Credit.
-------------------------------------
The Borrowers will only use the proceeds of the Loans for pre-development
costs, development costs, acquisitions, capital expenditures, working capital
and general corporate purposes, equity investments, repayment of Indebtedness or
scheduled amortization payments on Indebtedness, financing loans to
Subsidiaries, Unconsolidated Affiliates, Preferred Stock Entities and other
Affiliates of the Borrowers for development activities, and for no other
purposes. Except as permitted in Section 8.23., no Borrower may use any proceeds
of the Loans for the purpose of purchasing or carrying any "margin stock" within
the meaning of Regulations U and X. The Borrowers may use the Letters of Credit
only for the same purposes for which they may use the proceeds of Loans. RCLP
shall use the proceeds of the initial Revolving Loans made on the Effective Date
for general corporate purposes.
SECTION 8.15. Tenant Concentration.
--------------------
No Borrower nor the Parent shall permit the Adjusted Base Rents from any
single tenant (excluding Credit Tenants but including all Affiliates of such
tenant other than Credit Tenants), to exceed 15% of Adjusted Base Rents from all
Properties of the Parent, the Borrowers and their respective Subsidiaries.
SECTION 8.16. Acquisitions.
------------
The Borrowers and the Parent shall not, and shall not permit any
Subsidiary of the Parent or any Borrower to, make any Acquisition in which the
consideration paid (whether by way of payment of cash, issuance of capital
stock, assumption of Indebtedness, or otherwise) by a Borrower, the Parent or
such Subsidiary equals or exceeds 35% of the sum of (a) total consolidated
assets of the Parent plus (b) consolidated accumulated depreciation of the
Parent (or in the case of an Acquisition by a Development Affiliate, (a) total
consolidated assets of such Development Affiliate plus (b) consolidated
accumulated depreciation of such Development Affiliate) unless (i) no Default or
Event of Default shall have occurred and be continuing, (ii) the Parent shall
have given the Agent and the Lenders at least 30 days prior written notice of
such Acquisition and (iii) the Parent shall have delivered to the Agent and the
Lenders a Compliance Certificate, calculated on a pro forma basis, evidencing
the Borrowers' and Parent's continued compliance with the terms and conditions
of this Agreement and the other Loan Documents, including without limitation,
the financial covenants contained in Article IX., after giving effect to such
Acquisition.
SECTION 8.17. Exchange Listing.
----------------
The Parent shall cause its common stock to be listed for trading on either
the New York Stock Exchange or the American Stock Exchange.
SECTION 8.18. REIT Status.
-----------
Parent will at all times maintain its status as a REIT.
SECTION 8.19. Negative Pledge; Restriction on Distribution Rights.
---------------------------------------------------
The Borrowers and Parent shall not, and shall not permit any other
Guarantor, any Development Affiliate Guarantor or other Subsidiary of the Parent
or any Borrower, to (a) create, assume, incur or permit or suffer to exist any
Lien upon any of the Unencumbered Pool Properties or any direct or indirect
ownership interest of RCLP in any Guarantor owning any Unencumbered Pool
Property, other than Permitted Liens; (b) enter into or assume any agreement
(other than the Loan Documents) prohibiting the creation or assumption of any
Lien upon its properties or assets, whether now owned or hereafter acquired; or
(c) create or otherwise cause or suffer to exist or become effective any
consensual encumbrance or restriction of any kind on the ability of any
Subsidiary to: (i) pay dividends or make any other distribution on any of such
Subsidiary's capital stock or other equity interest owned by the Parent, any
Borrower or any other Subsidiary of the Parent or any Borrower; (ii) pay any
Indebtedness owed to the Parent, any Borrower or any other Subsidiary of the
Parent or any Borrower; (iii) make loans or advances to the Parent, any Borrower
or any other Subsidiary of the Parent or any Borrower; or (iv) transfer any of
its property or assets to the Parent, any Borrower or any other Subsidiary of
the Parent or any Borrower.
SECTION 8.20. Agreements with Affiliates.
--------------------------
The Borrowers and the Parent shall not, and shall not permit any other
Guarantor, any Development Affiliate Guarantor or any other Subsidiary of the
Parent or any Borrower to, enter into any transaction requiring such Person to
pay any amounts to or otherwise transfer property to, or pay any management or
other fees to, any Affiliate other than on terms and conditions substantially as
favorable to the Parent, such Borrower, such other Guarantor, such Development
Affiliate Guarantor or such other Subsidiary as would be obtainable at the time
in a comparable arm's-length transaction with a Person not an Affiliate.
SECTION 8.21. ERISA Exemptions.
----------------
The Borrowers and the Parent shall not, and shall not permit any other
Guarantor, any Development Affiliate Guarantor or any other Subsidiary to,
permit any of its respective assets to become or be deemed to be "plan assets"
within the meaning of ERISA, the Internal Revenue Code and the respective
regulations promulgated thereunder, of any ERISA Plan or any Non-ERISA Plan.
SECTION 8.22. Compliance with and Amendment of Charter or Bylaws.
--------------------------------------------------
The Borrowers and the Parent will, and will cause each other Guarantor and
each Development Affiliate Guarantor to (a) comply with the terms of its
articles of incorporation, bylaws, operating agreement, partnership agreement or
other organizational or constituent document and (b) not amend, supplement,
restate or otherwise materially modify its articles of incorporation, by-laws,
operating agreement, partnership agreement or other organizational or
constituent document without the prior written consent of the Lenders whose
combined Pro Rata Shares equal or exceed 51% except as is required (i) under
Applicable Laws or (ii) in order to maintain compliance with Section 8.18.
SECTION 8.23. Distributions.
-------------
If no Event of Default shall have occurred and be continuing, none of the
Parent, the Borrowers or any Subsidiary of any Borrower (other than Wholly Owned
Subsidiaries) shall directly or indirectly declare or make, or incur any
liability to make, any Restricted Payments other than:
(a) (i) distributions to its shareholders, partners or members, as
applicable, and (ii) payments made by the Parent or RCLP to purchase (A)
outstanding shares of the common stock of the Parent (other than payments
described in clause (b) below) or (B) outstanding units of preferred partnership
interests (but only if and to the extent required pursuant to the mandatory
redemption provisions set forth in RCLP's Third Amended and Restated Partnership
Agreement, as amended, in connection with RCLP's issuance of redeemable
preferred units in order to comply with Section 5 of the Parent's Articles of
Incorporation and in the minimum amount necessary to avoid a violation of
Sections 856(a)(6) and 856(h) of the Internal Revenue Code), which distributions
and payments in the aggregate shall not exceed 95% of Funds From Operations as
of the end of each fiscal quarter for the four fiscal quarter period then
ending; provided, however, that any payments made pursuant to clause (ii) above
shall not exceed 10% of Funds from Operations for such four quarter period;
(b) other payments made by the Parent or RCLP to purchase outstanding
shares of the common stock of the Parent up to an amount equal to the aggregate
net proceeds received by the Parent or RCLP in connection any issuance by the
Parent or RCLP of Preferred Stock (which payments may be made with proceeds of
Loans to the extent net proceeds of such Preferred Stock issuance were used to
make an optional prepayment of outstanding Loans); provided, however, that any
such payments made pursuant to this clause (b) must be made within twelve months
after the date of issuance of such Preferred Stock;
(c) distributions of capital gains resulting from certain asset sales
to the extent necessary to maintain compliance with Section 8.18.; and
(d) in the case of a Development Affiliate, distribution to its
shareholders, partners or members, as applicable.
If an Event of Default under Section 10.1.(a) shall have occurred and be
continuing as a result of any Borrower's failure to pay any principal of or
interest on any of the Obligations, none of the Parent, the Borrowers or any
Subsidiary (other than Wholly-Owned Subsidiaries) shall directly or indirectly
declare or make, or incur any liability to make, any Restricted Payments. If any
other Event of Default shall have occurred and be continuing, none of the
Parent, the Borrowers or any Subsidiary (other than Wholly Owned Subsidiaries)
shall directly or indirectly declare or make, or incur any liability to make,
any Restricted Payments except that the Parent may make distributions to its
shareholders in the minimum amount necessary to maintain compliance with Section
8.18.
SECTION 8.24. New Guarantors.
--------------
(a) The Parent shall cause any Subsidiary that is not already a Guarantor
and to which any of the following conditions apply (each a "New Guarantor") to
execute and deliver to the Agent an Accession Agreement, together with the other
items required to be delivered under the subsection (c) below:
(i) such Person Guarantees, or otherwise becomes obligated in
respect of, any Indebtedness of (1) the Parent; (2) any Borrower; (3) any
other Subsidiary of the Parent or any Borrower or (4) any Non-Guarantor
Entity; or
(ii) (A) such Person can become a party to the Guaranty without
violating: (1) terms of its articles of incorporation, bylaws, operating
agreement, partnership agreement, declaration of trust or other similar
organizational document, which terms expressly prohibit such Subsidiary
from providing Guarantees of Indebtedness of any other Person or otherwise
incurring any Indebtedness or (2) any fiduciary obligation owing by such
Subsidiary to the holders of an equity interest in such Subsidiary and
imposed under Applicable Law and (B) such Person has incurred, acquired or
suffered to exist any Indebtedness other than Nonrecourse Indebtedness;
provided, however, the condition of this clause (ii) shall be deemed not
to apply to any Single Asset Subsidiary; or
(iii) such Person owns an Unencumbered Pool Property and has
incurred, acquired or suffered to exist any Indebtedness other than
Nonrecourse Indebtedness.
Any such Accession Agreement and the other items required under subsection
(c) below must be delivered to the Agent no later than 10 days following the
date on which any of the above conditions first applies to a Subsidiary.
(b) Other Guarantors. The Parent may, at its option, cause any other
Person that is not already a Guarantor to become a New Guarantor by executing
and delivering to the Agent an Accession Agreement, together with the other
items required to be delivered under the subsection (c) below.
(c) Required Deliveries. Each Accession Agreement delivered by a New
Guarantor under the immediately preceding subsections (a) or (b) shall be
accompanied by all of the following items, each in form and substance
satisfactory to the Agent:
(i) the articles of incorporation, articles of organization,
certificate of limited partnership or other comparable organizational
instrument (if any) of such New Guarantor certified as of a recent date by
the Secretary of State of the State of formation of such New Guarantor;
(ii) a Certificate of Good Standing or certificate of similar
meaning with respect to such New Guarantor issued as of a recent date by
the Secretary of State of the State of formation of such New Guarantor and
certificates of qualification to transact business or other comparable
certificates issued by each Secretary of State (and any state department
of taxation, as applicable) of each state in which such New Guarantor is
required to be so qualified;
(iii) a certificate of incumbency signed by the Secretary or
Assistant Secretary (or other individual performing similar functions) of
such New Guarantor with respect to each of the officers of such New
Guarantor authorized to execute and deliver the Loan Documents to which
such New Guarantor is a party;
(iv) copies certified by the Secretary or Assistant Secretary of
such New Guarantor (or other individual performing similar functions) of
(1) the by-laws of such New Guarantor, if a corporation, the operating
agreement, if a limited liability company, the partnership agreement, if a
limited or general partnership, or other comparable document in the case
of any other form of legal entity and (2) all corporate, partnership,
member or other necessary action taken by such New Guarantor to authorize
the execution, delivery and performance of the Loan Documents to which it
is a party;
(v) an opinion of Foley & Lardner, counsel to RCLP, addressed to the
Agent and Lenders, and regarding, among other things, the authority of
such New Guarantor to execute, deliver and perform the Guaranty, and such
other matters as the Agent or its counsel may request; and
(vi) such other documents and instruments as the Agent may
reasonably request.
SECTION 8.25. New Development Affiliate Guarantors.
------------------------------------
(a) Each Development Affiliate shall cause any Subsidiary of such
Development Affiliate that is not already a Guarantor and to which any of the
following conditions apply (each a "New Development Affiliate Guarantor") to
execute and deliver to the Agent a Development Affiliate Accession Agreement,
together with the other items required to be delivered under the subsection (c)
below:
(i) such Person Guarantees, or otherwise becomes obligated in
respect of, any Indebtedness of (1) the Parent; (2) any Borrower; (3) any
other Subsidiary of the Parent or any Borrower, (4) any Development
Affiliate or (5) any Non-Guarantor Entity; or
(ii) (A) such Person can become a party to the Guaranty without
violating: (1) terms of its articles of incorporation, bylaws, operating
agreement, partnership agreement, declaration of trust or other similar
organizational document, which terms expressly prohibit such Person from
providing Guarantees of Indebtedness of any other Person or otherwise
incurring any Indebtedness or (2) any fiduciary obligation owing by such
Person to the holders of an equity interest in such Person and imposed
under Applicable Law and (B) such Person has incurred, acquired or
suffered to exist any Indebtedness other than Nonrecourse Indebtedness;
provided, however, the condition of this clause (ii) shall be deemed not
to apply to any Single Asset Subsidiary.
Any such Accession Agreement and the other items required under subsection
(c) below must be delivered to the Agent no later than 10 days following the
date on which any of the above conditions first applies to a Subsidiary.
(b) Other Guarantors. Any Development Affiliate may, at its option, cause
any other Person that is not already a Guarantor to become a New Development
Affiliate Guarantor by executing and delivering to the Agent an Accession
Agreement, together with the other items required to be delivered under the
subsection (c) below.
(c) Required Deliveries. Each Accession Agreement delivered by a New
Development Affiliate Guarantor under the immediately preceding subsections (a)
or (b) shall be accompanied by all of the following items, each in form and
substance satisfactory to the Agent:
(i) the articles of incorporation, articles of organization,
certificate of limited partnership or other comparable organizational
instrument (if any) of such New Development Affiliate Guarantor certified
as of a recent date by the Secretary of State of the State of formation of
such New Development Affiliate Guarantor;
(ii) a Certificate of Good Standing or certificate of similar
meaning with respect to such New Development Affiliate Guarantor issued as
of a recent date by the Secretary of State of the State of formation of
such New Development Affiliate Guarantor and certificates of qualification
to transact business or other comparable certificates issued by each
Secretary of State (and any state department of taxation, as applicable)
of each state in which such New Development Affiliate Guarantor is
required to be so qualified;
(iii) a certificate of incumbency signed by the Secretary or
Assistant Secretary (or other individual performing similar functions) of
such New Development Affiliate Guarantor with respect to each of the
officers of such New Development Affiliate Guarantor authorized to execute
and deliver the Loan Documents to which such New Development Affiliate
Guarantor is a party;
(iv) copies certified by the Secretary or Assistant Secretary of
such New Development Affiliate Guarantor (or other individual performing
similar functions) of (1) the by-laws of such New Development Affiliate
Guarantor, if a corporation, the operating agreement, if a limited
liability company, the partnership agreement, if a limited or general
partnership, or other comparable document in the case of any other form of
legal entity and (2) all corporate, partnership, member or other necessary
action taken by such New Development Affiliate Guarantor to authorize the
execution, delivery and performance of the Loan Documents to which it is a
party;
(v) an opinion of Foley & Lardner, counsel to RCLP, addressed to the
Agent and Lenders, and regarding, among other things, the authority of
such New Development Affiliate Guarantor to execute, deliver and perform
the Guaranty, and such other matters as the Agent or its counsel may
request; and
(vi) such other documents and instruments as the Agent may
reasonably request.
