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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): MAY 23, 2000
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JDN REALTY CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
MARYLAND 1-12844 58-1468053
(State or Other (Commission File (I.R.S. Employer
Jurisdiction of Number) Identification
Incorporation) Number)
359 EAST PACES FERRY ROAD
SUITE 400
ATLANTA, GEORGIA 30305
(Address of Principal Executive Offices) (Zip Code)
(404) 262-3252
(Registrant's Telephone Number, including Area Code)
NOT APPLICABLE
(Former Name)
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ITEM 5. OTHER EVENTS.
JDN Realty Corporation (the "Company") is filing this Current
Report on Form 8-K in order to file with the Securities and Exchange Commission
a Tenant Estoppel and Release, dated as of May 23, 2000, among the Company and
JDN Development Company, Inc. and their affiliates, Wal-Mart Stores Inc. and
Wal-Mart Real Estate Business Trust, and Lowe's Companies, Inc. and Lowe's Home
Centers, Inc.
The Company is also filing herewith amended and restated credit
agreements with its bank groups for its revolving line of credit and term loan.
Copies of the Tenant Estoppel and Release, the amended and
restated credit agreements and the related press release issued on May 23, 2000
are included as exhibits to this filing.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(C) EXHIBITS.
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
99.1 Press Release: JDN REALTY CORPORATION REACHES AGREEMENT WITH
WAL-MART AND LOWE'S; ENTERS INTO AMENDMENTS OF EXISTING CREDIT
AGREEMENTS
99.2 Tenant Estoppel and Release, dated May 23, 2000
99.3 Second Amended and Restated Credit Agreement dated as of May
19, 2000 among JDN Realty Corporation, the Banks listed therein
and Wachovia Bank, N.A., as Agent
99.4 $100,000,000 Amended and Restated Term Loan Credit Agreement
dated as of May 19, 2000 among JDN Realty Corporation, the Banks
listed therein, Wachovia Bank, N.A., as Agent and PNC Bank,
National Association, as Documentation Agent
</TABLE>
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
JDN REALTY CORPORATION
By: /s/ John D. Harris, Jr.
----------------------------------
John D. Harris, Jr.
Controller
Date: May 23, 2000
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
99.1 Press Release: JDN REALTY CORPORATION REACHES AGREEMENT WITH
WAL-MART AND LOWE'S; ENTERS INTO AMENDMENTS OF EXISTING CREDIT
AGREEMENTS
99.2 Tenant Estoppel and Release, dated May 23, 2000
99.3 Second Amended and Restated Credit Agreement dated as of May
19, 2000 among JDN Realty Corporation, the Banks listed therein
and Wachovia Bank, N.A., as Agent
99.4 $100,000,000 Amended and Restated Term Loan Credit Agreement
dated as of May 19, 2000 among JDN Realty Corporation, the Banks
listed therein, Wachovia Bank, N.A., as Agent and PNC Bank,
National Association, as Documentation Agent
</TABLE>
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EXHIBIT 99.1
FOR IMMEDIATE RELEASE
CONTACT: CHARLES N. TALBERT
DIRECTOR OF INVESTOR RELATIONS
(404) 262-3252
JDN REALTY CORPORATION REACHES AGREEMENT
WITH WAL-MART AND LOWE'S;
ENTERS INTO AMENDMENTS OF EXISTING CREDIT AGREEMENTS
DECLARES REDUCED QUARTERLY DIVIDEND FOR COMMON STOCK; DECLARES
REGULAR QUARTERLY DIVIDEND FOR PREFERRED STOCK
ATLANTA, Ga. -- (May 22, 2000) -- JDN Realty Corporation (NYSE: JDN)
today announced that the Company and its two largest tenants, Wal-Mart and
Lowe's, have entered into an agreement that reaffirms all existing leases and
real estate sales agreements between the Company and these anchor tenants. This
agreement settles all current and potential future claims related to possible
discrepancies underlying certain leases and real estate sales contracts, the
discovery of which the Company had previously announced.
The Company also announced that it has entered into amended and
restated credit agreements with its bank groups for its revolving line of credit
and term loan. Borrowings under these agreements will be secured by operating
shopping center properties and will initially bear interest at LIBOR plus 2.50%.
Upon completion of the granting to the bank group of first priority security
interests in the properties to be used as collateral, the borrowing rates will
decrease to LIBOR plus 2.25%. The agreements will mature in June 2001. The
secured revolving line of credit was reduced from $200 million to $175 million,
$147 million of which is currently outstanding.
Also, the Company announced that the special committee of the
Company's Board of Directors has concluded the factual investigation of the
previously announced undisclosed compensation and related party transactions,
and the discrepancies in cost and other information underlying certain leases
and real estate sales with Wal-Mart and Lowe's. The Company is continuing to
analyze and record these transactions in its financial statements. The Company
announced that it expects to file its 1999 Form 10-K, which will include
restated financial information for the years ended December 31, 1994 through
1998, with the Securities and Exchange Commission on or before June 15, 2000.
Commenting on these announcements, Craig Macnab, chief executive
officer of JDN Realty Corporation, stated, "We are pleased to resolve the
outstanding issues with the cooperation and support of our major tenants.
Together with the amendments to the existing bank agreements and the conclusion
of the special committee's investigation, we can refocus our energies on our
development pipeline and our existing portfolio of operating properties."
The Company's Board of Directors has declared a quarterly dividend of
$0.30 per share for the Company's common stock for the quarter ending June 30,
2000. This dividend is payable on June 30, 2000, to shareholders of record on
June 15, 2000. This dividend represents an annualized cash dividend of $1.20 per
share and is a reduction from the first quarter 2000 dividend of $0.395 per
share.
The Board of Directors also declared the regular quarterly dividend for
JDN Realty Corporation's 9 3/8% Series A Cumulative Redeemable Preferred Stock
(NYSE: JDNPrA) of $0.586 per share for the
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quarter ending June 30, 2000. This dividend is payable on June 30, 2000, to
shareholders of record on June 15, 2000. This dividend represents an annualized
cash dividend of $2.344 per share.
JDN Realty Corporation is a real estate company specializing in the
development and asset management of retail shopping centers anchored by
value-oriented retailers. Headquartered in Atlanta, Georgia, the Company owns
and operates directly or indirectly 115 properties, containing approximately
12.8 million square feet of gross leasable area, located in 18 states. The
common stock and preferred stock of JDN Realty Corporation are listed on the New
York Stock Exchange under the symbol "JDN" and "JDNPrA," respectively.
JDN Realty Corporation considers the portions of the information
contained in this release and statements made in connection with this release
with respect to the Company's beliefs and expectations of the outcome of future
events, such as the timing of its filings with the Securities and Exchange
Commission, to be forward-looking statements within the meaning of Section 27A
of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of
1934, both as amended. Such statements are, by their nature, subject to certain
risks and uncertainties. We caution you that a number of factors, including but
not limited to the impact of the events described in this release on the
financial statements and market capitalization of the Company, and on the
Company's business prospects and relationships with its creditors, tenants and
employees, the ability to attract and retain key employees, the impact of any
restated financial statements, the inability to maintain current dividend
levels, or any litigation or regulatory actions taken as a result of the events
described in this release, may adversely affect the Company's financial
condition and results of operations. Other risks, uncertainties and factors that
could adversely affect the Company's financial condition and results of
operations are detailed from time to time in reports filed by the Company with
the Securities and Exchange Commission, including Forms 8-K, 10-Q and 10-K. JDN
Realty Corporation does not undertake any obligation to release publicly any
revisions to forward-looking statements contained herein to reflect events or
circumstances occurring after the date hereof or to reflect the occurrence of
unanticipated events.
For additional information, visit the Company's home page on the Internet
at http://www.jdnrealty.com.
###
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EXHIBIT 99.2
ESTOPPEL AND RELEASE
THIS ESTOPPEL AND RELEASE (this "Agreement") is made and entered into
as of the 23rd day of May, 2000 by and between JDN Development Company, Inc.
("JDN Development") and JDN Realty Corporation ("JDN Realty") and their
Affiliates (collectively, "JDN"), Wal-Mart Stores, Inc. ("Wal-Mart Stores") and
Wal-Mart Real Estate Business Trust (Wal-Mart Trust"; collectively with Wal-Mart
Stores, "Wal-Mart") and Lowe's Companies, Inc. ("Lowe's Companies") and Lowe's
Home Centers, Inc. ("Lowe's Home Centers"; collectively with Lowe's Companies,
"Lowe's").
W I T N E S S E T H:
WHEREAS, as of the date of this Agreement, Wal-Mart and JDN are parties
to written leases of land and related improvements (the "Existing Wal-Mart
Leases"), including, without limitation, the Existing Wal-Mart Leases listed on
Exhibit A-1 hereto;
WHEREAS, as of the date of this Agreement, Lowe's and JDN are parties
to written leases of land and related improvements (the "Existing Lowe's
Leases"), including, without limitation, the Existing Lowe's Leases listed on
Exhibit A-2 hereto (the Existing Lowe's Leases, together with the Existing
Wal-Mart Leases, shall be collectively referred to as the "Existing Leases");
WHEREAS, prior to the date of this Agreement, Wal-Mart has purchased
land and related improvements from JDN (the "Wal-Mart Purchases"), including,
without limitation, the Wal-Mart Purchases listed on Exhibit B-1 hereto;
WHEREAS, prior to the date of this Agreement, Lowe's has purchased land
and related improvements from JDN (the "Lowe's Purchases"), including, without
limitation, the Lowe's Purchases listed on Exhibit B-2 hereto (the Lowe's
Purchases, together with the Wal-Mart Purchases, shall collectively be referred
to as the "Purchases");
WHEREAS, in addition to the Existing Leases and the Purchases, prior to
the date of this Agreement, JDN has entered into and executed written
development agreements, easements, restrictive covenants, contracts and other
leases, transactions and business arrangements with Wal-Mart and Lowe's (the
"Other Transactions");
WHEREAS, prior to the date of this Agreement, JDN and Wal-Mart have
entered into and executed written development agreements, purchase agreements
and other written agreements with respect to projects not completed as of the
date of this
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Agreement, including, without limitation, the transactions listed on Exhibit
C-1 hereto (the "Pending Wal-Mart Transactions");
WHEREAS, prior to the date of this Agreement, JDN and Lowe's have
entered into and executed written development agreements, purchase agreements
and other written agreements with respect to projects not completed as of the
date of this Agreement (the "Pending Lowe's Transactions"), including, without
limitation, the transactions listed on Exhibit C-2 hereto (the Pending Lowe's
Transactions, together with the Pending Wal-Mart Transactions, shall be
collectively referred to as the "Pending Transactions");
WHEREAS, JDN and Wal-Mart have reached agreement in principal with
respect to the sale to Wal-Mart of seven (7) Wal-Mart stores for an aggregate
purchase price of $71,750,000 on the terms set forth in that certain Non-Binding
Letter of Intent by and between JDN and Wal-Mart dated March 27, 2000 (the
"Approved Wal-Mart Sale"); however, the Approved Wal-Mart Sale, or any portion
thereof, is subject to the negotiation and finalization of definitive written
agreements relating thereto and the satisfaction of all conditions in connection
therewith; provided, however, that the purchase price for each of the seven
Wal-Mart stores has been agreed to by the parties and will not be subject to
further negotiation.
WHEREAS, as of the date of this Agreement, JDN and Wal-Mart have
discussed and/or are in the process of negotiating and documenting certain
leases, development agreements, purchases and other transactions (the "Proposed
Wal-Mart Transactions");
WHEREAS, as of the date of this Agreement, JDN and Lowe's have
discussed and/or are in the process of negotiating and documenting certain
leases, development agreements, purchases and other transactions (the "Proposed
Lowe's Transactions")(the Proposed Lowe's Transactions, together with the
Proposed Wal-Mart Transactions, shall collectively be referred to as the
"Proposed Transactions");
WHEREAS, in connection with various Existing Leases, Purchases, Other
Transactions, and Pending Transactions (collectively, the "Transactions"),
certain JDN Development representatives misrepresented to Wal-Mart and Lowe's
JDN's actual land costs, site work costs and/or construction costs and the
ownership of certain outparcels, which misrepresentations were made prior to
April 10, 2000 and which in certain instances have been used in computing and
negotiating lease terms and purchase prices in one or more ways, including,
without limitation, by (a) including in JDN's land cost the cost of certain
outparcels which had been conveyed to others; (b) including in JDN's land cost
the value of site work done on outparcels owned by others; (c) misrepresenting
JDN's actual land cost; (d) misrepresenting the development and/or construction
costs of site and other construction work performed in connection with the
Transactions at issue; and (e) including in JDN's land cost commissions and fees
paid to certain employees (collectively, herein referred to as the
"Discrepancies");
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WHEREAS, both Wal-Mart and Lowe's have independently determined and
claim that as a result of the Discrepancies each of Wal-Mart and Lowe's has
suffered damages significantly in excess of Five Million Dollars;
WHEREAS, despite the Discrepancies, JDN, Lowe's and Wal-Mart agree that
the Existing Leases, Purchases, Other Transactions and Pending Transactions have
been and/or will be beneficial to all parties (as applicable);
WHEREAS, JDN, Lowe's and Wal-Mart desire that (i) JDN, Lowe's and
Wal-Mart re-affirm the Existing Leases, Purchases, Other Transactions and
Pending Transactions effective as of their original execution date or the
original closing date, (ii) Lowe's and Wal-Mart and JDN make certain agreements
with respect to the Proposed Transactions as hereinafter set forth, (iii) Lowe's
and Wal-Mart and JDN grant releases with respect to the Discrepancies, and (iii)
JDN compensate Lowe's and Wal-Mart as set forth below.
NOW, THEREFORE, for and in consideration of the payment of sums set
forth herein, the promises, covenants and representations contained herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by all the parties, Wal-Mart, Lowe's and JDN hereby agree as
follows:
1. Estoppel.
(a) Notwithstanding the Discrepancies, JDN, Wal-Mart and
Lowe's individually affirm that each of the Existing
Leases to which it is a party is, and at all times
has been, valid and in full force and effect and
constitutes the complete agreement between JDN and
Wal-Mart or Lowe's (as applicable) with respect to
the subject matter thereof.
(b) Notwithstanding the Discrepancies, JDN, Wal-Mart and
Lowe's individually affirm that the Purchases, Other
Transactions and Pending Transactions to which it is
a party are, and were at all times, valid and that
the documents evidencing such Purchases, Other
Transactions and Pending Transactions constitute the
complete agreement between JDN and Wal-Mart or Lowe's
(as applicable) with respect to the subject matter
thereof.
2. Releases; Indemnity.
(a) Wal-Mart and Lowe's, for themselves, their respective
legal representatives, successors, assigns and
Affiliates (as hereinafter defined), do hereby
release, remise and forever discharge JDN and its
predecessors, and all past and present officers,
directors, shareholders, partners, employees, agents,
representatives, attorneys, auditors and Affiliates
thereof (other than the Excluded
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Parties, as hereinafter defined) and, as applicable,
their respective executors, administrators, personal
representatives, legatees, heirs, successors and
assigns (collectively, the "JDN Parties") from any
and all actions, causes of action, claims, demands,
damages, liabilities and obligations to the Tenant
Parties (as hereinafter defined) of every kind and
nature, whether absolute or contingent, liquidated or
unliquidated, due or to become due, whether known or
unknown, or whether arising by contract, tort or
otherwise, arising out of the Discrepancies;
provided, however, notwithstanding anything in the
foregoing to the contrary, both Wal-Mart and Lowe's
hereby expressly reserve and retain the right to
assert as a defense or affirmative defense in any
action to which either is made a party the occurrence
of the Discrepancies in the event either Wal-Mart
and/or Lowe's, as the case may be, shall be made a
party to any litigation except that the Discrepancies
shall not be asserted as a defense or affirmative
defense to any claims by JDN, its successors and
assigns. For purposes of this Agreement, "Excluded
Parties" shall mean Jeb L. Hughes, C. Sheldon
Whittelsey, IV, J. Donald Nichols, ALA Associates,
Inc., GeoSurvey, Ltd., the law firm of McCullough
Sherrill, L.L.P., and any current or former
associates or partners thereof (collectively,
"McCullough Sherrill"), and all Affiliates of any of
the foregoing individuals, entities and law firm;
provided, however, in no event shall JDN be included
within the definition of Excluded Parties. Provided
JDN is not in material default under this Agreement
(material defaults under this Agreement being limited
to defaults by JDN under the provisions of Sections
4(a), (b) and (d) below), Wal-Mart and Lowe's,
without waiving, discharging or releasing their
respective claims or causes of action, agree not to
independently institute and initiate legal
proceedings against the Excluded Parties with respect
to the Discrepancies. Nothing herein shall preclude
the filing of counterclaims by either Wal-Mart or
Lowe's against the Excluded Parties in any suits
brought by any of the Excluded Parties against either
Wal-Mart or Lowe's.
(b) JDN, for themselves, their respective legal
representatives, successors, assigns and Affiliates,
do hereby release, remise and forever discharge
Wal-Mart and Lowe's and their respective
predecessors, and all past and present officers,
directors, shareholders, partners, employees, agents,
representatives, attorneys, auditors and Affiliates
thereof and, as applicable, their respective
executors, administrators, personal representatives,
legatees, heirs, successors and assigns
(collectively, the "Tenant Parties") from any and all
actions, causes of action, claims, demands, damages,
liabilities and obligations to the JDN Parties of
every kind and nature, whether absolute or
contingent, liquidated or unliquidated, due or to
become due, whether known or
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unknown, or whether arising by contract, tort or
otherwise, arising out of the Discrepancies.
(c) JDN, for themselves, their respective legal
representatives, successors, assigns and affiliate do
hereby specifically release, remise and forever
discharge Lowe's and its predecessors, and all past
and present officers, directors, shareholders,
partners, employees, agents, representatives,
legatees, heirs, successors and assigns from any and
all rental adjustment obligations or reimbursement or
payment obligations to pay to JDN any further sums
which arise from, were incurred in connection with or
relate to on-site or off-site construction or
development costs as to the Lowe's Opelika, Alabama
project, which work was governed by that certain
Lease between Lowe's Home Centers and JDN Development
dated August 28, 1998.
(d) JDN hereby covenants and agrees to indemnify, defend
and hold harmless both Wal-Mart and Lowe's from and
against any and all damages, losses, liabilities,
penalties, fines, fees, costs or expenses (including
reasonable attorney's fees), suits, proceedings,
actions or claims arising from, in connection with or
resulting from this Agreement and/or the
Discrepancies, brought by or asserted by any third
party against Wal-Mart and/or Lowe's, including,
without limitation, any shareholders of JDN. In the
event any such suits, proceedings, actions or claims
are brought, Wal-Mart and/or Lowe's shall provide JDN
written notice of the same, and such reasonable
information then available concerning the same, in
order to provide JDN a reasonable opportunity to
resolve the matter prior to Wal-Mart and/or Lowe's
incurring substantial fees, costs, expenses or
liabilities in connection therewith. In connection
with the foregoing, each of Wal-Mart and Lowe's shall
have the right to approve any attorney representing
their respective interests, and in no event shall any
such attorney also represent the interests of JDN. In
order to be entitled to the indemnity provided for in
this paragraph, neither Wal-Mart nor Lowe's shall
settle or compromise any suits, proceedings, actions
or claims for which indemnification is being sought
without the prior written consent of either JDN
Development or JDN Realty, which shall not be
unreasonably withheld or delayed, which consent shall
be deemed granted in the event both of JDN
Development and JDN Realty fail to object by written
notice to Wal-Mart and/or Lowe's, as applicable,
within fifteen (15) days after written request for
such consent (any such written objection must set
forth in detail the reasonable grounds upon which
such objection is based). If either JDN Realty or JDN
Development does not grant its consent to any such
settlement (the Non-Consenting Party"), then the Non-
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Consenting Party shall be entitled to contest the
reasonableness of the settlement in connection with
any claim by Wal-Mart or Lowe's for indemnity from
the Non-Consenting Party; provided, however, in no
event shall failure to grant such consent relieve the
Non-Consenting Party of its indemnification
obligations under this Section 2(d)
3. Representations, Warranties, Acknowledgments and Covenants.
(a) JDN represents and warrants that it has attempted to
review expeditiously the Transactions for
Discrepancies and that it has generally described to
Wal-Mart and Lowe's the nature of the Discrepancies
ascertained by such review, but that the precise
nature and extent of the Discrepancies are currently
unknown, and may never be known, but are in excess of
Five Million Dollars ($5,000,000) as to each of
Lowe's and Wal-Mart.
(b) Wal-Mart and Lowe's acknowledge and agree that JDN
has generally described the nature of the
Discrepancies of which it is aware to the
representatives of each, but acknowledge that the
precise nature and extent of the Discrepancies are
currently unknown, and may never be known.
Notwithstanding the foregoing, the parties agree to
settle in full any and all disputes, whether now
existing or hereinafter arising from or related to
the Discrepancies solely on the terms set forth in
this Agreement.
(c) The parties acknowledge and agree that it would not
be beneficial or efficient to conduct a full scale,
comprehensive review in an attempt to identify with
particularity or quantify the Discrepancies, and
enter into this Agreement in settlement of a
potential dispute.
(d) Without limiting JDN's duties set forth in Section
4(e) hereof, the parties acknowledge and agree that
JDN is in no way obligated to further investigate or
report any further findings with respect to the
Discrepancies to Wal-Mart or Lowe's, or to at any
time or for any reason open or make available its
books and records to Wal-Mart or Lowe's for a further
investigation into the nature and extent of any
actual Discrepancies; provided, however, that from
and after the date of this Agreement, JDN shall
inform Wal-Mart and Lowe's, as applicable, of any
further material (either qualitative or quantitative)
information or evidence discovered by JDN with
respect to the Discrepancies. Nothing in this
paragraph shall be construed to affect or limit
Wal-Mart and Lowe's right to take actions necessary
to fulfill discovery requests that may be served on
Wal-Mart or Lowe's in connection with litigation with
third parties or conduct discovery in the context of
any litigation
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between any of the parties hereto brought as a result
of a breach or default under this Agreement.
(e) JDN hereby represents and warrants that both JDN
Development and JDN Realty have the authority and
power to enter into this Agreement and to consummate
the transactions contemplated herein; that specific
corporate resolutions of the Boards of Directors from
JDN Development and JDn Realty authorizing this
Agreement shall be submitted to Wal-Mart and Lowe's
upon the execution of this Agreement by all parties,
and that upon execution hereof both JDN Development
and JDN Realty will be legally obligated to Wal-Mart
and Lowe's in accordance with the terms and
provisions of this Agreement.
(f) Wal-Mart hereby represents and warrants that both
Wal-Mart Stores and Wal-Mart Trust have the authority
and power to enter into this Agreement and to
consummate the transactions contemplated herein; and
that upon execution hereof both Wal-Mart Stores and
Wal-Mart Trust will be legally obligated to JDN in
accordance with the terms and provisions of this
Agreement.
(g) Lowe's hereby represents and warrants that Lowe's has
the authority and power to enter into this Agreement
and to consummate the transactions contemplated
herein; and that upon execution hereof Lowe's will be
legally obligated to JDN in accordance with the terms
and provisions of this Agreement.
(h) Except as expressly set forth in this Agreement,
nothing contained herein shall be construed as
amending, modifying, supplementing or otherwise
altering in any manner the Existing Leases,
Purchases, Other Transactions or Pending
Transactions.
4. Covenants and Conditions.
(a) In consideration of Wal-Mart's agreements as set
forth herein, JDN shall pay Wal-Mart the sum of
$5,000,000,which payment shall be made (i) upon the
date the funding of the Approved Wal-Mart Sale shall
occur, or (ii) within ten (10) days of the date of
this Agreement, whichever occurs earlier. Failure to
make such payment as and when required under this
Section 4(a) shall constitute a material default by
JDN under this Agreement.
(b) In consideration of Lowe's agreements as set forth
herein, JDN shall pay Lowe's the sum of $5,000,000,
which payment shall be made (i) upon the date the
funding of the Approved Wal-Mart Sale shall occur, or
(ii) within ten (10) days of the date of this
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<PAGE> 8
Agreement, whichever occurs earlier. Failure to make
such payment as and when required under this Section
4(b) shall constitute a material default by JDN under
this Agreement.
(c) Notwithstanding the Discrepancies, Wal-Mart and JDN
and Lowe's and JDN agree to continue the process of
negotiation and documentation with respect to the
Proposed Transactions; however, nothing herein shall
be construed as (i) creating any agreement or
contract between Wal-Mart and JDN or Lowe's and JDN
with respect to any of the Proposed Transactions;
(ii) imposing any obligation on the part of either
Wal-Mart or Lowe's to continue to discuss, enter into
agreements or consummate any transaction with JDN
with respect to any of the Proposed Transactions; or
(iii) creating by this Agreement any duty of good
faith, fair dealing or other duty with respect to
either Wal-Mart's or Lowe's dealings with JDN in
connection with any of the Proposed Transactions. The
parties hereto acknowledge and agree that no
agreement shall exist between Wal-Mart and JDN or
Lowe's and JDN with respect to any Proposed
Transaction unless Wal-Mart and JDN or Lowe's and
JDN, as the case may be, shall successfully
negotiate, reach agreement and execute a definitive
written agreement concerning the same.
(d) In the event that JDN (whether prior to, concurrent
with or subsequent to the date of this Agreement)
recovers any sums or other property from one or more
of the Excluded Parties or former attorneys related
to or based on allegations of wrongdoing by the
Excluded Parties involving acts or omissions prior to
the date of this Agreement, including but not limited
to the Discrepancies ("Wrongful Acts") or who remit
funds or other property to either JDN Realty or JDN
Development related to the Wrongful Acts, or if
either JDN Realty or JDN Development otherwise
recovers sums or other property relating to the
Wrongful Acts from bonds, insurance or other sources,
JDN shall pay each Wal-Mart and Lowe's one-quarter of
the amount of any such recovery promptly upon JDN's
receipt thereof, net of one-quarter of all actual
attorneys' fees, costs and disbursements directly
related to such recovery and one-quarter of other
expenses actually incurred and directly related to
obtaining and collecting such recovery; provided,
however, in no event shall any fees, costs,
disbursements and other expenses expended, accrued or
otherwise relating to services performed prior to the
date hereof, or any fees, costs, disbursements and
other expenses related to the settlement agreements
referred to in the next to last sentence of this
Section 4(d), be included for the purpose of
determining the amounts payable to Wal-Mart and
Lowe's pursuant to this Section 4(d).
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The parties hereto acknowledge and agree that neither
Wal-Mart nor Lowe's shall be entitled to recover any
portion of the proceeds received by JDN (i) from its
D&O insurance carrier or any other party or entity
for purposes of JDN making any payment over to or
held for the benefit of any third parties (including
shareholders) in full or partial settlement or
satisfaction of any securities claims against JDN or
its existing officers and directors (including any
legal fees and expenses reimbursed to JDN by its D&O
carrier) and which are in fact paid over to third
parties, and (ii) in connection with the proposed
settlement agreements on the compensation-related
claims with J. Donald Nichols, Jeb L. Hughes, C.
Sheldon Whittelsey, IV and ALA Associates, Inc.,
provided such settlements are substantially in the
form and amounts provided to Wal-Mart and Lowe's
prior to the execution of this Agreement, and
provided such agreements shall not relieve said
parties from any liability with respect to the
Discrepancies. Any default by JDN under the
provisions of this Section 4(d) shall constitute a
material default by JDN under this Agreement.
(e) JDN shall provide reasonable cooperation with all
governmental agencies, including the Securities and
Exchange Commission, Internal Revenue Service and the
Justice Department in connection with participation
by former officers or directors of JDN Realty or JDN
Development in the Discrepancies; provided that
nothing contained herein shall require JDN to waive
any applicable privileges.
(f) This Agreement is contingent upon JDN receiving an
extension of its current credit facility or otherwise
obtaining a credit facility ("Credit Facility") on
terms acceptable to JDN and sufficient, in the
reasonable opinion of Wal-Mart and Lowe's, to allow
JDN to undertake the Pending Transactions and the
Proposed Transactions in accordance with this
Agreement. In the event that such a Credit Facility
is not obtained on or prior to May 26, 2000, this
Agreement shall be null and void and the parties
shall be released from any and all liabilities,
duties and obligations hereunder.
5. Definitions.
(a) The term "Affiliate" as used herein shall mean (i)
any person or entity of which the subject party owns,
directly or indirectly, more than ten percent (10%)
of the issued and outstanding voting stock or in
which the subject party owns, directly or indirectly,
more than a ten percent (10%) interest, (ii) any
person or entity Controlled, directly or indirectly,
through one or more intermediaries, by the subject
party, (iii) any person or entity Controlling the
subject party, directly or indirectly, through one or
more intermediaries, and (iv) any person or entity
Controlled by a person or entity Controlling the
subject party, directly or indirectly, through one or
more intermediaries.
-9-
<PAGE> 10
(b) "Control shall mean the direct or indirect possession
of the power to direct or cause the direction of the
management or policies of an entity, whether through
the ownership of voting securities, by contract or
otherwise.
6. Miscellaneous.
(a) Each party hereto has reviewed and had the
opportunity to revise this Agreement and each party
has had the opportunity, whether exercised or not, to
have its attorneys review this Agreement.
(b) This Agreement shall be governed by and construed in
accordance with the internal laws of the state of
Georgia, without regard to principals of conflicts of
law, and any dispute between the parties arising
under this Agreement shall be litigated solely in the
state or federal courts in Georgia.
(c) This Agreement may be executed in one or more
counterparts, by facsimile or otherwise, each of
which shall be deemed an original and all of which
together shall constitute one and the same
instrument.
(d) If any one or more of the provisions contained in
this Agreement shall for any reason be held invalid,
illegal or unenforceable for any reason, such
invalidity, illegality or unenforceability shall not
affect any other provisions of this Agreement but
shall be construed as if such invalid, illegal or
unenforceable provision had never been contained
herein. If any provision of this Agreement were
capable of two constructions, one of which would
render the provision void, voidable or unenforceable
and the other of, which would render the provision
valid, then the provision shall have the meaning that
renders it valid.
(e) This Agreement sets forth the final and entire
agreement between the parties hereto, and fully
supersedes any and all prior agreements or
understandings between the parties pertaining to this
subject matter.
(f) The obligations of JDN Development and JDN Realty
hereunder shall be joint and several.
(g) Any notices, demands, requests or other
communications required or permitted to be given
hereunder shall be in writing and shall be delivered
by hand or a widely recognized national overnight
courier service or mailed by United States registered
or certified
-10-
<PAGE> 11
mail, return receipt requested, postage prepaid and
addressed to each party at its address as set forth
below:
To JDN: JDN Development Company, Inc.
359 East Paces Ferry Road
Suite 450
Atlanta, Georgia 30305
Attention: Chief Executive Officer
To Wal-Mart: Wal-Mart Stores, Inc.
2001 Southeast 10th Street
Bentonville, Arkansas 72712
Attention: Paul Carter
To Lowe's: Lowe's Home Centers, Inc.
P.O. Box 1111
(Highway 268 East, North Wilkesboro,
North Carolina 28659)
N. Wilkesboro, North Carolina 28656
Attention: Law Dept. (REO)
Any such notice, request or other communication shall
be considered given or delivered, as the case may be,
on the date of hand or overnight courier delivery or
upon deposit in the United States mail as provided
above. Rejection or other refusal to accept or
inability to deliver because of changed address of
which no notice was given shall be deemed to be
receipt of the notice, request or other
communication. By giving at least five (5) days prior
written notice thereof, any party may from time to
time at any time change its mailing address
hereunder.
(f) This Agreement shall be binding upon, and shall inure
to the benefit of, the parties hereto and their
respective successors and assigns.
-11-
<PAGE> 12
IN WITNESS WHEREOF, the parties have executed this Agreement under seal
by their duly authorized officers as of the date first above written.
JDN REALTY CORPORATION
ATTEST:
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
JDN DEVELOPMENT COMPANY, INC.
ATTEST:
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
WAL-MART STORES, INC.
ATTEST:
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
WAL-MART REAL ESTATE BUSINESS TRUST
ATTEST:
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
LOWE'S COMPANIES, INC.
ATTEST:
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
-12-
<PAGE> 13
LOWE'S HOME STORES, INC.
ATTEST:
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
-13-
<PAGE> 14
EXHIBIT A-1
EXISTING WAL-MART LEASES(1)
<TABLE>
<CAPTION>
YEAR
COMPLETED
---------
<S> <C> <C> <C>
1 BUFORD, GA MILL CREEK CROSSING WAL-MART 1998
2 CANTON, GA RIVER POINTE WAL-MART 1996
3 CHARLESTON, SC ASHLEY CROSSING WAL-MART 1991
4 CUMMING, GA CUMMING MARKETPLACE WAL-MART 1997
5 DECATUR, AL EAST SIDE PLAZA WAL-MART 1980
6 HENDERSONVILLE, NC EASTRIDGE CROSSING WAL-MART 1988
7 LAGRANGE, GA (WAL-MART ONLY) WAL-MART 1984
8 LAKE CITY, SC KELLEY CORNERS WAL-MART 1991
9 LAWRENCEVILLE, GA TOWN CENTER WAL-MART 1989
10 LEXINGTON, VA LEXINGTON COMMONS WAL-MART 1989
11 MADISON, GA BEACON HEIGHTS WAL-MART 1989
12 NASHVILLE, TN CHARLOTTE PIKE WAL-MART 1998
13 NEWNAN, GA NEWNAN CROSSING WAL-MART 1995
14 OCALA, FL OCALA WEST SHOPPING CENTER WAL-MART 1989
15 OPELIKA, AL PEPPERELL CORNERS WAL-MART 1993
16 ROCKINGHAM, NC PINERIDGE CROSSING WAL-MART 1986
17 SOUTH BOSTON, VA TRI-RIVERS PLAZA WAL-MART 1989
18 WILMINGTON, NC MYRTLE GROVE WAL-MART 1990
19 WOODSTOCK, GA WOODSTOCK PLACE WAL-MART 1995
</TABLE>
* Include all existing Wal-Mart leases, including executed leases for projects
under development.
A-1
<PAGE> 15
EXHIBIT A-2
EXISTING LOWE'S LEASES(2)
<TABLE>
<CAPTION>
YEAR
COMPLETED
---------
<S> <C> <C> <C>
1 ALPHARETTA, GA LOWE'S 1998
2 BUFORD, GA MILL CREEK CROSSING LOWE'S 1998
3 BURLINGTON, OH TRI-STATE PLAZA LOWE'S 1995
4 CUMMING, GA CUMMING MARKETPLACE LOWE'S 1999
5 HAMPTON, VA LOWE'S
6 HENDERSONVILLE, TN LOWE'S 1999
7 LILBURN, GA PLEASANT HILL LOWE'S 1997
8 MARIETTA, GA GARRISON RIDGE LOWE'S 1997
9 MONACA, PA TOWNSHIP MARKETPLACE LOWE'S 1997
10 NASHVILLE, TN - CH. PK CHARLOTTE PIKE LOWE'S 1998
11 NEWNAN, GA NEWNAN CROSSING LOWE'S 1995
12 OPELIKA, AL LOWE'S 1999
13 ROCKINGHAM, NC PINERIDGE CROSSING LOWE'S 1992
14 STONE MOUNTAIN, GA LOWE'S 1998
15 TALLAHASSEE, FL CAPITAL WEST LOWE'S 1990
16 WARNER ROBINS, GA WARNER ROBINS PLACE LOWE'S 1997
17 WOODSTOCK, GA LOWE'S 1997
</TABLE>
A-2
<PAGE> 16
EXHIBIT B-1
WAL-MART PURCHASES
<TABLE>
<CAPTION>
YEAR
COMPLETED
---------
<S> <C> <C> <C>
1 ALBANY, GA SAM'S 1993
2 AMERICUS, GA WAL-MART 1983
3 ATHENS, GA WAL-MART 1980
4 ATHENS, GA ATHENS EAST WAL-MART 2000
5 ATLANTA, GA WAL-MART (JOHNSON FERRY RD) 1992
6 ATLANTA, GA SAM'S 1992
7 AUSTELL, GA HERITAGE HILLS WAL-MART
8 BAINBRIDGE, GA WAL-MART
9 BREMEN, GA WAL-MART
10 BROWNSVILLE, TX STRAWBERRY SQUARE WAL-MART 1986
11 BRUNSWICK, GA WAL-MART 1985
12 BURLINGTON, OH TRI-STATE PLAZA WAL-MART/SAM'S 1989
13 BURLINGTON, OH WAL-MART 1995
14 CAIRO, GA CAIRO CROSSING WAL-MART
15 CALHOUN, GA INDIAN HILLS WAL-MART
16 CANTON, GA RIVERPLACE WAL-MART 1984
17 CARTERSVILLE, GA FELTON'S CROSSING WAL-MART 1984
18 CARTERSVILLE, GA BARTOW MARKETPLACE WAL-MART 1995
19 CHARLESTON, SC ASHLEY CROSSING WAL-MART 1991
20 CHERAW, SC CHESTERFIELD COMMONS WAL-MART 1990
21 CIRCLEVILLE, OH PICKAWAY CROSSING WAL-MART
22 CONYERS, GA CONYERS PLAZA WAL-MART 1996
23 CORDELE, GA WAL-MART 1986
24 CORDELE, GA CORDELE MARKETPLACE WAL-MART 1997
25 COVINGTON, GA MARTIN'S CROSSING WAL-MART 1990
26 CUMMING, GA WAL-MART 1983
27 CUMMING, GA CUMMING MARKETPLACE WAL-MART 1997
28 DECATUR, GA WESLEY CHAPEL CROSSING WAL-MART
29 DECATUR, IL DECATUR MARKETPLACE WAL-MART 1999
30 DILLON, SC WAL-MART 1984
31 DOUGLASVILLE, GA WAL-MART 1982
32 DOUGLASVILLE, GA DOUGLAS CROSSING WAL-MART 1990
33 DUBLIN, GA WAL-MART
34 EASTMAN, GA DODGE COUNTY MARKETPLACE WAL-MART 1986
35 EDINBURG, TX WAL-MART 1981
36 FAYETTEVILLE, GA WAL-MART 1982
37 FITZGERLAD, GA WAL-MART 1983
38 FLORENCE, SC WAL-MART 1989
39 FORT WALTON, FL WHITE SANDS WAL-MART 1985
40 FRANKLIN, TN ALEXANDER PLAZA WALMART 1979
41 FRANKLIN, TN SAM'S 1999
42 GADSDEN, AL EASTSIDE PLAZA WAL-MART 1980
43 GAINESVILLE, GA WAL-MART 1984
44 GALLIPOLIS, OH GALLIPOLIS MARKETPLACE WAL-MART 1997
45 GRIFFIN, GA ELLIS CROSSING WAL-MART 1985
46 GULF BREEZE, FL GULF BREEZE MARKETPLACE WAL-MART 1998
47 HARLENGIN, TX WAL-MART
48 HARTSVILLE, GA WAL-MART 1987
49 HARTWELL, GA WAL-MART 1987
50 HAZELHURST, GA WAL-MART 1986
51 HICKORY, NC HICKORY CORNERS WAL-MART
52 IRVING, TX MACARTHUR MARKETPLACE WAL-MART 1999
53 IRVING, TX MACARTHUR MARKETPLACE SAM'S 1999
54 KENNESAW, GA WADE GREEN CROSSING WAL-MART
55 LAFAYETTE, IN WAL-MART 1999
56 LANSING, MI WAL-MART 1999
57 LEEDS, AL WAL-MART
58 LENOIR CITY, TN TELLICO PLAZA WAL-MART
59 LEXINGTON, KY SOUTH FARM WAL-MART 1998
60 LEXINGTON, KY NORTH PARK WAL-MART 1999
61 LUMBERTON, NC WAL-MART
62 MARION, VA SMYTH VALLEY CROSSING WAL-MART 1989
63 MCALLEN, TX WAL-MART 1981
64 MELBOURNE, FL WAL-MART 1990
65 MILWAUKEE, WI SOUTHGATE WAL-MART
66 MISSION TX WAL-MART 1981
67 MONCK, SC MONCK'S CORNER WAL-MART 1988
68 MONROE, GA WAL-MART 1983
69 MORROW, GA WAL-MART 1986
70 MOULTRIE, GA WAL-MART 1986
71 OPELIKA, AL PEPPERELL CORNERS WAL-MART 1981
72 OVERLAND PARK, KS SAM'S 2000
73 PARKER, CO WAL-MART
74 PHARR, TX WAL-MART 1982
75 POOLER, GA WAL-MART 2000
76 RIVERDALE, GA MERCHANT'S SQUARE WAL-MART 1986
77 RIVERDALE, GA WAL-MART
78 ROME, GA WAL-MART/SAM'S 1993
79 SCOTTSBORO, AL SCOTTSBORO MARKETPLACE WAL-MART 1999
80 SNELLVILLE, GA SNELLVILLE OAKS WAL-MART
81 STAUNTON, VA STATLER CROSSING WAL-MART
82 STOCKBRIDGE, GA MAYS CROSSING WAL-MART
83 SUMTER, SC MERCHANT'S WALK WAL-MART 1985
84 SWAINSBORO, GA WAL-MART 1986
85 TALLAHASSEE, FL CAPITAL WEST WAL-MART 1989
86 THOMASVILLE, GA WAL-MART
87 TIFTON, GA TIFTON CORNERS WAL-MART 1986
88 TUCKER, GA COFER CROSSING WAL-MART 1998
89 UNION CITY, GA SHANNON SQUARE WAL-MART 1986
90 VALDOSTA, GA WAL-MART 1981
91 VAN WERT, OH WAL-MART
92 VIDALIA, GA WAL-MART 1985
93 WALLACE, NC WALLACE CROSSING WAL-MART
94 WARNER ROBINS WARNER ROBINS PLACE WAL-MART
95 WAVELAND, MS WAL-MART 1986
96 WAYNESBORO, GA WAL-MART
97 WINSTON-SALEM KESTER MILL VILLAGE WAL-MART 1997
98 WOODSTOCK, GA WOODSTOCK PLACE WAL-MART 1984
</TABLE>
<PAGE> 17
EXHIBIT B-2
LOWE'S PURCHASES
<TABLE>
<CAPTION>
YEAR
COMPLETED
---------
<S> <C> <C> <C>
1 ASHEVILLE, NC PATTON AVENUE LOWE'S 1999
3 BRANDON, FL BRANDON LAKE VILLAGE LOWE'S 1997
4 CARTERSVILLE, GA BARTOW MARKETPLACE LOWE'S 1995
5 CONYERS, GA LOWE'S
6 DOUGLASVILLE, GA DOUGLASVILLE MARKETPLACE LOWE'S 1999
7 FAYETTEVILLE, GA LOWE'S 2000
8 FRANKLIN, TN LOWE'S 1998
9 GULF BREEZE, FL GULF BREEZE MARKETPLACCE LOWE'S
10 JOHNSON CITY, TN LOWE'S 1999
11 LAKELAND, FL LOWE'S 1999
12 LANSING, MI LOWE'S
13 LEXINGTON, KY SOUTH FARM LOWE'S 1998
14 LUMBERTON, NC LOWE'S 1999
15 MURFREESBORO, TN TOWN CENTRE LOWE'S 1998
16 OPELIKA, AL PEPPERELL CORNERS LOWE'S 1992
17 RICHMOND, KY LOWE'S 1992
18 SOUTH FLORENCE, SC LOWE'S 2000
19 STEUBENVILLE, OH LOWE'S 1996
</TABLE>
B-2
<PAGE> 18
EXHIBIT C-1
PENDING WAL-MART TRANSACTIONS(3)
1 LEXINGTON, KY (SOUTHFARM)
2 LEXINGTON, KY (NORTHPARK)
3 SCOTTSBORO, AL
4 POOLER, GA
5 ATHENS, GA
6 WARNER ROBINS, GA
7 IRVING, TX - WAL-MART
8 IRVING, TX - SAM'S
9 LANSING, MI
10 OVERLAND PARK, KS
11 LAFAYETTE, IN
12 MILWAUKEE, WI
* Include all signed Wal-Mart agreements other than leases, including agreements
for projects under development.