SECTION 8.26. Acquisitions or Developments of Properties.
------------------------------------------
Neither the Parent nor any of its Subsidiaries other than RCLP and its
Subsidiaries shall acquire or develop any Property directly or indirectly
through the Acquisition of a Subsidiary other than Properties acquired or
developed by the Parent and such Subsidiaries on or before December 31, 1997;
provided, however, that (a) Delk Spectrum, L.P., a Subsidiary of the Parent, may
acquire and develop Properties after December 31, 1997 so long as the aggregate
value of such Properties is equal to or less than $13,000,000; and (b) the
Parent may acquire the Properties described on Schedule 8.26. pursuant to the
merger of Pacific Retail Trust with and into the Parent on February 28, 1999.
SECTION 8.27. Transfer of Properties to Borrower.
----------------------------------
The Parent shall cause each of RRC General SPC, Inc., RRC Limited SPC,
Inc., RSP IV Criterion, Ltd., Regency Rosewood Temple Terrace, Ltd., Treasure
Coast Investors, Ltd., Landcom Regency Mandarin, Ltd., RRC FL SPC, Inc., RRC AL
SPC, Inc., and RRC MS SPC, Inc. to transfer all Properties owned by such
entities to RCLP upon the date six months following the earlier of the
prepayment or the maturity of the those certain Mortgage Pass-Through
Certificates (Series 1993-1) issued by RRC Lender, Inc. in the aggregate
principal amount $51,000,000 pursuant to that certain Trust Agreement dated as
of November 5, 1993, between RRC Lender, Inc., as depositor and Banker's Trust
Company, as Trustee (the foregoing transaction referred to herein as the
"Banker's Trust Securitized Loan") provided, however, that the Parent may sell
any of such Properties to a third party prior to the date six months following
the maturity of the Banker's Trust Securitized Loan. The maturity date of the
Banker's Trust Securitized Loan shall not be extended beyond its current
maturity of November 5, 2000. Notwithstanding the foregoing, the Parent shall
not be required to transfer such Properties if this Agreement is amended, in
form and substance satisfactory to the Agent, to provide that the financial
covenants set forth in Article IX. be tested separately for RCLP and its
Consolidated Subsidiaries and the Parent and its Consolidated Subsidiaries.
SECTION 8.28. Asset Value of Non-Guarantor Entities.
-------------------------------------
At no time shall the aggregate Asset Value of the Non-Guarantor Entities
obligated in respect of any Indebtedness other than Nonrecourse Indebtedness
exceed 10% of the Gross Asset Value of the Parent and its Consolidated
Subsidiaries. For purposes of this Section, a Development Affiliate or a
Development Affiliate Guarantor shall only be considered a Non-Guarantor Entity
hereunder if it is obligated in respect of any Indebtedness (excluding any
Indebtedness owing under any Loan Document) which is not Nonrecourse
Indebtedness.
SECTION 8.29. Hedging Agreements.
------------------
The Borrowers and the Parent shall not, and shall not permit any
Subsidiary of the Parent or any Borrower to, create, incur or suffer to exist
any obligations in respect of Hedging Agreements other than (a) Hedging
Agreements existing on the date hereof and described in Schedule 8.29.; (b)
interest rate cap agreements and (c) interest rate Hedging Agreements (excluding
interest rate cap agreements) entered into from time to time after the date
hereof with counterparties that are nationally recognized, investment grade
financial institutions in an aggregate notional amount not to exceed
$625,000,000 at any time outstanding; provided that, no Hedging Agreement
otherwise permitted hereunder may be speculative in nature.
SECTION 8.30. Limitation Relating to Regency Realty Group, Inc.
-------------------------------------------------
RRG shall not modify its Articles of Incorporation as in effect on the
Agreement Date if such modification would reasonably likely result in RCLP
receiving less than 95% of the "annual cash flow" referred to in such Articles
of Incorporation of RRG in any fiscal year.
Article IX. Financial Covenants
SECTION 9.1. Minimum Net Worth.
-----------------
The Parent shall not at any time permit its Net Worth determined on a
consolidated basis to be less than an amount equal to the greater of (a)(i) 90%
of the tangible Net Worth of the Parent determined on a consolidated basis as of
December 31, 1999 plus (ii) 90% of the sum of (x) the amount of proceeds (net of
transaction costs) received by the Parent from the sale or issuance of shares,
options, warrants or other equity securities of any class or character of the
Parent after December 31, 1999 which affect the Net Worth of the Parent plus (y)
any positive change in the Parent's Net Worth occurring upon the issuance of any
shares of the Parent in exchange for the limited partnership units held by the
limited partners of RCLP minus (iii) the aggregate amount paid by the Parent to
purchase outstanding shares of the common stock of the Parent (to the extent
such payments are permitted by Section 8.23.) or (b) $1,100,000,000.
SECTION 9.2. Ratio of Total Liabilities to Gross Asset Value.
-----------------------------------------------
The Parent shall not at any time permit the ratio of Total Liabilities of
the Parent and its Consolidated Subsidiaries to Gross Asset Value of the Parent
and its Consolidated Subsidiaries to exceed 0.525 to 1.00 at any time.
SECTION 9.3. Ratio of Secured Indebtedness to Gross Asset Value.
--------------------------------------------------
The Parent shall not at any time permit the ratio of Secured Indebtedness
of the Parent and its Consolidated Subsidiaries to Gross Asset Value of the
Parent and its Consolidated Subsidiaries to exceed 0.35 to 1.00 at any time.
SECTION 9.4. Ratio of EBITDA to Interest Expense.
-----------------------------------
The Parent shall not permit the ratio of EBITDA of the Parent and its
Consolidated Subsidiaries for the four fiscal-quarter period most recently ended
to Interest Expense of the Parent and its Consolidated Subsidiaries for such
four-quarter period to be less than 2.0 to 1.0 at the end of each fiscal
quarter.
SECTION 9.5. Ratios of EBITDA to Debt Service, Preferred Stock
-------------------------------------------------
Distributions and Reserve for Replacements.
------------------------------------------
(a) The Parent shall not permit the ratio of (i) EBITDA of the Parent and
its Consolidated Subsidiaries for the four fiscal-quarter period most recently
ended to (ii) the sum of each of the following for such four-quarter period (A)
Debt Service of the Parent and its Consolidated Subsidiaries plus (B) Reserve
for Replacements for all of the Properties of the Parent and its Consolidated
Subsidiaries to be less than 1.75 to 1.00 at the end of each fiscal quarter.
(b) The Parent shall not permit the ratio of (i) EBITDA of the Parent and
its Consolidated Subsidiaries for the four fiscal-quarter period most recently
ended to (ii) the sum of each of the following for such four-quarter period (A)
Debt Service of the Parent and its Consolidated Subsidiaries plus (B) any
distributions by the Parent or any Subsidiary to the holders of Preferred Stock
issued by the Parent or any such Subsidiary (excluding any such distributions
made to the Parent or any Subsidiary) plus (C) Reserve for Replacements for all
of the Properties of the Parent and its Consolidated Subsidiaries to be less
than 1.65 to 1.00 at the end of each fiscal quarter.
SECTION 9.6. Unsecured Interest Expense Coverage.
-----------------------------------
The Parent shall not permit the ratio of Unencumbered NOI to Interest
Expense on Unsecured Indebtedness of the Parent and its Consolidated
Subsidiaries for any fiscal quarter to be less than 1.75 to 1.00 for such fiscal
quarter.
SECTION 9.7. Permitted Investments.
---------------------
(a) The Parent and the Borrowers shall not make any Investment in or
otherwise own, and the Parent shall not permit any Guarantor, any Development
Affiliate Guarantor or any other Subsidiary of the Parent or any Borrower to
make an Investment in or otherwise own, the following items which would cause
the aggregate value of such holdings of the Parent, the Borrowers, and the other
Subsidiaries of the Parent and the Borrowers to exceed the following percentages
of the Parent's Gross Asset Value:
(i) unimproved real estate, such that the aggregate book value of
all such unimproved real estate exceeds 10% of the Parent's Gross Asset
Value;
(ii) Common stock, preferred stock, other capital stock, beneficial
interest in trust, membership interest in limited liability companies and
other equity interests in Persons (other than Subsidiaries and
Unconsolidated Affiliates), such that the aggregate value of such
interests calculated on the basis of the lower of cost or market, exceeds
5% of the Parent's Gross Asset Value;
(iii) Mortgages in favor of the Parent, any Borrower or any other
Subsidiary of the Parent or any Borrower, such that the aggregate book
value of Indebtedness secured by such Mortgages exceeds 5% of the Parent's
Gross Asset Value;
(iv) Investments in Unconsolidated Affiliates, such that the
aggregate value of such Investments exceeds 15% of the Parent's Gross
Asset Value. For purposes of this clause (iv), the "value" of any such
Investment in such a non-corporate Person shall equal (1) with respect to
any of such Person's Properties under construction, the Parent's Ownership
Share of the book value of Construction in Process for such Property as of
the date of determination and (2) with respect to any of such Person's
Properties which have been completed, the Parent's Ownership Share of
Capitalized EBITDA of such Person attributable to such Properties; and
In addition to the foregoing limitations, the aggregate value of the
Investments subject to the limitations in the preceding clauses (i) through (iv)
shall not exceed 25% of the Parent's Gross Asset Value.
Additionally, the aggregate amount of the Construction Budgets for
Development Properties in which the Parent either has a direct or indirect
ownership interest shall not exceed 20% of the Parent's Gross Asset Value. If a
Development Property is owned by an Unconsolidated Affiliate of the Parent,
RCLP, any other Borrower or any Subsidiary, then the greater of (1) the product
of (A) the Parent's, RCLP's, such other Borrower's or such Subsidiary's
Ownership Share in such Unconsolidated Affiliate and (B) the amount of the
Construction Budget for such Development Property or (2) the recourse
obligations of the Parent, RCLP, such other Borrower or such Subsidiary relating
to the Indebtedness of such Unconsolidated Affiliate, shall be used in
calculating such investment limitation.
SECTION 9.8. Floating Rate Debt.
------------------
The Parent and the Borrowers will not and will not permit any of their
Subsidiaries to incur, assume or suffer to exist any Unprotected Floating Rate
Debt of the Parent and its Consolidated Subsidiaries in an aggregate outstanding
principal amount in excess of 25% of Gross Asset Value of the Parent and its
Consolidated Subsidiaries at any time.
SECTION 9.9. Limitation on Non-Wholly Owned Subsidiaries, Preferred
------------------------------------------------------
Stock Entities and Unconsolidated Affiliates.
--------------------------------------------
The Parent shall not permit the sum of (a) the value of Investments in
Unconsolidated Affiliates plus (b) the Capitalized EBITDA of Consolidated
Subsidiaries which are not Wholly Owned Subsidiaries to exceed 25% of the Gross
Asset Value of the Parent and its Consolidated Subsidiaries as of the end of
each fiscal quarter. For purposes of this section, the "value" of an Investment
in an Unconsolidated Affiliate shall equal (1) with respect to any of such
Unconsolidated Affiliate's Properties under construction, the Parent's Ownership
Share of the book value of Construction in Process for such Property as of the
date of determination and (2) with respect to any of such Unconsolidated
Affiliate's Properties which have been completed, the Parent's Ownership Share
of Capitalized EBITDA of such Unconsolidated Affiliate attributable to such
Properties.
SECTION 9.10. Stabilized Retail Operating Properties.
--------------------------------------
The Borrowers shall not permit the aggregate Unencumbered Pool Value of
all Stabilized Retail Operating Properties to be less than 150% of all Unsecured
Liabilities of the Parent and its Consolidated Subsidiaries at any time.
ARTICLE X. DEFAULTS
SECTION 10.1. Events of Default.
-----------------
If one or more of the following events shall have occurred and be
continuing:
(a) Default in Payment. A Borrower shall fail to pay the principal amount
of any Loan or any Reimbursement Obligation when due or (ii) any interest on any
Loan or other Obligation, or any fees or other Obligations, owing by it within 5
Business Days of the due date thereof;
(b) Default in Performance. The Parent or any Borrower shall fail to
----------------------
observe or perform any covenant or agreement contained in Section 8.12.,
Section 8.13. or Section 8.19. on its part to be performed;
(c) Default in Performance-Cure. The Parent or any Borrower shall fail to
observe or perform any covenant or agreement contained in this Agreement (other
than those covered by the immediately preceding subsections (a) or (b)) for a
period of 30 days after written notice thereof has been given to such Borrower
or the Parent by the Agent;
(d) Other Loan Documents. An Event of Default under and as defined in any
Loan Document shall occur and be continuing or the Parent or any Borrower shall
fail to observe or perform any covenant or agreement contained in any of the
Loan Documents to which it is a party and such failure shall continue beyond any
applicable period of grace;
(e) Misrepresentations. Any written statement, representation or warranty
made or deemed made by or on behalf of the Parent, any Borrower, any other
Guarantor or any Development Affiliate Guarantor under this Agreement or under
any other Loan Document, or any amendment hereto or thereto, or in any other
writing or statement at any time furnished or made or deemed made by or on
behalf of the Parent, any Borrower, any other Guarantor or any Development
Affiliate Guarantor to the Agent or any Lender, shall at any time prove to have
been incorrect or misleading in any material respect when furnished or made.
(f) Indebtedness Cross-Default.
--------------------------
(i) The Parent, any Borrower, any other Guarantor, any Development
Affiliate Guarantor or any other Subsidiary of the Parent or any Borrower
shall fail to pay when due and payable the principal of, or interest on,
any Indebtedness (other than the Loans) or any Contingent Obligations,
which Indebtedness or Contingent Obligations have an aggregate outstanding
principal amount of $5,000,000 or more;
(ii) Any such Indebtedness or Contingent Obligations shall have (x)
been accelerated in accordance with the provisions of any indenture,
contract or instrument evidencing, providing for the creation of or
otherwise concerning such Indebtedness or (y) been required to be prepaid
prior to the stated maturity thereof; or
(iii) Any other event shall have occurred and be continuing which,
with or without the passage of time, the giving of notice, a determination
of materiality, the satisfaction of any condition or any combination of
the foregoing, would permit any holder or holders of such Indebtedness or
Contingent Obligations, any trustee or agent acting on behalf of such
holder or holders or any other Person, to accelerate the maturity of any
such Indebtedness or Contingent Obligations or require any such
Indebtedness or Contingent Obligations to be prepaid prior to its stated
maturity.
(g) Voluntary Bankruptcy Proceeding. The Parent, any Borrower, any other
Guarantor, any Development Affiliate Guarantor or any other Affiliates shall:
(i) commence a voluntary case under the Bankruptcy Code of 1978, as amended or
other federal bankruptcy laws (as now or hereafter in effect); (ii) file a
petition seeking to take advantage of any other Applicable Laws, domestic or
foreign, relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts; (iii) consent to, or fail to contest in a
timely and appropriate manner, any petition filed against it in an involuntary
case under such bankruptcy laws or other Applicable Laws or consent to any
proceeding or action described in the immediately following subsection; (iv)
apply for or consent to, or fail to contest in a timely and appropriate manner,
the appointment of, or the taking of possession by, a receiver, custodian,
trustee, or liquidator of itself or of a substantial part of its property,
domestic or foreign; (v) admit in writing its inability to pay its debts as they
become due; (vi) make a general assignment for the benefit of creditors; (vii)
make a conveyance fraudulent as to creditors under any Applicable Law; or (viii)
take any corporate or partnership action for the purpose of effecting any of the
foregoing.
(h) Involuntary Bankruptcy Proceeding. A case or other proceeding shall be
commenced against the Parent, any Borrower, any other Guarantor, any Development
Affiliate Guarantor or any other Affiliates, in any court of competent
jurisdiction seeking: (i) relief under the Bankruptcy Code of 1978, as amended
or other federal bankruptcy laws (as now or hereafter in effect) or under any
other Applicable Laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts; or (ii) the
appointment of a trustee, receiver, custodian, liquidator or the like of such
Person, or of all or any substantial part of the assets, domestic or foreign, of
such Person, and such case or proceeding shall continue undismissed or unstayed
for a period of 60 consecutive calendar days, or an order granting the relief
requested in such case or proceeding against the Parent, such Borrower, such
Guarantor, such Development Affiliate Guarantor or such Affiliate (including,
but not limited to, an order for relief under such Bankruptcy Code or such other
federal bankruptcy laws) shall be entered.
(i) Change of Control/Change in Management.
--------------------------------------
(w) (A) Any Person (or two or more Persons acting in concert) (other
than the Stein Parties, US Realty or Security Capital Group) shall acquire
"beneficial ownership" within the meaning of Rule 13d-3 of the Securities
and Exchange Act of 1934, as amended, of the capital stock or securities
of the Parent representing 20% or more of the aggregate voting power of
all classes of capital stock and securities of the Parent entitled to vote
for the election of directors or (B) during any twelve-month period
(commencing both before and after the Agreement Date), individuals who at
the beginning of such period were directors of the Parent shall cease for
any reason (other than death or mental or physical disability) to
constitute a majority of the board of directors of the Parent;
(x) (A) Martin E. Stein, Jr., (B) any of his immediate family
members consisting of his spouse and his lineal descendants (whether
natural or adopted), and (C) any trusts established for the sole benefit
of any of the foregoing, shall cease to own, directly or indirectly, in
the aggregate, 125,000 shares of the outstanding common stock of the
Parent (without regard to any dilution thereof);
(y) US Realty or Security Capital Group shall cease to own, directly
or indirectly, in the aggregate, at least 25% of the total outstanding
common stock of the Parent; or
(z) the general partner of RCLP shall cease to be the Parent.
(j) Change in Ownership of Development Affiliates
(x) RCLP shall cease to own at least 95% of the outstanding
preferred stock, and at least 7% of the outstanding common stock, of RRG;
or
(y) any Person other than Martin E. Stein, Jr., RRG or RCLP shall
acquire any of the issued and outstanding equity interests of RRG; or
(z) any Person other than RRG or RCLP (or its Wholly Owned
Subsidiaries) shall acquire any of the issued and outstanding equity
interests of a Development Joint Venture.
(k) ERISA. The assets of the Parent, any Borrower or any other Guarantor,
any Development Affiliate Guarantor at any time constitute assets, within the
meaning of ERISA, the Internal Revenue Code and the respective regulations
promulgated thereunder, of any ERISA Plan or Non-ERISA Plan;
(l) Litigation. The Parent, any Borrower or any other Guarantor, any
Development Affiliate Guarantor shall disavow, revoke or terminate any Loan
Document to which it is a party or shall otherwise challenge or contest in any
action, suit or proceeding in any court or before any Governmental Authority the
validity or enforceability of this Agreement, any Note or any other Loan
Document.
(m) Judgment. A judgment or order for the payment of money (not adequately
covered by insurance as to which the insurance company has acknowledged coverage
in writing) shall be entered against the Parent, any Borrower or any Subsidiary
of the Parent or any Borrower by any court or other tribunal which exceeds,
individually or together with all other such judgments or orders entered against
the Parent, such Borrower or such Subsidiary, $5,000,000 in amount (or which
could otherwise have a Materially Adverse Effect) and such judgment or order
shall continue for a period of 30 days without being stayed or dismissed through
appropriate appellate proceedings.
(n) Attachment. A warrant, writ of attachment, execution or similar
process shall be issued against any property of the Parent, any Borrower or any
Subsidiary of the Parent or any Borrower which exceeds, individually or together
with all other such warrants, writs, executions and processes, $5,000,000 in
amount and such warrant, writ, execution or process shall not be discharged,
vacated, stayed or bonded for a period of 30 days.
(o) Damage; Strike; Casualty. Any material damage to, or loss, theft or
destruction of, any Property, whether or not insured, or any strike, lockout,
labor dispute, embargo, condemnation, act of God or public enemy, or other
casualty which causes, for more than 30 consecutive days beyond the coverage
period of any applicable business interruption insurance, the cessation or
substantial curtailment of revenue producing activities of the Parent, any
Borrower, any other Guarantor, any Development Affiliate Guarantor or any other
Subsidiary of the Parent or any Borrower if any such event or circumstance could
reasonably be expected to have a Materially Adverse Effect.
(p) Guarantors. Any Guarantor or any Development Affiliate Guarantor shall
fail to comply with any term, covenant, condition or agreement contained in the
Guaranty or the Development Affiliate Guaranty, respectively, or any Guarantor
or Development Affiliate Guarantor shall disavow, revoke or terminate or attempt
to do any of the foregoing with respect to the Guaranty or Development Affiliate
Guaranty, respectively.
SECTION 10.2. Remedies.
--------
Upon the occurrence of an Event of Default, and in every such event, the
Agent shall, upon the direction of the Majority Lenders, (i) by notice to the
Borrowers terminate the Commitments, which shall thereupon terminate, and (ii)
by notice to the Borrowers declare the Loans and all other Obligations and an
amount equal to the Stated Amount of all Letters of Credit then outstanding to
be, and the Loans and all other Obligations and an amount equal to the Stated
Amount of all Letters of Credit then outstanding for deposit into the Collateral
Account shall thereupon become, immediately due and payable without presentment,
demand, protest or notice of intention to accelerate, all of which are hereby
waived by the Borrowers. If the Agent has exercised any of the rights provided
under the preceding sentence, the Swingline Lender shall: (I) declare the
principal of, and accrued interest on, the Swingline Loans and the Swingline
Notes at the time outstanding, and all of the other Obligations owing to the
Swingline Lender, to be forthwith due and payable, whereupon the same shall
immediately become due and payable without presentment, demand, protest or other
notice of any kind, all of which are expressly waived by each Borrower and (II)
terminate the Swingline Commitment and the obligation of the Swingline Lender to
make Swingline Loans. Notwithstanding the foregoing, upon the occurrence of any
of the Events of Default specified in Section 10.1.(g) or (h) above, without any
notice to the Borrowers or any other act by the Agent, the Commitments and the
Swingline Commitment shall thereupon immediately and automatically terminate and
the Loans and all other Obligations and an amount equal to the Stated Amount of
all Letters of Credit then outstanding for deposit into the Collateral Account
shall become immediately due and payable without presentment, demand, protest,
notice of intention to accelerate or notice of acceleration, or other notice of
any kind, all of which are hereby waived by the Borrowers. Upon the occurrence
and during the continuance of a Default under Section 10.1.(h) or Section
10.1.(i)(y), the right of the Borrowers to request Revolving Loans and Swingline
Loans shall be suspended.
SECTION 10.3. Allocation of Proceeds.
----------------------
If an Event of Default shall have occurred and be continuing and the
maturity of the Notes has been accelerated, all payments received by the Agent
under any of the Loan Documents, in respect of any principal of or interest on
the Obligations or any other amounts payable by a Borrower hereunder or
thereunder, shall be applied by the Agent in the following order and priority:
(a) amounts due to the Agent and the Lenders in respect of fees
and expenses due under Section 12.3.;
(b) payments of interest on Swingline Loans owing by such
Borrower;
(c) payments of interest on all other Loans and Reimbursement
Obligations owing by such Borrower, to be applied for the ratable benefit
of the Lenders;
(d) payments of principal of Swingline Loans owing by such
Borrower;
(e) payments of principal of all other Loans and Reimbursement
Obligations owing by such Borrower, to be applied for the ratable benefit
of the Lenders;
(f) amounts to be deposited into the Collateral Account in
respect of Letters of Credit issued for the account of such Borrower;
(g) amounts due to the Agent and the Lenders pursuant to
Sections 11.8. and 12.5.;
(h) payments of all other amounts due and owing by such Borrower
under any of the Loan Documents, if any, to be applied for the ratable
benefit of the Lenders; and
(i) any amount remaining after application as provided above, shall
be paid to such Borrower or whomever else may be legally entitled thereto.
SECTION 10.4. Rights Cumulative.
-----------------
The rights and remedies of the Agent and the Lenders under this Agreement
and each of the other Loan Documents shall be cumulative and not exclusive of
any rights or remedies which any of them may otherwise have under Applicable
Law. In exercising their respective rights and remedies the Agent and the
Lenders may be selective and no failure or delay by the Agent or any of the
Lenders in exercising any right shall operate as a waiver of it, nor shall any
single or partial exercise of any power or right preclude its other or further
exercise or the exercise of any other power or right.
SECTION 10.5. Recission of Acceleration by Majority Lenders.
---------------------------------------------
If at any time after acceleration of the maturity of the Loans and the
other Obligations, each Borrower shall pay all arrears of interest and all
payments on account of principal of the Obligations owing by such Borrower and
which shall have become due otherwise than by acceleration (with interest on
principal and, to the extent permitted by Applicable Law, on overdue interest,
at the rates specified in this Agreement) and all Events of Default and Defaults
(other than nonpayment of principal of and accrued interest on such Obligations
due and payable solely by virtue of acceleration) shall be remedied or waived to
the satisfaction of the Majority Lenders, then by written notice to the
Borrowers, the Majority Lenders may elect, in the sole discretion of such
Majority Lenders, to rescind and annul the acceleration and its consequences.
The provisions of the preceding sentence are intended merely to bind all of the
Lenders to a decision which may be made at the election of the Majority Lenders,
and are not intended to benefit the Borrowers and do not give the Borrowers the
right to require the Lenders to rescind or annul any acceleration hereunder,
even if the conditions set forth herein are satisfied.
SECTION 10.6. Collateral Account.
------------------
(a) As collateral security for the prompt payment in full when due of all
Letter of Credit Liabilities, each Borrower hereby pledges and grants to the
Agent, for the benefit of the Lenders as provided herein, a security interest in
all of such Borrower's right, title and interest in and to the Collateral
Account and the balances from time to time in the Collateral Account (including
the investments and reinvestments therein provided for below). The balances from
time to time in the Collateral Account shall not constitute payment of any
Letter of Credit Liabilities until applied by the Agent as provided herein.
Anything in this Agreement to the contrary notwithstanding, funds held in the
Collateral Account shall be subject to withdrawal only as provided in this
Section.
(b) Amounts on deposit in the Collateral Account shall be invested and
reinvested by the Agent in such investments as the Agent shall determine in its
sole discretion. All such investments and reinvestments shall be held in the
name of and be under the sole dominion and control of the Agent. The Agent shall
exercise reasonable care in the custody and preservation of any funds held in
the Collateral Account and shall be deemed to have exercised such care if such
funds are accorded treatment substantially equivalent to that which the Agent
accords other funds deposited with the Agent, it being understood that the Agent
shall not have any responsibility for taking any necessary steps to preserve
rights against any parties with respect to any funds held in the Collateral
Account.
(c) If an Event of Default shall have occurred and be continuing, the
Agent may (and, if instructed by the Majority Lenders, shall) in its (or their)
discretion at any time and from time to time elect to liquidate any such
investments and reinvestments and credit the proceeds thereof to the Collateral
Account and apply or cause to be applied such proceeds and any other balances in
the Collateral Account deposited by, or otherwise credited to, a Borrower to the
payment of any of the Letter of Credit Liabilities of such Borrower then due and
payable.
(d) When all of the Obligations shall have been indefeasibly paid in full
and no Letters of Credit remain outstanding, the Agent shall promptly deliver to
the Borrowers, against receipt but without any recourse, warranty or
representation whatsoever, the balances remaining in the Collateral Account.
(e) The Borrowers shall pay to the Agent from time to time such fees as
the Agent normally charges for similar services in connection with the Agent's
administration of the Collateral Account and investments and reinvestments of
funds therein.
ARTICLE XI. THE AGENT
SECTION 11.1. Appointment and Authorization.
-----------------------------
Each Lender irrevocably appoints and authorizes the Agent to take such
action as the contractual representative on its behalf and to exercise such
powers under the Loan Documents as are delegated to the Agent by the terms
thereof, together with all such powers as are reasonably incidental thereto. The
Borrowers shall be entitled to rely conclusively upon a written notice or
written response from the Agent as being made pursuant to the requisite
concurrence or consent of the Lenders necessary to take such action without
investigation or otherwise contacting the Lenders hereunder. Nothing herein
shall be construed to deem the Agent a trustee for any Lender nor to impose on
the Agent duties or obligations other than those expressly provided for herein.