C-1
<PAGE> 19
EXHIBIT C-2
PENDING LOWE'S TRANSACTIONS(4)
1 GULF BREEZE, FL
2 CONYERS, GA
3 CHAMBLEE, GA
4 HAMPTON, VA
5 W. LANSING, MI
6 NORCROSS, GA
C-2
<PAGE> 1
$175,000,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
May 19, 2000
among
JDN REALTY CORPORATION
The Banks Listed Herein
and
WACHOVIA BANK, N.A.,
as Agent
<PAGE> 2
TABLE OF CONTENTS
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
<TABLE>
<S> <C>
ARTICLE I DEFINITIONS............................................................................................. 1
Section 1.01 Definitions............................................................................ 1
Section 1.02 Accounting Terms and Determinations................................................... 16
Section 1.03 References............................................................................ 16
Section 1.04 Use of Defined Terms.................................................................. 16
Section 1.05 Terminology........................................................................... 16
ARTICLE II THE CREDITS........................................................................................... 16
Section 2.01 Commitments to Lend................................................................... 16
Section 2.02 Method of Borrowing Loans............................................................. 17
Section 2.03 Notes................................................................................. 19
Section 2.04 Maturity of Loans..................................................................... 19
Section 2.05 Interest.............................................................................. 19
Section 2.06 Fees.................................................................................. 21
Section 2.07 Optional Termination or Reduction of Commitments...................................... 21
Section 2.08 Mandatory Reduction and Termination of Commitments.................................... 21
Section 2.09 Optional Prepayments.................................................................. 21
Section 2.10 Mandatory Prepayments................................................................. 22
Section 2.11 General Provisions as to Payments..................................................... 22
Section 2.12 Computation of Interest and Fees...................................................... 23
ARTICLE III CONDITIONS TO CLOSING AND BORROWINGS................................................................. 23
Section 3.01 Conditions to Closing and Initial New Advances........................................ 23
Section 3.02 Conditions to All Borrowings.......................................................... 25
ARTICLE IV REPRESENTATIONS AND WARRANTIES........................................................................ 26
Section 4.01 Corporate Existence and Power......................................................... 26
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
Section 4.02 Corporate and Governmental Authorization; No Contravention............................ 26
Section 4.03 Binding Effect........................................................................ 26
Section 4.04 Financial Information................................................................. 26
Section 4.05 No Litigation......................................................................... 27
Section 4.06 Compliance with ERISA................................................................. 27
Section 4.07 Compliance with Laws; Payment of Taxes................................................ 27
Section 4.08 Guarantors and Subsidiaries........................................................... 27
Section 4.09 Investment Company Act................................................................ 27
Section 4.10 Public Utility Holding Company Act.................................................... 27
Section 4.11 Ownership of Property................................................................. 28
Section 4.12 No Default............................................................................ 28
Section 4.13 Full Disclosure....................................................................... 28
Section 4.14 Environmental Matters................................................................. 28
Section 4.15 Capital Stock......................................................................... 28
Section 4.16 Margin Stock.......................................................................... 29
Section 4.17 Insolvency............................................................................ 29
Section 4.18 Insurance............................................................................. 29
Section 4.19 Real Estate Investment Trust.......................................................... 29
ARTICLE V COVENANTS.............................................................................................. 29
Section 5.01 Information........................................................................... 29
Section 5.02 Inspection of Property, Books and Records............................................. 31
Section 5.03 Maintenance of Existence.............................................................. 31
Section 5.04 Dissolution........................................................................... 31
Section 5.05 Consolidations, Mergers and Sales of Assets........................................... 31
Section 5.06 Use of Proceeds....................................................................... 32
Section 5.07 Compliance with Laws; Payment of Taxes................................................ 33
Section 5.08 Insurance............................................................................. 33
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
Section 5.09 Change in Fiscal Year................................................................. 33
Section 5.10 Maintenance of Property............................................................... 33
Section 5.11 Environmental Notices................................................................. 33
Section 5.12 Environmental Matters................................................................. 33
Section 5.13 Environmental Release................................................................. 33
Section 5.14 Transactions with Affiliates.......................................................... 33
Section 5.15 Restricted Payments and Debt Repurchases.............................................. 34
Section 5.16 Loans or Advances..................................................................... 34
Section 5.17 Investments........................................................................... 34
Section 5.18 Restrictions on Ability of Guarantors to Pay Dividends................................ 35
Section 5.19 Ratio of Total Consolidated Liabilities to Gross Asset Value.......................... 35
Section 5.20 Ratio of Total Secured Debt to Gross Asset Value...................................... 35
Section 5.21 Ratio of EBITDA to Consolidated Interest Expense...................................... 35
Section 5.22 Guarantees............................................................................ 35
Section 5.23 Ownership............................................................................. 35
Section 5.24 Status as a REIT...................................................................... 36
Section 5.25 Guaranty by the Initial Guarantors; New Subsidiaries to Become Guarantors............. 36
Section 5.26 Ratio of EBITDA to Consolidated Fixed Charges......................................... 36
Section 5.27 Collateral............................................................................ 36
Section 5.28 Financial Adviser..................................................................... 38
Section 5.29 Identification of Sources; Projection of Sources and Uses of Funds.................... 38
ARTICLE VI DEFAULTS.............................................................................................. 38
Section 6.01 Events of Default..................................................................... 38
Section 6.02 Notice of Default..................................................................... 40
ARTICLE VII THE AGENT............................................................................................ 41
Section 7.01 Appointment; Powers and Immunities.................................................... 41
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C>
Section 7.02 Reliance by Agent..................................................................... 42
Section 7.03 Defaults.............................................................................. 42
Section 7.04 Rights of Agent and its Affiliates as a Bank.......................................... 42
Section 7.05 Indemnification....................................................................... 42
Section 7.06 Consequential Damages................................................................. 43
Section 7.07 Payee of Note Treated as Owner........................................................ 43
Section 7.08 Nonreliance on Agent and Other Banks.................................................. 43
Section 7.09 Failure to Act........................................................................ 43
Section 7.10 Resignation or Removal of Agent....................................................... 43
ARTICLE VIII CHANGE IN CIRCUMSTANCES; COMPENSATION............................................................... 44
Section 8.01 Basis for Determining Interest Rate Inadequate or Unfair.............................. 44
Section 8.02 Illegality............................................................................ 44
Section 8.03 Increased Cost and Reduced Return..................................................... 44
Section 8.04 Base Rate Loans Substituted for Euro-Dollar Loans..................................... 45
Section 8.05 Compensation.......................................................................... 46
ARTICLE IX MISCELLANEOUS......................................................................................... 46
Section 9.01 Notices............................................................................... 46
Section 9.02 No Waivers............................................................................ 46
Section 9.03 Expenses; Documentary Taxes........................................................... 46
Section 9.04 Indemnification....................................................................... 47
Section 9.05 Setoff; Sharing of Setoffs............................................................ 47
Section 9.06 Amendments and Waivers................................................................ 48
Section 9.07 No Margin Stock Collateral............................................................ 48
Section 9.08 Successors and Assigns................................................................ 48
Section 9.09 Confidentiality....................................................................... 50
Section 9.10 Representation by Banks............................................................... 50
Section 9.11 Obligations Several................................................................... 50
</TABLE>
iv
<PAGE> 6
<TABLE>
<S> <C>
Section 9.12 Georgia Law........................................................................... 50
Section 9.13 Severability.......................................................................... 50
Section 9.14 Interest.............................................................................. 50
Section 9.15 Interpretation........................................................................ 50
Section 9.16 Waiver of Jury Trial; Consent to Jurisdiction......................................... 50
Section 9.17 Counterparts.......................................................................... 50
Section 9.18 Source of Funds--ERISA................................................................ 50
</TABLE>
<TABLE>
<S> <C>
EXHIBIT A-1 Form of Syndicated Loan Note
EXHIBIT A-2 Form of Swing Loan Note
EXHIBIT B Form of Opinion of Counsel for the Borrower and Initial Guarantors
EXHIBIT C Form of Opinion of Special Counsel for the Agent
EXHIBIT D Form of Assignment and Acceptance
EXHIBIT E Form of Notice of Borrowing
EXHIBIT F Form of Compliance Certificate
EXHIBIT G Form of Closing Certificate
EXHIBIT H Form of Officer's Certificate for Borrower
EXHIBIT I Form of Borrowing Base Certificate
EXHIBIT J List of Borrowing Base Properties (including Initial Borrowing Properties)
EXHIBIT K Form of Guaranty
EXHIBIT L Form of Contribution Agreement
EXHIBIT M Form of Mortgage
EXHIBIT N Form of Assignment of Leases and Rents
EXHIBIT O Form of Financing Statement Attachment
EXHIBIT P Form of Hazardous Materials Indemnification Agreement
Schedule 4.08 Subsidiaries
</TABLE>
v
<PAGE> 7
<TABLE>
<S> <C>
Schedule 4.14 Environmental Matters
Schedule 5.16 Existing Loans and Advances
Schedule 5.17 Existing Investments
Schedule 5.22 Existing Guarantees
</TABLE>
vi
<PAGE> 8
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of May
19, 2000 among JDN Realty Corporation, the BANKS listed on the signature pages
hereof and WACHOVIA BANK, N.A. (as successor in interest to Wachovia of
Georgia, N.A.), as Agent.
WHEREAS, the Borrower, the Banks and the Agent are party to
that certain Credit Agreement by and between the Borrower, the Banks and the
Agent dated as of September 2, 1998, as amended by First Amendment to Credit
Agreement dated as of June 18, 1999 (the "Existing Credit Agreement") and
desire to amend and restate the Existing Credit Agreement, including, among
other things, (i) amendments to provide for a reduction of the Commitments to
an aggregate total of $175,000,000, to add provisions for Swing Loans, to
delete the provisions for Money Market Loans, to change the provisions for
determining the Applicable Margin, to add additional conditions to Borrowings
and to provide for Collateral, and (ii) to waive certain Events of Default
under the Existing Agreement;
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. The terms as defined in this Section 1.01
shall, for all purposes of this Agreement and any amendment hereto (except as
herein otherwise expressly provided or unless the context otherwise requires),
have the meanings set forth herein:
"Adjusted London Interbank Offered Rate" has the meaning set
forth in Section 2.05(c).
"Affiliate" of any relevant Person means (i) any Person that
directly, or indirectly through one or more intermediaries, controls the
relevant Person (a "Controlling Person"), (ii) any Person (other than the
relevant Person or a Subsidiary of the relevant Person) which is controlled by
or is under common control with a Controlling Person, or (iii) any Person
(other than a Subsidiary of the relevant Person) of which the relevant Person
owns, directly or indirectly, 20% or more of the common stock or equivalent
equity interests. As used herein, the term "control" means possession, directly
or indirectly, of the power to direct or cause the direction of the management
or policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Agent" means Wachovia Bank, N.A., a national banking
association organized under the laws of the United States of America, in its
capacity as agent for the Banks hereunder and in its capacity as the Collateral
Agent, and its successors and permitted assigns in such capacities.
"Agreement" means this Second Amended and Restated Credit
Agreement, together with all amendments and supplements hereto.
"Anchor Tenants" means Wal-Mart Stores, Inc. and Lowe's
Companies, Inc. and their respective Affiliates.
"Anchor Tenant Agreements" means, with respect to each Anchor
Tenant, all Leases, purchase agreements or letters of intent to acquire
property between the Borrower and such Anchor Tenant.
"Anchor Tenant Settlement Agreement" means a settlement
agreement, in form and substance as furnished to the Agent and the Banks prior
to the Closing Date, between the Borrower, the
<PAGE> 9
Anchor Tenants and Wal-Mart Real Estate Business Trust, among other things
providing for an Anchor Tenant Settlement Payment in an aggregate amount not
exceeding $10,000,000.
"Anchor Tenant Settlement Payment" means a cash payment
payable to the Anchor Tenants pursuant to and at the closing of the Anchor
Tenant Settlement Agreement.
"Applicable Margin" has the meaning set forth in Section
2.05(a).
"Arranger" means Wachovia Securities, Inc.
"Arranger's Letter Agreement" means that certain letter
agreement, dated as of April 28, 2000, among the Borrower, the Arranger and the
Agent relating to the structure of the Loans, and certain fees from time to
time payable by the Borrower to the Agent, together with all amendments and
supplements thereto.
"Assignee" has the meaning set forth in Section 9.08(c).
"Assignment and Acceptance" means an Assignment and
Acceptance executed in accordance with Section 9.08(c) in the form attached
hereto as Exhibit D.
"Assignment of Rents and Leases" means, for each Borrowing
Base Property, an Assignment of Rents and Leases, signed by the Borrower or a
Guarantor, as applicable, granting and conveying the Agent, for the ratable
benefit of the Banks, a first priority assignment of leases and rents with
respect to such Borrowing Base Property to secure the Secured Obligations,
subject only to Permitted Encumbrances, the form of which for use in the State
of Georgia being attached hereto as Exhibit N, with such form being modified as
appropriate for any other state in which the relevant Borrowing Base Property
is located, as amended or supplemented from time to time.
"Authority" has the meaning set forth in Section 8.02.
"Bank" means each bank listed on the signature pages hereof
as having a Commitment, and its successors and assigns.
"Base Rate" means for any Base Rate Loan for any day, the
rate per annum equal to the higher as of such day of (i) the Prime Rate, or
(ii) one-half of one percent above the Federal Funds Rate. For purposes of
determining the Base Rate for any day, changes in the Prime Rate or the Federal
Funds Rate shall be effective on the date of each such change.
"Base Rate Borrowing" means a Borrowing consisting of Base
Rate Loans.
"Base Rate Loan" means a Loan which bears or is to bear
interest at a rate based upon the Base Rate, and is to be made as a Base Rate
Loan pursuant to the applicable Notice of Borrowing, Section 2.02(f), or
Article VIII, as applicable.
"Base Rent" means, with respect to any Lease, minimum
periodic contractual rent payable thereunder, excluding reimbursement or
recovery of common area maintenance or other property operating expenses and
excluding percentage rent.
"Borrower" means JDN Realty Corporation, a Maryland
corporation, and its successors and its permitted assigns.
"Borrowing" means a borrowing hereunder consisting of Loans
made to the Borrower (i) at the same time by all of the Banks in the case of a
Syndicated Borrowing, which may be a Base Rate
2
<PAGE> 10
Borrowing or a Euro-Dollar Borrowing or (ii) Swing Loans made to the Borrower
by Wachovia, in each case pursuant to Article II. A Borrowing is a "Syndicated
Borrowing" if such Loans are made pursuant to Section 2.01(a) or a "Swing Loan
Borrowing" if such Loans are made pursuant to Section 2.01(b).
"Borrowing Base" means the sum for all Borrowing Base
Properties of the following amounts determined for each Borrowing Base
Property, as determined by reference to the most recent Borrowing Base
Certificate furnished pursuant to Section 3.01 or Section 5.01(i), as
applicable, such amount being equal to the product of (x) the Net Operating
Income for the 3 month period ending on the last day of the Fiscal Quarter just
ended prior to the date of determination, times (y) 4 (which is the
annualization factor), divided by 0.10 (which is the capitalization rate),
times (z) 0.60 (which is the advance rate).
"Borrowing Base Certificate" means a certificate
substantially in the form of Exhibit I, duly executed by an authorized officer,
setting forth in reasonable detail the calculations for each component of the
Borrowing Base.
"Borrowing Base Property" means any retail Property which is:
(i) subject to Security Documents which (other than the Hazardous Materials
Indemnity Agreement) have been filed of record in the applicable recording
office, with all filing and recording costs and taxes paid; (ii) not subject to
an Other Mortgage; (iii) at least 80% leased (pursuant to written Leases which
have been signed by both landlord and tenant and under which the payment of
Base Rent has commenced); (iv) at least 80% (or 68%, as to the Property shown
on Exhibit J as no. 175, Pepperell Corners, located in Opelika, Alabama)
occupied by tenants which have accepted the premises and signed (together with
the landlord) a Lease, and with respect to which the date for the commencement
of payment of Base Rent has been established; and (v) either (a) listed on
Exhibit J on the Closing Date or (b) has been approved as a Borrowing Base
Property by the Required Banks, at the request of the Borrower, taking into
account the following information concerning the Property provided to the Agent
and the Banks by the Borrower: a physical description, applicable environmental
reports, information regarding its age, location and occupancy, an operating
statement and rent roll for the most recent Fiscal Quarter, an operating budget
for the current Fiscal Year and such other information as the Agent may
reasonably request, and listed on a revised Exhibit J pursuant to Section
5.27(b).
"Capital Stock" means any nonredeemable capital stock of the
Borrower or any Consolidated Entity (to the extent issued to a Person other
than the Borrower), whether common or preferred.
"CERCLA" means the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. ss. 9601 et. seq. and its
implementing regulations and amendments.
"CERCLIS" means the Comprehensive Environmental Response
Compensation and Liability Inventory System established pursuant to CERCLA.
"Change of Law" shall have the meaning set forth in Section
8.02.
"Closing Certificate" has the meaning set forth in Section
3.01(e).
"Closing Date" means May 19, 2000.
"Code" means the Internal Revenue Code of 1986, as amended,
or any successor Federal tax code.
"Collateral" means the Borrowing Base Properties and all
other assets subject to the Security Documents.
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<PAGE> 11
"Collateral Agent" means Wachovia Bank, N.A., a national
banking association organized under the laws of the United States of America,
in its capacity as Collateral Agent for the Banks under the Security Documents,
and its successors and permitted assigns in such capacities.
"Commitment" means, with respect to each Bank, (i) the amount
set forth opposite the name of such Bank on the signature pages hereof, and
(ii) as to any Bank which enters into any Assignment and Acceptance (whether as
transferor Bank or as Assignee thereunder), the amount of such Bank's
Commitment after giving effect to such Assignment and Acceptance, in each case
as such amount may be reduced from time to time pursuant to Sections 2.07 and
2.08.
"Compliance Certificate" has the meaning set forth in Section
5.01(c).
"Consolidated Entity" means at any date any Person the
accounts of which, in accordance with GAAP, are consolidated with those of the
Borrower in its consolidated financial statements as of such date.
"Consolidated Fixed Charges" means, for any period,
determined on a consolidated basis in accordance with GAAP, the sum of (i)
Consolidated Interest Expense for the Fiscal Quarter just ended and the 3
immediately preceding Fiscal Quarters, plus (ii) all dividends paid or declared
but not yet paid by the Borrower on preferred stock during the Fiscal Quarter
just ended and the 3 immediately preceding Fiscal Quarters, plus (iii) the
aggregate amount of scheduled principal amortization paid in the Fiscal Quarter
just ended and the 3 immediately preceding Fiscal Quarters as reflected on the
Borrower's most recent quarterly financial statement submitted to the Banks,
but excluding any principal payments under this Agreement or any other
agreement pertaining to revolving debt permitted under Section 5.23, and
excluding any balloon payments on other Debt.
"Consolidated Interest Expense" for any period means,
interest expensed in respect of Debt of the Borrower and its Consolidated
Subsidiaries and the Guarantors.
"Consolidated Liabilities" means the sum of (i) all
liabilities that, in accordance with GAAP, should be classified as liabilities
on a consolidated balance sheet of Borrower and its Consolidated Subsidiaries
and the Guarantors, and (ii) to the extent not included in clause (i) of this
definition, all Redeemable Preferred Stock.
"Consolidated Net Income" means, for any period, the Net
Income of the Borrower and its Consolidated Subsidiaries and the Guarantors
determined on a consolidated basis, but excluding (i) extraordinary items and
(ii) any equity interests of the Borrower or any Subsidiary in the unremitted
earnings of any Person that is not a Subsidiary.
"Consolidated Operating Profits" means, for any period, the
Operating Profits of the Borrower and its Consolidated Subsidiaries.
"Consolidated Subsidiary" means at any date any Subsidiary or
other entity the accounts of which, in accordance with GAAP, would be
consolidated with those of the Borrower in its consolidated financial
statements as of such date.
"Construction in Progress" means, for any retail Property,
calculated on a consolidated basis for the Borrower and the Guarantors, the sum
of (x) construction-in-progress as shown from time to time on the books and
records of the Borrower and the Guarantors, maintained in accordance with GAAP,
plus (y) the book value, calculated in accordance with GAAP, of any Property
that (i) previously constituted construction-in-progress and (ii) has not yet
become a Stabilized Property.
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<PAGE> 12
"Continued Funding Agreement" means the Agreement for
Continued Funding dated March 2, 2000, but effective as of February 14, 2000
among the Borrower, JDN DCI, the Agent and the Banks.
"Contribution Agreement" means the Contribution Agreement of
even date herewith in substantially the form of Exhibit L to be executed by the
Borrower and by the Initial Guarantors on the Closing Date and by each of the
Guarantors pursuant to Section 5.25.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, are treated as a single
employer under Section 414 of the Code.
"Debt" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such Person as lessee under capital
leases, (v) all obligations of such Person to reimburse any bank or other
Person in respect of amounts payable under a banker's acceptance, (vi) all
Redeemable Preferred Stock of such Person (in the event such Person is a
corporation), (vii) all obligations of such Person to reimburse any bank or
other Person in respect of amounts paid or to be paid under a letter of credit
or similar instrument, (viii) all Debt of others secured by a Lien on any asset
of such Person, whether or not such Debt is assumed by such Person, (ix) all
obligations of such Person with respect to interest rate protection agreements,
foreign currency exchange agreements or other hedging arrangements (valued as
the termination value thereof computed in accordance with a method approved by
the International Swap Dealers Association and agreed to by such Person in the
applicable hedging agreement, if any), and (x) all Debt of others Guaranteed by
such Person.
"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.
"Default Rate" means, with respect to any Loan, on any day,
the sum of 2% plus the highest interest rate (including the Applicable Margin)
which may be applicable to any Loans hereunder (irrespective of whether any
such type of Loans are actually outstanding hereunder).
"Development SPE" means a special purpose entity approved by
the Required Banks (which approval shall not be unreasonably withheld or
delayed) formed by an unrelated party for the purpose of owning and developing
property which may be purchased by the Borrower, any Guarantor or an Affiliate
thereof and borrowing money for such purpose, which entity shall be restricted
pursuant to its articles of incorporation from engaging in any business other
than owning and developing property, and activities incidental thereto, and
from incurring any Debt, other than Replacement Property Development Loans and
other Debt incidental thereto.
"Dividends" means for any period the sum of all dividends and
other distributions paid or declared during such period in respect of any
Capital Stock and Redeemable Preferred Stock (other than dividends paid or
payable in the form of additional Capital Stock).
"Dollars" or "$" means dollars in lawful currency of the
United States of America.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in Georgia are authorized by law
to close.
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<PAGE> 13
"EBITDA" means at any time the sum of the following,
determined on a consolidated basis for the Borrower and the Guarantors, at the
end of each Fiscal Quarter, for the applicable measuring period: (i)
Consolidated Net Income (but adjusted to add back the amount of the Anchor
Tenant Settlement Payment that is accounted for as an expense in the applicable
period); plus (ii) Consolidated Interest Expense; plus (iii) taxes on income;
plus (iv) depreciation; plus (v) amortization; plus (vi) other non-cash
charges.
"Enforcement Costs" has the meaning set forth in the
Mortgages.
"Environmental Authority" means any foreign, federal, state,
local or regional government that exercises any form of jurisdiction or
authority under any Environmental Requirement.
"Environmental Authorizations" means all licenses, permits,
orders, approvals, notices, registrations or other legal prerequisites for
conducting the business of the Borrower or any Subsidiary required by any
Environmental Requirement.
"Environmental Judgments and Orders" means all judgments,
decrees or orders arising from or in any way associated with any Environmental
Requirements, whether or not entered upon consent, or written agreements with
an Environmental Authority or other entity arising from or in any way
associated with any Environmental Requirement, whether or not incorporated in a
judgment, decree or order.
"Environmental Liabilities" means any liabilities, whether
accrued, contingent or otherwise, arising from and in any way associated with
any Environmental Requirements.
"Environmental Notices" means notice from any Environmental
Authority or by any other person or entity, of possible or alleged
noncompliance with or liability under any Environmental Requirement, including
without limitation any complaints, citations, demands or requests from any
Environmental Authority or from any other person or entity for correction of
any violation of any Environmental Requirement or any investigations concerning
any violation of any Environmental Requirement.
"Environmental Proceedings" means any judicial or
administrative proceedings arising from or in any way associated with any
Environmental Requirement.
"Environmental Releases" means releases as defined in CERCLA
or under any applicable state or local environmental law or regulation.
"Environmental Requirements" means any legal requirement
relating to health, safety or the environment and applicable to the Borrower,
any Subsidiary or the Properties, including but not limited to any such
requirement under CERCLA or similar state legislation and all federal, state
and local laws, ordinances, regulations, orders, writs, decrees and common law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successor law. Any reference to any
provision of ERISA shall also be deemed to be a reference to any successor
provision or provisions thereof.
"Euro-Dollar Borrowing" means a Borrowing consisting of
Euro-Dollar Loans.
"Euro-Dollar Business Day" means any Domestic Business Day on
which dealings in Dollar deposits are carried out in the London interbank
market.
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<PAGE> 14
"Euro-Dollar Loan" means a Loan which bears or is to bear
interest at a rate based upon the Adjusted London Interbank Offered Rate Rate,
and to be made as a Euro-Dollar Loan pursuant to the applicable Notice of
Borrowing.
"Euro-Dollar Reserve Percentage" has the meaning set forth in
Section 2.05(c).
"Event of Default" has the meaning set forth in Section 6.01.
"Existing Credit Agreement" has the meaning set forth in the
Recitals hereof.
"Existing Credit Agreement Agent's Letter Agreement" means
that certain letter agreement date as of March 13, 1997, between the Borrower
and the Agent.
"Existing Credit Agreement Events of Default" means the
"Existing Events of Default" (as defined in the Continued Funding Agreement),
and any Event of Default which may arise out of facts determined by the special
committee of the board of directors of the Borrower investigating the matters
described in the Continued Funding Agreement and related matters and disclosed
to the Agent and the Banks on or before the Closing Date.
"Existing Mortgage Defaulted Debt" means the Debt of the
Borrower or any Subsidiary which is subject to an Other Mortgage and described
in writing to the Agent and the Banks prior to the Closing Date, as to which
the holder of such Debt may allege the existence of certain non-monetary events
of default under the agreements pertaining thereto, but which Existing Mortgage
Defaulted Debt has not been accelerated as a result thereof as of the Closing
Date.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the next higher 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 Domestic
Business Day next succeeding such day, provided that (i) if the day for which
such rate is to be determined is not a Domestic Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the next preceding
Domestic Business Day as so published on the next succeeding Domestic Business
Day, and (ii) if such rate is not so published for any day, the Federal Funds
Rate for such day shall be the average rate charged to the Agent on such day on
such transactions, as determined by the Agent.
"Final Borrowing Base Property Perfection Date" means the
date on which the Security Documents have been executed and delivered, and the
Security Documents (other than the Hazardous Materials Indemnity Agreement)
have been filed of record in the applicable recording office, with all filing
and recording costs and taxes paid, on each Property described on Exhibit J.
"Financing Statement" means, for each Borrowing Base
Property, a Uniform Commercial Code financing statement suitable for use in the
state in which such Borrowing Base Property is located, signed by the Borrower
or a Guarantor, as applicable, the form of attachment thereto being attached
hereto as Exhibit O, together with any related notice filing required by the
law of such state, in each case as amended or supplemented from time to time.
"Fiscal Month" means any fiscal month of the Borrower.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower and the
Guarantors.
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<PAGE> 15
"GAAP" means generally accepted accounting principles
applicable in the United States of America applied on a basis consistent with
those which, in accordance with Section 1.02, are to be used in making the
calculations for purposes of determining compliance with the terms of this
Agreement.
"Gross Asset Value" means, on a consolidated basis for the
Borrower and the Guarantors, the sum of (without duplication with respect to
any Property):
(i) an amount equal to the product of (w) the Net Operating
Income for the 3 month period ending on the last day of the Fiscal
Quarter just ended prior to the date of determination, times (x) 4
(which is the annualization factor), divided by (y) 0.10 (which is the
capitalization rate), times (z) 0.60 (which is the advance rate), from
each Property owned by the Borrower or any Guarantor for at least one
Fiscal Quarter; plus
(ii) an amount equal to the book value as of the last day of
the month just ended prior to the date of determination of Property
owned by the Borrower or any Guarantor for less than a Fiscal Quarter;
plus
(iii) the book value of Construction in Progress on the last
day of the Fiscal Quarter just ended; plus
(iv) the aggregate amount of all (x) unrestricted cash and
accounts receivable which are not past due of the Borrower and the
Guarantors and (y) restricted cash held by a Qualified Intermediary on
behalf of the Borrower or any Guarantor, plus
(v) the aggregate principal amount outstanding of all
Replacement Property Development Loans as to which the development of
the relevant property is controlled by the Borrower, a Guarantor or an
Affiliate thereof.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt 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 (i) to secure, purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other obligation (whether arising by
virtue of partnership arrangements, by agreement to keep-well, to purchase
assets, goods, securities or services, to provide collateral security, to
take-or-pay, or to maintain financial statement conditions or otherwise) or
(ii) entered into for the purpose of assuring in any other manner the obligee
of such Debt 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.
"Guarantors" means any one, or more or all, as the context
shall require, of the Initial Guarantors and any Significant Subsidiary or
other Subsidiary which becomes a Guarantor pursuant to Section 5.25 (subject to
the provisions of the last sentence of Section 5.05).
"Guaranty" means the Guaranty Agreement in substantially the
form of Exhibit K to be executed by the Initial Guarantors on the Closing Date
and by each of the other Guarantors as required by and pursuant to Section
5.25, unconditionally and jointly and severally Guaranteeing payment of the
Loans, the Notes and all other obligations of the Borrower to the Agent and the
Banks hereunder, including without limitation all principal, interest, fees,
costs, and compensation and indemnification amounts.
"Hazardous Materials" includes, without limitation, (a) solid
or hazardous waste, as defined in the Resource Conservation and Recovery Act of
1980, 42 U.S.C. ss. 6901 et seq. and its
8
<PAGE> 16
implementing regulations and amendments, or in any applicable state or local
law or regulation, (b) "hazardous substance", "pollutant", or "contaminant" as
defined in CERCLA, or in any applicable state or local law or regulation, (c)
gasoline, or any other petroleum product or by-product, including, crude oil or
any fraction thereof, (d) toxic substances, as defined in the Toxic Substances
Control Act of 1976, or in any applicable state or local law or regulation and
(e) insecticides, fungicides, or rodenticides, as defined in the Federal
Insecticide, Fungicide, and Rodenticide Act of 1975, or in any applicable state
or local law or regulation, as each such Act, statute or regulation may be
amended from time to time.
"Hazardous Materials Indemnity Agreement" means, for each
Borrowing Base Property, a Hazardous Materials Indemnity Agreement, signed by
the Borrower or a Guarantor, as applicable, in the form attached hereto as
Exhibit P, as amended or supplemented from time to time.
"Initial Borrowing Base" means the Borrowing Base, but
measured only with respect to the Initial Borrowing Base Properties.
"Initial Borrowing Base Property" means each Property
described on Exhibit J as an Initial Borrowing Base Property.
"Initial Borrowing Base Property Perfection Date" means the
date on which the Security Documents have been executed and delivered, and the
Security Documents (other than the Hazardous Materials Indemnity Agreement)
have been filed of record in the applicable recording office, with all filing
and recording costs and taxes paid, on each Initial Borrowing Base Property.
"Initial Guarantors" means JDN DCI, JDN AL, JDN Holdings and
JDN LP.
"Initial New Advances" means Syndicated Loans and Swing Loans
actually advanced on and after the Initial Borrowing Base Property Perfection
Date (excluding Refunding Loans pertaining to Loans made under the Existing
Credit Agreement and having Interest Periods terminating after the Closing
Date) and prior to the Final Borrowing Base Property Perfection Date.
"Interest Period" means with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing and ending on
the numerically corresponding day in the first, second, third or sixth month
thereafter, as the Borrower may elect in the applicable Notice of Borrowing;
provided that:
(a) any Interest Period (subject to paragraph (c) below)
which would otherwise end on a day which is not a Euro-Dollar Business Day
shall be extended to the next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall, subject
to paragraph (c) below, end on the last Euro-Dollar Business Day of the
appropriate subsequent calendar month; and
(c) no Interest Period may be selected which begins before
the Termination Date and would otherwise end after the Termination Date.
"Investment" means any investment in any Person, whether by
means of purchase or acquisition of obligations or securities of such Person,
capital contribution to such Person, loan or advance to such Person, making of
a time deposit with such Person, or assumption of any obligation of such Person
or otherwise.
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<PAGE> 17
"JDN AL" means JDN Realty AL, Inc., an Alabama corporation.
"JDN DCI" means JDN Development Company, Inc., a Delaware
corporation.
"JDN Holdings" means JDN Realty Holdings, L.P., a Georgia
limited partnership.
"JDN LP, Inc." means JDN Realty, LP, Inc., a Delaware
corporation.
"JDN Venture" means any Person formed by the Borrower or any
Consolidated Entity: (i) which is not a Consolidated Entity and (ii) in which
the Borrower or such Consolidated Entity owns either (x) 50% or more of the
beneficial interests therein, but does not have "control" thereof within the
meaning set forth in the definition of Affiliate, or (y) 20% or more of the
beneficial interests therein, but does have control thereof.
"Lease" means any tenant lease pursuant to which the Borrower
or any Guarantor leases Property.
"Lending Office" means, as to each Bank, its office located
at its address set forth on the signature pages hereof (or identified on the
signature pages hereof as its Lending Office) or such other office as such Bank
may hereafter designate as its Lending Office by notice to the Borrower and the
Agent.
"Lien" means, with respect to any asset, any mortgage, deed
to secure debt, deed of trust, lien, hypothecation, assignment, pledge, charge,
security interest, security title, preferential or priority arrangement which
has the practical effect of constituting a security interest or encumbrance, or
encumbrance or servitude of any kind in respect of such asset to secure or
assure payment of a Debt or a Guarantee, whether by consensual agreement or by
operation of statute or other law, or by any agreement, contingent or
otherwise, to provide any of the foregoing. For the purposes of this Agreement,
the Borrower or any Subsidiary shall be deemed to own subject to a Lien any
asset which it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
"Loan" means a Base Rate Loan, a Euro-Dollar Loan or a Swing
Loan, and "Loans" means Base Rate Loans, Euro-Dollar Loans or Swing Loans, or
any or all of them, as the context shall require.
"Loan Documents" means this Agreement, the Notes, the
Guaranty, the Contribution Agreement, the Security Documents and any other
document evidencing, relating to or securing the Loans, and any other document
or instrument delivered from time to time in connection with this Agreement,
the Notes, the Loans or the Collateral, as such documents and instruments may
be amended or supplemented from time to time.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.05(c).
"Margin Stock" means "margin stock" as defined in Regulations
T, U or X.
"Major Tenant" refers to a tenant of the Borrower or any
Guarantor which occupies space in a Borrowing Base Property pursuant to a Lease
which entitles it to occupy 25,000 square feet or more.
"Material Adverse Effect" means, with respect to any event,
act, condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental investigation or
proceeding), whether singly or in conjunction with any other event or events,
act or acts, condition or conditions, occurrence or occurrences, whether or not
related, a material adverse change in,
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<PAGE> 18
or a material adverse effect upon, any of (a) the financial condition,
operations, business, properties or prospects of the Borrower and the
Guarantors taken as a whole, (b) the rights and remedies of the Agent or the
Banks under the Loan Documents, or the ability of the Borrower or the
Guarantors to perform its obligations under the Loan Documents to which it is a
party, as applicable, or (c) the legality, validity or enforceability of any
Loan Document.
"Moody's" means Moody's Investor Service, Inc.
"Mortgage" means a mortgage, deed to secure debt, deed of
trust or other appropriate similar instrument, the form of Mortgage for use in
the State of Georgia being attached hereto as Exhibit M, with such form being
modified as appropriate for any other state in which the relevant Borrowing
Base Property is located), granting and conveying to the Agent, for the ratable
benefit of the Banks, a first priority security title or lien on and security
interest in such Borrowing Base Property to secure the Secured Obligations,
subject only to Permitted Encumbrances.
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"Net Income" means, as applied to any Person for any period,
the aggregate amount of net income of such Person for such period, as
determined in accordance with GAAP.
"Net Operating Income" means with respect to any Property,
for any period, "property revenues", consisting of the Base Rent due and
payable by a tenant under any Lease together with all other amounts payable
thereunder for the recovery of or reimbursement of common area maintenance
charges or other Property related expenses, all such amounts shall be
attributable to such period and accrued according to GAAP, less (i) all
"property expenses" consisting of expenses incurred or accrued by the Borrower
that are directly related to the operation and ownership of such Property,
including real estate taxes, sales taxes, common area maintenance charges,
accounting and administration, security, utilities, maintenance, janitorial,
premiums for casualty and liability insurance, ground lease payments (excluding
from the foregoing expenses for depreciation, amortization, interest and
leasing commissions with respect to such Property), (ii) an allowance for
property management expenses calculated at 3.0% of Base Rent, and (iii) a
replacement reserve of $0.15 per square foot of the gross leasable area of the
improvements located within the Property. If such period is less than a year,
expenses described in clause (i) above that are payable less frequently than
monthly during the course of a year (e.g. real estate taxes and insurance
premiums) shall be adjusted by "straight lining" the amounts so that such
expenses are accrued on a monthly basis over the course of a year and fairly
stated for each period.
"Non-Recourse Mortgage Debt" means Debt secured by an Other
Mortgage on Property, which the Borrower has determined in good faith is by its
terms non-recourse, except for customary exclusions for environmental
liability, misapplication or fraudulent application of rent after default,
insurance proceeds and condemnation awards and other customary exclusions.
"Notes" means each of the Syndicated Loan Notes or the Swing
Loan Note, or any or all of them as the context shall require.
"Notice of Borrowing" has the meaning set forth in Section
2.02.
"Officer's Certificate" has the meaning set forth in Section
3.01(f).
"Other Mortgage" means either of the following, in favor of
any Person other than the Agent (i) with respect to any referenced Property, a
mortgage, deed to secure debt, deed of trust or similar instrument encumbering
such Property, and (ii) with respect to the owner of any referenced Property, a
pledge of any of its capital stock or partnership interests.
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"Operating Profits" means, as applied to any Person for any
period, the operating income of such Person for such period, as determined in
accordance with GAAP.
"Participant" has the meaning set forth in Section 9.08(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Permitted Encumbrances" has the meaning set forth in the
Mortgages.
"Person" means an individual, a corporation, a partnership,
an unincorporated association, a limited liability corporation, a limited
liability partnership, a trust or any other entity or organization, including,
but not limited to, 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 Code and is either (i) maintained by a
member of the Controlled Group for employees of any member of the Controlled
Group or (ii) maintained pursuant to a collective bargaining agreement or any
other arrangement under which more than one employer makes contributions and to
which a member of the Controlled Group is then making or accruing an obligation
to make contributions or has within the preceding 5 plan years made
contributions.
"Prime Rate" refers to that interest rate so denominated and
set by Wachovia from time to time as an interest rate basis for borrowings. The
Prime Rate is but one of several interest rate bases used by Wachovia. Wachovia
lends at interest rates above and below the Prime Rate.
"Properties" means all real property owned, leased or
otherwise used or occupied by the Borrower or any Guarantor, wherever located.
"Qualified Intermediary" means any Person serving as a
"qualified intermediary" for purposes of a Section 1031 Exchange.
"Quarterly Period" means a 3 month period (or portion
thereof) ending on each March 31, June 30, September 30 and December 31 after
the Closing Date and prior to the Termination Date.
"Real Property Documents" each of the following for each
Borrowing Base Property: (i) an accurate legal description, (ii) an owner's
affidavit; (iii) a lien search report showing no Other Mortgage and no other
Liens, other than Permitted Encumbrances (or accompanied by evidence of release
of any Liens which are not Permitted Encumbrances), (iv) a mortgagee's title
insurance commitment, subject only to such exceptions as are acceptable to the
Agent (not including an Other Mortgage); (v) copies of recorded documents
giving rise to permitted title exceptions (including easement agreements and
deed covenants); (vi) a current ALTA as-built survey with surveyor's report
from a registered surveyor addressed to the Agent and the title insurer and
certifying as to such matters as are acceptable to the Agent, but in any case
including whether the Property is in a flood plain or other "wetlands" area and
the existence of encroachments; (vii) evidence of payment of property taxes due
and payable, (viii) for all insurance policies maintained by the Borrower, an
insurance certificate complying with the terms of the Mortgage, and naming the
Agent as additional insured and loss payee, as required thereby; (ix) an
updated certified rent roll; (x) copies of all Leases for all Major Tenants now
or hereafter created upon the Property or any part thereof and abstracts of all
other Leases, unless Collateral Agent requests a copy of such other Leases
pursuant to the Mortgage, (xi) subordination, non-disturbance and attornment
agreements in the form specified by the related Lease, if applicable, and
satisfactory to the Agent from each Major Tenant, and, if requested by the
Agent from time to time, from any other tenant; (xii) an
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<PAGE> 20
estoppel certificate in the form specified by the related Lease, if applicable,
and satisfactory to the Agent from each Major Tenant, and, if requested by the
Agent from time to time, from any other tenant; (xiii) evidence of complying
with zoning, including a copy of the certificate of occupancy, (xiv) evidence
of adequate ingress and egress and (xv) such documents as may reasonably be
requested by the Agent; each of the foregoing being obtained by the Borrower
directly or through agents selected by the Borrower from providers reasonably
acceptable to the Agent.
"Redeemable Preferred Stock" of any Person means any
preferred stock issued by such Person which is at any time prior to the
Termination Date either (i) mandatorily redeemable (by sinking fund or similar
payments or otherwise) or (ii) redeemable at the option of the holder thereof.
"Refunding Loan" means a new Syndicated Loan made on the day
on which an outstanding Syndicated Loan is maturing or a Base Rate Borrowing is
being converted to a Euro-Dollar Borrowing, if and to the extent that the
proceeds thereof are used entirely for the purpose of paying such maturing
Syndicated Loan or Syndicated Loan being converted, excluding any difference
between the amount of such maturing Loan or Loan being converted and any
greater amount being borrowed on such day and actually either being made
available to the Borrower pursuant to Section 2.02(c) or remitted to the Agent
as provided in Section 2.10, in each case as contemplated in Section 2.02(d).
"Regulation T" means Regulation T of the Board of Governors
of the Federal Reserve System, as in effect from time to time, together with
all official rulings and interpretations issued thereunder.
"Regulation U" means Regulation U of the Board of Governors
of the Federal Reserve System, as in effect from time to time, together with
all official rulings and interpretations issued thereunder.
"Regulation X" means Regulation X of the Board of Governors
of the Federal Reserve System, as in effect from time to time, together with
all official rulings and interpretations issued thereunder.
"Relinquished Property" means a Property sold to a Person
which is not the Borrower or an Affiliate thereof, and the proceeds of such
sale are held in an exchange account by a Qualified Intermediary, as part of a
Section 1031 Exchange.
"Replacement Property" means a Property acquired as a
replacement for a Relinquished Property as part of a Section 1031 Exchange.
"Replacement Property Development Loan" means a loan by the
Borrower or any Guarantor to a Development SPE, provided that (i) the proceeds
of such loan are used solely for the development of a retail Property that may
be purchased by the Borrower, any Guarantor or any Affiliate thereof, or that
may be transferred to the Borrower, any Guarantor or any Affiliate thereof, as
part of a Section 1031 Exchange, (ii) the principal amount of such loan
outstanding at any time shall not exceed 100% of the aggregate costs actually
incurred (including hard and soft costs) for development of such property,
(iii) such loan accrues interest at a rate which is not less than the interest
rate in effect from time to time with respect to Loans under this Agreement,
with such interest being capitalized during construction and then payable from
available cash flow, (iv) such loan is secured by a first priority mortgage,
deed to secure debt, deed of trust or similar instrument on such Property in
favor of the Borrower or such Guarantor, (v) such loan matures no later than 35
months after the date such loan is made, (vi) 100% of the net proceeds of sale
of portions of such property by the Development SPE shall be paid and applied
as a prepayment on such loan, (vii) such loan is repayable in full at the
earlier of maturity or sale or transfer of all of the remaining property by the
Development SPE, and (viii) such loan remains a performing loan in all material
respects.
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"Required Banks" means at any time Banks having at least
66 2/3% of the aggregate amount of the Commitments or, if the Commitments are no
longer in effect, Banks holding at least 66 2/3% of the aggregate outstanding
principal amount of the Syndicated Loans.
"Restricted Payment" means (i) any dividend or other
distribution on any shares of the Borrower's Capital Stock (except dividends
payable solely in shares of its Capital Stock) or (ii) any payment on account
of the purchase, redemption, retirement or acquisition of (a) any shares of the
Borrower's Capital Stock (except shares acquired upon the conversion thereof
into other shares of its Capital Stock) or (b) any option, warrant or other
right to acquire shares of the Borrower's Capital Stock.
"S&P" means Standard & Poor's Ratings Group, a division of
The McGraw-Hill Companies, Inc.
"Section 1031 Exchange" means a sale and exchange of a
Relinquished Property for a Replacement Property pursuant to and qualifying for
tax treatment under Section 1031 of the Code.
"Secured Obligations" has the meaning set forth in the
Mortgages.
"Security Documents" means any one, or more, or all, as the
context shall require, of the Mortgages, the Assignment of Leases and Rents,
the Financing Statements and the Hazardous Materials Indemnity Agreement for
each of the Borrowing Base Properties.
"Significant Subsidiary" means any Subsidiary which (i) is
designated by the Borrower in Schedule 4.08 (as amended or supplemented from
time to time) as a Significant Subsidiary; or (ii) either (x) has assets which
constitute more than 5% of Gross Asset Value at the end of the most recent
Fiscal Quarter, or (y) contributed more than 5% of Consolidated Operating
Profits during the most recent Fiscal Quarter and the 3 Fiscal Quarters
immediately preceding such Fiscal Quarter (or, with respect to any Subsidiary
which existed during the entire 4 Fiscal Quarter period but was acquired by the
Borrower during such period, which would have contributed more than 5% of Gross
Asset Value during such period had it been a Subsidiary for the entire period).
"Special Disclosure Materials" means the special disclosure
materials furnished to the Agent and the Banks from time to time at the request
of the Agent pursuant to the Continued Funding Agreement pertaining to the
"Undisclosed Transactions" and "Undisclosed Transactions Matters" (as those
terms are defined therein) and related matters.
"Stabilized Property" means at any time retail Properties (i)
which are at least 90% leased (pursuant to written Leases which have been
signed by both landlord and tenant and under which the payment of Base Rent has
commenced) or (ii) are at least 80% occupied by tenants which have accepted the
premises and signed (together with the landlord) a Lease, and with respect to
which the date for the commencement of payment of Base Rent has been
established.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by the Borrower;
provided, however, that "Subsidiary" shall not include any JDN Venture.
"Swing Loan" means a Loan made by Wachovia pursuant to
Section 2.01(b), which must be a Base Rate Loan.
"Swing Loan Note" means the promissory note of the Borrower,
substantially in the form of Exhibit A-2, evidencing the obligation of the
Borrower to repay the Swing Loans, together with all amendments,
consolidations, modifications renewals and supplements thereto.
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"Syndicated Loans" means Base Rate Loans or Euro-Dollar Loans
made pursuant to the terms and conditions set forth in Section 2.01.
"Syndicated Loan Notes" means the promissory notes of the
Borrower substantially in the form of Exhibit A-1 evidencing the Obligation of
the Borrower to repay Syndicated Loans, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
"Taxes" has the meaning set forth in Section 2.11(c).
"Term Credit Agreement" means the Amended and Restated Term
Loan Credit Agreement dated of even date herewith among the Borrower, Wachovia
Bank, N.A., as Agent, PNC Bank, National Association, as Documentation Agent,
and the Banks parties thereto, as amended and supplemented from time to time.
"Termination Date" means whichever is applicable of (i) June
18, 2001, (ii) the date the Commitments are terminated pursuant to Section 6.01
following the occurrence of an Event of Default, or (iii) the date the Borrower
terminates the Commitments entirely pursuant to Section 2.07.
"Third Parties" means all lessees, sublessees, licensees and
other users of the Properties, excluding those users of the Properties in the
ordinary course of the Borrower's business and on a temporary basis.
"Total Consolidated Liabilities" means at any time, for the
Borrower and the Guarantors, determined on a consolidated basis, the sum of (i)
Consolidated Liabilities, plus (ii) all Debt Guaranteed by the Borrower or any
Guarantor, plus (iii) the face amount of all letters of credit issued for the
account of the Borrower or any Guarantor.
"Total Secured Debt" means at any time, for the Borrower and
the Guarantors, determined on a consolidated basis, the sum of the following,
but only if any Property, or ownership interest of the owner thereof, is
subject to an Other Mortgage with respect thereto: (i) all indebtedness for
borrowed money; (ii) the deferred purchase price of Property; (iii) all capital
leases in which the Borrower is the tenant; (iv) all obligations to reimburse
any bank or other Person in respect of amounts paid or to be paid under a
letter of credit or similar instrument; and (v) all Guarantees of Debt of
Persons other than the Borrower and the Guarantors.