Not in limitation of the foregoing, each Lender agrees the Agent has no
fiduciary obligations to such Lender under this Agreement, any other Loan
Document or otherwise. At the request of a Lender, the Agent will forward to
each Lender copies or, where appropriate, originals of the documents delivered
to the Agent pursuant to Section 6.1. The Agent shall deliver to each Lender,
promptly upon receipt thereof by the Agent, copies of each of the financial
statements, certificates, notices and other documents delivered to the Agent
pursuant to Sections 8.1.(a) through (p) and (r) through (t) and will, at the
request of, and at the expense of, a Lender, deliver to such Lender a copy of
each of the documents delivered to the Agent pursuant to Section 8.1.(q). The
Agent will also furnish to any Lender, upon the request of such Lender, a copy
of any certificate or notice furnished to the Agent by a Borrower pursuant to
this Agreement or any other Loan Document not already delivered to such Lender
pursuant to the terms of this Agreement or any such other Loan Document. As to
any matters not expressly provided for by the Loan Documents (including, without
limitation, enforcement or collection of the Notes), the Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Majority Lenders, and such
instructions shall be binding upon all the Lenders and all holders of Notes;
provided, however, that the Agent shall not be required to take any action which
exposes the Agent to personal liability or which is contrary to this Agreement
or any other Loan Document or Applicable Law. The Agent shall not be deemed to
have knowledge or notice of the occurrence of a Default or Event of Default
unless the Agent has obtained knowledge of such Default or Event of Default in
the manner provided for under Section 11.5. In the event that the Agent has
actual knowledge of the occurrence of a Default or Event of Default, the Agent
shall give prompt notice thereof to the Lenders. Each Lender authorizes and
directs the Agent to enter into the Loan Documents for the benefit of the
Lenders. Each Lender hereby agrees that, except as otherwise set forth herein,
any action taken by the Majority Lenders in accordance with the provisions of
this Agreement or the Loan Documents, and the exercise by the Majority Lenders
of the powers set forth herein or therein, together with such other powers as
are reasonably incidental thereto, shall be authorized and binding upon all of
the Lenders. Not in limitation of the foregoing, the Agent shall not exercise
any right or remedy it or the Lenders may have under any Loan Document upon the
occurrence of a Default or an Event of Default unless the Majority Lenders have
so directed the Agent to exercise such right or remedy.
SECTION 11.2. The Agent and Affiliates.
------------------------
Wells Fargo, as a Lender, shall have the same rights and powers under this
Agreement and any other Loan Document as any other Lender and may exercise the
same as though it were not the Agent; and the term "the Lender" or "the Lenders"
shall, unless otherwise expressly indicated, include Wells Fargo in each case in
its individual capacity. Wells Fargo and its affiliates and the other Lenders
and their respective affiliates may each accept deposits from, maintain deposits
or credit balances for, invest in, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with any Borrower
and any Affiliate of any such Borrower as if Wells Fargo or such Lender were any
other bank and without any duty to account therefor to the other Lenders.
SECTION 11.3. Collateral Matters.
------------------
Each Lender authorizes and directs the Agent to enter into the Loan
Documents for the benefit of the Lenders. Each Lender hereby agrees that, except
as otherwise set forth herein, any action taken by the Majority Lenders in
accordance with the provisions of this Agreement or the Loan Documents, and the
exercise by the Majority Lenders of the powers set forth herein or therein,
together with such other powers as are reasonably incidental thereto, shall be
authorized and binding upon all of the Lenders.
SECTION 11.4. Approvals of the Lenders.
------------------------
All communications from the Agent to any Lender requesting such Lender's
determination, consent, approval or disapproval (a) shall be given in the form
of a written notice to such Lender, (b) shall be accompanied by a description of
the matter or thing as to which such determination, approval, consent or
disapproval is requested, or shall advise such Lender where such matter or thing
may be inspected, or shall otherwise describe the matter or issue to be
resolved, (c) shall include, if reasonably requested by such Lender and to the
extent not previously provided to such Lender, written materials and a summary
of all oral information provided to the Agent by a Borrower in respect of the
matter or issue to be resolved, and (d) shall include the Agent's recommended
course of action or determination in respect thereof. Unless a Lender shall give
written notice to the Agent that it objects to the recommendation or
determination of the Agent (together with a written explanation of the reasons
behind such objection) within 10 Business Days (or such lesser period as may be
required under the Loan Documents for the Agent to respond), such Lender shall
be deemed to have conclusively approved of or consented to such recommendation
or determination.
SECTION 11.5. Notice of Defaults.
------------------
The Agent shall not be deemed to have knowledge or notice of the
occurrence of a Default or Event of Default unless the Agent has received notice
from a Lender or a Borrower referring to this Agreement, describing with
reasonable specificity such Default or Event of Default and stating that such
notice is a "notice of default." If any Lender becomes aware of any Default or
Event of Default, it shall promptly send to the Agent such "notice of default."
Further, if the Agent receives such a "notice of default", the Agent shall give
prompt notice thereof to the Lenders.
SECTION 11.6. Consultation with Experts.
-------------------------
The Agent may consult with legal counsel (who may be counsel for any
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken by it in good
faith in accordance with the advice of such counsel, accountants or experts.
SECTION 11.7. Liability of the Agent.
----------------------
Neither the Agent nor any of its affiliates nor any of their respective
directors, officers, the Agents or employees shall be liable for any action
taken or not taken by the Agent in connection with any of the Loan Documents in
the absence of its own gross negligence or willful misconduct. Neither the Agent
nor any of its affiliates nor any of their respective directors, officers, the
Agents or employees shall be responsible for or have any duty to ascertain,
inquire into or verify (a) any statement, warranty or representation made in
connection with any of the Loan Documents, or any borrowing hereunder, (b) the
performance or observance of any of the covenants or agreements of a Borrower, a
Guarantor or a Development Affiliate Guarantor, (c) the satisfaction of any
condition specified in Article VI., or (d) the validity, effectiveness or
genuineness of any of the Loan Documents or any other instrument or writing
furnished in connection herewith or therewith. The Agent shall not incur any
liability by acting in reliance upon any notice, consent, certificate,
statement, or other writing (which may be a bank wire, telex or similar writing)
believed by it to be genuine or to be signed by the proper party or parties.
SECTION 11.8. Indemnification of the Agent.
----------------------------
The Lenders agree to indemnify the Agent (to the extent not reimbursed by
the Borrowers and without limiting the obligation of the Borrowers to do so) in
accordance with the Lenders' respective Pro Rata Shares, from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may at any time be imposed on, incurred by, or asserted against
the Agent in any way relating to or arising out of the Loan Documents or any
action taken or omitted by the Agent under the Loan Documents; provided,
however, that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements (i) to the extent arising from the Agent's gross
negligence or willful misconduct or (ii) if the Agent fails to follow the
written direction of the Majority Lenders unless such failure is pursuant to the
Agent's good faith reliance on the advice of counsel of which the Lenders have
received notice. Without limiting the generality of the foregoing, each Lender
agrees to reimburse the Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) reasonably incurred by the Agent
in connection with the preparation, execution, administration, or enforcement
of, or legal advice with respect to the rights or responsibilities of the
parties under, the Loan Documents, to the extent that the Agent is not
reimbursed for such expenses by the Borrowers. The agreements in this Section
shall survive the payment of the Loans and all other amounts payable hereunder
or under the other Loan Documents and the termination of this Agreement.
SECTION 11.9. Credit Decision.
---------------
Each Lender expressly acknowledges that neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or other affiliates
has made any representations or warranties to such Lender and that no act by the
Agent hereinafter taken, including any review of the affairs of the Borrowers,
the Guarantors and the Development Affiliate Guarantors, shall be deemed to
constitute any representation or warranty by the Agent to any Lender. Each
Lender acknowledges that it has, independently and without reliance upon the
Agent, any other Lender or counsel to the Agent, and based on the financial
statements of the Borrowers, the Guarantors or the Development Affiliate
Guarantors and their affiliates, its review of the Loan Documents, the legal
opinions required to be delivered to it hereunder, the advice of its own counsel
and such other documents and information as it has deemed appropriate, made its
own credit and legal analysis and decision to enter into this Agreement and the
transaction contemplated hereby. Each Lender also acknowledges that it will,
independently and without reliance upon the Agent, any other Lender or counsel
to the Agent, and based on such review, advice, documents and information as it
shall deem appropriate at the time, continue to make its own decisions in taking
or not taking action under the Loan Documents. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the Agent
hereunder, the Agent shall have no duty or responsibility to provide any Lender
with any credit or other information concerning the business, operations,
property, financial and other condition or creditworthiness of any Borrower, any
Guarantor, any Development Affiliate Guarantor or any other Affiliate which may
come into possession of the Agent or any of its officers, directors, employees,
the Agents, attorneys-in-fact or other affiliates. Each Lender acknowledges that
the Agent's legal counsel in connection with the transactions contemplated by
this Agreement is only acting as counsel to the Agent and is not acting as
counsel to such Lender.
SECTION 11.10. Successor Agent.
---------------
The Agent may resign at any time by giving 30 days' prior written notice
thereof, to the Lenders and RCLP. The Agent may be removed as the Agent under
the Loan Documents for good cause upon 30 days' prior written notice to the
Agent by the Majority Lenders. Upon any such resignation or removal, the
Majority Lenders shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Majority Lenders, and shall
have accepted such appointment, within 30 days after the current Agent's giving
of notice of resignation or the Majority Lenders' removal of the current Agent,
then the current Agent may, on behalf of the Lenders, appoint a successor Agent,
which shall be a Lender, if any Lender shall be willing to serve. Any successor
Agent must be a bank whose debt obligations (or whose parent's debt obligations)
are rated not less than investment grade or its equivalent by a Rating Agency
and which has total assets in excess of $10,000,000,000. Upon the acceptance of
its appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights and duties of
the current Agent, and the current Agent shall be discharged from its duties and
obligations hereunder. After any current Agent's resignation hereunder as Agent,
the provisions of this Article shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was the Agent. Notwithstanding
anything contained herein to the contrary, the Agent may assign its rights and
duties hereunder to any of its affiliates by giving the Borrowers and each
Lender prior written notice thereof.
SECTION 11.11. Approvals and Other Actions by Majority Lenders.
-----------------------------------------------
Each of the following shall require the approval of, or may be taken at
the request of, the Majority Lenders:
(a) Approval of Eligible Properties as Unencumbered Pool Properties as
provided in Section 4.1.(c);
(b) Termination of the Commitments and acceleration of the Obligations
upon the occurrence of an Event of Default as provided in Section 10.2.;
(c) Recission of acceleration of any of the Obligations as provided in
Section 10.5.;
(d) Removing the Agent for good cause and approving of its replacement
as provided in Section 11.10.; and
(e) Except as specifically provided otherwise in Section 12.7., any
consent or approval regarding, any waiver of the performance or observance by a
Borrower of and the waiver of the continuance of any Default or Event of Default
in respect of, any term of this Agreement or any other Loan Document.
SECTION 11.12. Documentation, Syndication and Managing Agents.
----------------------------------------------
None of the Documentation Agent, the Syndication Agent or the Managing
Agents (each in such capacity, a "Titled Agent") assumes any responsibility or
obligation hereunder, including, without limitation, for servicing, enforcement
or collection of any of the Loans, nor any duties as an agent hereunder for
Lenders. The titles of "Documentation Agent", "Syndication Agent" and "Managing
Agent" are solely honorific and imply no fiduciary responsibility on the part of
the Titled Agents to the Agent, any Borrower or any Lender and the use of such
titles does not impose on the Titled Agents any duties or obligations greater
than those of any other Lender or entitle the Titled Agents to any rights other
than those to which any other Lender is entitled.
ARTICLE XII. MISCELLANEOUS
SECTION 12.1. Notices.
-------
All notices, requests and other communications to any party under the Loan
Documents shall be in writing (including bank wire, facsimile transmission or
similar writing) and shall be given to such party as follows:
If to a Borrower:
c/o Regency Realty Corporation
121 West Forsyth Street, Suite 200
Jacksonville, Florida 32202
Attention: Chief Financial Officer
Telecopier: (904) 634-3428
Telephone: (904) 356-7000
If to a Lender or the Agent:
To such Lender's or the Agent's Lending Office
or as to each party at such other address as such party shall designate in a
written notice to the other parties. Each such notice, request or other
communication shall be effective (a) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (b) if given by any other means (including facsimile),
when delivered at the applicable address provided for in this Section; provided
that notices to the Agent under Article II., and any notice of a change of
address for notices, shall not be effective until received. In addition to the
Agent's Lending Office, the Borrowers shall send copies of the information
described in Section 8.1. to the following address of the Agent:
Wells Fargo Bank, National Association
Real Estate Group
Koll Center
2030 Main Street, Suite 800
Irvine, California 92714
Attention: Ms. Rita Swayne
SECTION 12.2. No Waivers.
----------
No failure or delay by the Agent or any Lender in exercising any right,
power or privilege under any Loan Document shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies provided in the Loan Documents shall be cumulative and not
exclusive of any rights or remedies provided by law.
SECTION 12.3. Expenses.
--------
The Borrowers jointly and severally agree to pay on demand all present and
future reasonable expenses of:
(a) the Agent in connection with the negotiation, preparation, execution
and delivery (including reasonable out-of-pocket costs and expenses incurred in
connection with the assignment of Commitments pursuant to Section 12.8.) of this
Agreement, the Notes and each of the other Loan Documents, whenever the same
shall be executed and delivered, including appraisers' fees, search fees,
recording fees and the reasonable fees and disbursements of: (i) Alston & Bird
LLP, counsel for the Agent, and (ii) each local counsel retained by the Agent;
(b) the Agent in connection with the negotiation, preparation, execution
and delivery of any waiver, amendment or consent by the Agent or any Lender
relating to this Agreement, the Notes or any of the other Loan Documents or
sales of participations in any Lender's Commitment, including the reasonable
fees and disbursements of counsel to the Agent;
(c) the Agent and each of the Lenders in connection with any
restructuring, refinancing or "workout" of the transactions contemplated by this
Agreement, the Notes and the other Loan Documents, including the reasonable fees
and disbursements of counsel to the Agent actually incurred;
(d) the Agent and each of the Lenders, after the occurrence of a Default
or Event of Default, in connection with the collection or enforcement of the
obligations of the Borrowers under this Agreement, the Notes or any other Loan
Document, including the reasonable fees and disbursements of counsel to the
Agent or to any Lender actually incurred if such collection or enforcement is
done by or through an attorney;
(e) subject to any limitation contained in Section 12.5., the Agent and
each of the Lenders in connection with prosecuting or defending any claim in any
way arising out of, related to, or connected with this Agreement, the Notes or
any of the other Loan Documents, including the reasonable fees and disbursements
of counsel to the Agent or any Lender actually incurred and of experts and other
consultants retained by the Agent or any Lender in connection therewith;
(f) the Agent and each of the Lenders, after the occurrence of a Default
or Event of Default, in connection with the exercise by the Agent or any Lender
of any right or remedy granted to it under this Agreement, the Notes or any of
the other Loan Documents including the reasonable fees and disbursements of
counsel to the Agent or any Lender actually incurred;
(g) the Agent in connection with costs and expenses incurred by the Agent
in gaining possession of, maintaining, appraising, selling, preparing for sale
and advertising to sell any collateral security, whether or not a sale is
consummated; and
(h) the Agent and each of the Lenders, to the extent not already covered
by any of the preceding subsections, in connection with any bankruptcy or other
proceeding of the type described in Sections 10.1.(g) or (h), and the reasonable
fees and disbursements of counsel to the Agent and any Lender actually incurred
in connection with the representation of the Agent or such Lender in any matter
relating to or arising out of any such proceeding, including without limitation
(i) any motion for relief from any stay or similar order, (ii) the negotiation,
preparation, execution and delivery of any document relating to the Agent or
such Lender and (iii) the negotiation and preparation of any plan of
reorganization of a Borrower, whether proposed by such Borrower, the Lenders or
any other Person, and whether such fees and expenses are incurred prior to,
during or after the commencement of such proceeding or the confirmation or
conclusion of any such proceeding.