"Transferee" has the meaning set forth in Section 9.08(d).
"Transitional Borrowing Base" means the Borrowing Base, but
calculated with respect to all Borrowing Base Properties without regard for
whether any Security Documents have been recorded with respect thereto.
"Unfunded Vested Liabilities" means, with respect to any Plan
at any time, the amount (if any) by which (i) the present value of all vested
nonforfeitable benefits under such Plan exceeds (ii) the fair market value of
all Plan assets allocable to such benefits, all determined as of the then most
recent valuation date for such Plan, but only to the extent that such excess
represents a potential liability of a member of the Controlled Group to the
PBGC or the Plan under Title IV of ERISA.
"Unused Commitment" means at any date, with respect to any
Bank, an amount equal to its Commitment less the aggregate outstanding
principal amount of its Syndicated Loans (but with respect to Wachovia, not its
Swing Loans).
"Used Commitment" means, at any date, with respect to any
Bank, the amount by which the Commitment of such Bank exceeds its Unused
Commitment.
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"Wachovia" means Wachovia Bank, N.A., a national banking
association, and its successors.
"Wholly Owned Subsidiary" means any Subsidiary all of the
shares of capital stock or other ownership interests of which (except
directors' qualifying shares) are at the time directly or indirectly owned by
the Borrower.
Section 1.02 Accounting Terms and Determinations. Unless otherwise
specified herein, all terms of an accounting character used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared, in
accordance with GAAP, applied on a basis consistent (except for changes
concurred in by the Borrower's independent public accountants or otherwise
required by a change in GAAP) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries
delivered to the Banks unless with respect to any such change concurred in by
the Borrower's independent public accountants or required by GAAP, in
determining compliance with any of the provisions of this Agreement or any of
the other Loan Documents: (i) the Borrower shall have objected to determining
such compliance on such basis at the time of delivery of such financial
statements, or (ii) the Required Banks shall so object in writing within 30
days after the delivery of such financial statements, in either of which events
such calculations shall be made on a basis consistent with those used in the
preparation of the latest financial statements as to which such objection shall
not have been made (which, if objection is made in respect of the first
financial statements delivered under Section 5.01 hereof, shall mean the
financial statements referred to in Section 4.04).
Section 1.03 References. Unless otherwise indicated, references in
this Agreement to "Articles", "Exhibits", "Schedules", "Sections" and other
Subdivisions are references to articles, exhibits, schedules, sections and
other subdivisions hereof.
Section 1.04 Use of Defined Terms. All terms defined in this
Agreement shall have the same defined meanings when used in any of the other
Loan Documents, unless otherwise defined therein or unless the context shall
require otherwise.
Section 1.05 Terminology. All personal pronouns used in this
Agreement, whether used in the masculine, feminine or neuter gender, shall
include all other genders; the singular shall include the plural, and the
plural shall include the singular. Titles of Articles and Sections in this
Agreement are for convenience only, and neither limit nor amplify the
provisions of this Agreement.
ARTICLE II
THE CREDITS
Section 2.01 Commitments to Lend
(a) Syndicated Loans. Each Bank severally agrees, on the terms and
conditions set forth herein, to make Syndicated Loans to the Borrower from time
to time before the Termination Date; provided that,
(i) immediately after each such Syndicated Loan is made, the
aggregate outstanding principal amount of Syndicated Loans by such
Bank shall not exceed the amount of its Commitment, and
(ii) (1) prior to the Final Borrowing Base Property
Perfection Date, the aggregate outstanding amount of all Initial New
Advances shall not exceed the lesser of (A) $22,200,000 and (B) the
Initial Borrowing Base, and the aggregate amount of all outstanding
Syndicated Loans and Swing Loans shall not exceed the lesser of (a)
the aggregate amount of the Commitments and (b) the Transitional
Borrowing Base; and (2) from and after the Final
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Borrowing Base Property Perfection Date, the aggregate outstanding
amount of all Syndicated Loans and Swing Loans shall not exceed the
lesser of (A) the aggregate amount of the Commitments and (B) the
Borrowing Base.
Each Syndicated Borrowing under this Section shall be in an aggregate principal
amount of (x) for Base Rate Loans, $1,000,000 or any larger integral multiple
of $500,000, and (y) for Euro-Dollar Loans, $3,000,000 or any larger integral
multiple of $1,000,000 (except that in each case any such Borrowing may be in
the aggregate amount of the Unused Commitments) and shall be made from the
several Banks ratably in proportion to their respective Commitments. Within the
foregoing limits, the Borrower may borrow under this Section, repay or, to the
extent permitted by Section 2.08, prepay Loans and reborrow under this Section
at any time before the Termination Date.
(b) Swing Loans. In addition to the foregoing, Wachovia shall from
time to time, upon the request of the Borrower, if the applicable conditions
precedent in Article III have been satisfied, make Swing Loans to the Borrower
in an aggregate principal amount at any time outstanding not exceeding
$10,000,000; provided that, immediately after such Swing Loan is made, the
conditions set forth in clauses (i) and (ii) of Section 2.01(a) shall have been
satisfied. Each Swing Loan Borrowing under this Section 2.01(b) shall be in an
aggregate principal amount of $100,000 or any larger multiple of $25,000.
Within the foregoing limits, the Borrower may borrow under this Section
2.01(b), prepay and reborrow under this Section 2.01(b) at any time before the
Termination Date. Swing Loans shall not be considered a utilization of the
Commitment of Wachovia or any other Bank hereunder. All Swing Loans shall be
made as Base Rate Loans. At any time, upon the request of Wachovia, each Bank
other than Wachovia shall, on the third Domestic Business Day after such
request is made, purchase a participating interest in Swing Loans in an amount
equal to its ratable share (based upon its respective Commitment) of such Swing
Loans. On such third Domestic Business Day, but in no event later than the
Termination Date, if applicable, each Bank will immediately transfer to
Wachovia, in immediately available funds, the amount of its participation.
Whenever, at any time after Wachovia has received from any such Bank its
participating interest in a Swing Loan, the Agent receives any payment on
account thereof, the Agent will distribute to such Bank its participating
interest in such amount (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Bank's participating
interest was outstanding and funded); provided, however, that in the event that
such payment received by the Agent is required to be returned, such Bank will
return to the Agent any portion thereof previously distributed by the Agent to
it. Each Bank's obligation to purchase such participating interests shall be
absolute and unconditional and shall not be affected by any circumstance,
including, without limitation: (i) any set-off, counterclaim, recoupment,
defense or other right which such Bank or any other Person may have against
Wachovia requesting such purchase or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of a Default or an Event of
Default or the termination of the Commitments; (iii) any adverse change in the
condition (financial or otherwise) of the Borrower or any other Person; (iv)
any breach of this Agreement by the Borrower or any other Bank; or (v) any
other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing.
Section 2.02 Method of Borrowing Loans
(a) The Borrower shall give the Agent notice (a "Notice of
Borrowing"), which shall be substantially in the form of Exhibit E, prior to
11:00 A.M. (Atlanta, Georgia time) (or 2:00 P.M., as to Swing Loans) on the
same Domestic Business Day as each Base Rate Borrowing, and at least 3
Euro-Dollar Business Days before each Euro-Dollar Borrowing, specifying:
(i) the date of such Syndicated Borrowing, which shall be a
Domestic Business Day in the case of a Base Rate Borrowing or a
Euro-Dollar Business Day in the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Syndicated Borrowing,
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(iii) whether the Loans comprising such Borrowing are to be
Swing Loans or Syndicated Loans, and if Syndicated Loans, whether they
are to be Base Rate Loans or Euro-Dollar Loans, and
(iv) in the case of a Euro-Dollar Borrowing, the duration of
the Interest Period applicable thereto, subject to the provisions of
the definition of Interest Period.
(b) Upon receipt of a Notice of Borrowing, the Agent shall promptly
notify each Bank of the contents thereof and, with respect to any Syndicated
Borrowing, of such Bank's ratable share of such Syndicated Borrowing and such
Notice of Borrowing, once received by the Agent, shall not thereafter be
revocable by the Borrower.
(c) Not later than 11:00 A.M. (Atlanta, Georgia time), as to
Euro-Dollar Borrowings, and 2:00 P.M. (Atlanta, Georgia time), as to Base Rate
Borrowings, on the date of each Syndicated Borrowing, each Bank shall (except
as provided in paragraph (d) of this Section) make available its ratable share
of such Syndicated Borrowing, in Federal or other funds immediately available
in Atlanta, Georgia, to the Agent at its address determined pursuant to Section
9.01. Unless the Agent determines that any applicable condition specified in
Article III has not been satisfied, the Agent will make the funds so received
from the Banks available to the Borrower at the Agent's aforesaid address.
Unless the Agent receives notice from a Bank, at the Agent's address referred
to in or specified pursuant to Section 9.01, no later than 4:00 P.M. (local
time at such address) on the date of a Syndicated Borrowing with respect to
Base Rate Borrowings and 1 Domestic Business Day before the date of a
Syndicated Borrowing with respect to Euro-Dollar Borrowing stating that such
Bank will not make a Syndicated Loan in connection with such Syndicated
Borrowing, the Agent shall be entitled to assume that such Bank will make a
Syndicated Loan in connection with such Syndicated Borrowing and, in reliance
on such assumption, the Agent may (but shall not be obligated to) make
available such Bank's ratable share of such Syndicated Borrowing to the
Borrower for the account of such Bank. If the Agent makes such Bank's ratable
share available to the Borrower and such Bank does not in fact make its ratable
share of such Syndicated Borrowing available on such date, the Agent shall be
entitled to recover such Bank's ratable share from such Bank or the Borrower
(and for such purpose shall be entitled to charge such amount to any account of
the Borrower maintained with the Agent), together with interest thereon for
each day during the period from the date of such Syndicated Borrowing until
such sum shall be paid in full at a rate per annum equal to the rate at which
the Agent determines that it obtained (or could have obtained) overnight
Federal funds to cover such amount for each such day during such period,
provided that (i) any such payment by the Borrower of such Bank's ratable share
and interest thereon shall be without prejudice to any rights that the Borrower
may have against such Bank and (ii) until such Bank has paid its ratable share
of such Syndicated Borrowing, together with interest pursuant to the foregoing,
it will have no interest in or rights with respect to such Syndicated Borrowing
for any purpose hereunder. If the Agent does not exercise its option to advance
funds for the account of such Bank, it shall forthwith notify the Borrower of
such decision. Unless the Agent determines that any applicable condition
specified in Article III has not been satisfied, Wachovia will make available
to the Borrower at Wachovia's Lending Office the amount of any such Borrowing
which is a Swing Loan Borrowing.
(d) If any Bank makes a new Syndicated Loan hereunder on a day on
which the Borrower is to repay all or any part of an outstanding Syndicated
Loan from such Bank, such Bank shall apply the proceeds of its new Syndicated
Loan to make such repayment as a Refunding Loan and only an amount equal to the
difference (if any) between the amount being borrowed and the amount of such
Refunding Loan shall be made available by such Bank to the Agent as provided in
paragraph (c) of this Section, or remitted by the Borrower to the Agent as
provided in Section 2.11, as the case may be.
(e) Notwithstanding anything to the contrary contained in this
Agreement, no Euro-Dollar Borrowing may be made if there shall have occurred a
Default or an Event of Default, which Default or
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<PAGE> 26
Event of Default, which Default or Event of Default shall not have been cured
or waived, and all Refunding Loans shall be made as Base Rate Loans (but shall
bear interest at the Default Rate, if applicable).
(f) In the event that a Notice of Borrowing fails to specify whether the
Syndicated Loans comprising such Syndicated Borrowing are to be Base Rate Loans
or Euro-Dollar Loans, such Syndicated Loans shall be made as Base Rate Loans.
If the Borrower is otherwise entitled under this Agreement to repay any
Syndicated Loans maturing at the end of an Interest Period applicable thereto
with the proceeds of a new Borrowing, and the Borrower fails to repay such
Syndicated Loans using its own moneys and fails to give a Notice of Borrowing
in connection with such new Syndicated Borrowing, a new Syndicated Borrowing
shall be deemed to be made on the date such Syndicated Loans mature in an
amount equal to the principal amount of the Syndicated Loans so maturing, and
the Syndicated Loans comprising such new Syndicated Borrowing shall be Base
Rate Loans.
Notwithstanding anything to the contrary contained herein, there shall not
be more than 6 Euro-Dollar Borrowings outstanding at any given time.
Section 2.03 Notes.
(a) The Syndicated Loans of each Bank shall be evidenced by a single
Syndicated Loan Note payable to the order of such Bank for the account of its
Lending Office in an amount equal to the original principal amount of such
Bank's Commitment. The Swing Loans made by Wachovia shall be evidenced by a
single Swing Loan Note payable to the order of Wachovia.
(b) Upon receipt of each Bank's Notes pursuant to Section 3.01, the Agent
shall deliver such Notes to such Bank. Each Bank (and Wachovia, as to the Swing
Loan) shall record, and prior to any transfer of its Notes shall endorse on the
schedules forming a part thereof appropriate notations to evidence, the date,
amount and maturity of, and effective interest rate for, each Loan made by it,
the date and amount of each payment of principal made by the Borrower with
respect thereto, and such schedules of each such Bank's Notes shall constitute
rebuttable presumptive evidence of the respective principal amounts owing and
unpaid on such Bank's Notes; provided that the failure of any Bank to make, or
error in making, any such recordation or endorsement shall not affect the
obligation of the Borrower hereunder or under the Notes or the ability of any
Bank to assign its Notes. Each Bank is hereby irrevocably authorized by the
Borrower so to endorse its Notes and to attach to and make a part of any Note a
continuation of any such schedule as and when required.
Section 2.04 Maturity of Loans.
(a) Each Euro-Dollar Loan included in any Borrowing shall mature, and the
principal amount thereof shall be due and payable, on the last day of the
Interest Period applicable to such Borrowing.
(b) Notwithstanding the foregoing, the outstanding principal amount of the
Loans, if any, together with all accrued but unpaid interest thereon, if any,
shall be due and payable on the Termination Date.
Section 2.05 Interest.
(a) "Applicable Margin" means: (i) for any Base Rate Loan, 0.00% and (ii)
for each Euro-Dollar Loan, (x) 2.50% until the later of (1) the furnishing to
the Agent of all Real Property Documents pursuant to Section 5.27(a) (other
than items of the types described in the proviso contained in Section 5.27(a)
which the Borrower has been unable to furnish during the 90 day period
described in Section 5.27(a) despite commercially reasonable efforts) and (2)
the date which is 91 days after the Final Borrowing Base Property Perfection
Date, and (y) 2.25% for all Interest Periods commencing thereafter.
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(b) Each Base Rate Loan shall bear interest on the outstanding principal
amount thereof, for each day from the date such Loan is made until it becomes
due, at a rate per annum equal to the Base Rate for such day plus the
Applicable Margin. Such interest shall be payable on the first day of each
month, in arrears. Any overdue principal of and, to the extent permitted by
applicable law, overdue interest on any Base Rate Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the
Default Rate.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding principal
amount thereof, for the Interest Period applicable thereto, at a rate per annum
equal to the sum of the Applicable Margin plus the applicable Adjusted London
Interbank Offered Rate for such Interest Period. Such interest shall be payable
for each Interest Period on the last day thereof and, if such Interest Period
is longer than 1 month, at intervals of 1 month after the first day thereof.
Any overdue principal of and, to the extent permitted by law, overdue interest
on any Euro-Dollar Loan shall bear interest, payable on demand, for each day
until paid at a rate per annum equal to the Default Rate.
The "Adjusted London Interbank Offered Rate" applicable to any Interest
Period means a rate per annum equal to the quotient obtained (rounded upwards,
if necessary, to the next higher 1/100th of 1%) by dividing (i) the applicable
London Interbank Offered Rate for such Interest Period by (ii) 1.00 minus the
Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Euro-Dollar Loan
means for the Interest Period of such Euro-Dollar Loan, the rate per annum
determined on the basis of the offered rate for deposits in Dollars of amounts
equal or comparable to the principal amount of such Euro-Dollar Loan offered
for a term comparable to such Interest Period, which rates appear on the
Telerate Page 3750 effective as of 11:00 A.M., London time, 2 Euro-Dollar
Business Days prior to the first day of such Interest Period, provided that if
no such offered rates appear on such page, the "London Interbank Offered Rate"
for such Interest Period will be the arithmetic average (rounded upward, if
necessary, to the next higher 1/100th of 1%) of rates quoted by not less than 2
major banks in New York City, selected by the Agent, at approximately 10:00
A.M., New York City time, 2 Euro-Dollar Business Days prior to the first day of
such Interest Period, for deposits in Dollars offered by leading European banks
for a period comparable to such Interest Period in an amount comparable to the
principal amount of such Euro-Dollar Loan.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in respect of "Eurocurrency liabilities" (or in respect of any
other category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
any Bank to United States residents). The Adjusted London Interbank Offered
Rate shall be adjusted automatically on and as of the effective date of any
change in the Euro-Dollar Reserve Percentage.
(d) The Agent shall determine each interest rate applicable to the Loans
hereunder. The Agent shall give prompt notice to the Borrower and the Banks by
telecopier of each rate of interest so determined, and its determination
thereof shall be conclusive in the absence of manifest error.
(e) After the occurrence and during the continuance of an Event of
Default, the principal amount of the Loans (and, to the extent permitted by
applicable law, all accrued interest thereon) may, at the election of the
Required Banks, bear interest at the Default Rate.
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Section 2.06 Fees.
(a) The Borrower shall pay to the Agent, for the ratable account of each
Bank, a facility fee, calculated on the amount of such Bank's Commitment
(without taking into account the amount of outstanding Loans made by such
Bank), at the rate per annum of 0.35%. Such facility fee shall accrue from and
including the Closing Date to but excluding the Termination Date and shall be
payable on the on the earlier of the date of the first Initial New Advance and
May 26, 2000 and thereafter quarterly in advance within 5 days after the first
day of each Quarterly Period.
(b) The Borrower shall pay to the Agent, for the account and sole benefit
of the Agent, such fees and other amounts at such times as set forth in the
Arranger's Letter Agreement, except as provided in the immediately succeeding
sentence. On the earlier of the date of the first Initial New Advances and May
26, 2000, the Borrower shall pay to the Agent (i) for the account of each Bank,
an upfront fee in an aggregate amount equal to 0.40% of such Bank's Commitment
in effect on the Closing Date and (ii) for the account of the Agent and the
Arranger, all fees payable to the Agent on the Closing Date pursuant to the
Arranger's Letter Agreement. Such fees shall be fully earned on the Closing
Date and non-refundable when paid. On May 23, 2000 and on May 23, 2001, the
Borrower shall pay to the Agent the "Agent's Administrative Fee" described in
the Existing Credit Agreement Agent's Letter Agreement, but such fee for May
23, 2001 shall be prorated for the period from May 23, 2001 to the Termination
Date.
Section 2.07 Optional Termination or Reduction of Commitments. The
Borrower may, upon at least 3 Domestic Business Days' notice to the Agent,
subject to Section 2.10(a), terminate in its entirety at any time, or
proportionately reduce from time to time, the Commitments by an aggregate
amount of at least $10,000,000 or any larger integral multiple of $1,000,000.
If the Commitments are terminated in their entirety, all accrued fees (as
provided under Section 2.06) shall be due and payable on the effective date of
such termination.
Section 2.08 Mandatory Reduction and Termination of Commitments. The
Commitments shall terminate on the Termination Date and any Loans then
outstanding (together with accrued interest thereon) shall be due and payable
on such date.
Section 2.09 Optional Prepayments.
(a) The Borrower may, on any Domestic Business Days, no later than 11:00
A.M. (Atlanta, Georgia time) (or 2:00 P.M., as to Swing Loans), prepay any Base
Rate Borrowing in whole at any time, or from time to time in part in amounts
aggregating at least $1,000,000 or any larger integral multiple of $500,000, or
$100,000 or any larger integral multiple of $25,000, as to the Swing Loan (or
in each case any lesser amount equal to the outstanding balance of such Loan),
by paying the principal amount to be prepaid together with accrued interest
thereon to the date of prepayment. Each such optional prepayment of a
Syndicated Loan shall be applied to prepay ratably the Base Rate Loans of the
several Banks included in such Base Rate Borrowing.
(b) Subject to any payments required pursuant to the terms of Article VIII
for such Euro-Dollar Loans, upon 3 Domestic Business Day's prior written
notice, the Borrower may prepay in minimum amounts of $3,000,000 or any larger
integral multiple of $1,000,000 (or any lesser amount equal to the outstanding
balance of such Loan) all or any portion of the principal amount of any
Euro-Dollar Loan prior to the maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to this Section 2.09,
the Agent shall promptly notify each Bank of the contents thereof and of such
Bank's ratable share of such prepayment and such notice, once received by the
Agent, shall not thereafter be revocable by the Borrower.
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Section 2.10 Mandatory Prepayments.
(a) On each date on which the Commitments are reduced pursuant to Section
2.07 or Section 2.08, the Borrower shall repay or prepay such principal amount
of the outstanding Loans, if any (together with interest accrued thereon and
any amount due under Section 8.05(a)), as may be necessary so that after such
payment the aggregate unpaid principal amount of the Loans does not exceed the
aggregate amount of the Commitments as then reduced.
(b) (1) prior to the Final Borrowing Base Property Perfection Date, on
each date on which either the aggregate principal amount of all Initial New
Advances outstanding exceeds the Initial Borrowing Base, or the aggregate
amount of all outstanding Syndicated Loans and Swing Loans exceeds the
Transitional Borrowing Base as of such date, the Borrower shall repay or prepay
such principal amount of the outstanding Initial New Advances (together with
interest thereon and any amount due under Section 8.05(a)) as may be necessary
so that after such payment the aggregate unpaid principal amount of the Initial
New Advances does not exceed the Initial Borrowing Base, and the aggregate
amount of all outstanding Syndicated Loans and Swing Loans does not exceed the
Transitional Borrowing Base as of such date, and (2) from and after the Final
Borrowing Base Property Perfection Date, on such date on which the aggregate
principal amount of the Loans outstanding exceeds the Borrowing Base as of such
date, the Borrower shall repay or prepay such principal amount of the
outstanding Loans (together with interest thereon and any amount due under
Section 8.05(a)) as may be necessary so that after such payment the aggregate
unpaid principal amount of the Loans does not exceed the Borrowing Base as of
such date.
(c) Each such payment or prepayment shall be applied ratably to the Loans
of the Banks outstanding on the date of payment or prepayment in the following
order of priority:(i) first, to Syndicated Loans which are Base Rate Loans;(ii)
secondly, to Euro-Dollar Loans; and lastly to Swing Loans.
Section 2.11 General Provisions as to Payments.
(a) The Borrower shall make each payment of principal of, and interest on,
the Loans and of fees hereunder, not later than 11:00 A.M. (Atlanta, Georgia
time) on the date when due, in Federal or other funds immediately available in
Atlanta, Georgia, to the Agent at its address referred to in Section 9.01. The
Agent will distribute to each Bank its ratable share of each such payment
received by the Agent for the account of the Banks, such payment to be
distributed by the Agent (x) by 2:00 P.M. on the date of receipt by the Agent,
provided that such payment was received by the Agent by 1:00 P.M. (Atlanta,
Georgia time), and (y) by 2:00 P.M. (Atlanta, Georgia time) on the date
following the date of receipt by the Agent, if such payment was received by the
Agent after 1:00 P.M. (Atlanta, Georgia time). If the Agent shall fail to make
such distribution within the time required by the immediately preceding
sentence, such distribution shall be made together with interest thereon, for
each day during the period from the date such distribution should have been so
made until the date such distribution actually is made, at a rate per annum
equal to the Federal Funds Rate.
(b) Whenever any payment of principal of, or interest on, the Base Rate
Loans or of fees hereunder shall be due on a day which is not a Domestic
Business Day, the date for payment thereof shall be extended to the next
succeeding Domestic Business Day. Whenever any payment of principal of or
interest on, the Euro-Dollar Loans shall be due on a day which is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day.
(c) All payments of principal, interest and fees and all other amounts to
be made by the Borrower pursuant to this Agreement with respect to any Loan or
fee relating thereto shall be paid without deduction for, and free from, any
tax, imposts, levies, duties, deductions, or withholdings of any nature
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now or at anytime hereafter imposed by any governmental authority or by any
taxing authority thereof or therein excluding in the case of each Bank, taxes
imposed on or measured by its net income, and franchise taxes imposed on it, by
the jurisdiction under the laws of which such Bank is organized or any
political subdivision thereof and, in the case of each Bank, taxes imposed on
its income, and franchise taxes imposed on it, by the jurisdiction of such
Bank's applicable Lending Office or any political subdivision thereof (all such
non-excluded taxes, imposts, levies, duties, deductions or withholdings of any
nature being "Taxes"). In the event that the Borrower is required by applicable
law to make any such withholding or deduction of Taxes with respect to any Loan
or fee or other amount, the Borrower shall pay such deduction or withholding to
the applicable taxing authority, shall promptly furnish to any Bank in respect
of which such deduction or withholding is made all receipts and other documents
evidencing such payment and shall pay to such Bank additional amounts as may be
necessary in order that the amount received by such Bank after the required
withholding or other payment shall equal the amount such Bank would have
received had no such withholding or other payment been made.
Each Bank which is not organized under the laws of the United States or
any state thereof agrees, as soon as practicable after receipt by it of a
request by the Borrower to do so, to file all appropriate forms and take other
appropriate action to obtain a certificate or other appropriate document from
the appropriate governmental authority in the jurisdiction imposing the
relevant Taxes, establishing that it is entitled to receive payments of
principal and interest under this Agreement and the Notes without deduction and
free from withholding of any Taxes imposed by such jurisdiction; provided that
if it is unable, for any reason, to establish such exemption, or to file such
forms and, in any event, during such period of time as such request for
exemption is pending, the Borrower shall nonetheless remain obligated under the
terms of the immediately preceding paragraph.
In the event any Bank receives a refund of any Taxes paid by the
Borrower pursuant to this Section 2.11(c), it will pay to the Borrower the
amount of such refund promptly upon receipt thereof; provided that if at any
time thereafter it is required to return such refund, the Borrower shall
promptly repay to it the amount of such refund.
Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower and the
Banks contained in this Section 2.11(c) shall be applicable with respect to any
Participant, Assignee or other Transferee, and any calculations required by
such provisions (i) shall be made based upon the circumstances of such
Participant, Assignee or other Transferee, and (ii) constitute a continuing
agreement and shall survive the termination of this Agreement and the payment
in full or cancellation of the Notes.
Section 2.12 Computation of Interest and Fees. Interest on Base Rate
Loans 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). Interest on Euro-Dollar Loans shall be computed on the basis of a year of
360 days and paid for the actual number of days elapsed, calculated as to each
Interest Period from and including the first day thereof to but excluding the
last day thereof. Commitment fees and any other fees payable 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).
ARTICLE III
CONDITIONS TO CLOSING AND BORROWINGS
Section 3.01 Conditions to Closing and Initial New Advances. The closing
under this Agreement shall be effective for all purposes upon satisfaction of
all conditions set forth in paragraphs (a) through (l), and receipt by the
Agent of the following (as to the documents described in paragraphs (a), (c),
(d) and (e) below, in sufficient number of counterparts for delivery of a
counterpart to each Bank and retention of one counterpart by the Agent), but
the obligation of each Bank (or of Wachovia with respect
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to the Swing Loans) to make any Initial New Advances is further subject to the
satisfaction of the condition set forth in the proviso in the last (unlettered)
paragraph hereof and the conditions set forth in Section 3.02:
(a) from each of the parties hereto of either (i) a duly executed
counterpart of this Agreement signed by such party or (ii) a facsimile
transmission of such executed counterpart, with the original to be sent to the
Agent by overnight courier);
(b) a duly executed Syndicated Loan Note for the account of each Bank, a
duly executed Swing Loan Note for the account of Wachovia, and a Guaranty duly
executed by the Initial Guarantors and a Contribution Agreement duly executed
by the Borrower and the Initial Guarantors;
(c) an opinion letter of Waller Lansden Dortch & Davis, PLLC, counsel for
the Borrower and the Initial Guarantors, dated as of the Closing Date,
substantially in the form of Exhibit B and covering such additional matters
relating to the transactions contemplated hereby as the Agent or any Bank may
reasonably request;
(d) an opinion of Jones, Day, Reavis & Pogue, special counsel for the
Agent, dated as of the Closing Date, substantially in the form of Exhibit C and
covering such additional matters relating to the transactions contemplated
hereby as the Agent may reasonably request;
(e) a certificate (the "Closing Certificate") substantially in the form of
Exhibit G), dated as of the Closing Date, signed by a principal financial
officer of the Borrower, to the effect that, to the best of his or her
knowledge, (i) no Default has occurred and is continuing on the date of the
first Borrowing and (ii) the representations and warranties of the Borrower
contained in Article IV are true on and as of the date of the first Borrowing
hereunder;
(f) all documents which the Agent or any Bank may reasonably request
relating to the existence of the Borrower and the Initial Guarantors, the
corporate authority for and the validity of this Agreement, the Notes, the
Guaranty, the Contribution Agreement, the Security Documents and any other
matters relevant hereto, all in form and substance satisfactory to the Agent,
including, without limitation, a certificate of each of the Borrower and the
Initial Guarantors substantially in the form of Exhibit H (the "Officer's
Certificate"), signed by the Secretary or an Assistant Secretary of the
Borrower and the Initial Guarantors, respectively, and as to the names, true
signatures and incumbency of the officer or officers of the Borrower or Initial
Guarantors authorized to execute and deliver the Loan Documents, and certified
copies of the following items for each of the Borrower and the Initial
Guarantors (i) a certificate of the Secretary of State of the State of its
incorporation as to its good standing as a corporation incorporated therein,
and (ii) the action taken by its Board of Directors authorizing the execution,
delivery and performance of the Loan Documents to which it is a party;
(g) the Anchor Tenant Settlement Agreement shall have been executed and
delivered by all parties thereto, and any conditions precedent to effectiveness
thereof shall have been satisfied, in accordance with the terms thereof and the
Agent and the Banks shall have received a copy of such executed agreement,
together with a written acknowledgement from each Anchor Tenant to the effect
that (x) it has been informed of the principal terms and conditions of this
Agreement, and, for purposes of Section 4(f) of the Anchor Tenant Settlement
Agreement, such terms provide a "Credit Facility" sufficient to allow the
Borrower to undertake the "Pending Transactions" and the "Proposed
Transactions" (as those terms are defined in the Anchor Tenant Settlement
Agreement) in accordance with the Anchor Tenant Settlement Agreement and (y) it
has received payment in full of the $5,000,000 payment required to be made to
it in accordance with Section 4(a) (as to Wal-Mart) or 4(b) (as to Lowe's) of
the Anchor Tenant Settlement Agreement;
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(h) the Term Loan Credit Agreement shall have been executed and delivered
and the conditions set forth in Section 3.01 shall have been satisfied;
(i) the Agent shall have received the initial Borrowing Base Certificate,
showing the Transitional Borrowing Base (but not the Initial Borrowing Base) as
of the last day of the Fiscal Quarter ending prior to the Closing Date;
(j) the Borrower, JDN AL and JDN Holdings, shall have provided to the
Agent and its counsel, as to each of the Properties listed on Exhibit J, (i) an
accurate legal description, (ii) whether such Property is owned or leased, and
(iii) whether such interests are held by the Borrower, JDN AL or JDN Holdings;
(k) counsel for the Agent shall have received the executed and delivered
Security Documents for each of the Initial Borrowing Base Properties; and
(l) receipt by the Agent of accrued and unpaid fees and interest payable
to the Banks under the Existing Credit Agreement.
Upon satisfaction of all such conditions (i) the Existing Credit Agreement
shall be superceded and replaced hereby (and any Euro-Dollar Loans thereunder
having Interest Periods terminating after the Closing Date shall be deemed to
have arisen and continue hereunder) and (ii) the Existing Credit Agreement
Events of Default shall for all purposes be waived by the Agent and the Banks
and shall not constitute Events of Default hereunder (but the Agent and the
Banks reserve all rights with respect to any Event of Default which may arise
out of facts determined by the special committee of the board of directors of
the Borrower investigating the matters described in such Continued Funding
Agreement and related matters and not disclosed to the Agent or the Banks in
writing, in the Special Disclosure Materials or otherwise, on or before the
Closing Date); provided, however, that notwithstanding the foregoing, the
obligation of the Banks to fund any Initial New Advances shall be subject to
the further conditions that (i) the Initial Borrowing Base Property Perfection
Date shall have occurred, and the Agent shall have received a Borrowing Base
Certificate, showing the Initial Borrowing Base as of the last day of the
Fiscal Quarter ending prior to the Closing Date and (ii) the Agent shall have
received either evidence reasonably satisfactory to the Agent that the Anchor
Tenant Settlement Payment has been made or wiring instructions from the
Borrower for the making of such payment directly to the Anchor Tenants from the
Initial New Advances.
Section 3.02 Conditions to All Borrowings. The obligation of each Bank to
make a Loan on the occasion of each Borrowing is subject to the satisfaction of
the following conditions except as expressly provided in the last sentence of
this Section 3.02:
(a) receipt by the Agent of a Notice of Borrowing.
(b) the fact that, immediately before and after such Borrowing, no Default
shall have occurred and be continuing;
(c) the fact that the representations and warranties of the Borrower and
each Guarantor contained in Article IV of this Agreement shall be true on and
as of the date of such Borrowing; and
(d) the fact that, immediately after such Borrowing, the conditions set
forth in clauses (i) and (ii) of Section 2.01 shall have been satisfied.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the truth and accuracy of the
facts specified in paragraphs (b), (c) and (d) of this Section; provided that
if such Borrowing is a Borrowing which consists solely of a Refunding Loan,
such Borrowing shall not be deemed to be such a representation and warranty to
the effect set forth in
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Section 4.04(b) as to any event, act or condition having a Material Adverse
Effect which has theretofore been disclosed in writing by the Borrower to the
Banks.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each of the Borrower and (by incorporation by reference in the
Guaranty) the Guarantors, as expressly stated, represents and warrants that:
Section 4.01 Corporate Existence and Power. Each of the Borrower and the
Guarantors is a corporation or partnership duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization, is
duly qualified to transact business in every jurisdiction where, by the nature
of its business, such qualification is necessary, and has all corporate or
partnership powers and all governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted.
Section 4.02 Corporate and Governmental Authorization; No Contravention.
The execution, delivery and performance by the Borrower of this Agreement, the
Notes and the other Loan Documents and by the Guarantors of the Guaranty (i)
are within the Borrower's or such Guarantor's corporate or partnership powers,
(ii) have been duly authorized by all necessary corporate or partnership
action, (iii) require no action by or in respect of or filing with, any
governmental body, agency or official, (iv) do not contravene, or constitute a
default under, any provision of applicable law or regulation or of the
certificate of incorporation or by-laws or partnership certificate of the
Borrower or any Guarantor or of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Borrower or any Guarantor and (v)
do not result in the creation or imposition of any Lien on any asset of the
Borrower or any of Guarantor, other than in favor of the Collateral Agent
pursuant to the Security Documents.
Section 4.03 Binding Effect. This Agreement constitutes a valid and
binding agreement of the Borrower enforceable in accordance with its terms, and
the Notes, the Guaranty and the other Loan Documents, when executed and
delivered in accordance with this Agreement, will constitute valid and binding
obligations of the Borrower and the Guarantors party thereto, enforceable in
accordance with their respective terms, provided that the enforceability hereof
and thereof is subject in each case to general principles of equity and to
bankruptcy, insolvency and similar laws affecting the enforcement of creditors'
rights generally.
Section 4.04 Financial Information.
(a) The consolidated balance sheet of the Borrower and JDN DCI as of
December 31, 1999 and the related consolidated statements of income,
shareholders' equity and cash flows for the Fiscal Year then ended, reported on
by Ernst & Young LLP, copies of which shall be delivered to each of the Banks
pursuant to Section 5.01(k), fairly present, in conformity with GAAP, the
consolidated financial position of the Borrower and JDN DCI as of such date and
their consolidated results of operations and cash flows for such periods
stated; provided, however, that this representation and warranty shall not be
effective or be deemed to have been made or given until such delivery of copies
thereof to the Banks pursuant to Section 5.01(k).
(b) Since December 31, 1999 (and excluding matters giving rise to the
Existing Credit Agreement Events of Default, but not excluding any matters
arising out of facts determined by the special committee of the board of
directors of the Borrower investigating the matters described in the Continued
Funding Agreement and related matters and not disclosed to the Agent or the
Banks in writing, in the Special Disclosure Materials or otherwise, on or
before the Closing Date) there has been no event, act, condition or occurrence
having a Material Adverse Effect.
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Section 4.05 No Litigation. Except for shareholder class action
litigation of the same nature as that commenced against the Borrower and others
in February and March, 2000 in the United Stated District Court for the
Northern District of Georgia, Atlanta Division, and in the United States
District Court for the Middle District of Tennessee, which has been disclosed
to the Agent and the Banks in the Special Disclosure Materials, there is no
action, suit or proceeding pending, or to the knowledge of the Borrower
threatened, against or affecting the Borrower, any Guarantor or any Subsidiary
before any court or arbitrator or any governmental body, agency or official
which could have a Material Adverse Effect or which in any manner draws into
question the validity of or could impair the ability of the Borrower or any
Guarantor to perform its obligations under, this Agreement, the Notes, the
Guaranty or any of the other Loan Documents.
Section 4.06 Compliance with ERISA.
(a) The Borrower and each member of the Controlled Group have fulfilled
their obligations under the minimum funding standards of ERISA and the Code
with respect to each Plan and are in compliance in all material respects with
the presently applicable provisions of ERISA and the Code, and have not
incurred any liability to the PBGC or a Plan under Title IV of ERISA.
(b) Neither the Borrower nor any member of the Controlled Group is or ever
has been obligated to contribute to any Multiemployer Plan.
Section 4.07 Compliance with Laws; Payment of Taxes. To the best of the
Borrower's knowledge, and except as may arise as a result of the "Undisclosed
Transactions" and "Undisclosed Transactions Matters" (as defined in the
Continued Funding Agreement), the Borrower and each Guarantor and each
Subsidiary is in compliance with all applicable laws, regulations and similar
requirements of governmental authorities, except where such compliance is being
contested in good faith through appropriate proceedings. There have been filed
on behalf of the Borrower and each Guarantor and each Subsidiary all material
Federal, state and local income, excise, property and other tax returns which
are required to be filed by them and all taxes due pursuant to such returns or
pursuant to any assessment received by or on behalf of the Borrower and each
Guarantor and each Subsidiary have been paid, except as may arise as a result
of the "Undisclosed Transactions" and "Undisclosed Transactions Matters" (as
defined in the Continued Funding Agreement). The charges, accruals and reserves
on the books of the Borrower and each Guarantor and each Subsidiary in respect
of taxes or other governmental charges are, in the opinion of the Borrower,
adequate.
Section 4.08 Guarantors and Subsidiaries. Each of the Guarantors and
the Subsidiaries is a corporation or partnership duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization, is duly qualified to transact business in every jurisdiction
where, by the nature of its business, such qualification is necessary, and has
all corporate or partnership powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted. The Borrower has no Subsidiaries except for those Subsidiaries
listed on Schedule 4.08, which accurately sets forth each such Subsidiary's
complete name and jurisdiction of organization and whether it is a Significant
Subsidiary. The Borrower shall send to the Agent and the Banks, promptly after
the relevant occurrence, an updated complete Schedule 4.08 to reflect the
addition or deletion of any Subsidiary and the change of any Subsidiary to a
Significant Subsidiary.
Section 4.09 Investment Company Act. Neither the Borrower nor any
Guarantor or Subsidiary is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
Section 4.10 Public Utility Holding Company Act. Neither the Borrower nor
any Guarantor or Subsidiary is a "holding company", or a "subsidiary company"
of a "holding company", or an
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"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", as such terms are defined in the Public Utility Holding Company Act
of 1935, as amended.
Section 4.11 Ownership of Property. Each of the Borrower, the Guarantors
and the Subsidiaries has title to its properties sufficient for the conduct of
its business.
Section 4.12 No Default. To the best of Borrower's knowledge, and after
giving effect to the waiver contained at the end of Section 3.01, except for
the Existing Mortgage Defaulted Debt, no event of default is in existence under
or with respect to any agreement, instrument or undertaking to which the
Borrower or any Guarantor or Subsidiary is a party or by which it or any of its
property is bound which could have or cause a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
Section 4.13 Full Disclosure. All information heretofore furnished by the
Guarantors or the Borrower to the Agent or any Bank for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by the Guarantors or the Borrower to
the Agent or any Bank will be, true, accurate and complete in every material
respect or based on reasonable estimates on the date as of which such
information is stated or certified. The Borrower and the Guarantors have
disclosed to the Banks in writing any and all facts which could have or cause a
Material Adverse Effect.
Section 4.14 Environmental Matters.
(a) Except as set forth in Schedule 4.14, to the best of the Borrower's
knowledge, neither the Borrower nor any Guarantor or Subsidiary is subject to
any Environmental Liability which could have or cause a Material Adverse Effect
and none of the Guarantors, the Borrower or any Subsidiary has been designated
as a potentially responsible party under CERCLA or under any state statute
similar to CERCLA. None of the Properties has been identified on any current or
proposed (i) National Priorities List under 40 C.F.R. ss. 300, (ii) CERCLIS
list or (iii) any list arising from a state statute similar to CERCLA.
(b) Except as set forth in Schedule 4.14, to the best of the Borrower's
knowledge, no Hazardous Materials have been or are being used, produced,
manufactured, processed, treated, recycled, generated, stored, disposed of,
managed or otherwise handled at, or shipped or transported to or from the
Properties or are otherwise present at, on, in or under the Properties, or, to
the best of the knowledge of the Borrower, at or from any adjacent site or
facility, except for Hazardous Materials, such as cleaning solvents, pesticides
and other materials used, produced, manufactured, processed, treated, recycled,
generated, stored, disposed of, managed, or otherwise handled in the ordinary
course of business in material compliance with all applicable Environmental
Requirements.
(c) Except as set forth in Schedule 4.14, to the best of the Borrower's
knowledge, each of the Borrower and its Subsidiaries and Affiliates has
procured all Environmental Authorizations necessary for the conduct of its
business, and is in compliance with all Environmental Requirements in
connection with the operation of the Properties and the Borrower's, and each of
its Subsidiary's and Affiliate's, respective businesses.
Section 4.15 Capital Stock. All Capital Stock, debentures, bonds, notes
and all other securities of the Borrower and its Subsidiaries which are
corporations presently issued and outstanding are validly and properly issued
in all material respects in accordance with all applicable laws, including, but
not limited to, the "Blue Sky" laws of all applicable states and the federal
securities laws, except as may be otherwise determined in the shareholder class
action litigation described in Section 4.05. The issued shares of Capital Stock
of the Borrower's Wholly Owned Subsidiaries are owned by the Borrower free and
clear of any Lien or adverse claim. At least a majority of the issued shares of
capital stock of each of
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the Borrower's other Subsidiaries (other than Wholly Owned Subsidiaries) is
owned by the Borrower, and all such shares which are owned by the Borrower are
owned by it free and clear of any Lien or adverse claim.
Section 4.16 Margin Stock. Neither the Borrower nor any Guarantor or
Subsidiary is engaged principally, or as a significant part of its business, in
the business of purchasing or carrying any Margin Stock, and no part of the
proceeds of any Loan will be used to purchase or carry any Margin Stock or to
extend credit to others for the purpose of purchasing or carrying any Margin
Stock (other than loans to employees for the purchase of Capital Stock pursuant
to options granted by the Borrower), or be used for any purpose which violates,
or which is inconsistent with, the provisions of Regulation T, U or X.
Section 4.17 Insolvency. After giving effect to the execution and
delivery of the Loan Documents and the making of the Loans under this
Agreement: (i) the Borrower will not (x) be "insolvent," within the meaning of
such term as used in O.C.G.A. ss. 18-2-22 or as defined in ss. 101 of the
"Bankruptcy Code", or Section 2 of either the "UFTA" or the "UFCA", or as
defined or used in any "Other Applicable Law" (as those terms are defined
below), or (y) be unable to pay its debts generally as such debts become due
within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA
or Section 6 of the UFCA, or (z) have an unreasonably small capital to engage
in any business or transaction, whether current or contemplated, within the
meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA or Section
5 of the UFCA; and (ii) the obligations of the Borrower under the Loan
Documents and with respect to the Loans will not be rendered avoidable under
any Other Applicable Law. For purposes of this Section 4.17, "Bankruptcy Code"
means Title 11 of the United States Code, "UFTA" means the Uniform Fraudulent
Transfer Act, "UFCA" means the Uniform Fraudulent Conveyance Act, and "Other
Applicable Law" means any other applicable law pertaining to fraudulent
transfers or acts voidable by creditors, in each case as such law may be
amended from time to time.
Section 4.18 Insurance. Each of the Borrower, the Guarantors and the
Subsidiaries has (i) obtained (either in the name of the Borrower or in such
Subsidiary's own name), or has caused its tenants to obtain (or, for tenants
approved by the Agent) to provide self-insurance with respect thereto), with
financially sound and reputable insurance companies, all-risk insurance in at
least such amounts and against at least such risks (including on all its
property, and public liability and worker's compensation) as are usually
insured against in the same general area by companies of established repute
engaged in the same or similar business and (ii) from and after the delivery of
the Real Property Documents pursuant to Section 5.27(b), such insurance as is
required by the Security Documents. The Borrower has preserved any and all
rights which it has under any fidelity or directors and officers insurance
policy with respect to claims arising out of actions which gave rise to the
Existing Credit Agreement Events of Default.
Section 4.19 Real Estate Investment Trust. The Borrower is qualified
under the Code as a real estate investment trust.
ARTICLE V
COVENANTS
The Borrower and (by incorporation by reference in the Guaranty) the
Guarantors agree that, so long as any Bank has any Commitment hereunder or any
amount payable hereunder or under any Note remains unpaid:
Section 5.01 Information. The Borrower will deliver to each of the
Banks:
(a) as soon as available and in any event within 90 days after the end of
each Fiscal Year, commencing with the Fiscal Year ending December 31, 2000,
either (i) an executed copy of the Annual Report on Form 10-K for such Fiscal
Year, or (ii) a consolidated balance sheet of the Borrower and the
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Guarantors as of the end of such Fiscal Year and the related consolidated
statements of income, shareholders' equity and cash flows for such Fiscal Year,
setting forth in each case in comparative form the figures for the previous
fiscal year, in either case audited by Ernst & Young LLP or other independent
public accountants of nationally recognized standing, with such audit opinion
to be free of exceptions and qualifications not acceptable to the Required
Banks;
(b) as soon as available and in any event within 45 days after the end of
each of the first 3 Fiscal Quarters of each Fiscal Year, commencing with the
Fiscal Quarter ending June 30, 2000, either (i) an executed copy of the
Quarterly Report on Form 10-Q for such Fiscal Quarter, or (ii) a consolidated
balance sheet of the Borrower and the Guarantors as of the end of such Fiscal
Quarter and the related statement of income and statement of cash flows for
such Fiscal Quarter and for the portion of the Fiscal Year ended at the end of
such Fiscal Quarter, setting forth in each case in comparative form the figures
for the corresponding Fiscal Quarter and the corresponding portion of the
previous Fiscal Year, all certified (subject to normal year-end adjustments) as
to fairness of presentation, GAAP and consistency by the chief financial
officer or the chief accounting officer of the Borrower;
(c) simultaneously with the delivery of each set of financial statements
referred to in paragraphs (a) and (b) above, but in no event later than the
date such statements are due, a certificate, substantially in the form of
Exhibit F (a "Compliance Certificate"), of the chief financial officer or the
chief accounting officer of the Borrower (i) setting forth in reasonable detail
the calculations required to establish whether the Borrower was in compliance
with the requirements of Sections 5.05, 5.15 through 5.22, inclusive, and 5.26
on the date of such financial statements and (ii) stating whether any Default
exists on the date of such certificate and, if any Default then exists, setting
forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of annual financial
statements referred to in paragraph (a) above, a statement of the firm of
independent public accountants which reported on such statements to the effect
that nothing has come to their attention to cause them to believe that any
Default existed under Sections 5.15, 5.16, and 5.19 through 5.22, inclusive,
Section 5.26 or Section 6.01(e) or (f) on the date of such financial
statements;
(e) within 5 Domestic Business Days after the Borrower becomes aware of
the occurrence of any Default, a certificate of the chief financial officer or
the chief accounting officer of the Borrower setting forth the details thereof
and the action which the Borrower is taking or proposes to take with respect
thereto;
(f) promptly upon the mailing thereof to the shareholders of the Borrower
generally, copies of all financial statements, reports and proxy statements so
mailed;
(g) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and annual, quarterly or monthly reports which the
Borrower shall have filed with the Securities and Exchange Commission;
(h) if and when any member of the Controlled Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA, a copy of such notice; or (iii)
receives notice from the PBGC under Title IV of ERISA of an intent to terminate
or appoint a trustee to administer any Plan, a copy of such notice;
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(i) within 45 days after the end of each Fiscal Quarter, a Borrowing Base
Certificate as of the last day of the Fiscal Quarter just ended, and,
immediately prior to the date of any removal or addition of any Property from
the Borrowing Base, a Borrowing Base Certificate as of such date, giving effect
to such removal or addition;
(j) simultaneously with the delivery of each set of financial statements
referred to in paragraphs (a) and (b) above, operating statements for each
Borrowing Base Property for the period covered by such financial statements;
(k) on or before June 15, 2000, the consolidated balance sheet of the
Borrower and JDN DCI as of December 31, 1999 and the related consolidated
statements of income, shareholders' equity and cash flows for the Fiscal Year
then ended, reported on by Ernst & Young LLP without material qualification,
and a copy of the Borrower's Annual Report on Form 10-K for such Fiscal Year;
(l) as soon as received by management in final form, a copy of Ernst &
Young LLP's management letter relating to the financial reports described in
paragraph (k) above;
(m) furnish the projections described in Section 5.29 at the times
specified and pursuant to the terms contained in such section; and
(n) from time to time such additional information regarding the financial
position or business of the Borrower and the Guarantors as the Agent, at the
request of any Bank, may reasonably request.
Section 5.02 Inspection of Property, Books and Records. The Borrower
and the Guarantors will (i) keep proper books of record and account in which
full, true and correct entries in conformity with GAAP shall be made of all
material dealings and transactions in relation to its business and activities;
and (ii) permit representatives of any Bank at such Bank's expense prior to the
occurrence of a Default and at the Borrower's expense after the occurrence of a
Default 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. The Borrower and the Guarantors
agree to cooperate and assist in such visits and inspections, in each case at
such reasonable times and as often as may reasonably be desired.
Section 5.03 Maintenance of Existence. The Borrower shall and the
Guarantors will each maintain its corporate or partnership existence and carry
on its business in substantially the same manner and in substantially the same
fields as such business is now carried on and maintained.
Section 5.04 Dissolution. Neither the Borrower nor any of the
Guarantors shall suffer or permit dissolution or liquidation either in whole or
in part or redeem or retire any shares of its own stock or that of any
Guarantor, except an established stock repurchase program of which the Agent
has been notified or through corporate reorganization to the extent permitted
by Section 5.05.
Section 5.05 Consolidations, Mergers and Sales of Assets. Neither the
Borrower nor any of the Guarantors will consolidate or merge with or into, or
acquire all or substantially all of the assets or stock of any other Person, or
sell, lease or otherwise transfer all or any substantial part of its assets to,
any other Person, provided that:
(i) the Borrower may merge with another Person if (x) such Person was
organized under the laws of the United States of America or one of its
states, (y) the Borrower is the corporation surviving such merger and (z)
immediately after giving effect to such merger, no Default shall have
occurred and be continuing;
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(ii) Guarantors may merge with one another, and the Guarantors may
sell, lease or otherwise transfer assets to the Borrower;
(iii) any sale for cash only of Property by JDN DCI, pursuant to
reasonable terms which are no less favorable to JDN DCI than would be
obtained in a comparable arm's length transaction with a Person which is
not an Affiliate, for fair market value (as determined in good faith by
the Board of Directors of JDN DCI or the Borrower or an Executive
Committee thereof), provided that the proceeds thereof are used by JDN
DCI, or are distributed by JDN DCI to the Borrower or a Guarantor to be
used by it, for the purchase of comparable property, to repay Debt or to
fund new development, or otherwise to be retained by it for working
capital;
(iv) the sale by the Borrower or a Guarantor of a Relinquished
Property as part of a Section 1031 Exchange; provided that such sale is
pursuant to reasonable terms which are no less favorable to the Borrower
or such Guarantor than would be obtained in a comparable arm's length
transaction with a Person which is not an Affiliate, for fair market value
(as determined in good faith by the Board of Directors of the Borrower or
such Guarantor or an Executive Committee thereof), provided that the
proceeds thereof are used by the Borrower or such Guarantor for the
purchase of Replacement Property;
(v) the foregoing limitation on the acquisition of all or
substantially all the assets or stock of another Person shall not
prohibit, during any Fiscal Quarter, the acquisition of all or
substantially all of the assets or stock of another Person unless the
aggregate assets or stock acquired in a single acquisition or series of
related acquisitions of all or substantially all of the assets or stock of
another Person by the Borrower and the Guarantors during such Fiscal
Quarter constituted more than 20% of Gross Asset Value at the end of the
most recent Fiscal Quarter immediately preceding such Fiscal Quarter;
(vi) the foregoing limitation on the sale, lease or other transfer of
assets shall not prohibit, during any Fiscal Quarter, a transfer of assets
(in a single transaction or in a series of related transactions) unless
the aggregate assets to be so transferred, when combined with all other
assets transferred, by the Borrower and the Guarantors during such Fiscal
Quarter and the immediately preceding 3 Fiscal Quarters (but in each case
excluding transfers permitted under clauses (i) through (iv) above),
constituted more than 25% of Gross Asset Value at the end of the most
recent Fiscal Quarter immediately preceding such Fiscal Quarter.
In the case of any Guarantor which transfers substantially all of its assets
pursuant to clause (vi) of the preceding sentence, and in the case of any
Guarantor the stock of which is being sold and with respect to which clause
(vi) would have been satisfied if the transaction had been a sale of assets of
such Guarantor, so long as such Guarantor does not own a Borrowing Base
Property, such Guarantor may dissolve and shall be entitled to obtain from the
Agent a written release from the Guaranty, provided that it can demonstrate to
the reasonable satisfaction of the Agent that (A) it has repaid in full all
Debt owed to the Borrower or any other Guarantor and (B) such sale was for cash
and in the case of an asset transfer, the net cash proceeds received in
connection therewith are being distributed to the Borrower as part of such
dissolution, and upon obtaining such written release, it shall no longer be a
Guarantor for any purpose hereunder.
Section 5.06 Use of Proceeds. The proceeds of the Loans may be used for
working capital and general corporate purposes, and proceeds of the Initial New
Advances may be used to pay all or part of the Anchor Tenant Settlement
Payment; provided, however, that no portion of the proceeds of the Loans will
be used by the Borrower or any Subsidiary (i) in connection with, whether
directly or indirectly, any tender offer for, or other acquisition of, stock of
any corporation with a view towards obtaining control of such other
corporation, unless such tender offer or other acquisition is to be made on a
negotiated basis with the approval of the Board of Directors of the Person to
be acquired, and the provisions of
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Section 5.17 would not be violated, (ii) directly or indirectly, for the
purpose, whether immediate, incidental or ultimate, of purchasing or carrying
any Margin Stock, or (iii) for any purpose in violation of any applicable law
or regulation.
Section 5.07 Compliance with Laws; Payment of Taxes. The Borrower and the
Guarantors will, and will cause each member of the Controlled Group to, comply
with applicable laws (including but not limited to ERISA), regulations and
similar requirements of governmental authorities (including but not limited to
PBGC), except where the necessity of such compliance is being contested in good
faith through appropriate proceedings diligently pursued. The Borrower and the
Guarantors will pay promptly when due all taxes, assessments, governmental
charges, claims for labor, supplies, rent and other obligations which, if
unpaid, might become a lien against the Property of the Borrower or any
Guarantor, except liabilities being contested in good faith and against which,
if requested by the Agent, the Borrower will set up reserves in accordance with
GAAP.
Section 5.08 Insurance. The Borrower and the Guarantors will maintain (i)
(either in the name of the Borrower or in such Guarantor's own name), or will
cause its tenants to obtain, with financially sound and reputable insurance
companies (or, for tenants which have been approved in writing by the Agent
self insurance), all-risk insurance on all its property in at least such
amounts and against at least such risks (including on all its property, and
public liability and worker's compensation) as are usually insured against in
the same general area by companies of established repute engaged in the same or
similar business and (ii) such insurance as is required by the Security
Documents. The Borrower shall preserve any and all rights which it has under
any fidelity or directors and officers insurance policy with respect to claims
arising out of actions which gave rise to the Existing Credit Agreement Events
of Default.
Section 5.09 Change in Fiscal Year. The Borrower and each of the
Guarantors agrees that it will not change its Fiscal Year without the consent
of the Required Banks.
Section 5.10 Maintenance of Property. The Borrower and each Guarantor
shall maintain or caused to be maintained all of its Properties and assets in
good condition, repair and working order, ordinary wear and tear excepted.
Section 5.11 Environmental Notices. The Borrower and each Guarantor shall
furnish to the Banks and the Agent prompt written notice of all Environmental
Liabilities, pending, threatened or anticipated Environmental Proceedings,
Environmental Notices, Environmental Judgments and Orders, and Environmental
Releases at, on, in, under or in any way affecting the Properties or any
adjacent property, and all facts, events, or conditions that could lead to any
of the foregoing.
Section 5.12 Environmental Matters. The Borrower and the Guarantors will
not, and will not permit any Third Party to, use, produce, manufacture,
process, treat, recycle, generate, store, dispose of, manage at, or otherwise
handle, or ship or transport to or from the Properties any Hazardous Materials
except for Hazardous Materials such as cleaning solvents, pesticides and other
similar materials used, produced, manufactured, processed, treated, recycled,
generated, stored, disposed, managed, or otherwise handled in the ordinary
course of business in compliance with all applicable Environmental
Requirements.
Section 5.13 Environmental Release. The Borrower and each Guarantor
agrees that upon the occurrence of an Environmental Release at or on any of the
Properties it will act immediately to investigate the extent of, and to take
appropriate remedial action to eliminate, such Environmental Release, whether
or not ordered or otherwise directed to do so by any Environmental Authority.
Section 5.14 Transactions with Affiliates. Neither the Borrower nor any
of the Guarantors shall enter into, or be a party to, any transaction with any
Affiliate of the Borrower or such Guarantor
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(which Affiliate is not the Borrower or a Guarantor), except as permitted by
law and in the ordinary course of business and pursuant to reasonable terms
which are no less favorable to Borrower or such Subsidiary than would be
obtained in a comparable arm's length transaction with a Person which is not an
Affiliate.
Section 5.15 Restricted Payments and Debt Repurchases. The Borrower's
Restricted Payments in any calendar year shall not exceed (i) for the calendar
year ending December 31, 2000, 100%, and (ii) for all calendar years
thereafter, 95% of "REIT taxable income" (as defined in the Code) for such
period, unless the Borrower must pay out an amount in excess of 100% or 95%, as
applicable, of REIT taxable income to permit the Borrower to preserve its
status as a real estate investment trust, or avoid payment of excise tax or
income tax related to undistributed income, under the applicable provisions of
the Code and except for Restricted Payments necessary to fund the purchase of
Capital Stock pursuant to employee benefit plans in the ordinary course of
business or to satisfy the requirements of stock option plans in effect as of
the Closing Date. The Borrower shall not directly or indirectly repurchase (or
finance the repurchase) of, or make any voluntary prepayments on, Debt of the
types described in clauses (i), (ii), (viii) and (x) of the definition of Debt
(whether secured or unsecured), other than Debt hereunder or under the Term
Credit Agreement or from the net proceeds of the sale of Property (other than
any Borrowing Base Property which has not been released pursuant to Section
5.27(b)).
Section 5.16 Loans or Advances. Loans and advances of the Borrower and
the Guarantors as of the Closing Date (other than to Subsidiaries, which are
set forth in Schedule 4.08, or in any Guarantor), are set forth in Schedule
5.16. Neither the Borrower nor any of the Guarantors shall make loans or
advances after the Closing Date to any Person except as permitted by Section
5.17 and except:
(i) loans or advances to employees and directors not exceeding
$1,000,000 in the aggregate principal amount outstanding at any time;
(ii) deposits required by government agencies or public utilities;
(iii) Replacement Property Development Loans and loans or advances
from the Borrower to a Guarantor or from a Guarantor to the Borrower or
another Guarantor; and/or
(iv) other loans and advances by the Borrower and the Guarantors to
any JDN Venture which (x) are evidenced by notes (and, if requested by the
Agent, acting at the direction of the Required Banks, with such notes,
together with any related mortgage, have been assigned to and pledged with
the Agent, for the benefit of itself and the Banks, as security for the
payment of all obligations of the Borrower to the Agent and the Banks
hereunder) and (y) are in an amount which, together with Investments
permitted by clause (vi) of Section 5.17, do not exceed 15% of Gross Asset
Value as of the end of the most recent Fiscal Quarter;
provided that after giving effect to the making of any loans, advances or
deposits permitted by this Section, and no Default shall be in existence or be
created thereby.
Section 5.17 Investments. Investments of the Borrower and the Guarantors
as of the Closing Date (other than in Subsidiaries, which are set forth in
Schedule 4.08, or in any Guarantors), are set forth on Schedule 5.17. Neither
the Borrower nor any of the Guarantors shall make Investments after the Closing
Date in any Person except as permitted by Section 5.16 and except Investments
in:
(i) direct obligations of the United States Government maturing
within one year;
(ii) certificates of deposit issued by a commercial bank whose credit
is satisfactory to the Agent;
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(iii) commercial paper rated A1 or the equivalent thereof by S&P or
P1 or the equivalent thereof by Moody's and in either case maturing within
6 months after the date of acquisition;
(iv) tender bonds the payment of the principal of and interest on
which is fully supported by a letter of credit issued by a United States
bank whose long-term certificates of deposit are rated at least AA or the
equivalent thereof by S&P and Aa or the equivalent thereof by Moody's,;
and
(v) Investments consisting of the acquisition of all or
substantially all of the assets or stock of another Person permitted by
Section 5.05(iii); and/or
(vi) other Investments by the Borrower and the Guarantors in an
amount which, (x) together with loans and advances permitted by clause
(iv) of Section 5.16, do not exceed 15% of Gross Asset Value as of the end
of the most recent Fiscal Quarter, and (y) with respect to Investments in
Persons over which, after giving effect to such Investment, the Borrower
or the Guarantors do not have Control, do not exceed 5% of Gross Asset
Value as of the end of the most recent Fiscal Quarter;
provided, however, immediately after giving effect to the making of any
Investment, no Default shall have occurred and be continuing.
Section 5.18 Restrictions on Ability of Guarantors to Pay Dividends. The
Borrower shall not permit any Guarantor to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such Guarantor to (i) pay any dividends or
make any other distributions on its Capital Stock or any other interest or (ii)
make or repay any loans or advances to the Borrower or the parent of such
Guarantor.
Section 5.19 Ratio of Total Consolidated Liabilities to Gross Asset
Value. The ratio of Total Consolidated Liabilities to Gross Asset Value shall
at all times be equal to or less than 0.60 to 1.0.
Section 5.20 Ratio of Total Secured Debt to Gross Asset Value. The ratio
of Total Secured Debt to Gross Asset Value shall at all times be equal to or
less than 0.40 to 1.0.
Section 5.21 Ratio of EBITDA to Consolidated Interest Expense. The ratio
of EBITDA to Consolidated Interest Expense for the Fiscal Quarter just ended
and the 3 immediately preceding Fiscal Quarters will not be less than 2.0 to
1.00, calculated at the end of each Fiscal Quarter.
Section 5.22 Guarantees. Neither the Borrower nor any Guarantor will
create, assume or suffer to exist any Guarantees of Debt of other Persons,
except (i) Guarantees in existence on March 31, 2000 in the aggregate amount as
of March 31, 2000 of $22,214,794 and set forth on Schedule 5.22, (ii)
Guarantees of Debt of the Borrower or other Guarantors and (iii) other
Guarantees in an aggregate amount not exceeding at any time 10% of Gross Asset
Value as of the last day of the Fiscal Quarter just ended.
Section 5.23 Ownership. The Borrower shall at all times own 99% of the
capital stock of JDN DCI, subject to the following provisions. Notwithstanding
any provision of this Agreement to the contrary, the Banks acknowledge and
agree that the Borrower, in response to changes dictated by the Ticket to Work
and Work Incentives Improvement Act of 1999 (the "REIT Revision Act") must
effect a restructuring and/or change in ownership of JDN DCI during the period
between January 1, 2001 and April 30, 2001. It is the intent of the parties to
this Agreement that the Borrower be permitted to (1) divest itself of a
sufficient number of shares of the capital stock of JDN DCI such that it does
not, after April 30, 2001, own greater that 10% of the voting securities or
greater than 10% of the value of JDN
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DCI or (2) acquire directly or indirectly 50% or more of the voting securities
of JDN DCI through a statutory merger or otherwise, where the surviving
corporation is a "taxable REIT subsidiary" (as defined in the Code). If the
Borrower acquires directly or indirectly 50% or more of the voting securities
of JDN DCI or its successor on or before April 30, 2001, the Borrower covenants
and agrees not to divest itself of control of JDN DCI or its successor during
the term of this Agreement without the consent of the Banks.
Section 5.24 Status as a REIT. The Borrower shall at all times maintain
its status as a real estate investment trust under the Code.
Section 5.25 Guaranty by the Initial Guarantors; New Subsidiaries to
Become Guarantors. Each of the Initial Guarantors shall become a Guarantor on
the Closing Date, as contemplated in Section 3.01. Any Subsidiary acquired or
created after the Closing Date, must become a Guarantor promptly upon becoming
a Significant Subsidiary, in each case by (x) executing and delivering to the
Agent a counterpart of the Guaranty and a counterpart of the Contribution
Agreement (which the Borrower agrees to execute when the additional Guarantor
executes it), thereby becoming a party to each of them, (y) delivering to the
Agent an opinion of counsel to such Subsidiary, in substantially the form and
substance of Exhibit B, but limited to such Subsidiary and the Guaranty and
Contribution Agreement, and excluding paragraph 2 thereof, and (z) delivering
to the Agent documents pertaining to the Subsidiary reasonably requested by the
Agent of the types described in paragraph (f) of Section 3.01, but relating to
the Guaranty and the Contribution Agreement. In addition, if any Borrowing Base
Property contributed or substituted after the Closing Date pursuant to Section
5.27(b) is owned by a Subsidiary which is not a Significant Subsidiary, it
shall nevertheless become a Guarantor pursuant to the foregoing and comply with
the provisions of Section 5.27(b) with respect to such Borrowing Base Property.
Section 5.26 Ratio of EBITDA to Consolidated Fixed Charges. The ratio of
EBITDA to Consolidated Fixed Charges for the Fiscal Quarter just ended and the
3 immediately preceding Fiscal Quarters will not be less than 1.75 to 1.00,
calculated at the end of each Fiscal Quarter.
Section 5.27 Collateral.
(a) It is the intent of the parties hereto that the Secured Obligations
shall be secured by the Collateral. On or prior to the Closing Date, the
Borrower, JDN AL and JDN Holdings will execute and deliver to the Collateral
Agent the Security Documents pertaining to the Properties described in Exhibit
J as Initial Borrowing Base Properties, and the Security Documents (other than
the Hazardous Materials Indemnity Agreement) shall be filed for record at the
earliest practicable time, and in any event prior to the making of any Initial
New Advances. Within 3 days after the delivery thereof to the Borrower, the
Borrower, JDN AL and JDN Holdings, as applicable, shall execute and deliver to
the Collateral Agent the Security Documents pertaining to the other Properties
described on Exhibit J as being Borrowing Base Properties, and the Security
Documents (other than the Hazardous Materials Indemnity Agreement) shall be
filed for record (as applicable) at the earliest practicable time. On and after
the Closing Date, the Borrower shall commence and diligently pursue the
delivery to the Agent of all of the Real Property Documents pertaining to each
of the Borrowing Base Properties, which, as to each Borrowing Base Property,
shall be delivered as soon as all items other than the items described in
clauses (xi) and (xii) of the definition of Real Property Documents are
available, and within 90 days after the Closing Date, the Borrower and the
Guarantors shall have completed the delivery to the Agent all of the Real
Property Documents pertaining to each of the Borrowing Base Properties, which
in all cases must be reasonably satisfactory to the Agent; provided, however,
as to the items described in clauses (xi) and (xii) of the definition of Real
Property Documents, such obligation shall be to use commercially reasonable
efforts during such 90 day period (and thereafter) to obtain and deliver such
items to the Collateral Agent from Major Tenants and, if requested by the Agent
from time to time, from any other tenants. The Borrower and Agent shall agree
on a stipulated value for establishing mortgagee title insurance Coverage on
each Borrowing Base Property. The Borrower shall pay all recording fees and
costs and stamp, intangible or other taxes payable in connection with the
filing for record the Security Documents.
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(b) The parties acknowledge and agree that the Properties on Exhibit J as
of the Closing Date will, on the Final Borrowing Base Perfection Date (and
assuming no change in Net Operating Income) produce an aggregate Borrowing Base
of $169,206,912. In order to permit the Borrower to have access to the full
aggregate amount of the Commitments, while preserving the right of all the
Banks to approve the beginning Borrowing Base Properties, the Borrower may, for
a period of 6 months from the Closing Date, offer to contribute an additional
Property (or Properties) as a Borrowing Base Property, and any such additional
Property (an "Additional Contributed Beginning Property") shall become a
Borrowing Base Property only if approved by each of the Banks and upon
satisfying all other criteria for constituting a Borrowing Base Property. In
the event that any Borrowing Base Property fails to satisfy the criteria for
constituting a Borrowing Base Property set forth in the definition thereof such
Property being an "Ineligible Property" so long as it fails to satisfy such
criteria, but upon subsequently satisfying such criteria, if such Property has
not been released pursuant hereunder, and not an Ineligible Property, the
Borrower shall notify the Agent thereof as soon as it becomes aware thereof and
such fact shall be included in the next Borrowing Base Certificate, and (i)
such Ineligible Property shall not be included in the calculation of the
Borrowing Base for purposes of Borrowings pursuant to Section 2.01, (ii) the
mandatory prepayment provisions of Section 2.10(b) shall apply, and (iii) the
Collateral Agent shall nevertheless not release such Property from the related
Security Documents unless and until a release is permitted pursuant and subject
to this Section 5.27(b). No Borrowing Base Property may be released without the
consent of all of the Banks, or contributed without the consent of the Required
Banks (or all of the Banks, with respect to an Additional Contributed Beginning
Property), in each case in their reasonable discretion; provided, that the
Borrower or a Guarantor shall be entitled to a release of a Borrowing Base
Property: (1) in exchange for a substitute Property having equal or greater
value (using the Borrowing Base calculation with respect thereto) and quality
(including as to tenant mix and tenant credit quality) as is determined by the
Agent and the Required Banks in their reasonable discretion and is in all other
respects acceptable to the Agent and the Required Banks in their reasonable
discretion, subject to the last sentence of this paragraph (b); or (2) such
Borrowing Base Property is being released for sale or refinancing and, except
with respect to an Ineligible Property, the Agent receives, for the ratable
benefit of the Banks, a prepayment on the Loans in connection therewith in an
amount equal to the greater of (x) the net proceeds from such sale or
refinancing (net of direct customary closing expenses and fees) and (y) an
amount equal to 108% of the Borrowing Base attributable to such Borrowing Base
Property, and the aggregate Commitments are permanently reduced by the amount
of such prepayment. In connection with (x) any such request for a release,
contribution or substitution, the Borrower shall provide to Agent and the Banks
an analysis of any proposed release, contribution (including an Additional
Contributed Beginning Property) or substitution of a Borrowing Base Property
that shall demonstrate Borrower's continued compliance with the Loan Documents
after giving effect to such release, contribution or substitution; and (y) any
such request for a contribution (including an Additional Contributed Beginning
Property) or substitution, the Borrower shall pay to the Agent and Banks an
appropriate fee (determined by Agent) to accommodate the review and
administration of such contribution or substitution. Such fees shall be no less
than $5,000 to the Agent and $20,000 to the Banks in each instance or
combination of instances whereby more than one property is simultaneously
substituted or contributed. In no event shall the combined fee in any instance
exceed $40,000. As a condition of any contribution or substitution, the Agent
shall have received the Security Documents and Real Property Documents
satisfactory to it with respect to the contributed or replacement Property and
all other requirements for constituting a Borrowing Base Property shall have
been satisfied. In addition, whenever a Borrowing Base Property is released,
contributed (including an Additional Contributed Beginning Property) and/or
substituted, the Borrower shall provide to the Agent a revised Exhibit J
containing the relevant information as to all of the Borrowing Base Properties
after giving effect to such release, contribution and/or substitution, which
revised Exhibit J shall be distributed to the Banks by the Agent upon the
Agent's determination that it is in compliance with the terms of this
Agreement.
Upon request of any Bank, to satisfy the bank regulatory or examination
requirements or requests of internal or external bank examiners, the Agent
shall, at the expense of the Borrower, but in the name of the Agent, acting on
behalf of the Banks, obtain written appraisal reports on any or all of the
Borrowing
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Base Properties which (i) complies with Title XI of the Financial Institutions
Reform, Recovery and Enforcement Act of 1989, as amended, 12 U.S.C. 3331, et
seq., and The Regulations and Statements of General Policy on Appraisals
promulgated by the Federal Deposit Insurance Corporation, 12 C.F.R. Part 32, as
amended, and (ii) is performed by a state-certified real estate appraiser
certified under the laws of any state. Such appraisals shall be no more
frequent than once per 12 month period for any Property.
Section 5.28 Financial Adviser The Borrower shall use its best efforts to
retain a financial advisor to assess alternative capital plans, at the earliest
practicable time, and in any event within 6 months after the Closing Date. Such
financial advisor shall be either (i) a reputable investment banking firm which
is or is affiliated with a member of the New York Stock Exchange with total
assets (including assets of its affiliates) of at least $500,000,000 or (ii) or
approved by the Required Banks
Section 5.29 Identification of Sources; Projection of Sources and Uses of
Funds The Borrower shall (i) identify and establish, to the reasonable
satisfaction of the Agent and the Required Banks, the sources of funds (either
externally financed or internally generated) that are required to fund its
Investments and operations (including the funding of projects to their
completion), while maintaining compliance with the financial covenants
contained herein and maintaining current the payment of all operational,
development and financial obligations and (ii) provide to the Agent and the
Banks a quarterly projection of its sources and uses of cash in form and
substance satisfactory to the Agent and the Required Banks, highlighting all
new such Investments and operations and identifying the sources of funds
available to fund such Investments and operations.
ARTICLE VI
DEFAULTS
Section 6.01 Events of Default. If one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of any Loan or
shall fail to pay any interest on any Loan within 5 Domestic Business Days
after such interest shall become due, or shall fail to pay any fee or other
amount payable hereunder within 5 Domestic Business Days after such fee or
other amount becomes due; or
(b) the Borrower shall fail to observe or perform any covenant contained
in Sections 5.01(e), 5.01(i), 5.02(ii), 5.03 through 5.06, inclusive, or
Sections 5.17 through 5.26, inclusive; or
(c) the Borrower or any Guarantor shall fail to observe or perform any
covenant or agreement contained or incorporated by reference in this Agreement
(other than those covered by paragraph (a) or (b) above) or the Guaranty or any
of the Security Documents and such failure shall not have been cured within 30
days after the earlier to occur of (i) written notice thereof has been given to
the Borrower or such Guarantor by the Agent at the request of any Bank or (ii)
the Borrower or such Guarantor otherwise becomes aware of any such failure; or
(d) any representation, warranty, certification or statement made by the
Borrower or any Guarantor in Article IV of this Agreement or the Guaranty or
any of the Security Documents or in any certificate, financial statement or
other document delivered pursuant to this Agreement or the Guaranty shall prove
to have been incorrect or misleading in any material respect when made (or
deemed made); or
(e) the Borrower or any Guarantor shall fail to make any payment in
respect of Debt in an aggregate principal amount outstanding in excess of
$5,000,000 (other than the Notes) when due or within any applicable grace
period; or
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(f) any event or condition shall occur which results in the acceleration
of the maturity of Debt in an aggregate principal amount outstanding in excess
of $5,000,000 of the Borrower or any Guarantor (including, without limitation,
any required mandatory prepayment or "put" of such Debt to the Borrower or any
Guarantor) or enables (or, with the giving of notice or lapse of time or both,
would enable) the holders of such Debt or commitment or any Person acting on
such holders' behalf to accelerate the maturity thereof or terminate any such
commitment (including, without limitation, any required mandatory prepayment or
"put" of such Debt to the Borrower or any Guarantor); provided, however, that
there shall be excluded from the foregoing the Existing Mortgage Defaulted
Debt, so long as it has not been accelerated; or
(g) failure of any JDN Venture to make any payment when due, including
payment of principal or interest (whether by acceleration or otherwise), on any
obligation of such JDN Venture, the aggregate outstanding principal amount of
which (whether or not then due) exceeds $5,000,000, or there shall occur any
event or condition which results in the acceleration of the maturity of such
obligation (including, without limitation, any required mandatory prepayment of
"put" to such JDN Venture or to the Borrower or any Guarantor) or the
termination of any commitment pertaining thereto; provided, however, that there
shall be excluded from the foregoing the Existing Mortgage Defaulted Debt, so
long as it has not been accelerated; or
(h) the Borrower or any Guarantor shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other similar law now
or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part
of its property, or shall consent to any such relief or to the appointment of
or taking possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment for the
benefit of creditors, or shall fail generally, or shall admit in writing its
inability, to pay its debts as they become due, or shall take any corporate or
partnership action to authorize any of the foregoing; or
(i) an involuntary case or other proceeding shall be commenced against the
Borrower or any Guarantor seeking liquidation, reorganization or other relief
with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against the Borrower or any Guarantor under the federal
bankruptcy laws as now or hereafter in effect; or
(j) the Borrower or any member of the Controlled Group shall fail to pay
when due any material amount which it shall have become liable to pay to the
PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a
Plan or Plans shall be filed under Title IV of ERISA by the Borrower, any
member of the Controlled Group, any plan administrator or any combination of
the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA
to terminate or to cause a trustee to be appointed to administer any such Plan
or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or
Plans to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall
not have been dismissed within 30 days thereafter; or a condition shall exist
by reason of which the PBGC would be entitled to obtain a decree adjudicating
that any such Plan or Plans must be terminated;
(k) one or more judgments or orders for the payment of money in an
aggregate amount in excess of $5,000,000 shall be rendered against the Borrower
or any Guarantor and such judgment or order shall continue unsatisfied and
unstayed for a period of 30 days; or
(l) a federal tax lien shall be filed against the Borrower or any
Guarantor under Section 6323 of the Code or a lien of the PBGC shall be filed
against the Borrower or any Subsidiary under Section 4068
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of ERISA and in either case such lien shall remain undischarged for a period of
25 days after the date of filing; or
(m) (i) any Person or two or more Persons acting in concert, other than J.
Donald Nichols, Elizabeth L. Nichols or their immediate family members, or
trusts or other entities established for the benefit of any of them, shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of 1934)
of 20% or more of the outstanding shares of the voting stock of the Borrower;
or (ii) as of any date a majority of the Board of Directors of the Borrower
consists of individuals who were not either (A) directors of the Borrower as of
the corresponding date of the previous year, (B) selected or nominated to
become directors by the Board of Directors of the Borrower of which a majority
consisted of individuals described in clause (A), or (C) selected or nominated
to become directors by the Board of Directors of the Borrower of which a
majority consisted of individuals described in clause (A) and individuals
described in clause (B); or
(n) the occurrence of any event, act, occurrence, or condition which the
Required Banks determine has caused a Material Adverse Effect; or
(o) (i) the Borrower or any Guarantor shall deny or disaffirm its
obligations under any Security Document or (ii) any Security Document shall
cease to be in full force and effect, other than solely as a result of acts or
omissions of the Collateral Agent, and except to the extent fully covered by
title insurance, unless, within 30 days of notice to the Borrower by the Agent,
the Borrower or a Guarantor, as the case may be, has executed Security
Documents which effect a complete cure, or the Borrowing Base Property involved
has been replaced by a new Borrowing Base Property pursuant and subject to the
provisions of Section 5.27(b);
then, and in every such event, (i) the Agent shall, if requested by the
Required Banks, by notice to the Borrower terminate the Commitments and they
shall thereupon terminate, (ii) the Agent shall, if requested by the Required
Banks, by notice to the Borrower declare the Notes (together with accrued
interest thereon), and all other amounts payable hereunder and under the other
Loan Documents, to be, and the Notes, including the Swing Loan Note (together
with accrued interest thereon), and all other amounts payable hereunder and
under the other Loan Documents shall thereupon become, immediately due and
payable without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by the Borrower together with interest at the
Default Rate accruing on the principal amount thereof from and after the date
of such Event of Default; provided that if any Event of Default specified in
paragraph (h) or (i) above occurs with respect to the Borrower, without any
notice to the Borrower or any other act by the Agent or the Banks, the
Commitments shall thereupon terminate and the Notes (together with accrued
interest thereon) and all other amounts payable hereunder and under the other
Loan Documents shall automatically and without notice become immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower together with interest thereon
at the Default Rate accruing on the principal amount thereof from and after the
date of such Event of Default, and (iii) the Agent shall exercise such rights,
powers and remedies under the Security Documents as shall be requested by the
Required Banks, and apply the proceeds of any such actions pursuant to the
provisions thereof. Notwithstanding the foregoing, the Agent shall have
available to it all other remedies at law or equity, and shall exercise any one
or all of them at the request of the Required Banks. Following acceleration of
the Notes by the Agent, nothing contained in this Agreement shall limit the
right of a Bank from initiating or conducting any litigation or collection
proceedings, other than with respect to the Collateral, or from exercising any
other rights or remedies, with respect to the Note on which it is named as
payee.
Section 6.02 Notice of Default. The Agent shall give notice to the
Borrower of any Default under Section 6.01(c) promptly upon being requested to
do so by any Bank and shall thereupon notify all the Banks thereof.
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ARTICLE VII
THE AGENT
Section 7.01 Appointment; Powers and Immunities. Each Bank hereby
irrevocably appoints and authorizes the Agent to act as its agent hereunder and
under the other Loan Documents, and as the Collateral Agent under the Security
Documents, with such powers as are specifically delegated to the Agent by the
terms hereof and thereof, together with such other powers as are reasonably
incidental thereto. The Agent: (a) shall have no duties or responsibilities
except as expressly set forth in this Agreement and the other Loan Documents,
and shall not by reason of this Agreement or any other Loan Document be a
trustee for any Bank; (b) shall not be responsible to the Banks for any
recitals, statements, representations or warranties contained in this Agreement
or any other Loan Document, or in any certificate or other document referred to
or provided for in, or received by any Bank under, this Agreement or any other
Loan Document, or for the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document or any other
document referred to or provided for herein or therein or for the value, title,
condition, fitness for use of or otherwise with respect to the Collateral or as
to the perfection or priority of the Liens or security interests created
thereby (and it makes no representation or warranty with respect thereto), or
for insuring or inspecting the Collateral or for paying or discharging any tax,
assessment, governmental charge or Lien affecting the Collateral, or for any
failure by the Borrower to perform any of its obligations hereunder or
thereunder; (c) shall not be required to initiate or conduct any litigation or
collection proceedings hereunder or under any other Loan Document except to the
extent requested by the Required Banks and shall not be liable for any action
taken or omitted to be taken at the direction of the Required Banks, and (d)
shall not be responsible for any action taken or omitted to be taken by it
hereunder or under any other Loan Document or any other document or instrument
referred to or provided for herein or therein or in connection herewith or
therewith, except for its own gross negligence or willful misconduct. The Agent
may employ agents and attorneys-in-fact and shall not be responsible for the
negligence or misconduct of any such agents or attorneys-in-fact selected by it
with reasonable care. The Agent, in its capacity as Collateral Agent under the
Security Documents, with the consent of the Required Banks, shall have power to
appoint one or more persons to act as co-agent or co-agents, jointly with the
Collateral Agent, or separate agent or separate agents, of all or any part of
the Collateral, and to vest in such person or persons, in such capacity, such
title to the Collateral or any part thereof, and such rights, powers, duties,
trusts or obligations as the Collateral Agent, with the consent of the Required
Banks, may consider necessary or desirable in any case only for the purpose of
meeting any legal requirements of any jurisdiction in which any part of the
Collateral may at the time be located. Absent any specific agreement to the
contrary, any co-agent or co-agents appointed hereunder shall, to the extent
applicable, have the rights, obligations and duties of the Collateral Agent
hereunder. The provisions of this Article VII are solely for the benefit of the
Agent and the Banks, and the Borrower shall not have any rights as a third
party beneficiary of any of the provisions hereof. In performing its functions
and duties under this Agreement and under the other Loan Documents, the Agent
shall act solely as agent of the Banks and does not assume and shall not be
deemed to have assumed any obligation towards or relationship of agency or
trust with or for the Borrower. The duties of the Agent shall be ministerial
and administrative in nature, and the Agent shall not have by reason of this
Agreement or any other Loan Document a fiduciary relationship in respect of any
Bank. Except as otherwise provided in this Agreement, during the existence of a
Default or an Event of Default, the Agent, as Collateral Agent, agrees to make
only such demands and give only such notices under the Security Documents as it
is instructed in writing to give, and to take only such action to enforce the
Security Documents and to only collect and/or dispose of the Collateral or any
portion thereof as it is instructed in writing to take, collect or dispose of
any of the Collateral pursuant to applicable law, by the Required Banks. The
Collateral Agent agrees not to release the Collateral or any portion thereof
except in accordance with the provisions of this Agreement and the other Loan
Documents. The Collateral Agent shall not grant any consent (except as
expressly contemplated by this Agreement or the other Loan Documents) or waiver
in connection with, execute any amendment to or modification of, or exercise
any discretion granted to it under any of the Security Documents, except in
accordance with Section 9.06. Notwithstanding anything herein to the contrary,
the Collateral Agent shall not be required to take any
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action that is in its opinion contrary to law or to the terms of this Agreement
or any of the Security Documents, or would in its reasonable opinion subject it
or any of its agents, officers, employees or directors to personal liability.
Section 7.02 Reliance by Agent. The Agent shall be entitled to rely upon
any certification, notice or other communication (including any thereof by
telephone, telecopier, telegram or cable) believed by it to be genuine and
correct and to have been signed or sent by or on behalf of the proper Person or
Persons, and upon advice and statements of legal counsel, independent
accountants or other experts selected by the Agent. As to any matters not
expressly provided for by this Agreement or any other Loan Document, the Agent
shall in all cases be fully protected in acting, or in refraining from acting,
hereunder and thereunder in accordance with instructions signed by the Required
Banks, and such instructions of the Required Banks in any action taken or
failure to act pursuant thereto shall be binding on all of the Banks.
Section 7.03 Defaults. The Agent shall not be deemed to have knowledge of
the occurrence of a Default or an Event of Default (other than the nonpayment
of principal of or interest on the Loans) unless the Agent has received notice
from a Bank or the Borrower specifying such Default or Event of Default and
stating that such notice is a "Notice of Default". In the event that the Agent
receives such a notice of the occurrence of a Default or an Event of Default,
the Agent shall give prompt notice thereof to the Banks. The Agent shall give
each Bank prompt notice of each nonpayment of principal of or interest on the
Loans whether or not it has received any notice of the occurrence of such
nonpayment. The Agent shall (subject to Section 9.06) take such action
hereunder with respect to such Default or Event of Default as shall be directed
by the Required Banks, provided that, unless and until the Agent shall have
received such directions, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default
or Event of Default as it shall deem advisable in the best interests of the
Banks.
Section 7.04 Rights of Agent and its Affiliates as a Bank. With respect
to the Loans made by the Agent and any Affiliate of the Agent, Wachovia in its
capacity as a Bank hereunder and any Affiliate of the Agent or such Affiliate
in its capacity as a Bank hereunder shall have the same rights and powers
hereunder as any other Bank and may exercise the same as though Wachovia were
not acting as the Agent, and the term "Bank" or "Banks" shall, unless the
context otherwise indicates, include Wachovia in its individual capacity and
any Affiliate of the Agent in its individual capacity. The Agent and any
Affiliate of the Agent may (without having to account therefor to any Bank)
accept deposits from, lend money to and generally engage in any kind of
banking, trust or other business with the Borrower (and any of the Borrower's
Affiliates) as if Wachovia were not acting as the Agent, and the Agent and any
Affiliate of the Agent may accept fees and other consideration from the
Borrower (in addition to any agency fees and arrangement fees heretofore agreed
to between the Borrower and the Agent) for services in connection with this
Agreement or any other Loan Document or otherwise without having to account for
the same to the Banks.
Section 7.05 Indemnification. Each Bank severally agrees to indemnify the
Agent, to the extent the Agent shall not have been reimbursed by the Borrower,
ratably in accordance with its Commitment, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including, without limitation, counsel fees and disbursements) or
disbursements of any kind and nature whatsoever, which may be imposed on,
incurred by or asserted against the Agent in any way relating to or arising out
of this Agreement or any other Loan Document or any other documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby, including, without limitation, any
environmental liabilities arising from or related to any of the Collateral and
any liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses arising from any action taken at the direction of the
Required Banks to enforce the Security Documents (excluding, unless an Event of
Default has occurred and is continuing, the normal administrative out of pocket
costs and expenses incident to the performance of its agency duties hereunder)
or the enforcement
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of any of the terms hereof or thereof or any such other documents; provided
that no Bank shall be liable for any of the foregoing to the extent they arise
from the negligence or willful misconduct of the Agent.
Section 7.06 Consequential Damages. THE AGENT SHALL NOT BE RESPONSIBLE OR
LIABLE TO ANY BANK, THE BORROWER OR ANY OTHER PERSON OR ENTITY FOR ANY
PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT
OF THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
Section 7.07 Payee of Note Treated as Owner. The Agent may deem and treat
the payee of any Note as the owner thereof for all purposes hereof unless and
until a written notice of the assignment or transfer thereof shall have been
filed with the Agent and the provisions of Section 9.08(c) have been satisfied.
Any requests, authority or consent of any Person who at the time of making such
request or giving such authority or consent is the holder of any Note shall be
conclusive and binding on any subsequent holder, transferee or assignee of that
Note or of any Note or Notes issued in exchange therefor or replacement
thereof.
Section 7.08 Nonreliance on Agent and Other Banks. Each Bank agrees that
it has, independently and without reliance on the Agent or any other Bank, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Borrower and decision to enter into this Agreement
and that it will, independently and without reliance upon the Agent or any
other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement or any of the other Loan
Documents. The Agent shall not be required to keep itself (or any Bank)
informed as to the performance or observance by the Borrower of this Agreement
or any of the other Loan Documents or any other document referred to or
provided for herein or therein or to inspect the properties or books of the
Borrower or any other Person. Except for notices, reports and other documents
and information expressly required to be furnished to the Banks by the Agent
hereunder or under the other Loan Documents, the Agent shall not have any duty
or responsibility to provide any Bank with any credit or other information
concerning the affairs, financial condition or business of the Borrower or any
other Person (or any of their Affiliates) which may come into the possession of
the Agent.
Section 7.09 Failure to Act. Except for action expressly required of the
Agent hereunder or under the other Loan Documents, the Agent shall in all cases
be fully justified in failing or refusing to act hereunder and thereunder
unless it shall receive further assurances to its satisfaction by the Banks of
their indemnification obligations under Section 7.05 against any and all
liability and expense which may be incurred by the Agent by reason of taking,
continuing to take, or failing to take any such action.
Section 7.10 Resignation or Removal of Agent. Subject to the appointment
and acceptance of a successor Agent as provided below, the Agent may resign at
any time (both as Agent and as Collateral Agent) by giving notice thereof to
the Banks and the Borrower and the Agent (both as Agent and as Collateral
Agent) may be removed at any time with or without cause by the Required Banks.
Upon any such resignation or removal, the Required Banks shall have the right
to appoint a successor Agent (both as Agent and as Collateral Agent). If no
successor Agent shall have been so appointed by the Required Banks and shall
have accepted such appointment within 30 days after the retiring Agent's notice
of resignation or the Required Banks' removal of the retiring Agent, then the
retiring Agent may, on behalf of the Banks, appoint a successor Agent (both as
Agent and as Collateral Agent). Any successor Agent shall be a bank which has a
combined capital and surplus of at least $500,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder, and the retiring Agent
shall cooperate in the execution and recording of any amendments to the
Security Documents which are necessary to reflect the identity of the successor
Collateral Agent. After any retiring Agent's resignation
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or removal hereunder as Agent, the provisions of this Article VII shall continue
in effect for its benefit in respect of any actions taken or omitted to be taken
by it while it was acting as the Agent hereunder.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
Section 8.01 Basis for Determining Interest Rate Inadequate or Unfair.