SECTION 12.4. Stamp, Intangible and Recording Taxes.
-------------------------------------
The Borrowers jointly and severally agree to pay any and all stamp,
intangible, registration, recordation and similar taxes, fees or charges and
shall indemnify the Agent and each Lender against any and all liabilities with
respect to or resulting from any delay in the payment or omission to pay any
such taxes, fees or charges, which may be payable or determined to be payable in
connection with the execution, delivery, recording, performance or enforcement
of this Agreement, the Notes and any of the other Loan Documents or the
perfection of any rights or Liens thereunder.
SECTION 12.5. Indemnification.
---------------
Each Borrower shall and hereby jointly and severally agrees to indemnify,
defend and hold harmless the Agent and each of the Lenders and their respective
directors, officers, the Agents and employees from and against (a) any and all
losses, claims, damages, liabilities, deficiencies, judgments or expenses
incurred by any of them (except to the extent that it results from their own
gross negligence or willful misconduct) arising out of or by reason of any
litigation, investigations, claims or proceedings which arise out of or are in
any way related to: (i) this Agreement or the transactions contemplated thereby;
(ii) the making of Loans or issuance of Letters of Credit; (iii) any actual or
proposed use by any Borrower of the proceeds of the Loans or of Letters of
Credit; or (iv) the Agent's or the Lenders' entering into this Agreement, the
other Loan Documents or any other agreements and documents relating hereto,
including, without limitation, amounts paid in settlement, court costs and the
reasonable fees and disbursements of counsel incurred in connection with any
such litigation, investigation, claim or proceeding or any advice rendered in
connection with any of the foregoing and (b) any such losses, claims, damages,
liabilities, deficiencies, judgments or expenses incurred in connection with any
remedial or other similar action taken by any Borrower, the Agent or any of the
Lenders in connection with the required compliance by any Borrower or any of the
Subsidiaries, or any of their respective properties, with any federal, state or
local Environmental Laws or other material environmental rules, regulations,
orders, directions, ordinances, criteria or guidelines. If and to the extent
that the obligations of a Borrower hereunder are unenforceable for any reason,
the Borrowers hereby jointly and severally agree to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under Applicable Law. The Borrowers' obligations hereunder shall
survive any termination of this Agreement and the other Loan Documents and the
payment in full of the Obligations, and are in addition to, and not in
substitution of, any other of its other obligations set forth in this Agreement
and the other Loan Documents.
SECTION 12.6. Setoff.
------
In addition to any rights now or hereafter granted under Applicable Law
and not by way of limitation of any such rights, each Lender is hereby
authorized by each Borrower, at any time or from time to time upon the
occurrence and during the continuance of an Event of Default but subject to the
Agent's prior written consent, without notice to any Borrower or to any other
Person, any such notice being hereby expressly waived, to set-off and to
appropriate and to apply any and all deposits (general or special, including,
but not limited to, indebtedness evidenced by certificates of deposit, whether
matured or unmatured) and any other indebtedness at any time held or owing by
such Lender or any Affiliate of such Lender, to or for the credit or the account
of such Borrower against and on account of any of the Obligations then due and
owing by such Borrower. Each Borrower agrees, to the fullest extent it may
effectively do so under Applicable Law, that any holder of a participation in a
Note executed by such Borrower, whether or not acquired pursuant to the
foregoing arrangements, may exercise rights of setoff or counterclaim and other
rights with respect to such participation as fully as if such holder of a
participation were a direct creditor of such Borrower in the amount of such
participation.
SECTION 12.7. Amendments.
----------
Any consent or approval required or permitted by this Agreement or in any
other Loan Document (other than any agreement evidencing the fees referred to in
Section 3.1.(e)) to be given by the Lenders may be given, and the performance or
observance by a Borrower of any terms of any such Loan Document or the
continuance of any Default or Event of Default may be waived (either generally
or in a particular instance and either retroactively or prospectively) with, but
only with, the written consent of the Majority Lenders. Any provision of this
Agreement or of any other Loan Document (other than any agreement evidencing the
fees referred to in Section 3.1.(e)) may be amended or otherwise modified with,
but only with, the written consent of the Borrowers and the Majority Lenders.
Any provision of any agreement evidencing the fees referred to in Section
3.1.(e) may be amended or otherwise modified only in writing by the Agent and
the Borrowers, and the performance or observance by any Borrower of any terms of
any such agreement may be waived only with the written consent of the Agent.
Notwithstanding the foregoing, none of the following may be amended or otherwise
modified, nor may compliance by a Borrower, as applicable thereunder or with
respect thereto be waived, without the written consent of all the Lenders and
the Borrowers:
(a) the principal amount of any Loan (including forgiveness of any
amount of principal);
(b) the rates of interest on the Loans and the amount of any interest
payable on the Loans (including the forgiveness of any accrued but
unpaid interest);
(c) the dates on which any principal or interest payable by a Borrower
under any Loan Document is due;
(d) the provisions of the first sentence of Section 2.1.(a), Section
2.2.(a), Section 2.8.(f), Section 9.2. and this Section;
(e) the Revolving Credit Termination Date;
(f) the Termination Date;
(g) the obligations of a Guarantor or Development Affiliate Guarantor
under the Guaranty or Development Affiliate Guaranty, respectively,
including the release of a Guarantor or Development Affiliate
Guarantor, as applicable, therefrom (except as specifically
permitted in the last sentence of Section 4.2.) or the obligations
of RCLP under Section 12.16. or a Development Affiliate under
Section 12.17. (except in connection with a transaction permitted
under Section 8.13.(iii));
(h) the definition of Borrowing Base, Commitment, Majority Lenders (or
any minimum requirement necessary for the Lenders or Majority
Lenders to take action hereunder), Pro Rata Share, Commitment and
Maximum Loan Availability and Unencumbered Pool Value (and the
definitions used in either such definition and the percentages and
rates used in the calculation thereof); and
(i) the amount and payment date of any fees.
Further, no amendment, waiver or consent unless in writing and signed by the
Agent, in addition to the Lenders required hereinabove to take such action,
shall affect the rights or duties of the Agent under this Agreement or any of
the other Loan Documents. Any amendment, waiver or consent relating to Section
2.3. or the obligations of the Swingline Lender under this Agreement or any
other Loan Document shall, in addition to the Lenders required hereinabove to
take such action, require the written consent of the Swingline Lender. No waiver
shall extend to or affect any obligation not expressly waived or impair any
right consequent thereon. No course of dealing or delay or omission on the part
of any Lender or the Agent in exercising any right shall operate as a waiver
thereof or otherwise be prejudicial thereto. No notice to or demand upon any
Borrower shall entitle any Borrower to other or further notice or demand in
similar or other circumstances.
SECTION 12.8. Successors and Assigns.
----------------------
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns,
except that no Borrower may assign or otherwise transfer any of its rights under
this Agreement without the prior written consent of all the Lenders.
(b) Any Lender may at any time grant to one or more banks or other
financial institutions (each a "Participant") participating interests in its
Commitment or the Obligations owing to such Lender. Except as otherwise provided
in Section 12.6., no Participant shall have any rights or benefits under this
Agreement or any other Loan Document. In the event of any such grant by a Lender
of a participating interest to a Participant, such Lender shall remain
responsible for the performance of its obligations hereunder, and the Borrowers
and the Agent shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement pursuant to which any Lender may grant such a participating interest
shall provide that such Participant may not grant to any other Person any
participating interest in such Participant's interest and that such Lender shall
retain the sole right and responsibility to enforce the obligations of the
Borrowers hereunder including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this Agreement; provided,
however, such Lender may agree with the Participant that it will not, without
the consent of the Participant, agree to (i) increase such Lender's Commitment,
(ii) extend the date fixed for the payment of principal on the Loans or portions
thereof owing to such Lender, or (iii) reduce the rate at which interest is
payable thereon. An assignment or other transfer which is not permitted by
subsection (c) or (d) below shall be given effect for purposes of this Agreement
only to the extent of a participating interest granted in accordance with this
subsection (b).
(c) Any Lender may with the prior written consent of the Agent and the
Borrowers (which consent, in each case, shall not be unreasonably withheld) at
any time assign to one or more Eligible Assignees (each an "Assignee") all or a
portion of its rights and obligations under this Agreement and the Notes;
provided, however, (i) no such consent by any Borrower shall be required (x) if
a Default or Event of Default shall have occurred and be continuing or (y) in
the case of an assignment to another Lender or an affiliate of another Lender;
(ii) any partial assignment shall be in an amount at least equal to $10,000,000
and after giving effect to such assignment the assigning Lender retains a
Commitment, or if the Commitments have been terminated, holds Notes having an
aggregate outstanding principal balance, of at least $10,000,000; (iii) after
giving effect to any such assignment by the Agent, the Agent in its capacity as
a Lender shall retain a Commitment, or if the Commitments have been terminated,
hold Notes having an aggregate outstanding principal balance, greater than or
equal to the Commitment of each other Lender (other than any Lender whose
Commitment has increased as a result of a merger or combination with another
Lender) and (iv) each such assignment shall be effected by means of an
Assignment and Acceptance Agreement. Upon execution and delivery of such
instrument and payment by such Assignee to such transferor Lender of an amount
equal to the purchase price agreed between such transferor Lender and such
Assignee, such Assignee shall be deemed to be a Lender party to this Agreement
and shall have all the rights and obligations of a Lender with a Commitment as
set forth in such Assignment and Acceptance Agreement, and the transferor Lender
shall be released from its obligations hereunder to a corresponding extent, and
no further consent or action by any party shall be required. Upon the
consummation of any assignment pursuant to this subsection (c), the transferor
Lender, the Agent and the Borrowers shall make appropriate arrangements so that
new Notes are issued to the Assignee and such transferor Lender, as appropriate.
In connection with any such assignment, the transferor Lender shall pay to the
Agent an administrative fee for processing such assignment in the amount of
$3,000.
(d) Any Lender (each, a "Designating Lender") may at any time while RCLP
or the Parent, as the case may be, has been assigned an Investment Grade Rating
from either S&P or Moody's designate one Designated Lender to fund Bid Rate
Loans on behalf of such Designating Lender subject to the terms of this
subsection (d) and the provisions in the immediately preceding subsections (b)
and (c) shall not apply to such designation. No Lender may designate more than
one Designated Lender. The parties to each such designation shall execute and
deliver to the Agent for its acceptance a Designation Agreement. Upon such
receipt of an appropriately completed Designation Agreement executed by a
Designating Lender and a designee representing that it is a Designated Lender,
the Agent will accept such Designation Agreement and give prompt notice thereof
to the Borrowers, whereupon, (i) each Borrower shall execute and deliver to the
Designating Lender a Designated Lender Note payable to the order of the
Designated Lender, (ii) from and after the effective date specified in the
Designation Agreement, the Designated Lender shall become a party to this
Agreement with a right to make Bid Rate Loans on behalf of its Designating
Lender pursuant to Section 2.2. after a Borrower has accepted a Bid Rate Loan
(or portion thereof) of the Designating Lender, and (iii) the Designated Lender
shall not be required to make payments with respect to any obligations in this
Agreement except to the extent of excess cash flow of such Designated Lender
which is not otherwise required to repay obligations of such Designated Lender
which are then due and payable; provided, however, that regardless of such
designation and assumption by the Designated Lender, the Designating Lender
shall be and remain obligated to the Borrowers, the Agent and the Lenders for
each and every of the obligations of the Designating Lender and its related
Designated Lender with respect to this Agreement, including, without limitation,
any indemnification obligations under Section 11.8. and any sums otherwise
payable to the Borrowers by the Designated Lender. Each Designating Lender shall
serve as the Agent of the Designated Lender and shall on behalf of, and to the
exclusion of, the Designated Lender: (i) receive any and all payments made for
the benefit of the Designated Lender and (ii) give and receive all
communications and notices and take all actions hereunder, including, without
limitation, votes, approvals, waivers, consents and amendments under or relating
to this Agreement and the other Loan Documents. Any such notice, communication,
vote, approval, waiver, consent or amendment shall be signed by the Designating
Lender as Agent for the Designated Lender and shall not be signed by the
Designated Lender on its own behalf and shall be binding on the Designated
Lender to the same extent as if signed by the Designated Lender on its own
behalf. The Borrowers, the Agent and the Lenders may rely thereon without any
requirement that the Designated Lender sign or acknowledge the same. No
Designated Lender may assign or transfer all or any portion of its interest
hereunder or under any other Loan Document, other than assignments to the
Designating Lender which originally designated such Designated Lender. The
Borrowers, the Lenders and the Agent each hereby agrees that it will not
institute against any Designated Lender or join any other Person in instituting
against any Designated Lender any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding under any federal or state bankruptcy or
similar law, until the later to occur of (x) one year and one day after the
payment in full of the latest maturing commercial paper note issued by such
Designated Lender and (y) the Termination Date. In connection with any such
designation the Designating Lender shall pay to the Agent an administrative fee
for processing such designation in the amount of $2,000.
(e) In addition to the assignments and participations permitted under the
foregoing provisions of this Section, any Lender may assign and pledge all or
any portion of its Loans and its Notes to any Federal Reserve Bank as collateral
security pursuant to Regulation A and any Operating Circular issued by such
Federal Reserve Bank, and such Loans and Notes shall be fully transferable as
provided therein. No such assignment shall release the assigning Lender from its
obligations hereunder.