If on or prior to the first day of any Interest Period:
(a) the Agent determines that deposits in Dollars (in the applicable
amounts) are not being offered in the relevant market for such Interest Period,
or
(b) the Required Banks advise the Agent that the London Interbank
Offered Rate as determined by the Agent will not adequately and fairly reflect
the cost to such Banks of funding the Euro-Dollar Loans for such Interest
Period,
the Agent shall forthwith give notice thereof to the Borrower and the Banks,
whereupon until the Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, the obligations of the Banks to make
Euro-Dollar Loans specified in such notice shall be suspended. Unless the
Borrower notifies the Agent at least 2 Domestic Business Days before the date of
any Borrowing of such Euro-Dollar Loans for which a Notice of Borrowing has
previously been given that it elects not to borrow on such date, such Borrowing
shall instead be made as a Base Rate Borrowing.
Section 8.02 Illegality. If, after the date hereof, the adoption of
any applicable law, rule or regulation, or any change therein or any existing or
future law, rule or regulation, 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 (any such
agency being referred to as an "Authority" and any such event being referred to
as a "Change of Law"), or compliance by any Bank (or its Lending Office) with
any request or directive (whether or not having the force of law) of any
Authority shall make it unlawful or impossible for any Bank (or its Lending
Office) to make, maintain or fund its Euro-Dollar Loans and such Bank shall so
notify the Agent, the Agent shall forthwith give notice thereof to the other
Banks and the Borrower, whereupon until such Bank notifies the Borrower and the
Agent that the circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Dollar Loans shall be suspended. Before
giving any notice to the Agent pursuant to this Section, such Bank shall
designate a different Lending Office if such designation will avoid the need for
giving such notice and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. If such Bank shall determine that it may not
lawfully continue to maintain and fund any of its outstanding Euro-Dollar Loans
to maturity and shall so specify in such notice, the Borrower shall immediately
prepay in full the then outstanding principal amount of each Euro-Dollar Loan of
such Bank, together with accrued interest thereon and any amount due such Bank
pursuant to Section 8.05(a). Concurrently with prepaying each such Euro-Dollar
Loan, the Borrower shall borrow a Base Rate Loan in an equal principal amount
from such Bank (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Banks), and
such Bank shall make such a Base Rate Loan.
Section 8.03 Increased Cost and Reduced Return.
(a) If after the date hereof, a Change of Law or compliance by any Bank
(or its Lending Office) with any request or directive (whether or not having the
force of law) of any Authority:
(i) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement (including, without limitation,
any such requirement imposed by the Board of Governors of the Federal
Reserve System, but excluding with respect to any Euro-Dollar Loan
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any such requirement included in an applicable Euro-Dollar Reserve
Percentage) against assets of, deposits with or for the account of, or
credit extended by, any Bank (or its Lending Office); or
(ii) shall impose on any Bank (or its Lending Office) or on
the United States market for certificates of deposit or the London
interbank market any other condition affecting its Euro-Dollar Loans,
its Notes or its obligation to make Euro-Dollar Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Loan, or to reduce the amount
of any sum received or receivable by such Bank (or its Lending Office) under
this Agreement or under its Notes with respect thereto, by an amount deemed by
such Bank to be material, then, within 15 days after demand by such Bank (with a
copy to the Agent), the Borrower shall pay to such Bank such additional amount
or amounts as will compensate such Bank for such increased cost or reduction.
(b) If any Bank shall have determined that after the date hereof the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change therein, or any change in the interpretation or administration
thereof, or compliance by any Bank (or its Lending Office) with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any Authority, has or would have the effect of reducing the rate of return on
such Bank's capital as a consequence of its obligations hereunder to a level
below that which such Bank could have achieved but for such adoption, change or
compliance (taking into consideration such Bank's policies with respect to
capital adequacy) by an amount deemed by such Bank to be material, then from
time to time, within 15 days after demand by such Bank, the Borrower shall pay
to such Bank such additional amount or amounts as will compensate such Bank for
such reduction.
(c) Each Bank will promptly notify the Borrower and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section and will designate a
different Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. A certificate of any Bank claiming
compensation under this Section and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
(d) The provisions of this Section 8.03 shall be applicable with
respect to any Participant, Assignee or other Transferee, and any calculations
required by such provisions shall be made based upon the circumstances of such
Participant, Assignee or other Transferee.
Section 8.04 Base Rate Loans Substituted for Euro-Dollar Loans. If
(i) the obligation of any Bank to make or maintain any Euro-Dollar Loans has
been suspended pursuant to Section 8.02 or (ii) any Bank has demanded
compensation under Section 8.03, and the Borrower shall, by at least 5
Euro-Dollar Business Days' prior notice to such Bank through the Agent, have
elected that the provisions of this Section shall apply to such Bank, then,
unless and until such Bank notifies the Borrower that the circumstances giving
rise to such suspension or demand for compensation no longer apply:
(a) all Loans which would otherwise be made by such Bank as Euro-Dollar
Loans shall be made instead as Base Rate Loans (in all cases interest and
principal on such Loans shall be payable contemporaneously with the related
Euro-Dollar Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans has been repaid, all payments
of principal which would otherwise be applied to repay such Euro-Dollar Loans
shall be applied to repay its Base Rate Loans instead.
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Section 8.05 Compensation. Upon the request of any Bank, delivered
to the Borrower and the Agent, the Borrower shall pay to such Bank such amount
or amounts as shall compensate such Bank for any loss, cost or expense incurred
by such Bank as a result of:
(a) any payment or prepayment (pursuant to Section 2.09, 2.10, 6.01,
8.02 or otherwise) of a Euro-Dollar Loan on a date other than the last day of an
Interest Period for such Loan; or
(b) any failure by the Borrower to prepay a Euro-Dollar Loan on the
date for such prepayment specified in the relevant notice of prepayment
hereunder; or
(c) any failure by the Borrower to borrow a Euro-Dollar Loan on the
date for the Euro-Dollar Borrowing of which such Euro-Dollar Loan is a part
specified in the applicable Notice of Borrowing delivered pursuant to Section
2.02;
such compensation to include, without limitation, if such Euro-Dollar Loan is a
Euro-Dollar Loan, an amount equal to the excess, if any, of (x) the amount of
interest which would have accrued on the amount so paid or prepaid or not
prepaid or borrowed for the period from the date of such payment, prepayment or
failure to prepay or borrow to the last day of the then current Interest Period
for such Euro-Dollar Loan (or, in the case of a failure to prepay or borrow, the
Interest Period for such Euro-Dollar Loan which would have commenced on the date
of such failure to prepay or borrow) at the applicable rate of interest for such
Euro-Dollar Loan provided for herein over (y) the amount of interest (as
reasonably determined by such Bank) such Bank would have paid on deposits in
Dollars of comparable amounts having terms comparable to such period placed with
it by leading banks in the London interbank market.
ARTICLE IX
MISCELLANEOUS
Section 9.01 Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including telecopier or similar
writing) and shall be given to such party at its address or telecopier number
set forth on the signature pages hereof or such other address or telecopier
number as such party may hereafter specify for the purpose by notice to each
other party. Each such notice, request or other communication shall be effective
(i) if given by telecopier, when such telecopy is transmitted to the telecopier
number specified in this Section and the confirmation is received, (ii) if given
by mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid or (iii) if given by any other
means, when delivered at the address specified in this Section; provided that
notices to the Agent under Article II or Article VIII shall not be effective
until received.
Section 9.02 No Waivers. No failure or delay by the Agent or any
Bank in exercising any right, power or privilege hereunder or under any Note or
other 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 herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section 9.03 Expenses; Documentary Taxes. The Borrower shall pay
(i) all reasonable out-of-pocket expenses of the Agent, including reasonable
fees and disbursements of special counsel for the Agent, in connection with the
preparation of this Agreement and the other Loan Documents, any waiver or
consent hereunder or thereunder or any amendment hereof or thereof or any
Default or alleged Default hereunder or thereunder and (ii) if a Default occurs,
all reasonable out-of-pocket expenses incurred by the Agent and the Banks,
including reasonable fees and disbursements of counsel, in connection with such
Default and collection and other enforcement proceedings resulting therefrom,
including reasonable out-of-pocket expenses incurred in enforcing this Agreement
and the other Loan Documents and all Enforcement Costs. The Borrower shall
indemnify the Agent and each Bank against any transfer taxes,
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documentary taxes, assessments or charges made by any Authority by reason
of the execution and delivery of this Agreement or the other Loan Documents.
Section 9.04 Indemnification. The Borrower shall indemnify the
Agent, the Banks and each Affiliate thereof and their respective directors,
officers, employees and agents from, and hold each of them harmless against, any
and all losses, liabilities, claims or damages to which any of them may become
subject, insofar as such losses, liabilities, claims or damages arise out of or
result from any actual or proposed use by the Borrower of the proceeds of any
extension of credit by any Bank hereunder or breach by the Borrower of this
Agreement or any other Loan Document or from any investigation, litigation
(including, without limitation, any actions taken by the Agent or any of the
Banks to enforce this Agreement or any of the other Loan Documents) or other
proceeding (including, without limitation, any threatened investigation or
proceeding) relating to the foregoing, or from use or condition of the
Collateral or from any claims arising or asserted as a result of the use,
condition, occupancy or ownership by the Borrower or any Guarantor of any of the
Collateral, or by reason of the interests of the Collateral Agent therein or
arising from its serving in such capacity, and the Borrower shall reimburse the
Agent and each Bank, and each Affiliate thereof and their respective directors,
officers, employees and agents, upon demand for any expenses (including, without
limitation, legal fees) incurred in connection with any such investigation or
proceeding; but excluding any such losses, liabilities, claims, damages or
expenses incurred by reason of the gross negligence or willful misconduct of the
Person to be indemnified.
Section 9.05 Setoff; Sharing of Setoffs.
(a) The Borrower hereby grants to the Agent and each Bank a lien for
all indebtedness and obligations owing to them from the Borrower upon all
deposits or deposit accounts, of any kind, or any interest in any deposits or
deposit accounts thereof, now or hereafter pledged, mortgaged, transferred or
assigned to the Agent or any such Bank or otherwise in the possession or control
of the Agent or any such Bank for any purpose for the account or benefit of the
Borrower and including any balance of any deposit account or of any credit of
the Borrower with the Agent or any such Bank, whether now existing or hereafter
established hereby authorizing the Agent and each Bank at any time or times with
or without prior notice to apply such balances or any part thereof to such of
the indebtedness and obligations owing by the Borrower to the Banks and/or the
Agent then past due and in such amounts as they may elect, and whether or not
the collateral, if any, or the responsibility of other Persons primarily,
secondarily or otherwise liable may be deemed adequate. For the purposes of this
paragraph, all remittances and property shall be deemed to be in the possession
of the Agent or any such Bank as soon as the same may be put in transit to it by
mail or carrier or by other bailee.
(b) Each Bank agrees that if it shall, by exercising any right of
setoff or counterclaim or resort to collateral security or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest owing
with respect to the Note held by it which is greater than the proportion
received by any other Bank in respect of the aggregate amount of all principal
and interest owing with respect to the Note held by such other Bank, the Bank
receiving such proportionately greater payment shall purchase such
participations in the Notes held by the other Banks owing to such other Banks,
and such other adjustments shall be made, as may be required so that all such
payments of principal and interest with respect to the Notes held by the Banks
owing to such other Banks shall be shared by the Banks pro rata; provided that
(i) nothing in this Section shall impair the right of any Bank to exercise any
right of setoff or counterclaim it may have and to apply the amount subject to
such exercise to the payment of indebtedness of the Borrower other than its
indebtedness under the Notes, and (ii) if all or any portion of such payment
received by the purchasing Bank is thereafter recovered from such purchasing
Bank, such purchase from each other Bank shall be rescinded and such other Bank
shall repay to the purchasing Bank the purchase price of such participation to
the extent of such recovery together with an amount equal to such other Bank's
ratable share (according to the proportion of (x) the amount of such other
Bank's required repayment to (y) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The
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Borrower agrees, to the fullest extent it may effectively do so under applicable
law, that any holder of a participation in a Note, 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 the Borrower in the
amount of such participation.
Section 9.06 Amendments and Waivers.
(a) Any provision of this Agreement, the Notes or any other Loan
Documents may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Borrower and the Required Banks (and, if the
rights or duties of the Agent are affected thereby, by the Agent); provided
that, unless signed by all Banks, no such amendment or waiver shall, unless
signed by all Banks, (i) increase the Commitment of any Bank or subject any Bank
to any additional obligation, (ii) reduce the principal of or rate of interest
on any Loan or any fees (other than fees payable to the Agent) hereunder, (iii)
extend the date fixed for any payment of principal of or interest on any Loan or
any fees hereunder, (iv) reduce the amount of principal, interest or fees due on
any date fixed for the payment thereof, (v) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Notes, or the
percentage of Banks, which shall be required for the Banks or any of them to
take any action under this Section or any other provision of this Agreement,
(vi) change the manner of application of any payments made under this Agreement
or the Notes, (vii) release or substitute all or any substantial part of the
Collateral (other than as expressly provided in this Agreement or the other Loan
Documents), or (viii) release any Guarantee given to support payment of the
Loans, (ix) change the definition of "Borrowing Base" or (x) amend the
provisions of Section 9.05.
(b) The Borrower will not solicit, request or negotiate for or with
respect to any proposed waiver or amendment of any of the provisions of this
Agreement except through the Agent, unless each Bank shall be informed thereof
by the Borrower and shall be afforded an opportunity of considering the same and
shall be supplied by the Borrower with sufficient information to enable it to
make an informed decision with respect thereto. Executed or true and correct
copies of any waiver or consent effected pursuant to the provisions of this
Agreement shall be delivered by the Borrower to each Bank forthwith following
the date on which the same shall have been executed and delivered by the
requisite percentage of Banks. The Borrower will not, directly or indirectly,
pay or cause to be paid any remuneration, whether by way of supplemental or
additional interest, fee or otherwise, to any Bank (in its capacity as such) as
consideration for or as an inducement to the entering into by such Bank of any
waiver or amendment of any of the terms and provisions of this Agreement unless
such remuneration is concurrently paid, on the same terms, ratably to all such
Banks.
Section 9.07 No Margin Stock Collateral. Each of the Banks
represents to the Agent and each of the other Banks that it in good faith is
not, directly or indirectly (by negative pledge or otherwise), relying upon any
Margin Stock as collateral in the extension or maintenance of the credit
provided for in this Agreement.
Section 9.08 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;
provided that the Borrower may not assign or otherwise transfer any of its
rights under this Agreement.
(b) Any Bank may at any time sell to one or more Persons (each a
"Participant") participating interests in any Loan owing to such Bank, any Note
held by such Bank, any Commitment hereunder or any other interest of such Bank
hereunder. In the event of any such sale by a Bank of a participating interest
to a Participant, such Bank's obligations under this Agreement shall remain
unchanged, such Bank shall remain solely responsible for the performance
thereof, such Bank shall remain the holder of any such Note for all purposes
under this Agreement, and the Borrower and the Agent shall continue to
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deal solely and directly with such Bank in connection with such Bank's rights
and obligations under this Agreement. In no event shall a Bank that sells a
participation be obligated to the Participant to take or refrain from taking any
action hereunder except that such Bank may agree that it will not (except as
provided below), without the consent of the Participant, agree to (i) the change
of any date fixed for the payment of principal of or interest on the related
loan or loans, (ii) the change of the amount of any principal, interest or fees
due on any date fixed for the payment thereof with respect to the related loan
or loans, (iii) the change of the principal of the related loan or loans, (iv)
any change in the rate at which either interest is payable thereon or (if the
Participant is entitled to any part thereof) fee is payable hereunder from the
rate at which the Participant is entitled to receive interest or fee (as the
case may be) in respect of such participation, (v) the release without
substitution of all or any substantial part of the Collateral, or (vi) the
release of any Guarantee given to support payment of the Loans. Each Bank
selling a participating interest in any Loan, Note, Commitment or other interest
under this Agreement, shall, within 10 Domestic Business Days of such sale,
provide the Borrower and the Agent with written notification stating that such
sale has occurred and identifying the Participant and the interest purchased by
such Participant. The Borrower agrees that each Participant shall be entitled to
the benefits of Article VIII with respect to its participation in Loans
outstanding from time to time.
(c) Any Bank may at any time assign to one or more banks or financial
institutions (each an "Assignee") all or a proportionate part of its rights and
obligations under this Agreement, the Notes and the other Loan Documents, and
such Assignee shall assume all such rights and obligations, pursuant to an
Assignment and Acceptance, executed by such Assignee, such transferor Bank and
the Agent (and, in the case of an Assignee that is not then a Bank, subject to
clause (iii) below, by the Borrower); provided that (i) no interest may be sold
by a Bank pursuant to this paragraph (c) unless the Assignee shall agree to
assume ratably equivalent portions of the transferor Bank's Commitment, (ii) if
a Bank is assigning only a portion of its Commitment, then, the amount of the
Commitment being assigned (determined as of the effective date of the
assignment) shall be in an amount not less than $5,000,000, (iii) except during
the continuance of a Default, no interest may be sold by a Bank pursuant to this
paragraph (c) to any Assignee that is not then a Bank (or an Affiliate of a
Bank) without the consent of the Borrower and the Agent, which consent shall not
be unreasonably withheld, and (iv) a Bank may not have more than 3 Assignees
that are not then Banks at any one time. Upon (A) execution of the Assignment
and Acceptance by such transferor Bank, such Assignee, the Agent and (if
applicable) the Borrower, (B) delivery of an executed copy of the Assignment and
Acceptance to the Borrower and the Agent, (C) payment by such Assignee to such
transferor Bank of an amount equal to the purchase price agreed between such
transferor Bank and such Assignee, and (D) payment of a processing and
recordation fee of $2,500 to the Agent, such Assignee shall for all purposes be
a Bank party to this Agreement and shall have all the rights and obligations of
a Bank under this Agreement to the same extent as if it were an original party
hereto with a Commitment as set forth in such instrument of assumption, and the
transferor Bank shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by the Borrower, the
Banks or the Agent shall be required. Upon the consummation of any transfer to
an Assignee pursuant to this paragraph (c), the transferor Bank, the Agent and
the Borrower shall make appropriate arrangements so that, if required, a new
Note is issued to each of such Assignee and such transferor Bank.
(d) Subject to the provisions of Section 9.09, the Borrower authorizes
each Bank to disclose to any Participant, Assignee or other transferee (each a
"Transferee") and any prospective Transferee any and all financial information
in such Bank's possession concerning the Borrower which has been delivered to
such Bank by the Borrower pursuant to this Agreement or which has been delivered
to such Bank by the Borrower in connection with such Bank's credit evaluation
prior to entering into this Agreement.
(e) No Transferee shall be entitled to receive any greater payment
under Section 8.03 than the transferor Bank would have been entitled to receive
with respect to the rights transferred, unless such transfer is made with the
Borrower's prior written consent or by reason of the provisions of Section 8.02
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or 8.03 requiring such Bank to designate a different Lending Office under
certain circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.
(f) Anything in this Section 9.08 to the contrary notwithstanding, any
Bank may assign and pledge all or any portion of the Loans and/or obligations
owing to it to any Federal Reserve Bank or the United States Treasury as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal Reserve
Bank, provided that any payment in respect of such assigned Loans and/or
obligations made by the Borrower to the assigning and/or pledging Bank in
accordance with the terms of this Agreement shall satisfy the Borrower's
obligations hereunder in respect of such assigned Loans and/or obligations to
the extent of such payment. No such assignment shall release the assigning
and/or pledging Bank from its obligations hereunder.
Section 9.09 Confidentiality. Each Bank agrees to exercise
commercially reasonable efforts to keep any information delivered or made
available by the Borrower to it which is clearly indicated to be confidential
information, confidential from anyone other than persons employed or retained by
such Bank who are or are expected to become engaged in evaluating, approving,
structuring or administering the Loans; provided that nothing herein shall
prevent any Bank from disclosing such information (i) to any other Bank, (ii)
upon the order of any court or administrative agency, (iii) upon the request or
demand of any regulatory agency or authority having jurisdiction over such Bank,
(iv) which has been publicly disclosed, (v) to the extent reasonably required in
connection with any litigation to which the Agent, any Bank or their respective
Affiliates may be a party, (vi) to the extent reasonably required in connection
with the exercise of any remedy hereunder, (vii) to such Bank's legal counsel
and independent auditors, (viii) to any actual or proposed Participant, Assignee
or other Transferee of all or part of its rights hereunder which has agreed in
writing to be bound by the provisions of this Section 9.09; provided that should
disclosure of any such confidential information be required by virtue of clause
(ii) of the immediately preceding sentence, to the extent permitted by law, any
relevant Bank shall promptly notify the Borrower of same so as to allow the
Borrower to seek a protective order or to take any other appropriate action;
provided, further, that, no Bank shall be required to delay compliance with any
directive to disclose any such information so as to allow the Borrower to effect
any such action, and (ix) by any Designated Bank to any rating agency,
commercial paper dealer, or provider of a surety, guaranty or credit or
liquidity enhancement to such Designated Bank which has agreed in writing to be
bound by the provisions of this Section 9.09 and to use such information solely
for purposes of evaluating the creditworthiness of the Borrower and the
Guarantor and their abilities to perform their obligations under this Agreement
and the other Loan Documents.
Section 9.10 Representation by Banks. Each Bank hereby represents
that it is a commercial Bank or financial institution which makes loans in the
ordinary course of its business and that it will make its Loans hereunder for
its own account in the ordinary course of such business; provided that, subject
to Section 9.08, the disposition of the Note or Notes held by that Bank shall at
all times be within its exclusive control.
Section 9.11 Obligations Several. The obligations of each Bank
hereunder are several, and no Bank shall be responsible for the obligations or
commitment of any other Bank hereunder. Nothing contained in this Agreement and
no action taken by the Banks pursuant hereto shall be deemed to constitute the
Banks to be a partnership, an association, a joint venture or any other kind of
entity. The amounts payable at any time hereunder to each Bank shall be a
separate and independent debt, and each Bank shall be entitled to protect and
enforce its rights arising out of this Agreement or any other Loan Document and
it shall not be necessary for any other Bank to be joined as an additional party
in any proceeding for such purpose.
Section 9.12 Georgia Law. This Agreement and each Note shall be
construed in accordance with and governed by the law of the State of Georgia.
50
<PAGE> 58
Section 9.13 Severability. In case any one or more of the
provisions contained in this Agreement, the Notes or any of the other Loan
Documents should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired thereby and
shall be enforced to the greatest extent permitted by law.
Section 9.14 Interest. In no event shall the amount of interest,
and all charges, amounts or fees contracted for, charged or collected pursuant
to this Agreement, the Notes or the other Loan Documents and deemed to be
interest under applicable law (collectively, "Interest") exceed the highest rate
of interest allowed by applicable law (the "Maximum Rate"), and in the event any
such payment is inadvertently received by any Bank, then the excess sum (the
"Excess") shall be credited as a payment of principal, unless the Borrower shall
notify such Bank in writing that it elects to have the Excess returned
forthwith. It is the express intent hereof that the Borrower not pay and the
Banks not receive, directly or indirectly in any manner whatsoever, interest in
excess of that which may legally be paid by the Borrower under applicable law.
The right to accelerate maturity of any of the Loans does not include the right
to accelerate any interest that has not otherwise accrued on the date of such
acceleration, and the Agent and the Banks do not intend to collect any unearned
interest in the event of any such acceleration. All monies paid to the Agent or
the Banks hereunder or under any of the Notes or the other Loan Documents,
whether at maturity or by prepayment, shall be subject to rebate of unearned
interest as and to the extent required by applicable law. By the execution of
this Agreement, the Borrower covenants, to the fullest extent permitted by law,
that (i) the credit or return of any Excess shall constitute the acceptance by
the Borrower of such Excess, and (ii) the Borrower shall not seek or pursue any
other remedy, legal or equitable , against the Agent or any Bank, based in whole
or in part upon contracting for charging or receiving any Interest in excess of
the Maximum Rate. For the purpose of determining whether or not any Excess has
been contracted for, charged or received by the Agent or any Bank, all interest
at any time contracted for, charged or received from the Borrower in connection
with this Agreement, the Notes or any of the other Loan Documents shall, to the
extent permitted by applicable law, be amortized, prorated, allocated and spread
in equal parts throughout the full term of the Commitments. The Borrower, the
Agent and each Bank shall, to the maximum extent permitted under applicable law,
(i) characterize any non-principal payment as an expense, fee or premium rather
than as Interest and (ii) exclude voluntary prepayments and the effects thereof.
The provisions of this Section shall be deemed to be incorporated into each Note
and each of the other Loan Documents (whether or not any provision of this
Section is referred to therein). All such Loan Documents and communications
relating to any Interest owed by the Borrower and all figures set forth therein
shall, for the sole purpose of computing the extent of obligations hereunder and
under the Notes and the other Loan Documents be automatically recomputed by the
Borrower, and by any court considering the same, to give effect to the
adjustments or credits required by this Section.
Section 9.15 Interpretation. No provision of this Agreement or any
of the other Loan Documents shall be construed against or interpreted to the
disadvantage of any party hereto by any court or other governmental or judicial
authority by reason of such party having or being deemed to have structured or
dictated such provision.
Section 9.16 Waiver of Jury Trial; Consent to Jurisdiction. The
Borrower (a) and each of the Banks and the Agent irrevocably waives, to the
fullest extent permitted by law, any and all right to trial by jury in any legal
proceeding arising out of this Agreement, any of the other Loan Documents, or
any of the transactions contemplated hereby or thereby, (b) submits to the
nonexclusive personal jurisdiction in the State of Georgia, the courts thereof
and the United States District Courts sitting therein, for the enforcement of
this Agreement, the Notes and the other Loan Documents, (c) waives any and all
personal rights under the law of any jurisdiction to object on any basis
(including, without limitation, inconvenience of forum) to jurisdiction or venue
within the State of Georgia for the purpose of litigation to enforce this
Agreement, the Notes or the other Loan Documents, and (d) agrees that service of
process may be made upon it in the manner prescribed in Section 9.01 for the
giving of notice to the Borrower.
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<PAGE> 59
Nothing herein contained, however, shall prevent the Agent from bringing any
action or exercising any rights against any security and against the Borrower
personally, and against any assets of the Borrower, within any other state or
jurisdiction.
Section 9.17 Counterparts. 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.
Section 9.18 Source of Funds -- ERISA. Each of the Banks hereby
severally (and not jointly) represents to the Borrower that no part of the funds
to be used by such Bank to fund the Loans hereunder from time to time
constitutes (i) assets allocated to any separate account maintained by such Bank
in which any employee benefit plan (or its related trust) has any interest nor
(ii) any other assets of any employee benefit plan. As used in this Section, the
terms "employee benefit plan" and "separate account" shall have the respective
meanings assigned to such terms in Section 3 of ERISA.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, under seal, by their respective authorized officers as of the day
and year first above written.
JDN REALTY CORPORATION (SEAL)
By:
----------------------------
Title:
JDN Realty Corporation
359 East Paces Ferry Road
Suite 400
Atlanta, Georgia 30305
Attention: Craig Macnab
Chief Executive Officer
Telecopier number: 404-504-6446
Confirmation number: 404-504-6703
53
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COMMITMENTS WACHOVIA BANK, N.A. (as successor)
in interest to Wachovia Bank of Georgia, N.A.)
as Agent and as a Bank (SEAL)
$57,750,000 By:
--------------------------------
Title:
Lending Office
Wachovia Bank, N.A.
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: Steven B. Wood
Telecopier number: 404-332-4066
Confirmation number: 404-332-5671
54
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PNC BANK, NATIONAL
ASSOCIATION (SEAL)
$40,906,250 By:
-------------------------------
Title:
Lending Office
PNC Bank, National Association
249 Fifth Avenue
One PNC Plaza
Mail Stop P1-POPP-19-2
Pittsburgh, Pennsylvania 15222
Attention: Wayne Robertson
Telecopier number: 412-762-6500
Confirmation number: 412-762-8452
55
<PAGE> 63
BANKERS TRUST COMPANY (SEAL)
$23,406,250 By:
------------------------------
Title:
Lending Office
Bankers Trust Company
130 Liberty Street, 25th Floor
New York, New York 10017
Attention: Mr. Jeffrey Baevsky
Telecopier number: 212-669-0764
Confirmation number: 212-250-4466
56
<PAGE> 64
COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES (SEAL)
$17,718,750 By:
----------------------------
Title:
By:
----------------------------
Title:
Lending Office
Commerzbank AG, New York and Grand
Cayman Branches
2 World Financial Center
New York, New York 10281
Attention: Mr. Marcus Perry
Telecopier number: 212-266-7565
Confirmation number: 212-266-7581
57
<PAGE> 65
SOUTHTRUST BANK, NATIONAL
ASSOCIATION (SEAL)
$13,343,750 By:
----------------------------
Title:
Lending Office
Southtrust Bank, National Association
Institutional Real Estate Group
420 North 20th Street, Suite 1100
Birmingham, Alabama 35203
Attention: Ms. Lynn W. Feuerlein
Telecopier number: 205-254-8270
Confirmation number: 205-254-5870
58
<PAGE> 66
KEYBANK, N.A. (SEAL)
$13,125,000 By:
----------------------------
Title:
Lending Office
KeyBank N.A.
129 Public Square
Cleveland, Ohio 44114-1306
Attention: Mr. Daniel R. Heberle
Telecopier number: 216-689-4997
Confirmation number: 216-689-0801
59
<PAGE> 67
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION (SEAL)
$8,750,000 By:
----------------------------
Title:
Lending Office
First Tennessee Bank National
Association
701 Market Street
Chattanooga, TN 37402
Attention: Mr. Timothy L. Collins
Telecopier number: 423-757-4040
Confirmation number: 423-757-4205
TOTAL COMMITMENTS:
$175,000,000
60
<PAGE> 68
EXHIBIT A-1
SYNDICATED LOAN NOTE
Atlanta, Georgia
May 19, 2000
For value received, JDN REALTY CORPORATION, a Maryland corporation
(the "Borrower"), promises to pay to the order of ____________________________,
a ____________________ (the "Bank"), for the account of its Lending Office, the
principal sum of ___________________________________ AND NO/100 DOLLARS ($ ), or
such lesser amount as shall equal the unpaid principal amount of each Syndicated
Loan made by the Bank to the Borrower pursuant to the Credit Agreement referred
to below, on the dates and in the amounts provided in the Credit Agreement. The
Borrower promises to pay interest on the unpaid principal amount of this
Syndicated Loan Note on the dates and at the rate or rates provided for in the
Credit Agreement. Interest on any overdue principal of and, to the extent
permitted by law, overdue interest on the principal amount hereof shall bear
interest at the Default Rate, as provided for in the Credit Agreement. All such
payments of principal and interest shall be made in lawful money of the United
States in Federal or other immediately available funds at the office of Wachovia
Bank, N.A., 191 Peachtree Street, N.E., Atlanta, Georgia 30303-1757, or such
other address as may be specified from time to time pursuant to the Credit
Agreement.
All Syndicated Loans made by the Bank, the respective maturities
thereof, the interest rates from time to time applicable thereto, and all
repayments of the principal thereof shall be recorded by the Bank and, prior to
any transfer hereof, endorsed by the Bank on the schedule attached hereto, or on
a continuation of such schedule attached to and made a part hereof; provided
that the failure of the Bank to make any such recordation or endorsement shall
not affect the obligations of the Borrower hereunder or under the Credit
Agreement.
This Syndicated Loan Note is one of the Syndicated Loan Notes
referred to in the Second Amended and Restated Credit Agreement dated as of May
19, 2000 among the Borrower, the Banks listed on the signature pages thereof and
Wachovia Bank, N.A., as Agent (as the same may be amended and modified from time
to time, the "Credit Agreement") and amends and restates the Syndicated Loan
Note issued pursuant to the Amended and Restated Credit Agreement dated as of
September 2, 1998, as amended prior to the date hereof. Terms defined in the
Credit Agreement are used herein with the same meanings. Reference is made to
the Credit Agreement for provisions for the optional and mandatory prepayment
and the repayment hereof and the acceleration of the maturity hereof, as well as
the obligation of the Borrower to pay all costs of collection, including
reasonable attorneys fees, in the event this Syndicated Loan Note is collected
by law or through an attorney at law.
The Borrower hereby waives presentment, demand, protest, notice of
demand, protest and nonpayment and any other notice required by law relative
hereto, except to the extent as otherwise may be expressly provided for in the
Credit Agreement.
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IN WITNESS WHEREOF, the Borrower has caused this Syndicated Loan
Note to be duly executed, under seal, by its duly authorized officer as of the
day and year first above written.
JDN REALTY CORPORATION (SEAL)
By:
-------------------------------
Title:
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<PAGE> 70
Note (cont'd)
SYNDICATED LOANS AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
Base Rate Amount Amount of
or Euro- of Principal Maturity Notation
Date Dollar Loan Loan Repaid Date Made By
<S> <C> <C> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
</TABLE>
63
<PAGE> 71
EXHIBIT A-2
SWING LOAN NOTE
Atlanta, Georgia
May 19, 2000
For value received, JDN REALTY CORPORATION, a Maryland corporation
(the "Borrower"), promises to pay to the order of WACHOVIA BANK, N.A., a
national banking association (the "Bank"), for the account of its Lending
Office, the principal sum of TEN MILLION AND NO/100 DOLLARS ($10,000,000), or
such lesser amount as shall equal the unpaid principal amount of each Swing Loan
made by the Bank to the Borrower pursuant to the Credit Agreement referred to
below, on the dates and in the amounts provided in the Credit Agreement. The
Borrower promises to pay interest on the unpaid principal amount of this Swing
Loan Note at the rate provided for Base Rate Loans on the dates provided for in
the Credit Agreement. Interest on any overdue principal of and, to the extent
permitted by law, overdue interest on the principal amount hereof shall bear
interest at the Default Rate, as provided for in the Credit Agreement. All such
payments of principal and interest shall be made in lawful money of the United
States in Federal or other immediately available funds at the office of Wachovia
Bank, N.A., 191 Peachtree Street, N.E., Atlanta, Georgia 30303-1757, or such
other address as may be specified from time to time pursuant to the Credit
Agreement.
All Swing Loans made by the Bank, the respective maturities thereof,
and all repayments of the principal thereof shall be recorded by the Bank and,
prior to any transfer hereof, endorsed by the Bank on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; provided that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Credit Agreement.
This Swing Loan Note is the Swing Loan Note referred to in the
Second Amended and Restated Credit Agreement dated as of even date herewith
among the Borrower, the Banks listed on the signature pages thereof and Wachovia
Bank, N.A., as Agent (as the same may be amended and modified from time to time,
the "Credit Agreement"). Terms defined in the Credit Agreement are used herein
with the same meanings. Reference is made to the Credit Agreement for provisions
for the optional and mandatory prepayment and the repayment hereof and the
acceleration of the maturity hereof.
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<PAGE> 72
IN WITNESS WHEREOF, the Borrower has caused this Swing Loan Note to
be duly executed, under seal, by its duly authorized officer as of the day and
year first above written.
JDN REALTY CORPORATION (SEAL)
By:
-----------------------------
Title:
65
<PAGE> 73
Swing Loan Note (continued)
LOANS AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
Amount of
Amount of Principal Maturity Notation
Date Loan Repaid Date Made By
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
</TABLE>
66
<PAGE> 74
EXHIBIT B
OPINION OF
COUNSEL FOR THE BORROWER AND THE INITIAL GUARANTORS
[Dated as provided in
Section 3.01 of the Credit Agreement]
To the Banks and the Agent
Referred to Below
c/o Wachovia Bank, N.A.
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: Steven B. Wood
Dear Sirs:
We have acted as counsel for JDN Realty Corporation, a Maryland corporation (the
"Borrower"), and JDN Development Company, Inc., a Delaware corporation ("JDN
DCI"), JDN Realty AL, Inc. ("JDN AL"), JDN Realty Holdings, L.P. ("JDN
Holdings") and JDN Realty, LP, Inc. ("JDN LP") (JDN DCI, JDN AL, JDN Holdings
and JDN LP being sometimes referred to as the Initial Guarantors"), in
connection with the Second Amended and Restated Credit Agreement (the "Credit
Agreement") dated as of May 19, 2000, among the Borrower, the banks listed on
the signature pages thereof and Wachovia Bank, N.A., as Agent. Terms defined in
the Credit Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise identified to our
satisfaction, of such documents, corporate or partnership records, certificates
of public officials and other instruments and have conducted such other
investigations of fact and law as we have deemed necessary or advisable for
purposes of this opinion. We have assumed for purposes of our opinions set forth
below that the execution and delivery of the Credit Agreement by each Bank and
by the Agent have been duly authorized by each Bank and by the Agent.
Upon the basis of the foregoing, we are of the opinion that:
1. The Borrower is a corporation duly incorporated, validly existing
and in good standing under the laws of Maryland and has all corporate powers
required to carry on its business as now conducted. Each of JDN DCI and JDN LP
is a corporation duly incorporated, validly existing and in good standing under
the laws of Delaware and has all corporate powers required to carry on its
business as now conducted. JDN AL is a corporation duly incorporated, validly
existing and in good standing under the laws of Alabama and has all corporate
powers required to carry on its business as now conducted. JDN Holdings is a
limited partnership duly organized, validly existing and in good standing under
the laws of Georgia and has all corporate powers required to carry on its
business as now conducted.
2. The execution, delivery and performance by the Borrower and the
Initial Guarantors, as applicable, of the Credit Agreement, the Notes and the
other Loan Documents to which it is a party, (i) are within its corporate or
partnership powers, (ii) have been duly authorized by all necessary corporate or
partnership action, (iii) require no action by or in respect of, or filing with,
any governmental body, agency or official, (iv) do not contravene, or constitute
a default under, any provision
67
<PAGE> 75
of applicable law or regulation or of the certificate of incorporation or
by-laws or partnership certificate of the Borrower or the Initial Guarantors or
of any agreement, judgment, injunction, order, decree or other instrument which
to our knowledge is binding upon the Borrower or the Initial Guarantors and (v)
to our knowledge, except as provided in the Credit Agreement, do not result in
the creation or imposition of any Lien on any asset of the Borrower or the
Initial Guarantors or any of the other Subsidiaries, except in favor of the
Collateral Agent to secure the Secured Obligations pursuant to the Security
Documents.
3. The Loan Documents to which the Borrower is a party constitute
(or as to the Security Documents, will constitute, when executed and delivered
in accordance with the Agreement) valid and binding agreements of the Borrower,
and the Loan Documents to which the Guarantor is a party constitute (or as to
the Security Documents to which it is a party, will constitute, when executed
and delivered in accordance with the Agreement) valid and binding agreement of
the Initial Guarantors, in each case enforceable against it in accordance with
its terms, except as such enforceability may be limited by: (i) bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally and (ii) general principles of equity.
4. To our knowledge, there is no action, suit or proceeding pending,
or threatened, against or affecting the Borrower before any court or arbitrator
or any governmental body, agency or official which in any manner questions the
validity or enforceability of any of the Loan Documents.
5. The Borrower is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
6. The Borrower is not a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company", as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended.
We are qualified to practice in the State of Georgia and do not purport to be
experts on any laws other than the laws of the United States and the State of
Georgia and this opinion is rendered only with respect to such laws, and, as
expressly provided and subject to the limitations contained in the last sentence
of this paragraph, the corporate law of the State of Maryland. We have made no
independent investigation of the laws of any other jurisdiction. As to (x) the
opinions expressed in paragraph 1 with respect to as to due incorporation, valid
existence and good standing in Maryland of the Borrower, our opinion is based
solely on our review of the good standing certificate issued by the Secretary of
State of Maryland dated May 19, 2000, and (y) the opinions expressed in
paragraph 1 and clause (ii) of paragraph 2 with respect to the Borrower's
corporate powers under Maryland law, we have relied solely on our review of
Sections 2-101 through 2-104, inclusive, of the Maryland General Corporation
Law, and our review of the Borrower's Articles of Incorporation and Bylaws and
relevant resolutions of its Board of Directors.
This opinion is delivered to you in connection with the transaction referenced
above and may only be relied upon by you, any Assignee, Participant or other
Transferee under the Credit Agreement, and Jones, Day, Reavis & Pogue without
our prior written consent.
Very truly yours,
68
<PAGE> 76
EXHIBIT C
OPINION OF
JONES, DAY, REAVIS & POGUE,
SPECIAL COUNSEL FOR THE AGENT
[Dated as provided in
Section 3.01 of the Credit Agreement]
To the Banks and the Agent
Referred to Below
c/o Wachovia Bank, N.A.
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: Steven B. Wood
Telecopier number: 404-332-4066
Confirmation number: 404-332-5671
Dear Sirs:
We have participated in the preparation of the Second Amended and Restated
Credit Agreement (the "Credit Agreement") dated as of May 19, 2000, among JDN
Realty Corporation, a Maryland corporation (the "Borrower"), the banks listed
on the signature pages thereof (the "Banks") and Wachovia Bank, N.A., as Agent
(the "Agent"), and have acted as special counsel for the Agent for the purpose
of rendering this opinion pursuant to Section 3.01(d) of the Credit Agreement.
Terms defined in the Credit Agreement are used herein as therein defined.
This opinion letter is limited by, and is in accordance with, the January 1,
1992 edition of the Interpretive Standards applicable to Legal Opinions to
Third Parties in Corporate Transactions adopted by the Legal Opinion Committee
of the Corporate and Banking Law Section of the State Bar of Georgia which
Interpretive Standards are incorporated herein by this reference.
We have examined originals or copies, certified or otherwise identified to our
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as we have deemed necessary or advisable for purposes of this
opinion.
Upon the basis of the foregoing, and assuming the due authorization, execution
and delivery of the Credit Agreement, each of the Notes and the other Loan
Documents to which the Borrower is a party by or on behalf of the Borrower, and
of the Guaranty and the other Loan Documents to which any of the Initial
Guarantors is a party by such Initial Guarantors, we are of the opinion that
the Credit Agreement constitutes a valid and binding agreement of the Borrower,
each Note constitutes valid and binding obligations of the Borrower, and each
of the other Loan Documents to which the Borrower is a party constitutes a
valid and binding obligation of the Borrower, the Guaranty constitutes a valid
and binding agreement of the Initial Guarantors, and each of the other Loan
Documents to which any of the Initial Guarantors is a party constitutes (or as
to the Security Documents, will constitute, when executed and delivered in
accordance with this Agreement) a valid and binding obligation of such Initial
Guarantor, enforceable in accordance with its terms except as: (i) the
enforceability thereof may be affected by bankruptcy, insolvency,
reorganization, fraudulent conveyance, voidable preference, moratorium or
69
<PAGE> 77
similar laws applicable to creditors' rights or the collection of debtors'
obligations generally; (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability; and (iii) the enforceability of certain of the remedial, waiver
and other provisions of the Credit Agreement, the Notes, the Guaranty and the
other Loan Documents may be further limited by the laws of the State of
Georgia; provided that such additional laws do not, in our opinion,
substantially interfere with the practical realization of the benefits
expressed in the Credit Agreement, the Notes, the Guaranty and the other Loan
Documents, except for the economic consequences of any procedural delay which
may result from such laws.
In giving the foregoing opinion, we express no opinion as to the effect (if
any) of any law of any jurisdiction except the State of Georgia. We express no
opinion as to the effect of the compliance or noncompliance of the Agent or any
of the Banks with any state or federal laws or regulations applicable to the
Agent or any of the Banks by reason of the legal or regulatory status or the
nature of the business of the Agent or any of the Banks.
This opinion is delivered to you in connection with the transaction referenced
above and may only be relied upon by you and any Assignee, Participant or other
Transferee under the Credit Agreement without our prior written consent.
Very truly yours,
70
<PAGE> 78
EXHIBIT D
ASSIGNMENT AND ACCEPTANCE
Dated ________ ___,___
Reference is made to the Second Amended and Restated Credit
Agreement dated as of May 19, 2000(together with all amendments and
modifications thereto, the "Credit Agreement") among JDN Realty
Corporation, a Maryland corporation (the "Borrower"), the Banks (as
defined in the Credit Agreement) and Wachovia Bank, N.A., as Agent
(the "Agent"). Terms defined in the Credit Agreement are used herein
with the same meaning.
____________________(the "Assignor") and_______________(the
"Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee,
without recourse to the Assignor, and the Assignee hereby purchases and assumes
from the Assignor, a ___ % interest in and to all of the Assignor's rights and
obligations under the Credit Agreement as of the Effective Date (as defined
below) (including, without limitation, a ___ % interest (which on the Effective
Date hereof is $__________) in the Assignor's Commitment and am ___ interest
(which on the Effective Date hereof is $ ) in the Syndicated Loans [and Swing
Loans] owing to the Assignor and a % interest in the Note[s] held by the
Assignor (which on the Effective Date hereof is $__________).
2. The Assignor (i) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any other instrument or document furnished
pursuant thereto, other than that it is the legal and beneficial owner of the
interest being assigned by it hereunder, that such interest is free and clear
of any adverse claim and that as of the date hereof its Commitment (without
giving effect to assignments thereof which have not yet become effective) is
$__________ and the aggregate outstanding principal amount of Syndicated Loans
[and Swing Loans] owing to it (without giving effect to assignments thereof
which have not yet become effective) is $______ ; (ii) makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Borrower or the performance or observance by the Borrower of
any of its obligations under the Credit Agreement or any other instrument or
document furnished pursuant thereto; and (iii) attaches the Note[s] referred to
in paragraph 1 above and requests that the Agent exchange such Note[s] for [a
new Syndicated Loan Note dated , in the principal amount of $__________ payable
to the order of the Assignee [and a new Swing Loan Note dated _____ , in the
principal amount of $_____ payable to the order of the Assignee] [new Notes as
follows: a (i) Syndicated Loan Note dated _____ ,___ in the principal amount of
$_____________ payable to the order of the Assignor (ii) Syndicated Loan Note
dated ________ , ____ in the principal amount of $ payable to the order of the
Assignee, [and (iii) and a new Swing Loan Note dated ______________, in the
principal amount of $10,000,000 payable to the order of the Assignee].
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 4.04(a) thereof (or any more recent financial statements of the
Borrower delivered pursuant to Section 5.01(a) or (b) thereof) and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (ii) agrees
that it will, independently and without reliance upon the Agent, the Assignor
or any other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (iii) confirms that it is a bank
or financial institution; (iv) appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under the Credit
Agreement as are delegated to the Agent by the terms thereof, together with
such powers as are
71
<PAGE> 79
reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Bank; (vi) specifies as its
Lending Office (and address for notices) the office set forth beneath its name
on the signature pages hereof, (vii) represents and warrants that the
execution, delivery and performance of this Assignment and Acceptance are
within its corporate powers and have been duly authorized by all necessary
corporate action, (viii) makes the representation and warranty contained in
Section 9.18 of the Credit Agreement[, and (ix) attaches the forms prescribed
by the Internal Revenue Service of the United States certifying as to the
Assignee's status for purposes of determining exemption from United States
withholding taxes with respect to all payments to be made to the Assignee under
the Credit Agreement and the Notes or such other documents as are necessary to
indicate that all such payments are subject to such taxes at a rate reduced by
an applicable tax treaty].