(f) A Lender may furnish any information concerning a Borrower or any of
its Subsidiaries in the possession of such Lender from time to time to Assignees
and Participants (including prospective Assignees and Participants).
(g) Anything in this Section to the contrary notwithstanding, no Lender
may assign or participate any interest in any Loan held by it hereunder to any
Borrower, the Parent or any of their respective affiliates or Subsidiaries.
SECTION 12.9. Governing Law.
-------------
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF GEORGIA.
SECTION 12.10. Litigation.
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(a) EACH PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN
OR AMONG ANY BORROWER, THE AGENT OR ANY OF LENDERS WOULD BE BASED ON DIFFICULT
AND COMPLEX ISSUES OF LAW AND FACT AND THAT A TRIAL BY JURY COULD RESULT IN
SIGNIFICANT DELAY AND EXPENSE. ACCORDINGLY, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF LENDERS, THE AGENT AND THE BORROWERS HEREBY WAIVES TRIAL
BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT OR
TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST THE BORROWERS ARISING
OUT OF THIS AGREEMENT, THE NOTES OR ANY OTHER LOAN DOCUMENT OR IN CONNECTION
WITH THE COLLATERAL OR ANY LIEN OR BY REASON OF ANY OTHER CAUSE OR DISPUTE
WHATSOEVER BETWEEN OR AMONG THE BORROWERS, THE AGENT OR ANY OF LENDERS OF ANY
KIND OR NATURE.
(b) THE BORROWERS, THE AGENT AND EACH LENDER EACH HEREBY AGREES THAT THE
FEDERAL DISTRICT COURT OF THE NORTHERN DISTRICT OF GEORGIA OR, AT THE OPTION OF
THE AGENT, ANY STATE COURT LOCATED IN FULTON COUNTY, GEORGIA, SHALL HAVE
NON-EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN
OR AMONG THE BORROWERS, THE AGENT OR ANY OF LENDERS, PERTAINING DIRECTLY OR
INDIRECTLY TO THIS AGREEMENT, THE NOTES OR ANY OTHER LOAN DOCUMENT OR TO ANY
MATTER ARISING HEREFROM OR THEREFROM OR THE COLLATERAL. THE BORROWERS EACH
EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR
PROCEEDING COMMENCED IN SUCH COURTS. THE CHOICE OF FORUM SET FORTH IN THIS
SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY THE AGENT
OR ANY LENDER OR THE ENFORCEMENT BY THE AGENT OR ANY LENDER OF ANY JUDGMENT
OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE JURISDICTION. further, the
BorrowerS EACH irrevocably waives, to the fullest extent permitted by APPLICABLE
law, any objection which it may now or hereafter have to the laying of the venue
of any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum.
(c) THE FOREGOING WAIVERS HAVE BEEN MADE WITH THE ADVICE OF COUNSEL AND
WITH A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES THEREOF, AND SHALL SURVIVE
THE PAYMENT OF THE LOANS AND ALL OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER THE
OTHER LOAN DOCUMENTS AND THE TERMINATION OF THIS AGREEMENT.
SECTION 12.11. Confidentiality.
---------------
Except as otherwise provided by Applicable Law, the Agent and each Lender
shall utilize all non-public information obtained pursuant to the requirements
of this Agreement in accordance with its customary procedure for handling
confidential information of this nature and in accordance with safe and sound
banking practices but in any event may make disclosure: (a) to any of their
respective affiliates (provided they shall agree to keep such information
confidential in accordance with the terms of this Section); (b) as reasonably
required by any bona fide Assignee, Participant or other transferee in
connection with the contemplated transfer of any Commitment or participations
therein as permitted hereunder (provided they shall agree to keep such
information confidential in accordance with the terms of this Section); (c) as
required by any Governmental Authority or representative thereof or pursuant to
legal process; (d) to the Agent's or such Lender's independent auditors and
other professional advisors (provided they shall be notified of the confidential
nature of the information); and (e) after the happening and during the
continuance of an Event of Default, to any other Person, in connection with the
exercise by the Agent or the Lenders of rights hereunder or under any of the
other Loan Documents.
SECTION 12.12. Counterparts; Integration.
-------------------------
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument. This Agreement, together with the other
Loan Documents, constitutes the entire agreement and understanding among the
parties hereto and supersedes any and all prior agreements and understandings,
oral or written, relating to the subject matter hereof.
SECTION 12.13. Invalid Provisions.
------------------
Any provision of this Agreement or any other Loan Document held by a court
of competent jurisdiction to be illegal, invalid or unenforceable shall not
invalidate the remaining provisions of such Loan Document which shall remain in
full force and effect and the effect thereof shall be confined to the provision
held invalid or illegal.
SECTION 12.14. No Novation.
-----------
This Agreement and the other Loan Documents are being amended and restated
in their entirety for the convenience of the parties hereto. This Agreement and
the other Loan Documents merely amend, modify and restate the indebtedness,
liabilities and obligations evidenced hereby and thereby and do not constitute,
and it is the express intent of the parties hereto that this Agreement and the
other Loan Documents do not effect, a novation of the existing indebtedness,
liabilities and obligations incurred by RCLP and the other Loan Parties pursuant
to the Existing Credit Agreement. Such indebtedness, liabilities and obligations
continue to remain outstanding and are amended and modified only to the extent
this Agreement and the other Loan Documents amend and modify the Existing Credit
Agreement and the original Loan Documents executed and delivered in connection
therewith. The parties agree that (a) all of the Loan Documents (as defined in
the Existing Credit Agreement) not otherwise terminated or amended and restated
in connection with the execution and delivery of this Agreement constitute and
shall be deemed to be Loan Documents; (b) all such Loan Documents remain in full
force and effect and (c) any reference to the Existing Credit Agreement in any
such Loan Documents shall be deemed to be a reference to this Agreement.
SECTION 12.15. Additional Borrowers.
--------------------
A Development Joint Venture may become a "Borrower" hereunder subject to
satisfaction of the following conditions:
(a) The Agent shall have received each of the following, in form and
substance satisfactory to the Agent:
(i) a Joinder Agreement executed by the Development Joint Venture
to become a Borrower hereunder;
(ii) Revolving Notes, Bid Rate Notes and a Swingline Note executed
by such Development Joint Venture;
(iii) the articles of incorporation, articles of organization,
certificate of limited partnership or other comparable organizational
instrument (if any) of such Development Joint Venture certified as of a
recent date by the Secretary of State of the State of formation of such
Development Joint Venture;
(iv) a Certificate of Good Standing or certificate of similar
meaning with respect to such Development Joint Venture issued as of a
recent date by the Secretary of State of the State of formation of such
Development Joint Venture and certificates of qualification to transact
business or other comparable certificates issued by each Secretary of
State (and any state department of taxation, as applicable) of each state
in which such Development Joint Venture is required to be so qualified;
(v) a certificate of incumbency signed by the Secretary or Assistant
Secretary (or other individual performing similar functions) of such
Development Joint Venture with respect to each of the officers of such
Development Joint Venture authorized to execute and deliver the Loan
Documents to which such Development Joint Venture is a party;
(vi) copies certified by the Secretary or Assistant Secretary of
Development Joint Venture (or other individual performing similar
functions) of (1) the by-laws of such Development Joint Venture, if a
corporation, the operating agreement, if a limited liability company, the
partnership agreement, if a limited or general partnership, or other
comparable document in the case of any other form of legal entity and (2)
all corporate, partnership, member or other necessary action taken by such
Development Joint Venture to authorize the execution, delivery and
performance of the Loan Documents to which it is a party;
(vii) an opinion of counsel to such Development Joint Venture,
addressed to the Agent and Lenders, and regarding, among other things, the
authority of such Development Joint Venture to execute, deliver and
perform the Loan Documents to which it is a party, the enforceability of
such Loan Documents as against such Development Joint Venture, and such
other matters as the Agent or its counsel may request; and
(viii) such other documents and instruments as the Agent may
reasonably request;
(b) There may be no more than two Development Joint Ventures which are
Borrowers hereunder at any time; and
(c) No Default or Event of Default shall have occurred and be continuing
or would exist immediately after such Development Joint Venture becomes a
Borrower.
SECTION 12.16. RCLP Jointly and Severally Liable for Obligations of
----------------------------------------------------
Other Borrowers.
---------------
(a) Generally. RCLP AGREES THAT IT IS AND SHALL BE jointLY and severalLY
LIABLE FOR ALL OBLIGATIONS OF THE OTHER BORROWERS HEREUNDER AND UNDER EACH OTHER
LOAN DOCUMENT and all such obligations shall constitute a debt of rclp FOR ITS
OWN ACCOUNT. Accordingly, the Lenders, the Swingline Lender and the Agent shall
not be obligated or required before enforcing any Obligation of any other
Borrower against such Borrower or any other Borrower: (i) to pursue any right or
remedy the Lenders, the Swingline Lender or the Agent may have against the other
Borrowers, any other Loan Party or any other Person or commence any suit or
other proceeding against any other Borrower, any other Loan Party or any other
Person in any court or other tribunal; (ii) to make any claim in a liquidation
or bankruptcy of any other Borrower, any other Loan Party or any other Person;
or (iii) to make demand of any other Borrower, any other Loan Party or any other
Person or to enforce or seek to enforce or realize upon any collateral security
held by the Lenders, the Swingline Lender or the Agent which may secure any of
the Obligations of the other Borrower. In this connection, RCLP hereby waives
its rights to require any holder of the Obligations of the other Borrower to
take action against the other Borrower as provided in Official Code of Georgia
Annotated ss.10-7-24.
(b) Obligations Absolute. The liability of RCLP under this Section shall
be absolute and unconditional and shall remain in full force and effect without
regard to, and shall not be released, suspended, discharged, terminated or
otherwise affected by, any circumstance or occurrence whatsoever, including
without limitation, any circumstance which might constitute a defense available
to, or a discharge of, RCLP under this Section.
(c) Action with Respect to Obligations. The Lenders, the Swingline Lender
and the Agent may, at any time and from time to time, without the consent of, or
notice to, RCLP, and without discharging RCLP from its obligations under this
Section: (i) amend, modify, alter or supplement the terms of any of the
Obligations of the other Borrowers; (ii) sell, exchange, release or otherwise
deal with all, or any part, of any collateral securing any of such Obligations;
(iii) release any Loan Party or other Person liable in any manner for the
payment or collection of such Obligations; (iv) exercise, or refrain from
exercising, any rights against the other Borrowers, any other Loan Party or any
other Person; and (v) apply any sum, by whomsoever paid or however realized, to
such Obligations in such order as the Lenders or the Swingline Lender shall
elect.
(d) Waiver. RCLP, to the fullest extent permitted by Applicable Law,
hereby waives notice of any presentment, demand, protest or notice of any kind,
and any other act or thing, or omission or delay to do any other act or thing,
which in any manner or to any extent might vary the risk of RCLP, or which
otherwise might operate to discharge RCLP, from its obligations under this
Section.
(e) Reinstatement of Obligations. If claim is ever made on the Agent, any
Lender or the Swingline Lender for repayment or recovery of any amount or
amounts received in payment or on account of any of the Obligations of the other
Borrowers, and the Agent, such Lender or the Swingline Lender repays all or part
of said amount by reason of (i) any judgment, decree or order of any court or
administrative body of competent jurisdiction, or (ii) any settlement or
compromise of any such claim effected by the Agent, such Lender or the Swingline
Lender with any such claimant (including any other Borrower or a trustee in
bankruptcy for any other Borrower), then and in such event RCLP agrees that any
such judgment, decree, order, settlement or compromise shall be binding on it,
notwithstanding any revocation hereof or the cancellation of the Credit
Agreement, any of the other Loan Documents, or any other instrument evidencing
any liability of any other Borrower, and RCLP shall be and remain liable to the
Agent, such Lender or the Swingline Lender for the amounts so repaid or
recovered to the same extent as if such amount had never originally been paid to
the Agent, such Lender or the Swingline Lender.
(f) Subrogation. RCLP shall not enforce any right or receive any payment
by way of subrogation or otherwise take any action in respect of any other claim
or cause of action RCLP may have against any other Borrower arising by reason of
any payment or performance by RCLP pursuant to this Section, unless and until
all of the Obligations have been indefeasibly paid and performed in full.
(g) Subordination. RCLP hereby expressly covenants and agrees for the
benefit of the Agent, the Lenders and the Swingline Lender that all obligations
and liabilities of any of the Development Affiliates to RCLP of whatever
description (collectively, the "Junior Claims") shall be subordinate and junior
in right of payment to all Obligations. If an Event of Default shall have
occurred and be continuing, then RCLP shall not accept any direct or indirect
payment (in cash, property, securities by setoff or otherwise) from any other
Borrower on account of or in any manner in respect of any Junior Claim until all
of the Obligations have been indefeasibly paid in full.
SECTION 12.17. All Development Affiliates Jointly and Severally Liable.
-------------------------------------------------------
(a) Generally. EACH DEVELOPMENT AFFILIATE AGREES THAT IT IS AND SHALL BE
jointLY and severalLY LIABLE FOR ALL OBLIGATIONS OF THE OTHER DEVELOPMENT
AFFILIATES HEREUNDER AND UNDER EACH OTHER LOAN DOCUMENT and all such obligations
shall constitute a debt of EACH DEVELOPMENT AFFILIATE FOR ITS OWN ACCOUNT.
Accordingly, the Lenders, the Swingline Lender and the Agent shall not be
obligated or required before enforcing any Obligation of a Development Affiliate
against any other Development Affiliate: (i) to pursue any right or remedy the
Lenders, the Swingline Lender or the Agent may have against any other
Development Affiliate, RCLP, any other Loan Party or any other Person or
commence any suit or other proceeding against any other Development Affiliate,
RCLP, any other Loan Party or any other Person in any court or other tribunal;
(ii) to make any claim in a liquidation or bankruptcy of any other Development
Affiliate, RCLP, any other Loan Party or any other Person; or (iii) to make
demand of any other Development Affiliate, RCLP, any other Loan Party or any
other Person or to enforce or seek to enforce or realize upon any collateral
security held by the Lenders, the Swingline Lender or the Agent which may secure
any of the Obligations of the other Development Affiliates. In this connection,
each Development Affiliate hereby waives its rights to require any holder of the
Obligations of the other Development Affiliates or RCLP to take action against
the other Development Affiliates or RCLP as provided in Official Code of Georgia
Annotated ss.10-7-24.
(b) Obligations Absolute. The liability of each Development Affiliate
under this Section shall be absolute and unconditional and shall remain in full
force and effect without regard to, and shall not be released, suspended,
discharged, terminated or otherwise affected by, any circumstance or occurrence
whatsoever, including without limitation, any circumstance which might
constitute a defense available to, or a discharge of, each Development Affiliate
under this Section.