4. The Effective Date for this Assignment and Acceptance
shall be ____ ,___ (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Agent for execution and
acceptance by the Agent and to the Borrower for execution by the Borrower.
5. Upon such execution and acceptance by the Agent [and
execution by the Borrower] [IF REQUIRED BY THE CREDIT AGREEMENT], from and
after the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent rights and obligations have been transferred to it
by this Assignment and Acceptance, have the rights and obligations of a Bank
thereunder and (ii) the Assignor shall, to the extent its rights and
obligations have been transferred to the Assignee by this Assignment and
Acceptance, relinquish its rights (other than under Sections 8.03, 9.03 and
9.04 of the Credit Agreement) and be released from its obligations under the
Credit Agreement.
6. Upon such execution and acceptance by the Agent [and
execution by the Borrower] [IF REQUIRED BY THE CREDIT AGREEMENT], from and
after the Effective Date, the Agent shall make all payments in respect of the
interest assigned hereby to the Assignee. The Assignor and Assignee shall make
all appropriate adjustments in payments for periods prior to such acceptance by
the Agent directly between themselves.
72
<PAGE> 80
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of Georgia.
[NAME OF ASSIGNOR]
By:
------------------------------
Title:
[NAME OF ASSIGNEE]
By:
------------------------------
Title:
Lending Office:
[Address]
WACHOVIA BANK, N.A.,
As Agent
By:
------------------------------
Title:
JDN REALTY CORPORATION
IF REQUIRED BY THE CREDIT AGREEMENT
By:
------------------------------
Title:
73
<PAGE> 81
EXHIBIT E
NOTICE OF BORROWING
JDN Realty Corporation
_________________, 2000
FAX (404) 332-5019 (ORIGINAL REQUEST) FAX (404) 332-4066 (COPY)
- ------------------------------------- -------------------------
Ms. Yasmin Ajani _________ Mr. Steven B. Wood
Syndicate Services_________ Real Estate Financial Services
Wachovia Bank, N.A.________ Wachovia Bank, N.A.
191 Peachtree Street, N.E. 191 Peachtree Street, N.E.
Mail Code GA-382, 27th Floor Mail Code GA-1810, 30th Floor
Atlanta, Georgia 30303-1757 Atlanta, Georgia 30303-1757
Re: Second Amended and Restated Credit Agreement dated as of May
19, 2000 in the amount of $175,000,000 (the "Credit
Agreement) by and among JDN Realty Corporation (the
"Borrower"), Wachovia Bank, N.A. (the "Agent" or "Swing
Bank") and the Banks who are signatories thereto (the
"Banks").
Gentlemen:
Unless otherwise defined herein, capitalized terms used herein shall
have the meanings attributable thereto in the Credit Agreement. This is our
request to the Agent to make the Advances or to effect Repayments under the
Credit Agreement as described in the following schedule and to select interest
rates with respect to this activity.
SYNDICATED LOAN ACTIVITY
<TABLE>
<S> <C>
----------------------------------
1. Syndicated Loan Balance from Prior Day $
----------------------------------
2. Today's Syndicated Loan Advance + $
----------------------------------
3. Today's Syndicated Loan Repayment - $
----------------------------------
4. Syndicated Loan Balance after Today's Activity (1+2-3) = $
----------------------------------
SWING LOAN ACTIVITY (NOT TO EXCEED $10 MILLION)
----------------------------------
5. Swing Loan Balance from Prior Day $
----------------------------------
6. Today's Swing Loan Advance + $
----------------------------------
7. Today's Swing Loan Repayment - $
----------------------------------
8. Swing Loan Balance after Today's Activity (5+6-7) = $
----------------------------------
SUMMARY OF AGGREGATE LOAN ACTIVITY
----------------------------------
9. Aggregate Loan Balance before Today's Activity (1+5) $
----------------------------------
10. Today's Aggregate Loan Advance (2+6) + $
----------------------------------
11. Today's Aggregate Loan Repayment (3+7) - $
----------------------------------
12. Aggregate Loan Balance after Today's Activity (4+8) = $
----------------------------------
</TABLE>
You are authorized to execute the following transactions with respect
to our account (a) Credit in the case of Advances or (b) Debit in the case of
Repayments the account of JDN Realty Corporation at Wachovia Bank, N.A.,
Atlanta, Georgia, Account # ____________________.
74
<PAGE> 82
SYNDICATED LOAN
INTEREST RATE ELECTION FOR LOAN ADVANCES
Borrower hereby elects the following interest rate(s) with respect to the
Syndicated Loan advance requested hereby:
<TABLE>
<CAPTION>
- ----------------------------------------- --------------------- ---------------- ------------------ ------------------
INTEREST RATE SELECTED AMOUNT OF LOAN INTEREST RATE INTEREST RATE
FOR ADVANCE ADVANCE INTEREST RATE COMMENCES EXPIRES
- ----------------------------------------- --------------------- ---------------- ------------------ ------------------
<S> <C> <C> <C> <C>
Base Rate $
- ----------------------------------------- --------------------- ---------------- ------------------ ------------------
For Euro Dollar Loans:
- ----------------------------------------- --------------------- ---------------- ------------------ ------------------
One-Month LIBOR $ %
- ----------------------------------------- --------------------- ---------------- ------------------ ------------------
Two-Month LIBOR $ %
- ----------------------------------------- --------------------- ---------------- ------------------ ------------------
Three-Month LIBOR $ %
- ----------------------------------------- --------------------- ---------------- ------------------ ------------------
Six-Month LIBOR $ %
- ----------------------------------------- --------------------- ---------------- ------------------ ------------------
</TABLE>
APPLICATION OF LOAN REPAYMENTS
Borrower hereby instructs Agent to apply the above requested Syndicated Loan
repayment to the portions of the Syndicated Loan described below:
<TABLE>
<CAPTION>
- ----------------------------------------- --------------------- ---------------- -----------------
INTEREST RATE SELECTED AMOUNT OF LOAN INTEREST RATE
FOR ADVANCE ADVANCE INTEREST RATE EXPIRES
- ----------------------------------------- --------------------- ---------------- -----------------
<S> <C> <C> <C>
Base Rate $
- ----------------------------------------- --------------------- ---------------- -----------------
Euro-Dollar Loan $ %
- ----------------------------------------- --------------------- ---------------- -----------------
Euro-Dollar Loan $ %
- ----------------------------------------- --------------------- ---------------- -----------------
Euro-Dollar Loan $ %
- ----------------------------------------- --------------------- ---------------- -----------------
</TABLE>
CERTIFICATIONS AND COMPLIANCE WITH BORROWING BASE LIMITATIONS
The maximum amount available to be borrowed under Section 2.01 of the Credit
Agreement, net of amounts to be paid with the proceeds of this Borrowing and
after giving effect to repayments of the Loans, is as follows:
[USE THE FOLLOWING PRIOR TO THE FINAL BORROWING BASE PROPERTY PERFECTION
DATE.]
<TABLE>
<S> <C>
(a) Initial Borrowing Base per most recent Borrowing Base Certificate $
---------------
(b) Principal Amount of Initial New Advances outstanding $
---------------
(c) The Initial New Advances limit $22,200,000 less the amount of (b) $
---------------
(d) lesser of (a) or (c) $
---------------
(e) Transitional Borrowing Base per most recent Borrowing
Base Certificate $
---------------
(f) Principal amount outstanding under Syndicated Loans $
---------------
</TABLE>
75
<PAGE> 83
<TABLE>
<S> <C>
(g) Principal amount outstanding under Swing Loans $
---------------
(h) Total Principal amount outstanding, sum of (f) and (g) $
---------------
(i) The greater of the amount by which (e) exceeds (h) or zero $
---------------
(j) Amount available to be borrowed (lesser of (c) or (i) or amount
to be repaid if negative. $
---------------
</TABLE>
[USE THE FOLLOWING AFTER THE FINAL BORROWING BASE PROPERTY PERFECTION DATE]
<TABLE>
<CAPTION>
<S> <C>
(a) Aggregate amount of Commitments $
---------------
(b) Borrowing Base per most recent Borrowing Base Certificate $
---------------
(c) Principal amount outstanding under Syndicated Loans $
---------------
(d) Principal amount outstanding under Swing Loans $
---------------
(e) Total Principal amount outstanding (sum of (c) and (d)) $
---------------
(f) Amount available to be borrowed (lesser of (a) and (b), less (e)) or
amount to be repaid if negative. $
---------------
</TABLE>
We hereby certify that the Borrowing requested by this Notice of
Borrowing shall not cause: (i) prior to the Final Borrowing Base Perfection
Date, the Initial New Advances to exceed the Initial Borrowing Base or the
principal amount of the Loans outstanding to exceed the Transitional Borrowing
Base; and (ii) after the Final Borrowing Base Perfection Date, the principal
amount of the Loans outstanding to exceed the Borrowing Base.
We further certify that Borrower is in compliance with the Credit
Agreement and the Loan Documents and that no Default or Event of Default under
the Credit Agreement or the Loan Documents has occurred or will be in existence
after giving effect to any Borrowing under the Credit Agreement contemplated
hereby.
The Borrower has caused this Notice of Borrowing to be executed and
delivered by its duly authorized officer this ____ day of ______.
JDN REALTY CORPORATION
By:
--------------------------------
Title:
76
<PAGE> 84
EXHIBIT F
COMPLIANCE CERTIFICATE
Reference is made to the Second Amended and Restated Credit
Agreement dated as of May 19, 2000 (as hereafter modified and supplemented and
in effect from time to time, the "Credit Agreement") by and among JDN Realty
Corporation, the Banks from time to time parties thereto, and Wachovia Bank,
N.A., as Agent. Capitalized terms used herein shall have the meanings ascribed
thereto in the Credit Agreement.
Pursuant to Section 5.01(c) of the Credit Agreement,_______ ,
the duly authorized ________________ of the Borrower, hereby (i) certifies to
the Agent and the Banks that the information contained in the Compliance Check
List attached hereto is true, accurate and complete as of ____ , ____ , and
that no Default is in existence on and as of the date hereof and (ii) restates
and reaffirms that the representations and warranties contained in Article IV
of the Credit Agreement are true on and as of the date hereof as though
restated on and as of this date.
JDN REALTY CORPORATION
By:
---------------------------
Its:
77
<PAGE> 85
COMPLIANCE CHECK LIST
JDN REALTY CORPORATION
------------------
,
------- ----
1. Ratio of Consolidated Total Liabilities to Gross Asset
Value (Section 5.19)
The ratio of Total Consolidated Liabilities to Gross Asset Value shall at all
times be equal to or less than 0.60 to 1.0.
<TABLE>
<S> <C>
(a) Total Consolidated Liabilities
Schedule 1 $
----------
(b) Gross Asset Value Schedule 2 $
----------
(c) Actual ratio of (a) to (b) to 1.0
----
Maximum ratio 0.60 to 1.0
</TABLE>
2. Ratio of Total Secured Debt to Gross Asset Value (Section
5.20)
The ratio of Total Secured Debt to Gross Asset Value shall at
all times be equal to or less than 0.40 to 1.0.
<TABLE>
<S> <C>
(a) Total Secured Debt Schedule 3 $
----------
(b) Gross Asset Value Schedule 2 $
----------
(c) Actual ratio of (a) to (b) to 1.0
----
Maximum ratio 0.40 to 1.0
</TABLE>
3. Ratio of EBITDA to Consolidated Interest Expense (Section
5.21)
The ratio of EBITDA to Consolidated Interest Expense for the
Fiscal Quarter just ended and the 3 immediately preceding
Fiscal Quarters will not be less than 2.0 to 1.00, calculated
at the end of each Fiscal Quarter.
<TABLE>
<S> <C>
(a) EBITDA Schedule 4 $
----------
(b) Consolidated Interest Expense(1) $
(c) actual ratio of (a) to (b) to 1.0
----
Minimum ratio 2.0 to 1.0
</TABLE>
- --------------
(1) During Fiscal Quarter just ended and immediately preceding 3 Fiscal
Quarters
78
<PAGE> 86
4. Restricted Payments (Section 5.15)(2)
The Borrower's Restricted Payments in any calendar year shall
not exceed (i) for the calendar year ending December 31,
2000, 100%, and (ii) for all calendar years thereafter, 95%
of "REIT taxable income" (as defined in the Code) for such
period, unless the Borrower must pay out an amount in excess
of 100% or 95%, as applicable, of REIT taxable income to
permit the Borrower to preserve its status as a real estate
investment trust, or avoid payment of excise tax or income
tax related to undistributed income, under the applicable
provisions of the Code and except for Restricted Payments
necessary to fund the purchase of Capital Stock pursuant to
employee benefit plans in the ordinary course of business or
to satisfy the requirements of stock option plans in effect
as of the Closing Date. The Borrower shall not directly or
indirectly repurchase (or finance the repurchase) of, or make
any voluntary prepayments on, Debt of the types described in
clauses (i), (ii), (viii) and (x) of the definition of Debt
(whether secured or unsecured), other than Debt hereunder or
under the Term Credit Agreement or from the net proceeds of
the sale of Property (other than any Borrowing Base Property
which has not been released pursuant to Section 5.27(b)).
<TABLE>
<S> <C>
(a) Restricted Payments for current calendar year(3) $
----------
(b) REIT taxable income for current calendar year $
----------
(c) [100%] [95%] of (b) $
----------
Limitation: (a) may not exceed (c)
</TABLE>
5. Guarantees (Section 5.22)
Neither the Borrower nor any Guarantor will create, assume or
suffer to exist any Guarantees of Debt of other Persons,
except (i) Guarantees in existence on March 31, 2000 in the
aggregate amount as of March 31, 2000 of $22,214,794 and set
forth on Schedule 5.22, (ii) Guarantees of Debt of the
Borrower or other Guarantors and (iii) other Guarantees in an
aggregate amount not exceeding at any time 10% of Gross Asset
Value as of the last day of the Fiscal Quarter just ended.
<TABLE>
<S> <C>
(a) Amount Guaranteed by other Guarantees
not permitted by clauses (i) and (ii) $
-----------
(b) Gross Asset Value Schedule 2 $
-----------
(c) 10% of (b) $
-----------
</TABLE>
Limitation: (a) may not exceed (c)
6. Consolidations, Mergers and Sales of Assets (Section 5.05)
Neither the Borrower nor any of the Guarantors will
consolidate or merge with or into, or acquire all or
substantially all of the assets or stock of any other Person,
or sell, lease or otherwise transfer all or any substantial
part of its assets to, any other Person, provided that:
- ---------------
(2) Include this paragraph 6 and Schedule 7 only with the first Compliance
Certificate furnished after the end of each Fiscal Year. Amounts included
herein are for the year ended December 31, ____.
(3) Other than Restricted Payments excepted by Section 5.15
79
<PAGE> 87
[(i) . . . (iv)]
(v) the foregoing limitation on the acquisition of all or
substantially all the assets or stock of another Person shall not
prohibit, during any Fiscal Quarter, the acquisition of all or
substantially all of the assets or stock of another Person unless the
aggregate assets or stock acquired in a single acquisition or series
of related acquisitions of all or substantially all of the assets or
stock of another Person by the Borrower and the Guarantors during such
Fiscal Quarter constituted more than 20% of Gross Asset Value at the
end of the most recent Fiscal Quarter immediately preceding such
Fiscal Quarter;
(vi) the foregoing limitation on the sale, lease or other
transfer of assets shall not prohibit, during any Fiscal Quarter, a
transfer of assets (in a single transaction or in a series of related
transactions) unless the aggregate assets to be so transferred, when
combined with all other assets transferred, by the Borrower and the
Guarantors during such Fiscal Quarter and the immediately preceding 3
Fiscal Quarters (but in each case excluding transfers permitted under
clauses (i) through (iv) above), constituted more than 25% of Gross
Asset Value at the end of the most recent Fiscal Quarter immediately
preceding such Fiscal Quarter.
<TABLE>
<S> <C>
(a) Aggregate amount of assets or stock
acquired in a single acquisition or
series of related acquisitions
during Fiscal Quarter just ended $
-----------
(b) Gross Asset Value Schedule 2 $
-----------
(c) 20% of (b) $
-----------
Limitation: (a) may not exceed (c)
(d) Aggregate amount of assets sold
during Fiscal Quarter just ended $
-----------
(e) Aggregate amount of assets sold
during 3 prior Fiscal Quarters $
-----------
(f) Sum of (d) and (e) $
-----------
(g) 25% of (b) $
-----------
</TABLE>
Limitation: (f) may not exceed (g)
7. Loans or Advances (Section 5.16)
Loans and advances of the Borrower and the Guarantors as of
the Closing Date (other than to Subsidiaries, which are set
forth in Schedule 4.08, or in any Guarantor), are set forth
in Schedule 5.16. Neither the Borrower nor any of the
Guarantors shall make loans or advances after the Closing
Date to any Person except as permitted by Section 5.17 and
except:
(i) loans or advances to employees and directors not
exceeding $1,000,000 in the aggregate principal amount outstanding at
any time;
[(ii) . . . (iii)]
80
<PAGE> 88
(iv) other loans and advances by the Borrower and the
Guarantors to any JDN Venture which (x) are evidenced by
notes (and, if requested by the Agent, acting at the
direction of the Required Banks, with such notes, together
with any related mortgage, have been assigned to and pledged
with the Agent, for the benefit of itself and the Banks, as
security for the payment of all obligations of the Borrower
to the Agent and the Banks hereunder) and (y) are in an
amount which, together with Investments permitted by clause
(vi) of Section 5.17, do not exceed 15% of Gross Asset Value
as of the end of the most recent Fiscal Quarter;
<TABLE>
<S> <C>
(a) Loans and advances to officers
and directors $
---------
Limitation $1,000,000
(b) Other loans and advances evidenced by notes (and, if
required, pledged with Agent) and not permitted by
clauses (i) through (iii) $
---------
(c) See line (e) and "Limitation" of paragraph 8 below
</TABLE>
8. Investments (Section 5.17)
Investments of the Borrower as of the Closing Date (other
than in Subsidiaries, which are set forth in Schedule 4.08,
or in any Guarantors), are set forth on Schedule 5.17.
Neither the Borrower nor any of the Guarantors shall make
Investments after the Closing Date in any Person except as
permitted by Section 5.16 and except Investments in:
[(i) . . . (v)]
(vi) other Investments by the Borrower and the Guarantors in
an amount which, (x) together with loans and advances
permitted by clause (iv) of Section 5.16, do not exceed 15%
of Gross Asset Value as of the end of the most recent Fiscal
Year, and (y) with respect to Investments in Persons over
which, after giving effect to such Investment, the Borrower
or the Guarantors do not have Control, do not exceed 5% of
Gross Asset Value as of the end of the most recent Fiscal
Year;
<TABLE>
<S> <C>
(a) Line (b) of paragraph 9 above $
--------
(b) Other Investments not permitted by
clauses (i) through (v) $
--------
(c) Sum of (a) and (b) $
--------
(d) Gross Asset Value Schedule 2 $
--------
(e) 15% of (d) $
--------
(f) Limitation: (c) may not exceed (e)
(g) Investments included in line (b) in
Persons over which the Borrower or the
Guarantors do not have control $
--------
</TABLE>
81
<PAGE> 89
<TABLE>
<S> <C>
(h) 5% of (d) $
--------
</TABLE>
Limitation: (f) may not exceed (g)
9. Ratio of EBITDA to Consolidated Fixed Charges (Section
5.27)
The ratio of EBITDA to Consolidated Fixed Charges for the
Fiscal Quarter just ended and the 3 immediately preceding
Fiscal Quarters will not be less than 1.75 to 1.00,
calculated at the end of each Fiscal Quarter.
<TABLE>
<S> <C>
(a) EBITDA Schedule 4 $
----------
(b) Consolidated Interest Expense(4) $
----------
(c) dividends paid or declared
but not yet paid on preferred
stock(4) $
----------
(d) aggregate amount of scheduled
principal amortization paid(5) $
----------
(e) sum of (b) through (d) $
----------
(f) actual ratio of (a) to (e) to 1.0
---
Minimum ratio 1.75 to 1.0
</TABLE>
- --------------
(4) During Fiscal Quarter just ended and immediately preceding 3 Fiscal
Quarters
(5) During Fiscal Quarter just ended and immediately preceding 3 Fiscal
Quarters, but excluding any principal payments under this Agreement or any other
agreement pertaining to revolving debt permitted under Section 5.23 and
excluding any balloon payments on other Debt.
82
<PAGE> 90
Schedule 1
Total Consolidated Liabilities
<TABLE>
<S> <C>
(a) Consolidated Liabilities $
---------
(b) Debt Guaranteed by Borrower or any
Guarantor $
---------
(c) face amount of all letters of credit
issued for the account of the Borrower
or any Guarantor $
---------
TOTAL CONSOLIDATED LIABILITIES
(sum of (a) through (c)) $
---------
</TABLE>
83
<PAGE> 91
Schedule 2
Gross Asset Value
<TABLE>
<S> <C>
(a) Net Operating Income for the 3 month period ending on the
last day of the month just ended prior to the date of
determination, from each Property owned by the Borrower or
any Guarantor for at least one Fiscal Quarter Schedule 5 $
-----------
(b) 4 times (a) $
-----------
(c) (b) divided by 0.10 $
-----------
(d) book value of each Property owned by the Borrower or any
Guarantor for less than one Fiscal Quarter $
-----------
(e) aggregate amount of all unrestricted cash and accounts
receivable not past due of the Borrower and the Guarantors
(f) book value of Construction in Progress of each Property owned
by the Borrower or any Guarantor $
-----------
(g) aggregate amount of all restricted cash held by a Qualified
Intermediary on behalf of the Borrower or any
Guarantor $
-----------
(h) aggregate principal amount outstanding of all Replacement
Property Development Loans as to which the development of the
relevant property is controlled by the Borrower, a Guarantor
or an Affiliate thereof. $
-----------
GROSS ASSET VALUE (sum of (c) through (g)) $
-----------
</TABLE>
84
<PAGE> 92
Schedule 3
Total Secured Debt(6)
<TABLE>
<CAPTION>
INTEREST FINAL
RATE(7) MATURITY TOTAL
---- -------- -----
Money Borrowed
- --------------
<S> <C> <C> <C>
$
- --------------------------------------- ----------------- ---------------- ------------
$
- --------------------------------------- ----------------- ---------------- ------------
$
- --------------------------------------- ----------------- ---------------- ------------
$
- --------------------------------------- ----------------- ---------------- ------------
$
- --------------------------------------- ----------------- ---------------- ------------
$
Total Money Borrowed ------------
Deferred Purchase Price(8)
$
- --------------------------------------- ----------------- ---------------- ------------
$
- --------------------------------------- ----------------- ---------------- ------------
$
- --------------------------------------- ----------------- ---------------- ------------
$
- --------------------------------------- ----------------- ---------------- ------------
$
Total Deferred Purchase Price -----------
</TABLE>
- ---------------
(6) Include only Debt secured by an Other Mortgage
(7) If rate is fixed, insert contract rate. If rate is floating, state that.
(8) Exclude trade accounts payable in the ordinary course of business.
85
<PAGE> 93
Capital Leases in which Borrower is the Tenant
<TABLE>
<S> <C>
$
- ----------------------------------------------------------------- --------
$
- ----------------------------------------------------------------- --------
Total Capital Leases $
--------
Letter of Credit Reimbursement
Obligations
$
- ----------------------------------------------------------------- --------
$
- ----------------------------------------------------------------- --------
Total Letter of Credit
Reimbursement Obligations
$
--------
</TABLE>
Guarantees of Debt of Persons other than Borrower and Guarantors
<TABLE>
<S> <C> <C> <C>
$
- ------------------------------ --------------- ---------------- --------
$
- ------------------------------ --------------- ---------------- --------
$
- ------------------------------ --------------- ---------------- --------
$
- ------------------------------ --------------- ---------------- --------
$
- ------------------------------ --------------- ---------------- --------
TOTAL SECURED DEBT $
========
</TABLE>
86
<PAGE> 94
Schedule 4
EBITDA
<TABLE>
<S> <C> <C>
quarter
- --- ---
consolidated net income(9) $
-----------
less extraordinary gains ($ )
-----------
plus extraordinary losses $
-----------
plus Consolidated Interest Expense $
-----------
plus taxes on income $
-----------
plus depreciation and amortization $
-----------
plus other non-cash charges $
-----------
Total $
-----------
quarter
- --- ---
consolidated net income(10) $
-----------
less extraordinary gains ($ )
----------
plus extraordinary losses $
-----------
plus Consolidated Interest Expense $
-----------
plus taxes on income $
-----------
plus depreciation and amortization $
-----------
plus other non-cash charges $
-----------
Total $
-----------
quarter
- --- ---
consolidated net income(10) $
-----------
less extraordinary gains ($ )
-----------
plus extraordinary losses $
-----------
plus Consolidated Interest Expense $
-----------
plus taxes on income $
-----------
plus depreciation and amortization $
-----------
plus other non-cash charges $
-----------
Total $
-----------
quarter
- --- ---
consolidated net income(10) $
-----------
less extraordinary gains ($ )
-----------
plus extraordinary losses $
-----------
plus Consolidated Interest Expense $
-----------
plus taxes on income $
-----------
plus depreciation and amortization $
-----------
plus other non-cash charges $
-----------
Total $
-----------
EBITDA $
===========
</TABLE>
- ---------------
(9) Add back the amount of Anchor Tenant Settlement Payment that is
accounted for as an expense in the applicable period
87
<PAGE> 95
Schedule 5
Net Operating Income(10)
(for Fiscal Quarter just ended)
<TABLE>
<S> <C> <C>
quarter
- --- ---
Property revenues $
-----------
less Property expenses(11)
(excluding depreciation, amortization
and debt service) ($ )
-----------
less management fee (3% of gross
rental income, excluding
percentage rents) ($ )
-----------
less capital reserve ($0.15 per leasable
square foot) ($ )
-----------
NET OPERATING INCOME $
-----------
</TABLE>
- -------------
(10) Include only Properties owned for at least one Fiscal Quarter
(11) If such period is less than a year, expenses that are payable less
frequently than monthly during the course of a year (e.g. real estate taxes and
insurance premiums) shall be adjusted by "straight lining" the amounts so that
such expenses are accrued on a monthly basis over the course of a year and
fairly stated for each period.
88
<PAGE> 96
EXHIBIT G
JDN REALTY CORPORATION
CLOSING CERTIFICATE
Reference is made to the Second Amended and Restated Credit Agreement
(the "Credit Agreement") dated as of May 19, 2000, among JDN Realty
Corporation, the Banks listed therein, and Wachovia Bank, N.A., as Agent.
Capitalized terms used herein have the meanings ascribed thereto in the Credit
Agreement.
Pursuant to Section 3.01(e) of the Credit Agreement,_________________,
the duly authorized ______________ of JDN Realty Corporation, hereby certifies
to the Agent and the Banks that, to the best of my knowledge, (i) no Default
has occurred and is continuing as of the date hereof, and (ii) the
representations and warranties contained in Article IV of the Credit Agreement
are true on and as of the date hereof.
Certified as May 19, 2000.
By:
-----------------------------------
Printed Name:
----------------------
Title:
-----------------------------
89
<PAGE> 97
EXHIBIT H
JDN REALTY CORPORATION
SECRETARY'S CERTIFICATE
The undersigned,_______________________ , __________________, Secretary of JDN
Realty Corporation, a Maryland corporation (the "Borrower"), hereby certifies
that [s]he has been duly elected, qualified and is acting in such capacity and
that, as such, [s]he is familiar with the facts herein certified and is duly
authorized to certify the same, and hereby further certifies, in connection
with the Second Amended and Restated Credit Agreement dated as of May 19, 2000
among the Borrower, Wachovia Bank, N.A. as Agent and as a Bank, and certain
other Banks listed on the signature pages thereof, that:
1. There has been no amendment, modification or alteration
of the Certificate of Incorporation of the Borrower since September 2, 1998
[EXCEPT __________, A COPY OF WHICH IS ATTACHED HERETO].
2. There has been no amendment, modification or alteration
of the Bylaws of the Borrower since September 2, 1998, [EXCEPT __________, A
COPY OF WHICH IS ATTACHED HERETO].
3. Attached hereto as Exhibit C is a complete and correct
copy of the resolutions duly adopted by the Board of Directors of the Borrower
on April 27, 2000 approving, and authorizing the execution and delivery of, the
Credit Agreement, the Notes and the other Loan Documents (as such terms are
defined in the Credit Agreement) to which the Borrower is a party. Such
resolutions have not been repealed or amended and are in full force and effect,
and no other resolutions or consents have been adopted by the Board of
Directors of the Borrower in connection therewith.
4. __________ , who is _________ of the Borrower signed
the Credit Agreement, the Notes and the other Loan Documents to which the
Borrower is a party, was duly elected, qualified and acting as such at the time
[s]he signed the Credit Agreement, the Notes and other Loan Documents to which
the Borrower is a party, and [his/her] signature appearing on the Credit
Agreement, the Notes and the other Loan Documents to which the Borrower is a
party is [his/her] genuine signature.
IN WITNESS WHEREOF, the undersigned has hereunto set[his/her]
hand as of May 19, 2000.
------------------------------------------
90
<PAGE> 98
EXHIBIT I
BORROWING BASE CERTIFICATE
Reference is made to the Second Amended and Restated Credit
Agreement dated as of May 19, 2000 (as modified and supplemented and in effect
from time to time, the "Credit Agreement") among JDN Realty Corporation, the
Banks from time to time parties thereto, and Wachovia Bank, N.A., as Agent.
Capitalized terms used herein shall have the meanings ascribed thereto in the
Credit Agreement.
Pursuant to Section [3.01(h)][5.01(i)] of the Credit
Agreement,___________ , the duly authorized _____________ of the Borrower,
hereby (i) certifies to the Agent and the Banks that each of the Borrowing Base
Properties satisfies the criteria set forth in the definition thereof for being
included as a Borrowing Base Property, and the calculation of the Borrowing
Base contained in this Borrowing Base Certificate is true, accurate and
complete in all material respects, as of ______ , _____.
[A. The calculation of the Initial Borrowing Base is as
follows:(12)
<TABLE>
<S> <C>
(a) Net Operating Income for the 3 month period ending on the
last day of the Fiscal Quarter just ended prior to the date
of determination, from each Initial Borrowing Base Property
owned by the Borrower or any Guarantor
for at least one Fiscal Quarter $
-----------
(b) 4 times (a) $
-----------
(c) (b) divided by 0.10 $
-----------
(d) 0.60 times (c) $
----------
(e) INITIAL BORROWING BASE: amount of (d) $ ]
----------
</TABLE>
[B.] The calculation of the [Transitional](13) Borrowing Base is
as follows:
<TABLE>
<S> <C>
(a) Net Operating Income for the 3 month period ending on the
last day of the Fiscal Quarter just ended prior to the date
of determination, from each Borrowing Base Property owned by
the Borrower or any Guarantor for at least one
Fiscal Quarter $-----------
(b) 10 times (a) $
-----------
(c) 4 times (b) $
-----------
(d) 0.60 times (c) $
-----------
</TABLE>
- ---------------
(12) Include this portion prior to the Final Borrowing Base Perfection
Date
(13) Include this term prior to the Final Borrowing Base Perfection Date
91
<PAGE> 99
<TABLE>
<S> <C>
[TRANSITIONAL] BORROWING BASE: amount of (d) $
-----------
</TABLE>
JDN REALTY CORPORATION
By:
---------------------------
Its:
92
<PAGE> 100
EXHIBIT J
LIST OF BORROWING BASE PROPERTIES
JDN REALTY CORPORATION
BORROWING BASE PROPERTIES
LINE OF CREDIT
INITIAL BORROWING BASE PROPERTIES
<TABLE>
<CAPTION>
Total Borrowing % %
Property Property Name Year Company 1Q 2000 Base at Occupied Leased
Number Location Built GLA sf(14) NOI(15) Closing Date 3/31/00 3/31/00
------ -------- ----- ---------- ------- ------------ ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
301 Riverplace Shopping Center 1983 127,800 $ 213,158 $ 5,115,792 92.1% 92.1%
Canton, GA
318 Five Forks Village 1990 89,066 $ 217,992 $ 5,231,808 90.3% 100.0%
Lawrenceville, GA
346 Five Forks Crossing 1990 73,953 $ 159,941 $ 3,838,584 100.0% 100.0%
Lilburn, GA
375 Freeway Junction 1988 162,783 $ 189,854 $ 4,556,496 99.1% 99.1%
Stockbridge, GA
380 Shannon Square 1986 100,007 $ 204,601 $ 4,910,424 100.0% 100.0%
Union City, GA
390 Woodstock Place 1995 170,942 $ 278,765 $ 6,690,360 100.0% 100.0%
------- ---------- -----------
Woodstock, GA
TOTAL 596,751 $1,051,153 $25,227,672
</TABLE>
- ---------------
(14) "GLA" Refers to gross leasable area of building improvements on
any Borrowing Base Property, expressed in square feet
(15) "NOI" refers to Net Operating Income, as defined in the Credit
Agreement to which this Exhibit J is attached
93
<PAGE> 101
OTHER BORROWING BASE PROPERTIES
(INCLUDES INITIAL BORROWING BASE PROPERTIES)
<TABLE>
<CAPTION>
Total % %
Property Year Company 1Q 2000 Occupied Leased
Number Property Name Location Built GLA sf NOI 3/31/00 3/31/00
- ------ ------------- -------- ----- ------ --- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
125 Southland Plaza Decatur, AL 1965 122,957 164,618 87.8% 87.8%
175 Pepperell Corners Opelika, AL 1993 274,430 397,538 74.0% 100.0%
176 Pepperell Corners - Ph II Opelika, AL 1995 31,800 58,527 100.0% 100.0%
280 Capital West Tallahassee, FL 1990 109,055 204,917 100.0% 100.0%
301 Riverplace Canton, GA 1983 127,800 213,158 92.1% 92.1%
302 River Pointe Canton, GA 1996 39,005 119,506 100.0% 100.0%
310 Dodge County Marketplace Eastman, GA 1990 53,366 75,477 95.5% 95.5%
315 Ft. Oglethorpe Marketplace Fort Oglethorpe, GA 1973 176,903 205,383 98.5% 98.5%
318 Five Forks Village Lawrenceville, GA 1990 89,066 217,992 90.3% 100.0%
323 Bradley Park Crossing Columbus, GA 1999 119,614 300,407 100.0% 100.0%
340 North Main Street LaFayette, GA 1990 78,426 126,281 95.4% 95.4%
346 Five Forks Crossing Lilburn, GA 1990 73,953 159,941 100.0% 100.0%
360 Newnan Crossing Newnan, GA 1995 156,505 283,781 100.0% 100.0%
375 Freeway Junction Stockbridge, GA 1988 162,783 189,854 99.1% 99.1%
380 Shannon Square Union City, GA 1986 100,007 204,601 100.0% 100.0%
390 Woodstock Place Woodstock, GA 1995 170,942 278,765 100.0% 100.0%
405 River Hills Asheville, NC 1996 186,970 428,507 100.0% 100.0%
470 Pineridge Crossing Rockingham, NC 1988 168,776 238,938 99.4% 99.4%
545 Kelley Corners Lake City, SC 1991 135,963 162,608 98.2% 98.2%
552 MacArthur Marketplace Irving, TX 1999 189,021 600,866 100.0% 100.0%
560 Nacogdoches Marketplace Nacogdoches, TX 1999 49,013 106,563 100.0% 100.0%
600 Overlook at Hamilton Place Chattanooga, TN 1992 214,581 382,834 100.0% 100.0%
605 Columbia Square Columbia, TN 1993 68,950 124,741 91.7% 91.7%
625 Northcreek Commons Goodlettsville, TN 1987 84,947 143,750 93.6% 93.6%
650 Memorial Village Murfreesboro, TN 1972 117,750 171,888 89.4% 89.4%
652 Towne Centre Murfreesboro, TN 1998 108,188 255,818 100.0% 100.0%
720 Bermuda Square Chester, VA 1977 116,311 270,828 96.6% 96.6%
781 Shopper's World at Brookfield Brookfield, WI 1967 190,142 287,766 100.0% 100.0%
783 Brown Deer Center Brown Deer, WI 1967 217,094 266,483 97.3% 97.3%
785 Point Loomis Milwaukee, WI 1962 160,533 162,054 100.0% 100.0%
807 Tri-State Plaza Burlington, OH 1991 159,359 245,868 100.0% 100.0%
--------- ------------
TOTAL 4,054,210 $ 7,050,258
31 Properties
BORROWING BASE $169,206,192
</TABLE>
94
<PAGE> 102
EXHIBIT K
GUARANTY
THIS GUARANTY (this "Guaranty") is made as of May 19, 2000 by JDN
DEVELOPMENT COMPANY, INC., a Delaware corporation, JDN REALTY AL, INC., an
Alabama corporation, JDN REALTY, LP, INC., a Delaware corporation and JDN REALTY
HOLDINGS, L.P., a Georgia limited partnership (each an "Initial Guarantor" and a
"Guarantor"; the terms "Guarantor" and "Guarantors" shall include any Subsidiary
of JDN Realty Corporation which becomes a Guarantor pursuant to Section 15
hereof and Section 5.25 of the Credit Agreement referred to below) in favor of
the Agent, for the ratable benefit of the Banks, under the Credit Agreement
referred to below;
W I T N E S S E T H
WHEREAS, JDN REALTY CORPORATION, a Maryland corporation (the
"Borrower"), WACHOVIA BANK, N.A., as Agent (the "Agent"), and certain other
Banks from time to time party thereto have entered into a certain Second Amended
and Restated Credit Agreement dated as of May 19, 2000 (as amended as of the
date hereof and as it may be amended or modified further from time to time, the
"Credit Agreement"), providing, subject to the terms and conditions thereof, for
extensions of credit to be made by the Banks to the Borrower which will the
benefit the Guarantors;
WHEREAS, it is required by Section 5.25 of the Credit Agreement,
that the Initial Guarantors execute and deliver this Guaranty whereby it and,
together with other Guarantors which become such as contemplated in Section 15
hereof, shall guarantee the payment when due of all principal, interest and
other amounts that shall be at any time payable by the Borrower under the Credit
Agreement, the Notes and the other Loan Documents; and
WHEREAS, in consideration of the financial and other support that
the Borrower has provided, and such financial and other support as the Borrower
may in the future provide, to the Guarantors, whether directly or indirectly,
and in order to induce the Banks and the Agent to enter into the Credit
Agreement, the Guarantors are willing to guarantee the obligations of the
Borrower under the Credit Agreement, the Notes, and the other Loan Documents;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions. Terms defined in the Credit Agreement and
not otherwise defined herein have, as used herein, the respective meanings
provided for therein.
SECTION 2. Representations and Warranties. The Guarantors
incorporate herein by reference as fully as if set forth herein all of the
representations and warranties pertaining to the Guarantors contained in Article
IV of the Credit Agreement (which representations and warranties shall be deemed
to have been renewed by the Guarantors upon each Borrowing under the Credit
Agreement).
SECTION 3. Covenants. The Guarantors covenant that, so long as any
Bank has any Commitment outstanding under the Credit Agreement or any amount
payable under the Credit Agreement or any Note shall remain unpaid, the
Guarantors will fully comply with those covenants set forth in Article V of the
Credit Agreement pertaining to the Guarantors, and the Guarantors incorporate
herein by reference as fully as if set forth herein all of such covenants.
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<PAGE> 103
SECTION 4. The Guaranty. The Guarantors hereby irrevocably,
unconditionally and jointly and severally guarantee (i) the full and punctual
payment (whether at stated maturity, upon acceleration or otherwise) of the
principal of and interest on each Note issued by the Borrower pursuant to the
Credit Agreement, and the full and punctual payment of all other amounts payable
by the Borrower under the Credit Agreement, including, without limitation, all
Loans and interest thereon, all compensation and indemnification amounts and
fees payable pursuant to the Credit Agreement and the Arranger's Letter
Agreement, and (ii) the timely performance of all other obligations of the
Borrower under the Credit Agreement and the other Loan Documents (all of the
foregoing obligations being referred to collectively as the "Guaranteed
Obligations"). Upon failure by the Borrower to pay punctually any such amount or
perform such obligations, each of the Guarantors agrees that it shall forthwith
on demand pay the amount not so paid at the place and in the manner specified in
the Credit Agreement, the relevant Note or the relevant Loan Document, as the
case may be, or perform such obligation in accordance with the terms and
conditions therefor specified in the Credit Agreement or the other Loan
Documents, and pay all costs of collection, including reasonable attorneys fees;
provided that, notwithstanding the provisions of O.C.G.A. ss. 13-1-11(a)(2) to
the contrary, the Guarantor shall not be obligated to pay more than the
attorneys fees actually incurred in connection with such collection.
SECTION 5. Guaranty Unconditional. The obligations of the Guarantors
hereunder shall be unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of the Borrower under the Credit Agreement,
any Note, or any other Loan Document, by operation of law or otherwise or any
obligation of any other guarantor of any of the Guaranteed Obligations;
(ii) any modification or amendment of or supplement to the Credit
Agreement, any Note, or any other Loan Document;
(iii) any release, nonperfection or invalidity of any direct or
indirect security, if any, for any obligation of the Borrower under the Credit
Agreement, any Note, any Loan Document, or any obligations of any other
guarantor of any of the Guaranteed Obligations;
(iv) any change in the corporate or partnership structure or
ownership of the Borrower or any Guarantor or any other guarantor of any of the
Guaranteed Obligations, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting the Borrower, or any other Guarantor or any other
guarantor of the Guaranteed Obligations, or its assets or any resulting release
or discharge of any obligation of the Borrower, or any other Guarantor or any
other guarantor of any of the Guaranteed Obligations;
(v) the existence of any claim, setoff or other rights which the
Guarantors may have at any time against the Borrower, any other Guarantor or any
other guarantor of any of the Guaranteed Obligations, the Agent, any Bank or any
other Person, whether in connection herewith or any unrelated transactions,
provided that nothing herein shall prevent the assertion of any such claim by
separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or against the
Borrower, or any other Guarantor or any other guarantor of any of the Guaranteed
Obligations, for any reason related to the Credit Agreement, any other Loan
Document, or any other Guaranty, or any provision of applicable law or
regulation purporting to prohibit the payment by the Borrower, or any other
Guarantor or any other guarantor of the Guaranteed Obligations, of the principal
of or interest on any Note or any other amount payable by the Borrower under the
Credit Agreement, the Notes, or any other Loan Document; or
96
<PAGE> 104
(vii) any other act or omission to act or delay of any kind by the
Borrower, any other Guarantor or any other guarantor of the Guaranteed
Obligations, the Agent, any Bank or any other Person or any other circumstance
whatsoever which might, but for the provisions of this paragraph, constitute a
legal or equitable discharge of the Guarantor's obligations hereunder.
SECTION 6. Discharge Only Upon Payment In Full; Reinstatement In
Certain Circumstances. The Guarantors' obligations hereunder shall remain in
full force and effect until all Guaranteed Obligations shall have been paid in
full and the Commitments under the Credit Agreement shall have terminated or
expired. If at any time any payment of the principal of or interest on any Note
or any other amount payable by the Borrower under the Credit Agreement or any
other Loan Document is rescinded or must be otherwise restored or returned upon
the insolvency, bankruptcy or reorganization of the Borrower or otherwise, the
Guarantors' obligations hereunder with respect to such payment shall be
reinstated as though such payment had been due but not made at such time.
SECTION 7. Waiver of Notice by the Guarantors. The Guarantors
irrevocably waive acceptance hereof, presentment, demand, protest and, to the
fullest extent permitted by law, any notice not provided for herein, as well as
any requirement that at any time any action be taken by any Person against the
Borrower, any other Guarantor or any other guarantor of the Guaranteed
Obligations, or any other Person.
SECTION 8. Stay of Acceleration. If acceleration of the time for
payment of any amount payable by the Borrower under the Credit Agreement, any
Note or any other Loan Document is stayed upon the insolvency, bankruptcy or
reorganization of the Borrower, all such amounts otherwise subject to
acceleration under the terms of the Credit Agreement, any Note or any other Loan
Document shall nonetheless be payable by the Guarantors hereunder forthwith on
demand by the Agent made at the request of the Required Banks.
SECTION 9. Notices. All notices, requests and other communications
to any party hereunder shall be given or made by telecopier or other writing and
telecopied or mailed or delivered to the intended recipient at its address or
telecopier number set forth on the signature pages hereof or such other address
or telecopy number as such party may hereafter specify for such purpose by
notice to the Agent in accordance with the provisions of Section 9.01 of the
Credit Agreement. Except as otherwise provided in this Guaranty, all such
communications shall be deemed to have been duly given when transmitted by
telecopier, or personally delivered or, in the case of a mailed notice, 3
Domestic Business Days after such communication is deposited in the mails with
first class postage prepaid, in each case given or addressed as aforesaid.
SECTION 10. No Waivers. No failure or delay by the Agent or any
Banks in exercising any right, power or privilege hereunder 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 this Guaranty, the Credit
Agreement, the Notes, and the other Loan Documents shall be cumulative and not
exclusive of any rights or remedies provided by law.
SECTION 11. Successors and Assigns. This Guaranty is for the benefit
of the Agent and the Banks and their respective successors and assigns and in
the event of an assignment of any amounts payable under the Credit Agreement,
the Notes, or the other Loan Documents, the rights hereunder, to the extent
applicable to the indebtedness so assigned, may be transferred with such
indebtedness. This Guaranty may not be assigned by the Guarantors without the
prior written consent of the Agent and the Required Banks, and shall be binding
upon the Guarantors and their respective successors and permitted assigns.
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<PAGE> 105
SECTION 12. Changes in Writing. Neither this Guaranty nor any
provision hereof may be changed, waived, discharged or terminated orally, but
only in writing signed by the Guarantors and the Agent, with the consent of the
Required Banks.
SECTION 13. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF
JURY TRIAL. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAW OF THE STATE OF GEORGIA. EACH OF THE GUARANTOR AND THE AGENT HEREBY
SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF GEORGIA AND OF ANY GEORGIA STATE COURT SITTING IN
ATLANTA, GEORGIA AND FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY. THE
GUARANTORS IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH ANY OF THEM 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.