(c) Action with Respect to Obligations. The Lenders, the Swingline Lender
and the Agent may, at any time and from time to time, without the consent of, or
notice to, any Development Affiliate, and without discharging any Development
Affiliate from its obligations under this Section: (i) amend, modify, alter or
supplement the terms of any of the Obligations of the other Development
Affiliates; (ii) sell, exchange, release or otherwise deal with all, or any
part, of any collateral securing any of such Obligations; (iii) release RCLP,
any Loan Party or other Person liable in any manner for the payment or
collection of such Obligations; (iv) exercise, or refrain from exercising, any
rights against the other Development Affiliates, RCLP, any other Loan Party or
any other Person; and (v) apply any sum, by whomsoever paid or however realized,
to such Obligations in such order as the Lenders or the Swingline Lender shall
elect.
(d) Waiver. Each Development Affiliate, to the fullest extent permitted by
Applicable Law, hereby waives notice of any presentment, demand, protest or
notice of any kind, and any other act or thing, or omission or delay to do any
other act or thing, which in any manner or to any extent might vary the risk of
such Development Affiliate, or which otherwise might operate to discharge such
Development Affiliate, from its obligations under this Section.
(e) Reinstatement of Obligations. If claim is ever made on the Agent, any
Lender or the Swingline Lender for repayment or recovery of any amount or
amounts received in payment or on account of any of the Obligations of the other
Development Affiliates, and the Agent, such Lender or the Swingline Lender
repays all or part of said amount by reason of (i) any judgment, decree or order
of any court or administrative body of competent jurisdiction, or (ii) any
settlement or compromise of any such claim effected by the Agent, such Lender or
the Swingline Lender with any such claimant (including any other Development
Affiliate or a trustee in bankruptcy for any other Development Affiliate), then
and in such event each Development Affiliate agrees that any such judgment,
decree, order, settlement or compromise shall be binding on it, notwithstanding
any revocation hereof or the cancellation of the Credit Agreement, any of the
other Loan Documents, or any other instrument evidencing any liability of any
other Borrower, and each Development Affiliate shall be and remain liable to the
Agent, such Lender or the Swingline Lender for the amounts so repaid or
recovered to the same extent as if such amount had never originally been paid to
the Agent, such Lender or the Swingline Lender.
(f) Subrogation. No Development Affiliate shall enforce any right or
receive any payment by way of subrogation or otherwise take any action in
respect of any other claim or cause of action such Development Affiliate may
have against any other Development Affiliate arising by reason of any payment or
performance by any Development Affiliate pursuant to this Section, unless and
until all of the Obligations have been indefeasibly paid and performed in full.
(g) Subordination. Each Development Affiliate hereby expressly covenants
and agrees for the benefit of the Agent, the Lenders and the Swingline Lender
that all obligations and liabilities of any of the other Development Affiliates
to such Development Affiliate of whatever description (collectively, the "Junior
Claims") shall be subordinate and junior in right of payment to all Obligations.
If an Event of Default shall have occurred and be continuing, then no
Development Affiliate shall accept any direct or indirect payment (in cash,
property, securities by setoff or otherwise) from any other Development
Affiliate on account of or in any manner in respect of any Junior Claim until
all of the Obligations have been indefeasibly paid in full.
(h) No Guaranty of RCLP Obligations. None of the Development Affiliates or
the Development Affiliate Guarantors have guaranteed the Obligations of RCLP
hereunder or under any of the other Loan Documents.
SECTION 12.18. Avoidance Provisions.
--------------------
It is the intent of the Borrowers, the Agent, the Lenders and the
Swingline Lender that in any Proceeding, the maximum obligation of RCLP under
Section 12.16., or of a Development Affiliate under Section 12.17., shall equal,
but not exceed, the maximum amount which would not otherwise cause the
obligations of such Person under such Section (or any other obligations of such
Person to the Agent, the Lenders and the Swingline Lender) to be avoidable or
unenforceable against such Person in such Proceeding as a result of Applicable
Law, including without limitation, (a) Section 548 of the Bankruptcy Code of
1978, as amended (the "Bankruptcy Code") and (b) any state fraudulent transfer
or fraudulent conveyance act or statute applied in such Proceeding, whether by
virtue of Section 544 of the Bankruptcy Code or otherwise. The Applicable Laws
under which the possible avoidance or unenforceability of the obligations of
such Person hereunder (or any other obligations of such Person to the Agent, the
Lenders and the Swingline Lender) shall be determined in any such Proceeding are
referred to as the "Avoidance Provisions". Accordingly, to the extent that the
obligation of RCLP under Section 12.16., or of a Development Affiliate under
Section 12.17., would otherwise be subject to avoidance under the Avoidance
Provisions, the maximum Obligations for which such Person shall be liable under
the applicable Section shall be reduced to that amount which, as of the time any
of such Obligations are deemed to have been incurred under the Avoidance
Provisions, would not cause the obligations of such Person hereunder (or any
other obligations of such Person to the Agent, the Lenders and the Swingline
Lender), to be subject to avoidance under the Avoidance Provisions. This Section
is intended solely to preserve the rights of the Agent, the Lenders and the
Swingline Lender to the maximum extent that would not cause the obligations of
RCLP or the Development Affiliates, as the case may be, to be subject to
avoidance under the Avoidance Provisions, and no such Borrower or any other
Person shall have any right or claim under this Section as against the Agent,
the Lenders and the Swingline Lender that would not otherwise be available to
such Person under the Avoidance Provisions. For the purposes of this Section
"Proceeding" means any of the following: (i) a voluntary or involuntary case
concerning any Borrower shall be commenced under the Bankruptcy Code of 1978, as
amended; (ii) a custodian (as defined in such Bankruptcy Code or any other
applicable bankruptcy laws) is appointed for, or takes charge of, all or any
substantial part of the property of any Borrower; (iii) any other proceeding
under any Applicable Law, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding-up or composition for adjustment of debts,
whether now or hereafter in effect, is commenced relating to any Borrower; (iv)
any Borrower is adjudicated insolvent or bankrupt; (v) any order of relief or
other order approving any such case or proceeding is entered by a court of
competent jurisdiction; (vi) any Borrower makes a general assignment for the
benefit of creditors; (vii) any Borrower shall fail to pay, or shall state that
it is unable to pay, or shall be unable to pay, its debts generally as they
become due; (viii) any Borrower shall call a meeting of its creditors with a
view to arranging a composition or adjustment of its debts; (ix) any Borrower
shall by any act or failure to act indicate its consent to, approval of or
acquiescence in any of the foregoing; or (x) any corporate action shall be taken
by any Borrower for the purpose of effecting any of the foregoing.
[Signatures on Next Page]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Second Amended and
Restated Credit Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
REGENCY CENTERS, L.P.
By: Regency Realty Corporation, its sole general
partner
By:
Name: J. Christian Leavitt
Title: Senior Vice President and Secretary
REGENCY REALTY CORPORATION
By:
Name: J. Christian Leavitt
Title: Senior Vice President and Secretary
STATE OF GEORGIA
COUNTY OF
----------------------------
BEFORE ME, a Notary Public in and for said County, personally appeared J.
Christian Leavitt, known to me to be a person who, as Senior Vice President and
Secretary of Regency Realty Corporation, on its own behalf and as the general
partner of Regency Centers, L.P., the entity which executed the foregoing
Amended and Restated Credit Agreement, signed the same, and acknowledged to me
that he did so sign said instrument in the name and upon behalf of said
corporation as an officer of said corporation.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name, and affixed my
official seal, this ____ day of July, 2000.
Notary Public
My Commission Expires:
[Signatures Continued on Next Page]
<PAGE>
[Signature Page to Second Amended and Restated Credit Agreement dated
as of July 21, 2000 with Regency Centers, L.P.]
REGENCY REALTY GROUP, INC.
By:
Name: J. Christian Leavitt
Title: Vice President and Secretary
STATE OF GEORGIA
COUNTY OF
----------------------------
BEFORE ME, a Notary Public in and for said County, personally appeared J.
Christian Leavitt, known to me to be a person who, as Vice President and
Secretary of Regency Realty Group, Inc., the entity which executed the foregoing
Amended and Restated Credit Agreement, signed the same, and acknowledged to me
that he did so sign said instrument in the name and upon behalf of said
corporation as an officer of said corporation.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name, and affixed my
official seal, this ____ day of July, 2000.
Notary Public
My Commission Expires:
[Signatures Continued on Next Page]
<PAGE>
[Signature Page to Second Amended and Restated Credit Agreement dated
as of July 21, 2000 with Regency Centers, L.P.]
WELLS FARGO BANK, NATIONAL ASSOCIATION, as the
Agent, as the Swingline Lender and as a Lender
By:
Name: Mary Ann Kelly
Title: Vice President
Lending Office (all Types of Loans):
Wells Fargo Bank, National Association
2859 Paces Ferry Road, Suite 1805
Atlanta, Georgia 30339
Attention: Mary Ann Kelly
Telecopier: (404) 435-2262
Telephone: (404) 435-3800
Commitment Amount:
$100,000,000
[Signatures Continued on Next Page]
<PAGE>
[Signature Page to Second Amended and Restated Credit Agreement dated as
of
July 21, 2000 with Regency Centers, L.P.]
FIRST UNION NATIONAL BANK
By:
Name:
Title:
Lending Office (all Types of Loans):
First Union National Bank
REIT Banking Unit
One First Union Center
Charlotte, North Carolina 28288-0166
Attention: John A. Schissel
Telecopier: (704) 383-6205
Telephone: (704) 383-1967
Commitment Amount:
$100,000,000
<PAGE>
[Signature Page to Second Amended and Restated Credit Agreement dated as
of
July 21, 2000 with Regency Centers, L.P.]
WACHOVIA BANK, N.A.
By:
Name:
Title:
Lending Office (all Types of Loans):
Wachovia Bank, N.A.
191 Peachtree Street, N.E., 30th Floor
Atlanta, Georgia 30303
Attention: Cathy A. Casey
Telecopier: (404) 332-4066
Telephone: (404) 332-5649
Commitment Amount:
$100,000,000
<PAGE>
[Signature Page to Second Amended and Restated Credit Agreement dated as
of
July 21, 2000 with Regency Centers, L.P.]
COMMERZBANK AG, NEW YORK BRANCH
By:
Name:
Title:
By:
Name:
Title:
Lending Office (all Types of Loans):
Commerzbank AG, New York Branch
2 World Financial Center
New York, New York 10281
Attention: David Schwarz/ Christine Finkel
Telecopier: (212) 266-7565
Telephone: (212) 266-7632 / 7375
Commitment Amount:
$50,000,000
<PAGE>
[Signature Page to Second Amended and Restated Credit Agreement dated as
of
July 21, 2000 with Regency Centers, L.P.]
PNC BANK, NATIONAL ASSOCIATION
By:
Name:
Title:
Lending Office (all Types of Loans):
PNC Bank, National Association
One PNC Plaza, 19th Floor
249 Fifth Avenue
Mail Stop- PI-POPP-19-2
Pittsburgh, Pennsylvania 15222
Attention: Jan Dotchin
Telecopier: (412) 768-5754
Telephone: (412) 762-3986
Commitment Amount:
$50,000,000
<PAGE>
[Signature Page to Second Amended and Restated Credit Agreement dated as
of
July 21, 2000 with Regency Centers, L.P.]
AMSOUTH BANK
By:
Name:
Title:
Lending Office (all Types of Loans):
AmSouth Bank
1900 5th Avenue North
AmSouth-Sonat Tower, 9th Floor
Birmingham, Alabama 35203
Attention: Buddy Sharbel
Telecopier: (205) 326-4075
Telephone: (205) 581-7647
Commitment Amount:
$40,000,000
<PAGE>
[Signature Page to Second Amended and Restated Credit Agreement dated as
of
July 21, 2000 with Regency Centers, L.P.]
CHASE BANK OF TEXAS, N.A.
By:
Name:
Title:
Lending Office (all Types of Loans):
Chase Bank of Texas, N.A.
707 Travis, 6th Floor North
Houston, Texas 77572
Attention: Kent Kaiser
Telecopier: (713) 216-7713
Telephone: (713) 216-8699
Commitment Amount:
$35,000,000
<PAGE>
[Signature Page to Second Amended and Restated Credit Agreement dated as
of
July 21, 2000 with Regency Centers, L.P.]
SOUTHTRUST BANK
By:
Name:
Title:
Lending Office (all Types of Loans):
SouthTrust Bank
420 North 20th Street, 11th Floor
Birmingham, Alabama 35203
Attention: Sam Boroughs- Corporate Banking
Telecopier: (205) 254-8270
Telephone: (205) 254-5039
Commitment Amount:
$35,000,000
<PAGE>
[Signature Page to Second Amended and Restated Credit Agreement dated as
of
July 21, 2000 with Regency Centers, L.P.]
SUNTRUST BANK
By:
Name:
Title:
Lending Office (all Types of Loans):
SunTrust Bank
Real Estate Finance MC 081
P.O. Box 4418, 50 Hurt Plaza, Suite 700
Atlanta, Georgia 30303
Attention: John Neill
Telecopier: (404) 827-6774
Telephone: (404) 588-8248
Commitment Amount:
$30,000,000
<PAGE>
[Signature Page to Second Amended and Restated Credit Agreement dated as
of
July 21, 2000 with Regency Centers, L.P.]
ING (U.S.) CAPITAL LLC
By:
Name:
Title:
Lending Office (all Types of Loans):
ING Barings
55 E. 52nd Street, 35th Floor
New York, NY 10055
Attention: Andrew Layton
Telecopier: 212-409-5853
Telephone: 212-409-1851
Commitment Amount:
$25,000,000
<PAGE>
[Signature Page to Second Amended and Restated Credit Agreement dated as
of
July 21, 2000 with Regency Centers, L.P.]
FIRSTAR, N.A.
By:
Name:
Title:
Lending Office (all Types of Loans):
Firstar, N.A.
425 Walnut Street, 10th Floor, ML #9205
Cincinnati, Ohio 45202
Attention: Glenn Baumann
Telecopier: (513) 632-5590
Telephone: (513) 632-4473
Commitment Amount:
$25,000,000
<PAGE>
[Signature Page to Second Amended and Restated Credit Agreement dated as
of
July 21, 2000 with Regency Centers, L.P.]
BANK ONE, NA (CHICAGO OFFICE)
By:
Name:
Title:
Lending Office (all Types of Loans):
Bank One, NA (Chicago Office)
1 Bank One Plaza
Mail Code IL1-0315
Chicago, Illinois 60670
Attention: Patricia Leung
Telecopier: (312) 732-1117
Telephone: (312) 732-8619
Commitment Amount:
$20,000,000
<PAGE>
[Signature Page to Second Amended and Restated Credit Agreement dated as
of
July 21, 2000 with Regency Centers, L.P.]
MELLON BANK, N.A.
By:
Name:
Title:
Lending Office (all Types of Loans):
Mellon Bank, N.A.
One Mellon Bank Center, Room 5325
Pittsburgh, Pennsylvania 15258-0001
Attention: Theresa Sicuro
Telecopier: (412) 234-4146
Telephone: (412) 234-6757
Commitment Amount:
$15,000,000
<PAGE>
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
July 21, 2000
among
REGENCY CENTERS, L.P., and
REGENCY REALTY GROUP, INC.,
as the Borrowers,
REgency realty corpoRation,
as the Parent,
The financial institutions party hereto and their assignees under Section 12.8.
hereof,
as the Lenders,
FIRST UNION NATIONAL BANK,
as Syndication Agent,
WACHOVIA BANK, N.A.,
as Documentation Agent,
Each of
COMMERZBANK AKTIENGESELLSCHAFT, NEW YORK BRANCH
and
pnc bank, national Association,
as a Managing Agent,
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as the Administrative Agent
<PAGE>
- v -
ATL01/10690729v10
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS......................................................1
SECTION 1.1. Definitions.............................................1
-----------
SECTION 1.2. General; References to Time............................22
---------------------------
ARTICLE II. CREDIT FACILITY.................................................23
SECTION 2.1. Revolving Loans........................................23
---------------
SECTION 2.2. Bid Rate Loans.........................................24
--------------
SECTION 2.3. Swingline Loans........................................27
---------------
SECTION 2.4. Number of Interest Periods.............................28
--------------------------
SECTION 2.5. Continuation...........................................28
------------
SECTION 2.6. Conversion.............................................29
----------
SECTION 2.7. Interest Rate..........................................29
-------------
SECTION 2.8. Repayment of Loans.....................................29
------------------
SECTION 2.9. Voluntary Reductions of the Commitments................31
---------------------------------------
SECTION 2.10. Extension of Revolving Credit Termination Date.........31
----------------------------------------------
SECTION 2.11. Term Loan Conversion...................................32
--------------------
SECTION 2.12. Notes..................................................33
-----
SECTION 2.13. Option to Replace Lenders..............................33
-------------------------
SECTION 2.14. Amount Limitations.....................................33
------------------
SECTION 2.15. Letters of Credit......................................34
-----------------
ARTICLE III. GENERAL LOAN PROVISIONS................................37
SECTION 3.1. Fees...................................................37
----
SECTION 3.2. Computation of Interest and Fees.......................38
--------------------------------
SECTION 3.3. Pro Rata Treatment.....................................38
------------------
SECTION 3.4. Sharing of Payments, Etc...............................39
------------------------
SECTION 3.5. Defaulting Lenders.....................................40
------------------
SECTION 3.6. Usury..................................................40
-----
SECTION 3.7. Agreement Regarding Interest and Charges...............40
----------------------------------------
SECTION 3.8. Statements of Account..................................41
---------------------
SECTION 3.9. Reliance...............................................41
--------
SECTION 3.10. Taxes..................................................41
-----
ARTICLE IV. UNENCUMBERED POOL PROPERTIES....................................42
SECTION 4.1. Acceptance of Unencumbered Pool Properties...............42
------------------------------------------
SECTION 4.2. Termination of Designation as Unencumbered
------------------------------------------
Pool Property...................................................45
-------------
SECTION 4.3. Additional Requirements of Unencumbered Pool
--------------------------------------------
Properties......................................................46
----------
ARTICLE V. YIELD PROTECTION, ETC............................................46
SECTION 5.1. Additional Costs; Capital Adequacy.....................46
----------------------------------
SECTION 5.2. Suspension of LIBOR Loans..............................47
-------------------------
SECTION 5.3. Illegality.............................................48
----------
SECTION 5.4. Compensation...........................................48
------------
SECTION 5.5. Treatment of Affected Loans............................48
---------------------------
SECTION 5.6. Change of Lending Office...............................49
------------------------
ARTICLE VI. CONDITIONS......................................................49
SECTION 6.1. Effectiveness..........................................49
-------------
SECTION 6.2. Conditions to All Loans and Letters of Credit..........51
---------------------------------------------
SECTION 6.3. Conditions to Conversion to Term Loans.................51
--------------------------------------
ARTICLE VII. REPRESENTATIONS AND WARRANTIES.........................52
SECTION 7.1. Existence and Power....................................52
-------------------
SECTION 7.2. Ownership Structure....................................52
-------------------
SECTION 7.3. Authorization of Agreement, Notes, Loan
---------------------------------------
Documents and Borrowings........................................52
------------------------
SECTION 7.4. Compliance of Agreement, Notes, Loan Documents
----------------------------------------------
and Borrowing with Laws, etc....................................53
----------------------------
SECTION 7.5. Compliance with Law; Governmental Approvals............53
-------------------------------------------
SECTION 7.6. Existing Indebtedness..................................53
---------------------
SECTION 7.7. Title to Properties; Liens.............................53
--------------------------
SECTION 7.8. Unencumbered Pool Properties...........................53
----------------------------
SECTION 7.9. Leases.................................................54
------
SECTION 7.10. Material Contracts.....................................54
------------------
SECTION 7.11. Margin Stock...........................................54
------------
SECTION 7.12. Transactions with Affiliates...........................54
----------------------------
SECTION 7.13. Absence of Defaults..............................54
-------------------
SECTION 7.14. Financial Information..................................54
---------------------
SECTION 7.15. Litigation.............................................55
----------
SECTION 7.16. ERISA..................................................55
-----
SECTION 7.17. Environmental Matters..................................56
---------------------
SECTION 7.18. Taxes..................................................56
-----
SECTION 7.19. Investment Company; Public Utility Holding
------------------------------------------
Company. 57
-------
SECTION 7.20. Full Disclosure........................................57
---------------
SECTION 7.21. Not Plan Assets........................................57
---------------
SECTION 7.22. Business...............................................57
--------
SECTION 7.23. Title to Properties; Necessary Agreements,
------------------------------------------
Licenses, Permits; Adverse Contracts............................57
------------------------------------
SECTION 7.24. Non-Guarantor Entities.................................58
----------------------
ARTICLE VIII. COVENANTS.................................................58
SECTION 8.1. Information............................................58
-----------
SECTION 8.2. ERISA Reporting........................................61
---------------
SECTION 8.3. Payment of Obligations.................................62
----------------------
SECTION 8.4. Preservation of Existence and Similar Matters..........62
---------------------------------------------
SECTION 8.5. Maintenance of Property................................62
-----------------------
SECTION 8.6. Conduct of Business....................................62
-------------------
SECTION 8.7. Insurance..............................................62
---------
SECTION 8.8. Modifications to Material Contracts....................63
-----------------------------------
SECTION 8.9. Environmental Laws.....................................63
------------------
SECTION 8.10. Compliance with Laws and Material Contracts............63
-------------------------------------------
SECTION 8.11. Inspection of Property, Books and Records..............63
-----------------------------------------
SECTION 8.12. Indebtedness...........................................64
------------
SECTION 8.13. Consolidations, Mergers and Sales of Assets............64
-------------------------------------------
SECTION 8.14. Use of Proceeds and Letters of Credit..................64
-------------------------------------
SECTION 8.15. Tenant Concentration....................................65
--------------------
SECTION 8.16. Acquisitions............................................65
------------
SECTION 8.17. Exchange Listing.......................................65
----------------
SECTION 8.18. REIT Status............................................65
-----------
SECTION 8.19. Negative Pledge; Restriction on Distribution
--------------------------------------------
Rights. 65
------
SECTION 8.20. Agreements with Affiliates.............................66
--------------------------
SECTION 8.21. ERISA Exemptions.......................................66
----------------
SECTION 8.22. Compliance with and Amendment of Charter or
-------------------------------------------
Bylaws. 66
------
SECTION 8.23. Distributions..........................................66
-------------
SECTION 8.24. New Guarantors.........................................67
--------------
SECTION 8.25. New Guarantors.........................................68
--------------
SECTION 8.26. Acquisitions or Developments of Properties.............69
------------------------------------------
SECTION 8.27. Transfer of Properties to Borrower.....................70
----------------------------------
SECTION 8.28. Asset Value of Non-Guarantor Entities..................70
-------------------------------------
SECTION 8.29. Hedging Agreements.....................................70
------------------
SECTION 8.30. Limitation Relating to Regency Realty Group,
--------------------------------------------
Inc. 70
----
Article IX. Financial Covenants.............................................71
SECTION 9.1. Minimum Net Worth......................................71
-----------------
SECTION 9.2. Ratio of Total Liabilities to Gross Asset
Value.71
SECTION 9.3. Ratio of Secured Indebtedness to Gross Asset
--------------------------------------------
Value. 71
-----
SECTION 9.4. Ratio of EBITDA to Interest Expense....................71
-----------------------------------
SECTION 9.5. Ratios of EBITDA to Debt Service, Preferred
-------------------------------------------
Stock Distributions and Reserve for Replacements................71
------------------------------------------------
SECTION 9.6. Unsecured Interest Expense Coverage....................72
-----------------------------------
SECTION 9.7. Permitted Investments..................................72
---------------------
SECTION 9.8. Floating Rate Debt.....................................72
------------------
SECTION 9.9. Limitation on Non-Wholly Owned Subsidiaries,
--------------------------------------------
Preferred Stock Entities and Unconsolidated Affiliates..........73
------------------------------------------------------
SECTION 9.10. Stabilized Retail Operating Properties.................73
--------------------------------------
ARTICLE X. DEFAULTS 73
SECTION 10.1. Events of Default......................................73
-----------------
SECTION 10.2. Remedies...............................................76
--------
SECTION 10.3. Allocation of Proceeds.................................76
----------------------
SECTION 10.4. Rights Cumulative......................................77
-----------------
SECTION 10.5. Recission of Acceleration by Majority Lenders..........77
---------------------------------------------
SECTION 10.6. Collateral Account.....................................77
------------------
ARTICLE XI. THE AGENT.......................................................78
SECTION 11.1. Appointment and Authorization..........................78
-----------------------------
SECTION 11.2. The Agent and Affiliates...............................79
------------------------
SECTION 11.3. Collateral Matters.....................................79
------------------
SECTION 11.4. Approvals of the Lenders...............................79
------------------------
SECTION 11.5. Notice of Defaults.....................................80
------------------
SECTION 11.6. Consultation with Experts..............................80
-------------------------
SECTION 11.7. Liability of the Agent.................................80
----------------------
SECTION 11.8. Indemnification of the Agent...........................80
----------------------------
SECTION 11.9. Credit Decision........................................81
---------------
SECTION 11.10. Successor Agent........................................81
---------------
SECTION 11.11. Approvals and Other Actions by Majority
---------------------------------------
Lender81
SECTION 11.12. Documentation, Syndication and Managing Agents.........82
----------------------------------------------
ARTICLE XII. MISCELLANEOUS..........................................82
SECTION 12.1. Notices................................................82
-------
SECTION 12.2. No Waivers.............................................83
----------
SECTION 12.3. Expenses...............................................83
--------
SECTION 12.4. Stamp, Intangible and Recording Taxes..................84
-------------------------------------
SECTION 12.5. Indemnification........................................84
---------------
SECTION 12.6. Setoff.................................................85
------
SECTION 12.7. Amendments.............................................85
----------
SECTION 12.8. Successors and Assigns.................................86
----------------------
SECTION 12.9. Governing Law..........................................88
-------------
SECTION 12.10. Litigation.............................................88
----------
SECTION 12.11. Confidentiality........................................89
---------------
SECTION 12.12. Counterparts; Integration..............................89
-------------------------
SECTION 12.13. Invalid Provisions.....................................89
------------------
SECTION 12.14. No Novation............................................89
-----------
SECTION 12.15. Additional Borrowers..................................90
--------------------
SECTION 12.16. RCLP Jointly and Severally Liable for
-------------------------------------
Obligations of Other Borrowers..................................91
------------------------------
SECTION 12.17. All Development Affiliates Jointly and
--------------------------------------
Severally Liable................................................92
----------------
SECTION 12.18. Avoidance Provisions..................................93
--------------------
Exhibit A Form of Assignment and Acceptance Agreement
Exhibit B Form of Designation Agreement
Exhibit C Form of Revolving Note
Exhibit D Form of Bid Rate Note
Exhibit E Form of Swingline Note
Exhibit F Form of Notice of Borrowing
Exhibit G Form of Notice of Continuation
Exhibit H Form of Notice of Conversion
Exhibit I Form of Bid Rate Quote Request
Exhibit J Form of Bid Rate Quote
Exhibit K Form of Bid Rate Quote Acceptance
Exhibit L Form of Notice of Swingline Borrowing
Exhibit M Form of Extension Request
Exhibit N-1 Form of Opinion of Counsel to the Loan Parties
Exhibit N-2 Form of Opinion of Counsel to the Agent
Exhibit O-1 Form of Guaranty
Exhibit O-2 Form of Development Affiliate Guaranty
Exhibit P Form of Unencumbered Pool Certificate
Exhibit Q Form of Compliance Certificate
Exhibit R Form of Property Certificate
Exhibit S Form of Joinder Agreement
Schedule 1.1. Approved Grocery Stores
Schedule 4.1. Unencumbered Pool Properties
Schedule 7.2. Ownership Structure
Schedule 7.6. Existing Indebtedness
Schedule 7.10. Material Contracts
Schedule 7.12. Transactions with Affiliates
Schedule 7.15. Litigation
Schedule 7.16. ERISA
Schedule 7.24. Non-Guarantor Entities
Schedule 8.26. Acquisition or Development of Properties
Schedule 8.29. Hedging Agreements
<PAGE>
ATL01/10690729v10
Schedule 1.1(a)
Approved Grocery Stores
1. Grocery Stores wholly owned directly or indirectly by Wal-Mart Stores,
Inc. and operating under the following names:
Wal-Mart Neighborhood Market
2. Grocery Stores wholly owned directly or indirectly by Safeway Inc. and
operating under the following names:
Carr Quality Centers
Dominicks
Eagle Quality Centers (Alaska)
Expo's
Pak N Save
Pavilion's
Randall's
Safeway
Simon David
Tom Thumb
Vons
3. Grocery Stores wholly owned directly or indirectly by Albertson's
Inc. and operating under the following names:
Acme
Albertson's
American Drug Stores
Buttrey
Jewel
Lucky's
Max's Warehouse
Monte Mart