EACH OF THE GUARANTORS AND THE Agent HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 14. Taxes, etc. All payments required to be made by the
Guarantor hereunder shall be made without setoff or counterclaim and free and
clear of and without deduction or withholding for or on account of, any present
or future taxes, levies, imposts, duties or other charges of whatsoever nature
imposed by any government or any political or taxing authority pursuant and
subject to the provisions of Section 2.10(c) of the Credit Agreement, the terms
of which are incorporated herein by reference as to the Guarantors as fully as
if set forth herein, and for such purposes, the rights and obligations of the
Borrower under such Section shall devolve to the Guarantors as to payments
required to be made by the Guarantors hereunder.
SECTION 15. Additional Guarantors; Release of Guarantors. Section
5.25 of the Credit Agreement provides that all new Significant Subsidiaries and
certain other Subsidiaries must become Guarantors, by, among other things,
executing and delivering to the Agent a counterpart of this Guaranty. Any
Subsidiary which executes and delivers to the Agent a counterpart of this
Guaranty shall be a Guarantor for all purposes hereunder. Under certain
circumstances described in the last sentence of Section 5.05 of the Credit
Agreement, Guarantors may obtain from the Agent a written release from this
Guaranty pursuant to the provisions of such sentence, and upon obtaining such
written release, any such Subsidiary shall no longer be a Guarantor hereunder.
Each other Guarantor consents and agrees to any such release and agrees that no
such release shall affect its obligations hereunder.
SECTION 16. Other Waivers by the Guarantors. The Guarantors hereby
expressly waive, renounce, and agree not to assert, any right, claim or cause of
action, including, without limitation, a claim for reimbursement, subrogation,
indemnification or otherwise, against the Borrower arising out of or by reason
of this Guaranty or the obligations of the Guarantors hereunder, including,
without limitation, the payment or securing or purchasing of any of the
Guaranteed Obligations by the Guarantors, until payment in full of the
Guaranteed Obligations. The waiver, renunciation and agreement contained in the
immediately preceding sentence is for the benefit of the Agent and the Banks and
also for the benefit of the Borrower who may assert the benefits thereof as a
third-party beneficiary, and the Guarantors may be released from such waiver,
renunciation and agreement only by the execution and delivery, by the Agent, the
Required Banks and the Borrower, of an instrument expressly releasing the
Guarantors therefrom.
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<PAGE> 106
IN WITNESS WHEREOF, the Initial Guarantors have caused this Guaranty
to be duly executed, under seal, by its authorized officer as of the date first
above written.
JDN DEVELOPMENT COMPANY, INC.
By:
---------------------------
Title:
JDN REALTY AL, INC.
By:
---------------------------
Title:
JDN REALTY, LP, INC.
By:
---------------------------
Title:
JDN REALTY HOLDINGS, L.P.
By:
---------------------------
Its General Partner
By:
---------------------------
Title:
99
<PAGE> 107
EXHIBIT L
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "Agreement") is entered into as of
May 19, 2000, by and between JDN REALTY CORPORATION, a Maryland corporation (the
"Principal") and JDN DEVELOPMENT COMPANY, INC. a Delaware corporation, JDN
Realty AL, Inc., an Alabama corporation, JDN REALTY, LP, INC., a Delaware
corporation and JDN REALTY HOLDINGS, L.P., a Georgia limited partnership (each
an "Initial Guarantor" and a "Guarantor"; the terms "Guarantor" and "Guarantors"
shall include any Subsidiary of JDN Realty Corporation which becomes a Guarantor
pursuant to the last paragraph hereof and Section 5.25 of the Credit Agreement
referred to below). The Principal and each of the Guarantors are sometimes
hereinafter referred to individually as a "Contributing Party" and collectively
as the "Contributing Parties").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Second Amended and Restated Credit
Agreement, dated as of May 19, 2000 among the Principal, the Banks party thereto
and Wachovia Bank, N.A., as Agent (such agreement, as amended as of the date
hereof and as the same may from time to time be amended, modified, restated or
extended, being hereinafter referred to as the "Credit Agreement"; capitalized
terms used herein shall have the meanings ascribed thereto in the Credit
Agreement), the Banks have agreed to extend financial accommodations to the
Principal;
WHEREAS, it is required by Section 5.25 of the Credit Agreement that
the Initial Guarantors and each Significant Subsidiary and certain other
Subsidiaries execute and deliver that certain Guaranty, dated as of even date
herewith (such agreement, as the same may from time to time be amended,
modified, restated or extended, being hereinafter referred to as the
"Guaranty"), pursuant to which, among other things, the Initial Guarantors and,
together with Significant Subsidiaries which become Guarantors as contemplated
in the last paragraph hereof, have jointly and severally agreed to guarantee the
"Guaranteed Obligations" (as defined in the Guaranty); and
WHEREAS, the Principal owns most of the beneficial interests in the
Initial Guarantors, and each Guarantor other than JDN DCI is a direct or
indirect subsidiary of the Principal and is engaged in businesses related to
those of the Principal and each other Guarantor, and each of the Guarantors will
derive direct or indirect economic benefit from the effectiveness and existence
of the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, and to induce each Guarantor to enter into the Guaranty,
it is agreed as follows:
To the extent that any Guarantor shall, under the Guaranty, make a
payment (a "Guarantor Payment") of a portion of the Guaranteed Obligations,
then, without limiting its rights of subrogation against the principal, such
Guarantor shall be entitled to contribution and indemnification from, and be
reimbursed by, each of the other Contributing Parties in an amount, for each
such Contributing Party, equal to a fraction of such Guarantor Payment, the
numerator of which fraction is such Contributing Party's Allocable Amount and
the denominator of which is the sum of the Allocable Amounts of all of the
Contributing Parties.
As of any date of determination, the "Allocable Amount" of each
Contributing Party shall be equal to the maximum amount of liability which could
be asserted against such Contributing Party hereunder with respect to the
applicable Guarantor Payment without (i) rendering such Contributing Party
"insolvent" within the meaning of Section 101(31) of the Federal Bankruptcy Code
(the "Bankruptcy Code") or Section 2 of either the Uniform Fraudulent Transfer
Act (the "UFTA") or the Uniform
100
<PAGE> 108
Fraudulent Conveyance Act (the "UFCA"), (ii) leaving such Contributing Party
with unreasonably small capital, within the meaning of Section 548 of the
Bankruptcy Code or Section 4 of the UFTA or Section 5 of the UFCA, or (iii)
leaving such Contributing Party unable to pay its debts as they become due
within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the
UFTA or Section 6 of the UFCA.
This Agreement is intended only to define the relative rights of the
Contributing Parties, and nothing set forth in this Agreement is intended to or
shall impair the obligations of the Guarantors, jointly and severally, to pay
any amounts, as and when the same shall become due and payable in accordance
with the terms of the Guaranty.
The parties hereto acknowledge that the rights of contribution and
indemnification hereunder shall constitute assets in favor of each Guarantor to
which such contribution and indemnification is owing.
This Agreement shall become effective upon its execution by each of
the Contributing Parties and shall continue in full force and effect and may not
be terminated or otherwise revoked by any Contributing Party until all of the
Guaranteed Obligations shall have been indefeasibly paid in full (in lawful
money of the United States of America) and discharged and the Credit Agreement
and financing arrangements evidenced and governed by the Credit Agreement shall
have been terminated. Each Contributing Party agrees that if, notwithstanding
the foregoing, such Contributing Party shall have any right under applicable law
to terminate or revoke this Agreement, and such Contributing Party shall attempt
to exercise such right, then such termination or revocation shall not be
effective until a written notice of such revocation or termination, specifically
referring hereto and signed by such Contributing Party, is actually received by
each of the other Contributing Parties and by the Agent at its notice address
set forth in the Credit Agreement. Such notice shall not affect the right or
power of any Contributing Party to enforce rights arising prior to receipt of
such written notice by each of the other Contributing Parties and the Agent. If
any Bank grants additional loans to the Principal or takes other action giving
rise to additional Guaranteed Obligations after any Contributing Party has
exercised any right to terminate or revoke this Agreement but before the Agent
receives such written notice, the rights of each other Contributing Party to
contribution and indemnification hereunder in connection with any Guarantor
Payments made with respect to such loans or Guaranteed Obligations shall be the
same as if such termination or revocation had not occurred.
Section 5.25 of the Credit Agreement provides that new Significant
Subsidiaries and certain other Subsidiaries must become Guarantors by, among
other things, executing and delivering to the Agent a counterpart of the
Guaranty and of this Contribution Agreement. Any Subsidiary which executes and
delivers to the Agent a counterpart of the Guaranty and of this Contribution
Agreement shall be a Guarantor for all purposes hereunder. Under certain
circumstances described in the last sentence of Section 5.05 of the Credit
Agreement, Guarantors may obtain from the Agent a written release from the
Guaranty pursuant to the provisions of such sentence, and upon obtaining such
written release, any such Subsidiary shall no longer be a Guarantor or
Contributing Party hereunder, and such release shall automatically and without
further action constitute a release by each other Contributing Party of all
obligations of such Subsidiary hereunder. Each other Guarantor consents and
agrees to any such release and agrees that no such release shall affect its
obligations hereunder, except as to the Subsidiary so released.
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IN WITNESS WHEREOF, each Contributing Party has executed and
delivered this Agreement, under seal, as of the date first above written.
JDN REALTY CORPORATION (SEAL)
By:
---------------------------
Title:
JDN DEVELOPMENT COMPANY, INC. (SEAL)
By:
---------------------------
Title:
JDN REALTY, AL, INC. (SEAL)
By:
---------------------------
Title:
JDN REALTY, LP, INC. (SEAL)
By:
---------------------------
Title:
JDN REALTY HOLDINGS, L.P. (SEAL)
By:
---------------------------
Its General Partner
By:
---------------------------
Title:
102
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EXHIBIT M
EXHIBIT M
Form of Mortgage
(to be modified in compliance with state law)
Prepared By and
After Recording Return To:
A. Michael Lee, Esq.
Jones, Day, Reavis & Pogue
3500 SunTrust Plaza
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3242
DEED TO SECURE DEBT AND SECURITY AGREEMENT
THIS INSTRUMENT (this "Instrument") is made and entered into as of
this ______ day of ____________, 2000, by and between JDN REALTY CORPORATION,
a Maryland corporation, having a mailing address of 359 East Paces Ferry Road,
Suite 400, Atlanta, Georgia 30305 ("Obligor"), and WACHOVIA BANK, N.A.
("Wachovia"), having a mailing address of 191 Peachtree Street, 30th Floor,
Atlanta, Georgia 30303, as agent (together with its successors and assigns,
"Collateral Agent") for itself and each other Bank (collectively, the Banks)
which is or may hereafter become a party to that certain Second Amended and
Restated Credit Agreement, dated as of May 19, 2000, by and among Obligor,
Collateral Agent, and Banks (as may be amended or otherwise supplemented from
time to time, the "Credit Agreement").
W I T N E S S E T H:
That for and in consideration of the sum of Ten and No/100 Dollars
($10.00) and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and in order to secure the indebtedness and other
obligations of Obligor hereinafter set forth, Obligor does hereby grant,
bargain, sell, convey, assign, transfer and set over unto Collateral Agent, for
the ratable benefit of Banks and their successors and assigns all of the
following described land and interests in land, estates, easements, rights,
improvements, property, fixtures, equipment, furniture, furnishings, appliances
and appurtenances (collectively, the "Property"):
(a) All those tracts or parcels of land and easements more particularly
described in Exhibit "A" attached hereto and by this reference made a part
hereof (the "Land").
(b) All buildings, structures and improvements of every nature
whatsoever now or hereafter situated on the Land, and all gas and electric
fixtures, radiators, heaters, engines and machinery, boilers, ranges, elevators
and motors, plumbing and heating fixtures, carpeting and other floor coverings,
fire extinguishers and any other safety equipment required by governmental
regulation or law, washers, dryers, water heaters, mirrors, mantels, air
conditioning apparatus, refrigerating plants, refrigerators, cooking apparatus
and appurtenances, window screens, awnings and storm sashes, which are or shall
be
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owned by Obligor and attached to said buildings, structures or improvements
and all other furnishings, furniture, fixtures, machinery, equipment,
appliances, vehicles, building supplies and materials, books and records,
chattels, inventory, accounts, farm products, consumer goods, general
intangibles and personal property of every kind and nature whatsoever now or
hereafter owned by Obligor and located in, on or about, or used or intended to
be used with or in connection with the use, operation or enjoyment of the
Property, including all extensions, additions, improvements, betterments,
after-acquired property, renewals, replacements and substitutions, or proceeds
from a permitted sale of any of the foregoing, and all the right, title and
interest of Obligor in any such furnishings, furniture, fixtures, machinery,
equipment, appliances, vehicles and personal property subject to or covered by
any prior security agreement, conditional sales contract, chattel mortgage or
similar lien or claim, together with the benefit of any deposits or payments now
or hereafter made by Obligor or on behalf of Obligor, all of which are hereby
declared and shall be deemed to be fixtures and accessions to the Land and a
part of the Property as between the parties hereto and all persons claiming by,
through or under them, and which shall be deemed to be a portion of the security
for the indebtedness herein described and to be secured by this Instrument.
(c) All easements, rights-of-way, strips and gores of land, vaults,
streets, ways, alleys, passages, sewer rights, waters, water courses, water
rights and powers, minerals, flowers, shrubs, crops, trees, timber and other
emblements now or hereafter located on the Land or under or above the same or
any part or parcel thereof, and all estates, rights, titles, interests,
privileges, liberties, tenements, hereditaments and appurtenances, reversion and
reversions, remainder and remainders, whatsoever, in any way belonging, relating
or appertaining to the Land or any part thereof, or which hereafter shall in any
way belong, relate or be appurtenant thereto, whether now owned or hereafter
acquired by Obligor.
(d) All income, rents, issues, profits and revenues of the Property
from time to time accruing (including, without limitation, all payments under
leases or tenancies, proceeds of insurance, condemnation payments, tenant
security deposits whether held by Obligor or in a trust account, and escrow
funds), and all the estate, right, title, interest, property, possession, claim
and demand whatsoever at law, as well as in equity, of Obligor of, in and to the
same; reserving only the right to Obligor to collect the same (other than
insurance proceeds and condemnation payments) so long as Obligor is not in
default hereunder.
TO HAVE AND TO HOLD the Property and all parts, rights, members and
appurtenances thereof, to the use, benefit and behoof of Collateral Agent for
the ratable benefit of Banks and their respective successors and assigns, IN FEE
SIMPLE forever; and Obligor covenants that Obligor is lawfully seized and
possessed of the Property as aforesaid, and has good right to convey the same,
that the same is unencumbered except for those matters expressly set forth in
Exhibit "B" attached hereto and by this reference made a part hereof (the
"Permitted Encumbrances"), and that Obligor does warrant and will forever defend
the title thereto against the claims of all persons whomsoever, except as to
those matters set forth in said Exhibit "B" attached hereto.
This conveyance is intended to operate and is to be construed as a deed
passing the title to the Property to Collateral Agent and is made under those
provisions of the existing laws of the State of Georgia relating to deeds to
secure debt, and not as a mortgage, and is given to secure the following
described indebtedness (collectively, the "Secured Obligations"):
(a) The Loans (as defined in the Credit Agreement) evidenced by those
certain promissory notes made by Obligor in the aggregate principal amount of
One Hundred Seventy-Five Million and No/100 Dollars ($175,000,000.00), due June
15, 2001, or such earlier date as may be established pursuant to the Credit
Agreement (such notes, as any of them may be amended or otherwise modified from
time to time, are herein collectively referred to as the "Note").
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(b) The performance and discharge of each and every obligation,
covenant and agreement of Assignor contained herein and in the other Loan
Documents (as defined in the Credit Agreement).
(c) Any and all additional advances made by any Bank to protect or
preserve the Property or the lien and security title hereof in and to the
Property, or for taxes, assessments or insurance premiums as hereinafter
provided (whether or not Obligor remains the owner of the Property at the time
of such advances).
(d) Any and all other indebtedness now or hereafter owing by Obligor to
any Bank pursuant to the terms of the Credit Agreement, whether now existing or
hereafter arising or incurred, however evidenced or incurred, whether express or
implied, direct or indirect, absolute or contingent, due or to become due,
including, without limitation, all principal, interest, fees, expenses, yield
maintenance amounts and indemnification amounts, and all renewals,
modifications, consolidations, replacements and extensions thereof.
(e) All reasonable out-of-pocket costs and expenses incurred by the
Collateral Agent in connection with the enforcement and collection of the
Secured Obligations, including, without limitation, all attorneys' fees and
disbursements, and all other such costs and expenses described in and incurred
pursuant to the Note, the Credit Agreement, this Instrument, and the other Loan
Documents (as defined in the Credit Agreement) (collectively, the "Enforcement
Costs").
Should the Secured Obligations secured by this Instrument be paid
according to the tenor and effect thereof when the same shall become due and
payable, and should Obligor perform all covenants herein contained in a timely
manner, then this Instrument shall be cancelled and surrendered.
Obligor hereby further covenants and agrees with Collateral Agent as
follows:
ARTICLE I
Section 1.01 Payment of Secured Obligations. Obligor will pay the
Secured Obligations according to the tenor thereof and all other sums now or
hereafter secured hereby promptly as the same shall become due.
Section 1.02 Representations and Warranties. Obligor represents
and warrants to Collateral Agent, for the ratable benefit of Banks, that, as of
the date hereof:
(a) The Property is the Borrowing Base Property (as defined in the
Credit Agreement) described on Exhibit "C" attached hereto and by this reference
made a part hereof.
(b) Obligor has no notice, information or knowledge of any change
contemplated in any applicable law, ordinance, regulation, or restriction; or
any judicial, administrative, governmental or quasi-governmental action; of any
action by adjacent land owners; or of any natural or artificial conditions
existing upon the Property which would limit, restrict, or prevent the
contemplated or intended use and purpose of the Property.
(c) There is no pending condemnation or similar proceeding affecting
the Property, or any portion thereof, nor to the best knowledge of Obligor, is
any such action being presently contemplated.
(d) No part of the Property is being used for agricultural purposes or
being used for a personal residence by Obligor or any shareholder of Obligor.
(e) The Property is undamaged by fire, windstorm, or other casualty.
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(f) The Property complies in all material respects with all zoning and
subdivision ordinances, energy and environmental codes, building and use
restrictions and codes, and any requirements with respect to licenses, permits
and agreements necessary for the lawful use and operation of the Property.
(g) The heating, electrical, sanitary sewer plumbing, storm sewer
plumbing, potable water plumbing and other building equipment, fixtures and
fittings in the existing improvements on the Property are in good condition and
working order, are adequate in quantity and quality for normal and usual use,
and are fit for the purposes intended and the use contemplated.
(h) The Property is covered by a tax parcel(s) which pertain to the
Property only and not to any property which is not subject to this Instrument.
(i) The Property is improved with a shopping center and related parking
and has frontage on, and direct access for ingress and egress to a public
street.
(j) Obligor has good and clear record and marketable title in fee to
such of the Property as is real property, subject to no liens, encumbrances or
restrictions other than Permitted Encumbrances. There have been no labor or
materials furnished to the Property that have not been paid for in full.
Section 1.03 Taxes, Liens and Other Charges.
(a) In the event of the passage of any state, federal, municipal or
other governmental law, order, rule or regulation, subsequent to the date
hereof, in any manner changing or modifying the laws now in force governing the
taxation of debts secured by deeds to secure debt or the manner of collecting
taxes so as to adversely affect Banks, Obligor will promptly pay any such tax.
If Obligor fails to make such prompt payment or if, in the opinion of Collateral
Agent, any such state, federal, municipal, or other governmental law, order,
rule or regulation prohibits Obligor from making such payment or would penalize
Banks if Obligor makes such payment or if, in the opinion of Collateral Agent,
the making of such payment might result in the imposition of interest beyond the
maximum amount permitted by applicable law, then the entire balance of the
principal sum secured by this Instrument and all interest accrued thereon shall,
at the option of Collateral Agent, become immediately due and payable unless
Obligor shall substitute property unaffected by such tax considerations for the
Property and otherwise satisfy the conditions for release of the Property set
forth in Section 5.27 of the Credit Agreement.
(b) Obligor will pay all taxes, liens, assessments and charges of every
character including all utility charges, whether public or private, already
levied or assessed or that may hereafter be levied or assessed upon or against
the Property as required under the Credit Agreement.
(c) Obligor will not suffer any mechanic's, materialmen's, laborer's,
statutory or other lien to be created and to remain outstanding upon all or any
part of the Property, other than Permitted Encumbrances.
Section 1.04 Insurance.
(a) To the extent insurance is not provided or self-insured by the
tenant, Obligor shall procure for, deliver to and maintain for the benefit of
Collateral Agent and Banks during the term of this Instrument, original fully
paid insurance policies issued by insurance companies, in amounts, in form and
substance, and with expiration dates acceptable to Collateral Agent and
containing non-contributory standard mortgagee clauses, their equivalent or a
satisfactory mortgagee loss payable endorsement in favor of Collateral Agent,
providing the following types of insurance on the Property:
(i) insurance against loss or damage by fire, lightning,
vandalism, malicious mischief and flood (if the Land is in an area
which is considered a flood risk area by the U.S.
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Department of Housing and Urban Development), and against such other
hazards as are presently included in so-called "all risk replacement
cost insurance" and against such other insurable hazards as, under good
insurance practices, from time to time are insured against for
properties of similar character and location; the amount of which
insurance shall be not less than the balance of the Secured Obligations
evidenced by the Note and the Credit Agreement nor less than one
hundred percent (100%) of the full replacement cost of the Property
without deduction for depreciation; and which policies of insurance
shall contain satisfactory replacement cost endorsements;
(ii) when obtainable from the United States of America or any
agency or instrumentality thereof, and when and as reasonably required
by Collateral Agent, war risk insurance in the maximum amount available
up to an amount equal to the replacement cost of the Property;
(iii) rent or business interruption insurance against loss of
income arising out of damage or destruction by fire, lightning,
vandalism, malicious mischief and flood and such other hazards as are
presently included in so-called "all risk replacement cost insurance"
in the amount equal to the gross annual income derived by Obligor from
the Property; and
(iv) such other insurance on the Property or any replacements
or substitutions therefor and in such amounts as may from time to time
be reasonably required by Collateral Agent against other insurable
casualties which at the time are commonly insured against in the case
of premises similarly situated, due regard being given to the height
and type of the improvements, their construction, location, use and
occupancy, or any replacements or substitutions therefor.
(b) Collateral Agent is hereby authorized and empowered, at its option,
to adjust or compromise any loss under any insurance policies maintained
pursuant to this Paragraph 1.04, and to collect and receive the proceeds from
any such policy or policies. Each insurance company is hereby authorized and
directed to make payment for all such losses directly to Collateral Agent,
instead of to Obligor and Collateral Agent jointly. In the event any insurance
company fails to disburse directly and solely to Collateral Agent but disburses
instead either solely to Obligor or to Obligor and Collateral Agent jointly,
Obligor agrees immediately to endorse and transfer such proceeds to Collateral
Agent. Upon the failure of Obligor to endorse and transfer such proceeds as
aforesaid, Collateral Agent may execute such endorsements or transfers for and
in the name of Obligor and Obligor hereby irrevocably appoints Collateral Agent
as Obligor's agent and attorney-in-fact so to do. After deducting from said
insurance proceeds all of its expenses incurred in the collection and
administration of such sums, including attorneys' fees, Collateral Agent may
apply the net proceeds or any part thereof, at its option, (i) to the payment of
the Secured Obligations hereby secured, whether or not due and in whatever order
Collateral Agent elects, (ii) to the repair and/or restoration of the Property,
or (iii) for any other purposes or objects for which Collateral Agent is
entitled to advance funds under this Instrument; all without affecting the lien
of this Instrument. Collateral Agent shall not be held responsible for any
failure to collect any insurance proceeds due under the terms of any policy
regardless of the cause of such failure.
(c) At least thirty (30) days prior to the expiration date of each
policy maintained pursuant to this Paragraph 1.04, a renewal or replacement
thereof satisfactory to Collateral Agent shall be delivered to Collateral Agent.
Obligor shall deliver to Collateral Agent receipts evidencing the payment for
all such insurance policies and renewals or replacements. The delivery of any
insurance policies hereunder shall constitute an assignment of all unearned
premiums as further security hereunder. In the event of the foreclosure of this
Instrument or any other transfer of title to the Property in extinguishment of
the Secured Obligations secured hereby, all right, title and interest of Obligor
in and to all insurance policies then in force shall pass to the purchaser or
Bank.
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Section 1.05 Condemnation. If all or any material portion of the
Property shall be damaged or taken through condemnation (which term when used in
this Instrument shall include any damage or taking by any governmental authority
or any transfer by private sale in lieu thereof), either temporarily or
permanently, and if a Default or Event of Default is also in existence, then
Collateral Agent shall be entitled to receive all compensation, awards and other
payments or relief thereof, and Collateral Agent is hereby authorized, at its
option, to commence, appear in and prosecute, in its own or in Obligor's name,
any action or proceeding relating to any condemnation, and to settle or
compromise any claim in connection therewith. All such compensation, awards,
damages, claims, rights of action and proceeds and the right thereto are hereby
assigned by Obligor to Collateral Agent. After deducting from said condemnation
proceeds all of its expenses incurred in the collection and administration of
such sums, including attorney's fees, Collateral Agent may apply the net
proceeds or any part thereof, at its option, (a) to the payment of the Secured
Obligations hereby secured, whether or not due and in whatever order Collateral
Agent elects, (b) to the repair and/or restoration of the Property or (c) for
any other purposes or objects for which Collateral Agent is entitled to advance
funds under this Instrument, all without affecting the lien of this Instrument;
and any balance of such monies then remaining shall be paid to Obligor. Obligor
agrees to execute such further assignment of any compensation, awards, damages,
claims, rights of action and proceeds as Collateral Agent may require.
Section 1.06 Restoration and Repair. Notwithstanding anything to
the contrary contained herein, Collateral Agent agrees to make insurance and
condemnation proceeds available for the restoration or repair of the Property
under such safeguards and controls as Collateral Agent may reasonably require
and in accordance with standard construction loan procedures provided that: (i)
no Default or Event of Default shall exist; (ii) the restoration or repair shall
be done under the supervision of an architect (or, at Collateral Agent's option,
an engineer) acceptable to Collateral Agent and pursuant to plans and
specifications approved by Collateral Agent; (iii) satisfactory evidence is
delivered to Collateral Agent that the Property can be rebuilt to substantially
the same condition as when originally financed and can thereafter continue to be
operated for the purposes utilized prior to such condemnation or casualty; (iv)
satisfactory evidence is delivered to Collateral Agent that the appraised value
of the Property after such restoration or repair shall not be less than its
appraised value as of the date hereof; and (v) tenants of the Property as
designated by Collateral Agent shall certify to Collateral Agent their intention
to continue to occupy the Property without any abatement or adjustment of rental
payments (other than temporary abatements during the period of restoration and
repair).
Section 1.07 Care, Use and Management of Property.
(a) Obligor will keep, or cause to be kept, the buildings, roads and
walkways, landscaping and all other improvements of any kind now or hereafter
erected on the Land or any part thereof in good condition and repair, will not
commit or suffer any material waste and will not do or suffer to be done
anything which will increase the risk of fire or other hazard to the Property or
any part thereof.
(b) Obligor will not remove or demolish nor alter the structural
character of any building located on the Land in a manner that would materially
and adversely affect its value without the written consent of Collateral Agent.
(c) If the Property or any part thereof is materially damaged by fire
or any other cause, Obligor will give immediate written notice thereof to
Collateral Agent.
(d) To the extent permitted under the terms of the applicable Leases,
each Bank or its representative is hereby authorized to enter upon and inspect
the Property at any time during normal business hours.
(e) Obligor will promptly comply with all present and future laws,
ordinances, rules and regulations of any governmental authority affecting the
Property or any part thereof.
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(f) If all or any part of the Property shall be damaged by fire or
other casualty, Obligor will promptly restore the Property to the equivalent of
its original condition; and if a part of the Property shall be damaged through
condemnation, Obligor will promptly restore, repair or alter the remaining
portions of the Property in a manner satisfactory to Collateral Agent.
Notwithstanding the foregoing, Obligor shall not be obligated to so restore
unless in each instance, Collateral Agent agrees to make available to Obligor
(pursuant to a procedure satisfactory to Collateral Agent) any net insurance or
condemnation proceeds actually received by Collateral Agent hereunder in
connection with such casualty loss or condemnation, to the extent such proceeds
are required to defray the expense of such restoration; provided, however, that
the insufficiency of any such insurance or condemnation proceeds to defray the
entire expense of restoration shall in no way relieve Obligor of its obligation
to restore. In the event all or any portion of the Property shall be damaged or
destroyed by fire or other casualty or by condemnation, Obligor shall promptly
deposit with Collateral Agent a sum equal to the amount by which the estimated
cost of the restoration of the Property (as determined by Collateral Agent in
its good faith judgment) exceeds the actual net insurance or condemnation
proceeds received by Collateral Agent in connection with such damage or
destruction.
Section 1.08 Leases and Other Agreements Affecting Property.
Obligor will duly and punctually perform all terms, covenants, conditions and
agreements binding upon it under any Lease or any other agreement of any nature
whatsoever which involves or affects the Property or any part thereof. Obligor
will furnish Collateral Agent with executed copies of the Leases for all Major
Tenants now or hereafter created upon the Property or any part thereof and
abstracts of all other Leases, unless Collateral Agent requests a copy of such
other Leases in which case Obligor will furnish copies of such Leases to
Collateral Agent. Obligor will not, without the express written consent of
Collateral Agent, modify, surrender or terminate, either orally or in writing,
any Lease with a Major Tenant now existing or hereafter created upon the
Property or any part thereof, nor will Obligor permit an assignment or a
subletting by any Major Tenant without the prior express written consent of
Collateral Agent. Obligor will not accept payment of rent more than one (1)
month in advance without the prior written consent of Collateral Agent. In order
to further secure payment of the Secured Obligations and the observance,
performance and discharge of Obligor's obligations, Obligor hereby collaterally
assigns, transfers and sets over under Collateral Agent all of Obligor's right,
title and interest in, to and under all Leases affecting the Property or any
part thereof and in and to all of the rents, issues, profits, revenues, awards
and other benefits now or hereafter arising from the use and enjoyment of the
Property or any part thereof; reserving only the right to Obligor to collect and
use the same so long as Obligor is not in default hereunder.
Section 1.09 Collateral Agent shall be entitled to require, and
Obligor shall use its best efforts to obtain, the execution of tenant estoppels
and subordination, non-disturbance and attornment agreements from any Major
Tenant in a form specified by the related tenant Lease, if any, and acceptable
to Collateral Agent. Obligor hereby authorizes and directs each present and
future tenant of the Property to pay to Collateral Agent all rents and any other
sums due Obligor as landlord and to perform for the direct benefit of Collateral
Agent any other obligations of such tenant to Obligor as landlord, as if
Collateral Agent were the landlord under such tenant's Lease, immediately upon
receipt of a written demand by Collateral Agent to make such payment or perform
such obligation during the existence of an Event of Default. No such demand by
Collateral Agent shall constitute or be deemed to constitute any assumption by
Collateral Agent of any obligations of the landlord under such tenant's Lease.
Subject only to compliance by Collateral Agent with the provisions of Paragraph
2.01, no such demand by Collateral Agent shall constitute or be deemed to
constitute any wrongful interference by Collateral Agent in the affairs or
business relationships for ascertaining whether any such demand by Collateral
Agent is authorized or whether a default by Obligor has occurred under this
Instrument. Obligor hereby waives any right, claim or action Obligor may now or
hereafter have against any such tenant by reason of such tenant's payment to or
performance for Collateral Agent as described above, and any such payment to or
performance for Collateral Agent shall discharge the obligation of such tenant
to make such payment to, or perform such obligation for, Obligor.
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Section 1.10 Obligor shall furnish the Collateral Agent with
signed copies of all new, modified or renewal Leases for Major Tenants and
abstracts of all new, modified or renewal Leases for non-Major Tenants, unless
Collateral Agent requests a copy of such other Leases in which event Obligor
shall furnish copies of such other Leases to Collateral Agent.
Section 1.11 Security Agreement. Insofar as the machinery,
apparatus, equipment, fittings, fixtures, building supplies and materials, and
articles of personal property either referred to or described in this
Instrument, or in any way connected with the use and enjoyment of the Property
is concerned, this Instrument is hereby made and declared to be a security
agreement, encumbering each and every item of personal property included herein,
in compliance with the provisions of the Uniform Commercial Code as enacted in
the state wherein the Land is situated. A financing statement or statements and
a UCC-2 Notice of Fixture Filing reciting this Instrument to be a security
agreement, affecting all of said personal property aforementioned, shall be
executed by Obligor and Collateral Agent and appropriately filed. The remedies
for any violation of the covenants, terms and conditions of the security
agreement herein contained shall be (i) as prescribed herein, or (ii) as
prescribed by general law, or (iii) as prescribed by the specific statutory
consequences now or hereafter enacted and specified in said Uniform Commercial
Code, all at Collateral Agent's sole election. Obligor and Collateral Agent
agree that the filing of such financing statement(s) and the UCC-2 Notice of
Fixture Filing in the records normally having to do with personal property shall
never be construed as in any way derogating from or impairing this declaration
and hereby stated intention of Obligor and Collateral Agent that everything used
in connection with the production of income from the Property and/or adapted for
use therein and/or which is described or reflected in this Instrument, is, and
at all times and for all purposes and in all proceedings both legal or equitable
shall be, regarded as part of the real estate irrespective of whether (i) any
such item is physically attached to the improvements, (ii) serial numbers are
used for the better identification of certain items capable of being thus
identified in a recital contained herein, or (iii) any such item is referred to
or reflected in any such financing statement(s) or the UCC-2 Notice of Fixture
Filing so filed at any time. Similarly, the mention in any such financing
statement(s) or the UCC-2 Notice of Fixture Filing of the rights in and to (1)
the proceeds of any fire and/or hazard insurance policy, or (2) any award in
eminent domain proceedings for a taking or for loss of value, or (3) Obligor's
interest as lessor in any present or future Lease or rights to income growing
out of the use and/or occupancy of the Property, whether pursuant to Lease or
otherwise, shall never be construed as in anyway altering any of the rights of
Collateral Agent as determined by this Instrument or impugning the priority of
Collateral Agent's lien granted hereby or by any other recorded document, but
such mention in such financing statement(s) or the UCC-2 Notice of Fixture
Filing is declared to be for the protection of Collateral Agent in the event any
court shall at any time hold with respect to the foregoing (1), (2) or (3), that
notice of Collateral Agent's priority of interest to be effective against a
particular class of persons, must be filed in the Uniform Commercial Code
records.
Section 1.12 Further Assurances; After-Acquired Property. At any
time, and from time to time, upon request by Collateral Agent, Obligor will
make, execute and deliver or cause to be made, executed and delivered, to
Collateral Agent and, where appropriate, cause to be recorded and/or filed and
from time to time thereafter to be rerecorded and/or refiled at such time and in
such offices and places as shall be deemed desirable by Collateral Agent, any
and all such other and further deeds to secure debt, security agreements,
financing statements, notice filings, continuation statements, instruments of
further assurance, certificates and other documents as may, in the opinion of
Collateral Agent, be necessary or desirable in order to effectuate, complete, or
perfect, or to continue and preserve (a) the obligation of Obligor under the
Note, the Credit Agreement and this Instrument and (b) this Instrument as a
first and prior lien upon and security title in and to all of the Property,
whether now owned or hereafter acquired by Obligor. Upon any failure by Obligor
so to do, Collateral Agent may make, execute, record, file, re-record and/or
refile any and all such deeds to secure debt, security agreements, financing
statements, continuation statements, instruments, certificates, and documents
for and in the name of Obligor and Obligor hereby irrevocably appoints
Collateral Agent the agent and attorney-in-fact of Obligor so to do.
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The lien hereof will automatically attach, without further act, to all after
acquired property attached to and/or used in the operation of the Property or
any part thereof.
Section 1.13 Expenses. Obligor will pay or reimburse Collateral
Agent, upon demand therefor, for all reasonable attorney's fees, costs and
expenses incurred by Collateral Agent in any suit, action, legal proceeding or
dispute of any kind in which Banks or Collateral Agent is made a party or
appears as party plaintiff or defendant, affecting or arising in connection with
the Secured Obligations secured hereby, this Instrument or the interest created
herein, or the Property, including, but not limited to, the exercise of the
power of sale contained in this Instrument, any condemnation action involving
the Property or any action to protect the security hereof; and any such amounts
paid by Banks or Collateral Agent shall be added to the Secured Obligations
secured by the lien of this Instrument.
Section 1.14 Subrogation. Collateral Agent shall be subrogated to
the claims and liens of all parties whose claims or liens are discharged or paid
with the proceeds of the Secured Obligations secured hereby.
Section 1.15 Limit of Validity. If from any circumstances
whatsoever fulfillment of any provision of this Instrument or of the Note, at
the time performance of such provision shall be due, shall involve transcending
the limit of validity presently prescribed by any applicable usury statute or
any other applicable law, with regard to obligations of like character and
amount, then ipso facto the obligation to be fulfilled shall be reduced to the
limit of such validity, so that in no event shall any exaction be possible under
this Instrument or under the Note that is in excess of the current limit of such
validity, but such obligation shall be fulfilled to the limit of such validity.
The provisions of this Paragraph 1.13 shall control every other provision of
this Instrument and of the Note.
Section 1.16 Use of Property. Obligor shall not be permitted to
alter or change the use of the Property or to abandon the Property without the
prior written consent of Collateral Agent.
Section 1.17 Conveyance of Property. Obligor hereby acknowledges
to Collateral Agent that (a) the identity and expertise of Obligor was and
continues to be a material circumstance upon which Collateral Agent has relied
in connection with, and which constitute valuable consideration to Collateral
Agent for, the extending to Obligor of the loan evidenced by the Note, and (b)
any change in such identity or expertise could materially impair or jeopardize
the security for the payment of the Secured Obligations granted to Collateral
Agent by this Instrument. Obligor therefore covenants and agrees with Collateral
Agent, as part of the consideration for the extending to Obligor of the loans
evidenced by the Note, that Obligor shall not convey, transfer, assign, further
encumber or pledge any or all of its interest in the Property without the prior
written consent of Collateral Agent, except as permitted by the Credit
Agreement.
ARTICLE II
Section 2.01 Events of Default. The terms "Default", "Event of
Default" or "Events of Default", wherever used in this Instrument, shall have
the meaning provided for in the Credit Agreement.
Section 2.02 Acceleration of Maturity. If an Event of Default
shall have occurred and be continuing, then the entire Secured Obligations
secured hereby shall, at the option of the Collateral Agent and as permitted by
the terms of the Credit Agreement, immediately become due and payable without
notice or demand, time being of the essence of this Instrument.
Section 2.03 Right to Enter and Take Possession.
(a) If an Event of Default shall have occurred and be continuing,
Obligor upon demand of Collateral Agent, shall forthwith surrender to Collateral
Agent the actual possession of the Property and
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if, and to the extent, permitted by law, Collateral Agent itself, or by such
officers or agents as it may appoint, may enter and take possession of all the
Property without the appointment of a receiver, or an application therefor, and
may exclude Obligor and its agents and employees wholly therefrom, and may have
joint access with Obligor to the books, papers and accounts of Obligor.
(b) If Obligor shall for any reason fail to surrender or deliver the
Property or any part thereof after such demand by Collateral Agent, Collateral
Agent may obtain a judgment or decree conferring upon Collateral Agent the right
to immediate possession or requiring Obligor to deliver immediate possession of
the Property to Collateral Agent. Obligor will pay to Collateral Agent, upon
demand, all expenses of obtaining such judgment or decree, including reasonable
compensation to Collateral Agent, its attorneys and agents; and all such
expenses and compensation shall, until paid, be secured by the lien of this
Instrument.
(c) Upon every such entering upon or taking of possession, Collateral
Agent may hold, store, use, operate, manage and control the Property and conduct
the business thereof, and, from time to time (i) make all necessary and proper
maintenance, repairs, renewals, replacements, additions, betterments and
improvements thereto and thereon and purchase or otherwise acquire additional
fixtures, personalty and other property; (ii) insure or keep the Property
insured; (iii) manage and operate the Property and exercise all the rights and
powers of Obligor to the same extent as Obligor could in its own name or
otherwise with respect to the same; and (iv) enter into any and all agreements
with respect to the exercise by others of any of the powers herein granted
Collateral Agent, all as Collateral Agent from time to time may determine to be
in its best interest. Collateral Agent may collect and receive all the rents,
issues, profits and revenues from the Property, including those past due as well
as those accruing thereafter, and, after deducting (1) all expenses of taking,
holding, managing and operating the Property (including compensation for the
services of all persons employed for such purposes); (2) the cost of all such
maintenance, repairs, renewals, replacements, additions, betterments,
improvements, purchases and acquisitions; (3) the cost of such insurance; (4)
such taxes, assessments and other similar charges as Collateral Agent may at its
option pay; (5) other proper charges upon the Property or any part thereof; and
(6) the reasonable compensation, expenses and disbursements of the attorneys and
agents of Collateral Agent, Collateral Agent shall apply the remainder of the
monies and proceeds so received by Collateral Agent, first, ratably as to each
Bank, to the payment of accrued interest; and second, ratably as to each Bank,
to the payment of overdue installments of principal. Collateral Agent shall have
no obligation to discharge any duties of a landlord to any tenant or to incur
any liability as a result of any exercise by Collateral Agent of any rights
under this Instrument or otherwise. Collateral Agent shall not be liable for any
failure to collect rents, issues, profits and revenues from the Property, nor
shall Collateral Agent be liable to account for any such rents, issues, profits
or revenues unless actually received by Collateral Agent.
(d) Whenever all that is due upon the Secured Obligations and under any
of the terms, covenants, conditions and agreements of this Instrument, shall
have been paid and all Events of Default made good, Collateral Agent shall
surrender possession of the Property to Obligor, its successors or assigns. The
same right of taking possession, however, shall exist if any subsequent Event of
Default shall occur and be continuing.
Section 2.04 Performance by Collateral Agent. If Obligor shall
Default in the payment, performance or observance of any term, covenant or
condition of this Instrument, Collateral Agent may, so long as such Default
continues, at its option, pay, perform or observe the same, and all payments
made or costs or expenses incurred by Collateral Agent in connection therewith,
shall be secured hereby and shall be, upon demand, immediately repaid by Obligor
to Collateral Agent with interest thereon at the Default Rate (as defined in the
Credit Agreement). Collateral Agent shall be the sole judge of the necessity for
any such actions and of the amounts to be paid. Collateral Agent is hereby
empowered to enter and to authorize others to enter upon the Land or any part
thereof for the purpose of performing or
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observing any such defaulted term, covenant or condition without thereby
becoming liable to Obligor or any person in possession holding under Obligor.
Section 2.05 Receiver. If an Event of Default shall have occurred
and be continuing, Collateral Agent, upon application to a court of competent
jurisdiction, shall be entitled as a matter of strict right without notice and
without regard to the occupancy or value of any security for the Secured
Obligations secured hereby or the solvency of any party bound for its payment,
to the appointment of a receiver to take possession of and to operate the
Property and to collect and apply the rents, issues, profits and revenues
thereof. The receiver shall have all of the rights and powers permitted under
the laws of the State of Georgia. Obligor will pay to Collateral Agent upon
demand all expenses, including receiver's fees, attorney's fees, costs and
agent's compensation, incurred pursuant to the provisions of this Paragraph
2.05; and all such expenses shall be secured by this Instrument.
Section 2.06 Enforcement.
(a) If an Event of Default shall have occurred and be continuing,
Collateral Agent, at its option, may sell the Property or any part of the
Property at public sale or sales before the door of the courthouse of the county
in which the Property or any part of the Property is situated, to the highest
bidder for cash, in order to pay the Secured Obligations secured hereby and
accrued interest thereon and insurance premiums, liens, assessments, taxes and
charges, including utility charges, if any, with accrued interest thereon, and
all expenses of the sale and of all proceedings in connection therewith,
including actual attorney's fees, if incurred, after advertising the time, place
and terms of sale once a week for four (4) weeks immediately preceding such sale
(but without regard to the number of days) in a newspaper in which Sheriff's
sales are advertised in said county. At any such public sale, Collateral Agent
may execute and deliver to the purchaser a conveyance of the Property or any
part of the Property in fee simple, with full warranties of title and to this
end, Obligor hereby constitutes and appoints Collateral Agent the agent and
attorney-in-fact of Obligor to make such sale and conveyance, and thereby to
divest Obligor of all right, title or equity that Obligor may have in and to the
Property and to vest the same in the purchaser or purchasers at such sale or
sales, and all the acts and doings of said agent and attorney-in-fact are hereby
ratified and confirmed and any recitals in said conveyance or conveyances as to
facts essential to a valid sale shall be binding upon Obligor. The aforesaid
power of sale and agency hereby granted are coupled with an interest and are
irrevocable by death or otherwise, are granted as cumulative of the other
remedies provided hereby or by law for collection of the Secured Obligations
secured hereby and shall not be exhausted by one exercise thereof but may be
exercised until full payment of all Secured Obligations secured hereby.
(b) If an Event of Default shall have occurred and be continuing,
Collateral Agent may, in addition to and not in abrogation of the rights covered
under subparagraph (a) of this Paragraph 2.06, either with or without entry or
taking possession as herein provided or otherwise, proceed by a suit or suits in
law or in equity or by any other appropriate proceeding or remedy (i) to enforce
payment of the Secured Obligations or the performance of any term, covenant,
condition or agreement of this Instrument or any other right, and (ii) to pursue
any other remedy available to it, all as Collateral Agent shall determine most
effectual for such purposes.
Section 2.07 Purchase by Collateral Agent. Upon any foreclosure
sale, Collateral Agent, on behalf of the Banks, may bid for and purchase the
Property and shall be entitled to apply all or any part of the Secured
Obligations secured hereby as a credit to the purchase price.
Section 2.08 Application of Proceeds of Sale. In the event of a
foreclosure sale of the Property, the proceeds of said sale shall be applied,
first, to the expenses of such sale and of all proceedings in connection
therewith, including attorney's fees, then to insurance premiums, liens,
assessments, taxes and charges including utility charges advanced by Collateral
Agent or Banks, then, ratably as to each Bank, to payment of the outstanding
principal balance of the Secured Obligations
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secured hereby, then, ratably as to each Bank, to the accrued interest on all of
the foregoing, then, ratably as to each Bank, to payment of any other Secured
Obligations secured hereby, and finally, the remainder, if any, shall be paid to
Obligor.
Section 2.09 Obligor as Tenant Holding Over. In the event of any
such foreclosure sale by Collateral Agent, Obligor shall be deemed a tenant
holding over and shall forthwith deliver possession to the purchaser or
purchasers at such sale or be summarily dispossessed according to provisions of
law applicable to tenants holding over.
Section 2.10 Waiver of Appraisement, Valuation, Stay, Extension
and Redemption Laws. Obligor agrees to the full extent permitted by law, that in
case of a Default or Event of Default on the part of Obligor hereunder, neither
Obligor nor anyone claiming through or under it shall or will set up, claim or
seek to take advantage of any appraisement, valuation, stay, extension,
homestead, exemption or redemption laws now or hereafter in force, in order to
prevent or hinder the enforcement or foreclosure of this Instrument, or the
absolute sale of the Property, or the final and absolute putting into possession
thereof, immediately after such sale, of the purchasers thereat, and Obligor,
for itself and all who may at any time claim through or under it, hereby waives
to the full extent that it may lawfully so do, the benefit of all such laws, and
any and all right to have the assets comprised in the security intended to be
created hereby marshaled upon any foreclosure of the lien hereof.
Section 2.11 Waiver of Homestead. Obligor hereby waives and
renounces all homestead and exemption rights provided for by the Constitution
and the laws of the United States and of any state, in and to the Property as
against the collection of the Secured Obligations, or any part hereof.
Section 2.12 Leases. Collateral Agent, at its option, is
authorized to foreclose this Instrument subject to the rights of any tenants of
the Property, and the failure to make any such tenants parties to any such
foreclosure proceedings and to foreclose their rights will not be, nor be
asserted to be by Obligor, a defense to any proceedings instituted by Collateral
Agent to collect the sums secured hereby.
Section 2.13 Discontinuance of Proceedings and Restoration of the
Parties. In case Collateral Agent shall have proceeded to enforce any right,
power or remedy under this Instrument by foreclosure, entry or otherwise, and
such proceedings shall have been discontinued or abandoned for any reason, or
shall have been determined adversely to Collateral Agent, then and in every such
case Obligor and Collateral Agent shall be restored to their former positions
and rights hereunder, and all rights, powers and remedies of Collateral Agent
shall continue as if no such proceeding had been taken.
Section 2.14 Remedies Cumulative. No right, power or remedy
conferred upon or reserved to Collateral Agent by this Instrument is intended to
be exclusive of any other right, power or remedy, but each and every such right,
power and remedy shall be cumulative and concurrent and shall be in addition to
any other right, power and remedy given hereunder or now or hereafter existing
at law or in equity or by statute.
Section 2.15 Waiver.
(a) No delay or omission of Collateral Agent or of any Bank to exercise
any right, power or remedy accruing upon any Default shall exhaust or impair any
such right, power or remedy or shall be construed to be a waiver of any such
Default, or acquiescence therein; and every right, power and remedy given by
this Instrument to Collateral Agent may be exercised from time to time and as
often as may be deemed expedient by Collateral Agent. No consent or waiver,
expressed or implied, by Collateral Agent to or of any breach or Default by
Obligor in the performance of the obligations thereof hereunder shall be deemed
or construed to be a consent or waiver to or of any other breach or Default in
the performance of the same or any other obligations of Obligor hereunder.
Failure on the part of Banks to complain of any act or failure to act or to
declare an Event of Default, irrespective of how long such failure continues,
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shall not constitute a waiver by any Bank of its rights hereunder or impair any
rights, powers or remedies consequent on any breach or Default by Obligor.
(b) If Banks (i) grant forbearance or an extension of time for the
payment of any sums secured hereby; (ii) take other or additional security for
the payment of any sums secured hereby; (iii) waive or do not exercise any right
granted herein or in the Note, the Credit Agreement or any other Loan Documents
(as defined in the Credit Agreement); (iv) release any part of the Property from
the lien of this Instrument or otherwise changes any of the terms, covenants,
conditions or agreements of the Note or this Instrument; (v) consent to the
filing of any map, plat or replat affecting the Property; (vi) consent to the
granting of any easement or other right affecting the Property; or (vii) make or
consent to any agreement subordinating the lien hereof, any such act or omission
shall not release, discharge, modify, change or affect the original liability
under the Note, the Credit Agreement, this Instrument or any other obligation of
Obligor or any subsequent purchaser of the Property or any part thereof, or any
maker, co-signer, endorser, surety or guarantor; nor shall any such act or
omission preclude Collateral Agent from exercising any right, power or privilege
herein granted or intended to be granted in the event of any Default then made
or of any subsequent Default; nor, except as otherwise expressly provided in an
instrument or instruments executed by Collateral Agent, shall the lien of this
Instrument be altered thereby. In the event of the sale or transfer by operation
of law or otherwise of all or any part of the Property, Collateral Agent,
without notice, is hereby authorized and empowered to deal with any such vendee
or transferee with reference to the Property or the Secured Obligations secured
hereby, or with reference to any of the terms, covenants, conditions or
agreements hereof, as fully and to the same extent as it might deal with the
original parties hereto and without in any way releasing or discharging any
liabilities, obligations or undertakings.
Section 2.16 Suits to Protect the Property. Collateral Agent shall
have power (a) to institute and maintain such suits and proceedings as it may
deem expedient to prevent any impairment of the Property by any acts which may
be unlawful or in violation of this Instrument, (b) to preserve or protect its
interest in the Property and in the rents, issues, profits and revenues arising
therefrom, and (c) to restrain the enforcement of or compliance with any
legislation or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid, if the enforcement of or compliance with
such enactment, rule or order would impair the security hereunder or be
prejudicial to the interest of Banks.
Section 2.17 Collateral Agent May File Proofs of Claim. In the
case of any receivership, insolvency, bankruptcy, reorganization, arrangement,
adjustment, composition or other proceedings affecting Obligor, its creditors or
its property, Collateral Agent, to the extent permitted by law, shall be
entitled to file such proofs of claim and other documents as may be necessary or
advisable in order to have the claims of Collateral Agent allowed in such
proceedings for the entire amount due and payable by Obligor under this
Instrument at the date of the institution of such proceedings and for any
additional amount which may become due and payable by Obligor hereunder after
such date.
Section 2.18 WAIVER OF OBLIGOR'S RIGHTS. BY EXECUTION OF THIS
INSTRUMENT AND BY INITIALING THIS PARAGRAPH 2.18, OBLIGOR EXPRESSLY: (A)
ACKNOWLEDGES THE RIGHT OF COLLATERAL AGENT AND/OR BANKS TO ACCELERATE THE
SECURED OBLIGATIONS AND THE POWER OF ATTORNEY GIVEN HEREIN TO COLLATERAL AGENT
TO SELL THE PROPERTY BY NONJUDICIAL FORECLOSURE UPON DEFAULT BY OBLIGOR WITHOUT
ANY JUDICIAL HEARING AND WITHOUT ANY NOTICE OTHER THAN SUCH NOTICE (IF ANY) AS
IS SPECIFICALLY REQUIRED TO BE GIVEN UNDER THE PROVISIONS OF THIS INSTRUMENT;
(B) WAIVES ANY AND ALL RIGHTS WHICH OBLIGOR MAY HAVE UNDER THE CONSTITUTION OF
THE UNITED STATES (INCLUDING, WITHOUT LIMITATION, THE FIFTH AND FOURTEENTH
AMENDMENTS THEREOF), THE VARIOUS PROVISIONS OF THE CONSTITUTIONS FOR THE SEVERAL
STATES, OR BY REASON OF ANY OTHER APPLICABLE LAW, TO NOTICE AND TO JUDICIAL
HEARING PRIOR TO THE EXERCISE BY COLLATERAL AGENT OF ANY RIGHT OR
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REMEDY HEREIN PROVIDED TO COLLATERAL AGENT, EXCEPT SUCH NOTICE (IF ANY) AS IS
SPECIFICALLY REQUIRED TO BE PROVIDED IN THIS INSTRUMENT; (C) ACKNOWLEDGES THAT
OBLIGOR HAS READ THIS INSTRUMENT AND ANY AND ALL QUESTIONS REGARDING THE LEGAL
EFFECT OF THIS INSTRUMENT AND ITS PROVISIONS HAVE BEEN EXPLAINED FULLY TO
OBLIGOR AND OBLIGOR HAS CONSULTED WITH COUNSEL OF OBLIGOR'S CHOICE PRIOR TO
EXECUTING THIS INSTRUMENT; AND (D) ACKNOWLEDGES THAT ALL WAIVERS OF THE
AFORESAID RIGHTS OF OBLIGOR HAVE BEEN MADE KNOWINGLY, INTENTIONALLY AND
WILLINGLY BY OBLIGOR AS PART OF A BARGAINED FOR LOAN TRANSACTION.
INITIALED BY OBLIGOR:
Section 2.19 Claims Against Collateral Agent and Banks. No action
at law or in equity shall be commenced, or allegation made, or defense raised,
by Obligor against Collateral Agent or Banks for any claim under or related to
this Instrument, the Note, the Credit Agreement or any other instrument,
document, transfer, conveyance, assignment or loan agreement given by Obligor
with respect to the Secured Obligations secured hereby, or related to the
conduct of the parties thereunder, unless written notice of such claim,
expressly setting forth the particulars of the claim alleged by Obligor, shall
have been given to Collateral Agent within sixty (60) days from and after the
initial awareness of Obligor of the event, omission or circumstances forming the
basis of Obligor for such claim. Any failure by Obligor to timely provide such
written notice to Collateral Agent shall constitute a waiver by Obligor of such
claim.
Section 2.20 Actions by Collateral Agent. All actions taken by
Collateral Agent hereunder shall be taken at the direction of the Required Banks
(as defined in the Credit Agreement).
ARTICLE III
Section 3.01 Successors and Assigns. This Instrument shall inure
to the benefit of and be binding upon Obligor and Collateral Agent and their
respective heirs, executors, legal representatives, successors and assigns.
Whenever a reference is made in this Instrument to Obligor or Collateral Agent
such reference shall be deemed to include a reference to the heirs, executors,
legal representatives, successors and assigns of Obligor or Collateral Agent.
Section 3.02 Terminology. All personal pronouns used in this
Instrument whether used in the masculine, feminine or neuter gender, shall
include all other genders; the singular shall include the plural, and vice
versa. Titles and Articles are for convenience only and neither limit nor
amplify the provisions of this Instrument itself, and all references herein to
Articles, Paragraphs or subparagraphs thereof, shall refer to the corresponding
Articles, Paragraphs or subparagraphs thereof, of this Instrument unless
specific reference is made to such Articles, Paragraphs or subparagraphs thereof
of another document or instrument.
Section 3.03 Severability. If any provision of this Instrument or
the application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Instrument and the
application of such provisions to other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.
Section 3.04 Applicable Law. This Instrument shall be interpreted,
construed and enforced according to the laws of the State of Georgia.
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Section 3.05 Notices. Except as otherwise provided herein, any
notice or other communication required hereunder shall be in writing, and shall
be deemed to have been validly served, given or delivered the next succeeding
Domestic Business Day (as defined in the Credit Agreement) after timely delivery
to the courier, if sent by overnight courier; at the time delivered by hand, if
personally delivered; or when receipt is acknowledged, if (i) telecopied
(followed by delivery of written copy thereof sent by overnight courier on the
same day as such notice is given), or (ii) sent by registered or certified mail,
return receipt requested, addressed to Obligor or Collateral Agent as follows:
If to Obligor:
JDN Realty Corporation
359 East Paces Ferry Road
Suite 400
Atlanta, Georgia 30305
Attn: Chief Financial Officer
Telecopy Number: (404) 364-6446
Telephone Number: (404) 262-3252
with a copy to:
Waller, Lansden, Dortch & Davis, PLLC
Nashville Suite Center
511 Union Street, Suite 2100
Nashville, Tennessee 37219-8966
Attn: Ralph Davis, Esq.
Telecopy Number: (615) 244-6804
Telephone Number: (615) 244-6380
If to Collateral Agent:
Wachovia Bank, N.A.
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: Steven B. Wood
Telecopier number: 404-332-4066
Confirmation number: 404-332-5671
with a copy to:
Jones, Day, Reavis & Pogue
3500 SunTrust Plaza
303 Peachtree Street, Suite 3500
Atlanta, Georgia 30308
Attn: Christopher L. Carson, Esq.
Telecopy Number: (404) 581-8330
Telephone Number: (404) 581-8035
or, to such other address as any party may designate for itself by like notice.
Section 3.06 Replacement of Note. Upon receipt of evidence reasonably
satisfactory to Obligor of the loss, theft, destruction or mutilation of the
Note (or any of them), and in the case of any such loss, theft or destruction,
upon delivery of an indemnity agreement reasonably satisfactory to Obligor or,
in the case of any such mutilation, upon surrender and cancellation of the Note,
Obligor will
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execute and deliver, in lieu thereof, a replacement Note, identical in form and
substance to such Note and dated as of the date of such Note and upon such
execution and delivery all references in this Instrument to such Note shall be
deemed to refer to such replacement Note.
Section 3.07 Assignment. This Instrument is assignable by Collateral
Agent, and any assignment hereof by Collateral Agent shall operate to vest in
the assignee all rights and powers herein conferred upon and granted to
Collateral Agent.
Section 3.08 Time of the Essence. Time is of the essence with respect
to each and every covenant, agreement and obligation of Obligor under this
Instrument, the Note, the Credit Agreement and any and all other instruments now
or hereafter evidencing, securing or otherwise relating to the Secured
Obligations.
Section 3.09 Deferred Effect of Representations, Warranties, and
Covenants. This Instrument has been executed and delivered by the Obligor prior
to the performance by Obligor of any investigation regarding the Property or any
other matters. Accordingly, the parties hereto have agreed that notwithstanding
anything in this Instrument to the contrary, (i) the Obligor shall have until
August 11, 2000 to comply with its obligations hereunder as long as it is
diligently pursuing performance during such period, (ii) the Obligor may deliver
subordination, non-disturbance and attornment agreements after August 11, 2000
as long as it continues exercising commercially reasonable efforts to obtain
them, and (iii) representations and warranties as of the date hereof that (A)
there is no Other Mortgage affecting the Property that cannot be immediately
discharged, and agrees to immediately discharge any Other Mortgage upon
discovery, and (B) the information set forth in Exhibit C is true and correct
in all material respects.]
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Obligor has executed this Instrument under
seal, as of the day and year first above written.
Signed, sealed and delivered JDN REALTY CORPORATION, a Maryland
Obligor in the presence of: corporation
By:
- ---------------------------- --------------------------------
Unofficial Witness Printed Name:
----------------------
Printed Title:
---------------------
Attest:
- ---------------------------- ---------------------------
Notary Public Printed Name:
----------------------
Printed Title:
---------------------
Commission Expiration Date:
[NOTARIAL SEAL]
[CORPORATE SEAL]
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EXHIBIT "A"
Description of Land
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EXHIBIT "B"
Permitted Encumbrances
1. Liens granted to the Collateral Agent for the benefit of the Banks;
2. Liens for taxes, assessments or other governmental charges that are not
delinquent or remain payable without any penalty or that are being contested in
good faith by appropriate proceedings, provided that if reasonably requested by
the Collateral Agent, the Obligor has established reserves with respect thereto
in accordance with generally accepted accounting principles;
3. Easements, rights of way, restrictive covenants, conditions, zoning
restrictions and other similar title, survey or other encumbrances on real
estate that do not materially impair the current use and value of the property
to which they relate, and any other title exceptions, as may be hereafter agreed
to by Collateral Agent in writing;
4. Carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like non-consequential liens arising in the ordinary course of business
that are not overdue for a period of more than thirty (30) days, or, if overdue
for more than thirty (30) days, (i) which are being contested in good faith and
by appropriate proceedings; (ii) do not affect a material portion of the
Collateral, and (iii) for which adequate reserves in accordance with generally
accepted accounting principles have been established on the books of the
Borrower;
5. Liens in respect of any writ of execution, attachment, garnishment,
judgment or award in an amount less than $1,000,000, the time for appeal or
petition for rehearing of which shall not have expired, or in respect of which
an appeal or appropriate proceeding for review is being prosecuted in good faith
and a stay of execution pending such appeal or proceeding for review has been
secured;
6. Any other liens or encumbrances as Collateral Agent may approve in
writing from time to time.
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EXHIBIT "C"
Borrowing Base Property Information
The Property described in this Instrument is the Borrowing Base
Property described below and listed on Exhibit "J" to the Credit Agreement.
<TABLE>
<S> <C>
- -------------------------------------------------------------------------------
Property Number
- -------------------------------------------------------------------------------
Owner (fee interest) of Property
- -------------------------------------------------------------------------------
Property Name
- -------------------------------------------------------------------------------
Location
- -------------------------------------------------------------------------------
Year Built
- -------------------------------------------------------------------------------
Acreage of Property
- -------------------------------------------------------------------------------
Gross Leasable Area of Improvements (s.f.)
- -------------------------------------------------------------------------------
1st Q 2000 Net Operating Income
- -------------------------------------------------------------------------------
% Leased 3/31/00
- -------------------------------------------------------------------------------
% Occupied 3/3/1 [or later]
- -------------------------------------------------------------------------------
</TABLE>
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EXHIBIT N
EXHIBIT N
Form of Assignment of Rents
(to be modified for compliance with state law)
PREPARED BY AND AFTER
RECORDING, RETURN TO:
A. Michael Lee, Esq.
Jones, Day, Reavis & Pogue
3500 SunTrust Plaza
303 Peachtree Street N.E.
Atlanta, Georgia 30308
ASSIGNMENT OF LEASES AND RENTS
THIS ASSIGNMENT OF LEASES AND RENTS (this "Assignment") is
made as of __________ ___, 2000, by JDN REALTY CORPORATION, a Maryland
corporation ("Assignor"), having its principal place of business at 359 East
Paces Ferry Road, Atlanta, Georgia 30305, to WACHOVIA BANK, N.A., having its
principal place of business at 191 Peachtree Street, N.E., Atlanta, Georgia
30303 (together with its successors and assigns, "Collateral Agent"), as
Collateral Agent for itself and each other Bank (collectively, the "Banks")
which is or may hereafter become a party to that certain Second Amended and
Restated Credit Agreement, dated as of May 19, 2000, by and among Assignor,
Collateral Agent and the Banks, (as may be amended or otherwise supplemented
from time to time, the "Credit Agreement").
Assignor, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, does hereby GRANT, SELL,
CONVEY, ASSIGN, TRANSFER, SET OVER AND DELIVER to Collateral Agent, for the
ratable benefit of the Banks, as collateral security, the entire lessor's
interest in and to all leases, subleases, tenant contracts, rental agreements,
occupancy agreements or agreements of a similar nature, now or hereafter
affecting the Property (as defined in the Deed to Secure Debt and Security
Agreement dated of even date herewith executed by Assignor in favor of
Collateral Agent (the "Instrument")), or any part thereof, which Property
includes that certain lot or piece of land, more particularly described in
Exhibit A attached hereto, together with all guarantees of the foregoing (all
of the leases and other agreements and guarantees described above together with
all present and future leases and present and future agreements and any
extension or renewal of the same hereinafter collectively referred to as the
"Leases");
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TOGETHER WITH all rents, income, issues, revenues and profits
arising from the Leases and renewals thereof and together with all rents,
income, issues and profits from the use, enjoyment and occupancy of the
Property (including, but not limited to, minimum rents, additional rents,
percentage rents, deficiency rents, security deposits and liquidated damages
following default under any Leases, all proceeds payable under any policy of
insurance, all of Assignor's rights to recover monetary amounts from any lessee
under the Leases in bankruptcy including, without limitation, rights of
recovery for use and occupancy and damage claims arising out of defaults under
the Leases, including rejection of a Lease, together with any sums of money
that may now or at any time hereafter be or become due and payable to Assignor
by virtue of any and all royalties, overriding royalties, bonuses, delay
rentals and any other amount of any kind or character arising under any and all
present and all future oil, gas and mining Leases covering the Property or any
part thereof, and all proceeds and other amounts paid or owing to Assignor
under or pursuant to any and all contracts and bonds relating to the
construction, erection or renovation of the Property and all rents under and as
defined in the Lease) (all of the rights described above hereinafter
collectively referred to as the "Rents").
THIS ASSIGNMENT is made for the purposes of securing the
following described indebtedness (collectively the "Secured
Obligations"):
(a) The Loans (as defined in the Credit Agreement) in the aggregate
principal amount of One Hundred Seventy-Five Million and No/100 Dollars
($175,000,000.00), and secured by the Instrument covering the Property.
(b) The performance and discharge of each and every obligation,
covenant and agreement of Assignor contained herein and in the other Loan
Documents (as defined in the Credit Agreement).
(c) Any and all additional advances made by any Bank to protect or
preserve the Property or the lien and security title hereof in and to the
Property, or for taxes, assessments or insurance premiums as hereinafter
provided (whether or not Assignor remains the owner of the Property at the time
of such advances).
(d) Any and all other indebtedness now or hereafter owing to Assignor
to any Bank pursuant to the terms of the Credit Agreement, whether now existing
or hereafter arising or incurred, however evidenced or incurred, whether
express or implied, direct or indirect, absolute or contingent, due or to
become due, including, without limitation, all principal, interest, fees,
expenses, yield maintenance amounts and indemnification amounts, and all
renewals, modifications, consolidations, replacements and extensions thereof.
(e) The Enforcement Costs (as defined in the Instrument).
Assignor warrants to Collateral Agent that (a) Assignor is the
sole owner of the entire lessor's interest in the Leases; (b) the
Leases have not been altered, modified or amended in any manner
whatsoever except as disclosed to Collateral Agent and, to the best
knowledge of Obligor, are valid, enforceable and in full force and
effect; (c) neither the Leases nor the Rents reserved in the Leases
have been assigned or otherwise pledged or hypothecated; (d) none of
the Rents have been collected for more than one (1) month in advance;
(e) Assignor has full power and authority to execute and deliver this
Assignment and the execution and delivery of this Assignment has been
duly authorized and does not conflict with or constitute a default
under any law, judicial order or other
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<PAGE> 132
agreement affecting Assignor or the Property; and (f) there exist no
known offsets or defenses to the payment of any portion of the Rents.
Assignor covenants with Collateral Agent that Assignor (a) shall
observe and perform all the obligations imposed upon the lessor under
the Leases and shall not do or permit to be done anything to
materially impair the value of the Leases as security for the Secured
Obligations; (b) shall not collect any Rents more than one (1) month
in advance; (c) shall not execute any other assignment of lessor's
interest in the Leases or the Rents; (d) shall execute and deliver at
the request of Collateral Agent all such further assurances,
confirmations or assignments in connection with the Property as
Collateral Agent shall from time to time reasonably require; (e)
shall deliver to Collateral Agent executed copies of all Leases for
Major Tenants now existing or hereafter arising and abstracts of all
other Leases, unless Collateral Agent requests a copy of such Leases
in which event Obligor shall furnish copies of such Leases to
Collateral Agent.
THIS ASSIGNMENT is made on the following terms, covenants and
conditions:
1. Present Assignment. Assignor does hereby absolutely and
unconditionally assigns to Collateral Agent, Assignor's right, title and
interest in and to any and all Leases and Rents, it being intended by Assignor
that this assignment constitute a present, absolute assignment and not an
assignment for additional security only. Assignor agrees to execute and deliver
to Collateral Agent such additional instruments, in form and substance
satisfactory to Collateral Agent, as may hereinafter be requested by Collateral
Agent to further evidence and confirm said assignment. Such assignment to
Collateral Agent shall not be construed to bind Collateral Agent to the
performance of any of the covenants, conditions, or provisions contained in any
of the Leases or otherwise to impose any obligation upon Collateral Agent.
Collateral Agent is hereby granted and assigned by Assignor the right to enter
the Property for the purpose of enforcing its interest in the Leases and the
Rents, this Assignment constituting a present, absolute and unconditional
assignment of the Leases and Rents. Assignor shall authorize and direct, and
does hereby authorize and direct each and every present and future tenant under
the Leases to pay all Rents directly to Collateral Agent upon receipt of
written demand from Collateral Agent after an Event of Default to so pay the
same.
2. License. Although this Assignment constitutes a present and
absolute assignment of all Rents, so long as there shall exist no Event of
Default under the Instrument or the Credit Agreement, Assignor shall have a
mere license, revocable as set forth herein, to collect, but not more than
thirty (30) days prior to accrual, all Rents and to retain, use and enjoy the
same. Upon the occurrence of any Event of Default, the license granted in this
Paragraph 2 shall automatically, without further act by Collateral Agent, cease
and terminate, and thereafter, any Rents received by Assignor shall be held in
trust for the benefit of, and shall be immediately remitted by Assignor to,
Collateral Agent.
3. Remedies of Collateral Agent. If an Event of Default under
the Instrument or the Credit Agreement shall have occurred and be continuing,
Assignor, upon demand of Collateral Agent, shall forthwith surrender to
Collateral Agent the actual possession of the Property and if, and to the
extent, permitted by law, Collateral Agent itself, or by such officers or
agents as it may appoint, may enter and take possession of all the Property
without the appointment of a receiver, or an application therefor, and may
exclude Assignor and its agents and employees wholly therefrom, and may have
joint access with Assignor to the books, papers and accounts of Assignor
pertaining to the Property. If Assignor shall for any reason fail to surrender
or deliver the Property or any part thereof after such demand by Collateral
Agent,
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Collateral Agent may obtain a judgment or decree conferring upon Collateral
Agent the right to immediate possession or requiring Assignor to deliver
immediate possession of the Property to Collateral Agent, to the entry of which
judgment or decree Assignor hereby specifically consents. Upon every such
entering upon or taking of possession, Collateral Agent may hold, store, use,
operate, manage and control the Property and conduct the business thereof, and,
from time to time (a) make all necessary and proper maintenance, repairs,
renewals, replacements, additions, betterments and improvements thereto and
thereon and purchase or otherwise acquire additional fixtures, personalty and
other property; (b) insure or keep the Property insured; (c) manage and operate
the Property and exercise all the rights and powers of Assignor to the same
extent as Assignor could in its own name or otherwise with respect to the same;
and (d) enter into any and all agreements with respect to the exercise by
others of any of the powers herein granted Collateral Agent, all as Collateral
Agent from time to time may determine to be in its best interest, including,
without limitation, the modification, enforcement, cancellation or acceptance
of surrender of any Assigned Leases now in effect or hereafter in effect on the
Property or any part thereof; the removal and eviction of any sublessee, and;
any increases or decreases in Rents. Collateral Agent may collect and receive
all the Rents, including those past due as well as those accruing thereafter,
and, after deducting (i) all expenses of taking, holding, managing and
operating the Property (including compensation for the services of all persons
employed for such purposes); (ii) the cost of all such maintenance, repairs,
renewals, replacements, additions, betterments, improvements, purchases and
acquisitions; (iii) the cost of such insurance; (iv) such taxes, assessments
and other similar charges as Collateral Agent may at its option pay; (v) other
proper charges upon the Property or any part thereof; and (vi) the reasonable
compensation, expenses and disbursements of the attorneys and agents of
Collateral Agent, Collateral Agent shall apply the remainder of the monies and
proceeds so received by Collateral Agent first, ratably as to each Bank, to
payment of the outstanding principal balance of the Secured Obligations, then,
ratably as to each Bank, to the accrued interest on all of the foregoing, then
ratably as to each Bank, to payment of any other Secured Obligations, and,
finally, the remainder if any shall be paid to Obligor. Anything in this
Paragraph 4 to the contrary notwithstanding, Collateral Agent shall not be
obligated to discharge or perform the duties of a landlord to any tenant or
incur any liability as a result of the exercise by Collateral Agent of its
rights under this Assignment, and Collateral Agent shall be liable to account
only for the rents, income, issues, profits and revenues actually received by
Collateral Agent. Whenever all that is due upon such interest, deposits and
principal installments and under any of the terms, covenants, conditions and
agreements under the Instrument and the Credit Agreement, shall have been paid
and all Events of Default made good, Collateral Agent shall surrender
possession of the Property to Assignor, its successors or assigns. The same
right of taking possession, however, shall exist if any subsequent Event of
Default shall occur and be continuing. In connection with any action taken by
the Collateral Agent pursuant to this Paragraph 4, the Collateral Agent shall
not be liable for any loss sustained by Assignor resulting from any act or
omission of the Collateral Agent in administering, managing, operating or
controlling the Property, including a loss arising from the ordinary negligence
of the Collateral Agent, unless such loss is caused by its own gross negligence
or willful misconduct and bad faith, nor shall the Collateral Agent be
obligated to perform or discharge any obligation, duty or liability of
Assignor. Assignor hereby assents to, ratifies and confirms any and all actions
of the Collateral Agent with respect to the Property taken under this Paragraph
4.
4. No Liability of Collateral Agent. The Collateral Agent is
fully authorized to receive and receipt for said revenues and proceeds; to
endorse and cash any and all checks and drafts payable to the order of Assignor
or the Collateral Agent for the account of Assignor received from or in
connection with said revenues or proceeds and apply the proceeds thereof to the
payment of the Secured Obligations, when received, regardless of the maturity
of any of the
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Loans, or any installment thereof; and to execute transfer and division orders
in the name of Assignor, or otherwise, with warranties binding Assignor. The
Collateral Agent shall not be liable for any delay, neglect, or failure to
effect collection of any proceeds or to take any other action in connection
therewith or hereunder; but shall have the right, at its election, in the name
of Assignor or otherwise, to prosecute and defend any and all actions or legal
proceedings deemed advisable by the Collateral Agent in order to collect such
funds and to protect the interests of the Collateral Agent and/or Assignor,
with all costs, expenses and attorney's fees incurred in connection therewith
being paid by Assignor.
5. Other Remedies and Non-Waiver. No right, power or remedy
conferred upon or reserved to Collateral Agent by this Assignment is intended
to be exclusive of any other right, power or remedy, but each and every such
right, power and remedy shall be cumulative and concurrent and shall be in
addition to any other right, power and remedy given hereunder or now or
hereafter existing at law or in equity or by statute. No delay or omission of
Collateral Agent or of any Banks to exercise any right, power or remedy
accruing upon any default shall exhaust or impair any such right, power or
remedy or shall be construed to be a waiver of any such default, or
acquiescence therein; and every right, power and remedy given by this
Assignment to Collateral Agent may be exercised from time to time and as often
as may be deemed expedient by Collateral Agent. No consent or waiver, expressed
or implied, by Collateral Agent to or of any breach or default by Assignor in
the performance of the obligations thereof hereunder shall be deemed or
construed to be a consent or waiver to or of any other breach or default in the
performance of the same or any other obligations of Assignor hereunder. Failure
on the part of Collateral Agent to complain of any act or failure to act or to
declare an Event of Default under the Instrument or the Credit Agreement,
irrespective of how long such failure continues, shall not constitute a waiver
by Collateral Agent of its rights hereunder or impair any rights, powers or
remedies of Collateral Agent consequent on any breach or default by Assignor.
Nothing contained in this Assignment and no act done or omitted by Collateral
Agent pursuant to the power and rights granted to Collateral Agent hereunder
shall be deemed to be a waiver by Assignee of its rights and remedies under the
other Loan Documents and this Assignment is made and accepted without prejudice
to any of the rights and remedies possessed by Collateral Agent under the terms
thereof. The right of the Collateral Agent to collect the Rent and to enforce
any other security thereof held by it may be exercised by Collateral Agent
either prior to simultaneously with or subsequent to any action taken by it
hereunder.
6. Actions of Collateral Agent. All actions taken by Collateral
Agent hereunder shall be taken at the direction of the Required Banks (as
defined in the Credit Agreement).
7. No Instrument in Possession. Nothing herein contained shall
be construed as constituting Collateral Agent a "mortgagee in possession" in
the absence of the taking of actual possession of the Property by Collateral
Agent. In the exercise of the powers herein granted to Collateral Agent, no
liability shall be asserted or enforced against Collateral Agent, all such
liability being expressly waived and released by Assignor.
8. No Oral Change. This Assignment may not be modified, amended,
waived, extended, changed, discharged or terminated orally, or by any act or
failure to act on the part of Assignor or Collateral Agent, but only by an
agreement in writing signed by the party against whom the enforcement of any
modification, amendment, waiver, extension, change, discharge or termination is
sought.
9. Certain Definitions. Unless the context clearly indicates a
contrary intent or unless otherwise specifically provided herein, words used in
this Assignment may be used
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<PAGE> 135
interchangeable in singular or plural form and the word "Assignor" shall mean
"each Assignor and any subsequent owner or owners of the Property or any part
thereof or any interest therein," the word "Collateral Agent" shall mean
"Collateral Agent and any subsequent beneficiary of the Instrument," the word
"Loans" shall have the meaning set forth in the Credit Agreement, the word
"person" shall include an individual, corporation, partnership, trust,
unincorporated association, government, governmental authority, and any other
entity, the words "Property" shall include any portion of the Property and any
interest therein; whenever the context may require, any pronouns used herein
shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns and pronouns shall include the plural and vice versa.
All other capitalized terms used, but not defined herein, shall have the
meaning set forth in the Credit Agreement.
10. Inapplicable Provisions. If any term, covenant or condition
of this Assignment is held to be invalid, illegal or unenforceable in any
respect, this Assignment shall be construed without such provision.
11. Counterparts. This Assignment may be executed in any number
of counterparts each of which shall be deemed to be an original but all of
which when taken together shall constitute one agreement.
12. GOVERNING LAW; JURISDICTION. THIS ASSIGNMENT SHALL BE
GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE
REAL PROPERTY ENCUMBERED BY THE INSTRUMENT IS LOCATED AND THE APPLICABLE LAWS
OF THE UNITED STATES OF AMERICA. ASSIGNOR HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY COURT OF COMPETENT JURISDICTION LOCATED IN THE STATE IN
WHICH THE PROPERTY IS LOCATED IN CONNECTION WITH ANY PROCEEDING ARISING OUT OF
OR RELATING TO THIS ASSIGNMENT.
13. Successors and Assigns. Assignor may not assign its rights
under this Assignment. Assignor hereby acknowledges and agrees that Collateral
Agent may assign this Assignment without Assignor's consent. Subject to the
foregoing, this Assignment shall be binding upon, and shall inure to the
benefit of, Assignor and the Collateral Agent and their respective successors
and assigns.
14. Termination of Assignment. Upon payment in full of the
Secured Obligations and the delivery and recording of a satisfaction, release
or discharge of the Instrument duly executed by Collateral Agent, this
Assignment shall become and be void and of no effect.
THIS ASSIGNMENT shall inure to the benefit of Collateral Agent
and any subsequent beneficiary of the Instrument and shall be binding upon
Assignor, and Assignor's heirs, executors, administrators, successors and
assigns and any subsequent owner of the Property.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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<PAGE> 136
Assignor has executed this instrument under seal as of the day
and year first above written.
ASSIGNOR:
<TABLE>
<S> <C>
Signed, sealed and delivered JDN REALTY CORPORATION, a Maryland
by Assignor in the presence of: corporation
- ---------------------------------- By:
Unofficial Witness -----------------------------------
Printed Name:
-------------------------
Printed Title:
------------------------
- ----------------------------------
Notary Public
Attest:
-------------------------------
Commission Expiration Date: Printed Name:
-------------------------
Printed Title:
------------------------
[NOTARIAL SEAL] [CORPORATE SEAL]
</TABLE>
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<PAGE> 137
EXHIBIT A
Legal Description
130
<PAGE> 138
EXHIBIT O
EXHIBIT O
Form of Attachment to UCC Financing Statement
SCHEDULE A
The types or items of property covered by this Financing Statement are as
follows:
All of Debtor's right, title and interest in and to any and
all buildings, structures and improvements of every nature whatsoever
now or hereafter situated on those tracts or parcels of land and
easements more particularly described on Exhibit A attached hereto and
by this reference made a part hereof (the "Land"), and all gas and
electric fixtures, radiators, heaters, engines and machinery, boilers,
ranges, elevators and motors, plumbing and heating fixtures, carpeting
and other floor coverings, fire extinguishers and any other safety
equipment required by governmental regulation or law, washers, dryers,
water heaters, mirrors, mantels, air conditioning apparatus,
refrigerating plants, refrigerators, cooking apparatus and
appurtenances, window screens, awnings and storm sashes, which are or
shall be owned by Debtor and attached to said buildings, structures or
improvements and all other furnishings, furniture, fixtures,
machinery, equipment, appliances, vehicles, building supplies and
materials, books and records, chattels, inventory, accounts, farm
products, consumer goods, general intangibles and personal property of
every kind and nature whatsoever now or hereafter owned by Debtor and
located in, on or about, or used or intended to be used with or in
connection with the use, operation or enjoyment of the property
described herein, including all extensions, additions, improvements,
betterments, after-acquired property, renewals, replacements and
substitutions, or proceeds from a permitted sale of any of the
foregoing, and all the right, title and interest of Debtor in any such
furnishings, furniture, fixtures, machinery, equipment, appliances,
vehicles and personal property subject to or covered by any prior
security agreement, conditional sales contract, chattel mortgage or
similar lien or claim, together with the benefit of any deposits or
payments now or hereafter made by Debtor or on behalf of Debtor, all
of which are hereby declared and shall be deemed to be fixtures and
accessions to the Land and a part of the property described herein as
between the parties hereto and all persons claiming by, through or
under them.
Together with all easements, rights-of-way, strips and gores
of land, vaults, streets, ways, alleys, passages, sewer rights,
waters, water courses, water rights and powers, minerals, flowers,
shrubs, crops, trees, timber and other emblements now or hereafter
located on the Land or under or above the same or any part or parcel
thereof, and all estates, rights, titles, interests, privileges,
liberties, tenements, hereditaments and appurtenances, reversion and
reversions, remainder and remainders, whatsoever, in any way
belonging, relating or appertaining to the Land or any part thereof,
or which hereafter shall in any way belong, relate or be appurtenant
thereto, whether now owned or hereafter acquired by Debtor.
Together with all income, rents, issues, profits and revenues
of the Property from time to time accruing (including, without
limitation, all payments under leases or
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tenancies, proceeds of insurance, condemnation payments, tenant
security deposits whether held by Debtor or in a trust account, and
escrow funds), and all the estate, right, title, interest, property,
possession, claim and demand whatsoever at law, as well as in equity,
of Debtor of, in and to the same.
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SCHEDULE B
Signature of Debtor
JDN REALTY CORPORATION, a
Maryland corporation
By:
-----------------------------------
Printed Name:
-------------------------
Printed Title:
------------------------
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EXHIBIT P
Form of Hazardous Materials Indemnity Agreement
(to be modified for compliance with state law)
HAZARDOUS MATERIALS INDEMNITY AGREEMENT
1. The undersigned JDN REALTY CORPORATION, a Maryland corporation ("Obligor")
to induce WACHOVIA BANK, N.A. (together with its successors and assigns,
"Collateral Agent"), as Collateral Agent for itself and each other lender
(collectively, the "Banks") which is or may become a party to that certain
Second Amended and Restated Credit Agreement, dated as of May 19 2000, by
and among Obligor, Collateral Agent and Banks (as may be amended or
otherwise supplemented from time to time, the "Credit Agreement"), and the
Banks to (i) modify the Credit Agreement and (ii) to accept the Instrument
(as hereinafter defined) as collateral for the Secured Obligations (as
defined in the Instrument), and with knowledge that Collateral Agent and
Banks intend to rely upon the certifications and undertakings set forth
herein, agrees to indemnify Collateral Agent and Banks and hold Collateral
Agent and Banks harmless from and against any and all loss, liability,
damage and expense, including reasonable attorneys' fees and costs,
suffered or incurred by Collateral Agent or Bank, whether as holder of the
Note secured by the Instrument encumbering the land (the "Premises")
described on Exhibit "A" hereto, as mortgagee in possession or as
successor-in-interest to Obligor by foreclosure, deed or deed in lieu of
foreclosure, in connection with or arising out of Hazardous Materials (as
defined in the Credit Agreement) upon the Premises, including any loss of
value of the Premises as a result of the foregoing. So long as Obligor is
the owner of the Premises, Obligor shall have the right to participate
with Collateral Agent in any settlement or other negotiations with respect
to any indemnified claim, but in no event shall Obligor enter into any
agreement related to such settlement or negotiations that may affect
Collateral Agent's and/or any Bank's interests without the consent of
Collateral Agent.
2. It is understood and agreed that the foregoing undertaking to indemnify
and hold harmless Collateral Agent and Banks shall arise (a) upon the
assertion against Collateral Agent and/or any Bank of any claim relating
to the presence of Hazardous Materials upon the Premises (unless Obligor
proves that such materials were introduced onto the Premises after
acquisition of title by Collateral Agent and/or Banks) or (b) if the claim
arises because Obligor has failed to comply with any law applicable to
Hazardous Materials, and shall continue in full force and effect as long
as Collateral Agent or any Bank retains an estate or interest in the
Premises pursuant to the Instrument or holds an indebtedness secured by a
purchase money mortgage, deed to secure debt or deed of trust given by a
purchaser at foreclosure or trustee's sale or from Banks, or pursuant to a
foreclosure or acceptance of a deed in lieu or under threat of foreclosure
in regard to any thereof or so long as any Bank shall have liability by
reason of having held such estate or interest in the Premises, and such
undertaking shall in no event be limited, terminated or extinguished by,
or merged into, the exercise of any of Banks' remedies under the Loans (as
defined in the Credit Agreement) or any of the Loan Documents (as defined
in the Credit Agreement), or otherwise. Except as may be otherwise
expressly agreed in writing, the liability of any party under this
Agreement shall in no way be limited or impaired by any amendment or
modification of any of the Loan
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Documents. In addition, the liability of any party under this Agreement
shall in no way be limited or impaired by (i) any extensions of time for
performance required by any of the Loan Documents, (ii) any sale,
assignment or foreclosure of any Loan Document or any sale or transfer of
all or any part of the Premises, (iii) any exculpatory provision in any of
the Loan Documents limiting Bank's recourse to property encumbered by the
Loan Documents or to any other security, or limiting Banks' rights to a
deficiency judgment against Obligor, except as otherwise expressly
provided in the Loan Documents, (iv) the release of Obligor or any other
person from performance or observance of any of the agreements, covenants,
terms or conditions contained in any of the Loan Documents by operation of
law, Collateral Agent's or Banks' voluntary act, or otherwise, (v) the
release or substitution in whole or in part of any security for the Note,
(vi) Collateral Agent's or Banks' failure to record or file any Loan
Document (or Banks' improper recording or filing of any thereof) or
Collateral Agent's or Banks' failure otherwise to perfect, protect, secure
or insure any security interest or lien given as security for the Loans;
and, in any such case, whether with or without notice to Obligor and with
or without consideration, (vii) any limitation of liability language in
any Loan Documents, unless such limitation of liability language expressly
limits liability hereunder or with respect hereto, or (viii) repayment of
the Loans.
3. No provision of this Agreement may be changed, waived, discharged or
terminated verbally or by any other means except by an instrument in
writing signed by the party against whom enforcement of the change,
waiver, discharge or termination is sought.
4. Except as herein provided, this Agreement shall be binding upon Obligor
and Obligor's successors and assigns and shall inure to the benefit of
Collateral Agent and Banks and Collateral Agent's or Banks' successors and
assigns owning the Loan Documents or any interest therein. The indemnity
agreement of Obligor hereunder shall be binding on all successors in
interest of Obligor and on each and every transferee and purchaser of the
Premises or any part thereof or interest therein.
5. This Agreement and the rights and obligations of the parties hereunder
shall in all respects be governed by, and construed and enforced in
accordance with, the laws of the State of Georgia.
6. The capitalized terms used in this Agreement shall, unless the context
otherwise requires, have the same meanings as terms defined in the Deed to
Secure Debt and Security Agreement (the "Instrument") of even date
herewith, recorded or intended to be recorded in the Office of the Clerk
of Superior Court of ___________________ County, Georgia.
7. Any notices required to be given hereunder shall be given in the manner
set forth for notices in the Instrument.
135
<PAGE> 143
IN WITNESS WHEREOF, Obligor has executed this Agreement under
seal as of the ____ day of ___________, 2000.
OBLIGOR:
JDN REALTY CORPORATION, a
Maryland corporation
By:
-----------------------------------
Printed Name:
-------------------------
Printed Title:
------------------------
Attest:
-------------------------------
Printed Name:
-------------------------
Printed Title:
------------------------
[CORPORATE SEAL]
136
<PAGE> 144
EXHIBIT "A"
Legal Description
137
<PAGE> 145
Schedule 4.08
Subsidiaries
SIGNIFICANT SUBSIDIARIES
Name Jurisdiction of
Incorporation/Organization
JDN Realty, LP, Inc. Delaware
JDN Realty Holdings, L.P. Georgia
OTHER SUBSIDIARIES:
Name Jurisdiction of
Incorporation/Organization
Black Cherry Limited Liability Company Colorado
JDN Realty AL, Inc. Alabama
JDN Realty Corporation, GP, Inc. Delaware
Georgia Finance Association Delaware
JDN West Allis Associates Limited Partnership Georgia
JDN Real Estate-McDonough, L.P. Georgia
138
<PAGE> 146
Schedule 4.14
Environmental Matters
The Borrower discloses the existence of a remediation agreement (relating to a
leaking, underground storage tank) entered into between the State of Georgia
and the owner of the Stop 'n' Go site adjacent to the QuikTrip parcel located
at the Borrower's Lawrenceville Property.
139
<PAGE> 147
Schedule 5.16
Existing Loans and Advance
<TABLE>
<CAPTION>
Borrower Name/ Lender Loan Repayment Purpose / Security / Description
Relation to JDN (JDN entity) Balance Schedule,
(Exact Namestyle) Maturity
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Argus Properties, LLC (1) JDN $206,574 Balance due at Line of credit Secured by Fees and
Development Maturity of 5/5/00 Commissions
Unrelated to JDN Company, Inc.
Denver Urban Renewal Black Cherry, 771,135 Balance due at Improvements to surrounding
Authority LLC Maturity of 7/12/01 infrastructure secured by tax
increment financing
Unrelated to JDN
Development Authority JDN Realty 1,342,673 Balance due at Water and Sewage Revenue Bonds
of Forsyth County Corporation Maturity of 1/1/17
Unrelated to JDN
Duck Creek, LLC JDN Realty 8,000,000 Balance due at Loan Secured by Property
Corporation Maturity of 5/1/02
JDN Development
Company, Inc. Owns
50%
Barry E. Dotson and JDN 549,958 Balance due at Line of credit Secured by Fees and
Robert A. Martin (2) Development Maturity of 4/3/00 Commissions
Company, Inc
Unrelated to JDN
Riverbend LLP JDN 3,075,791 Balance due at First Mortgage on Property
Development Maturity of 9/21/00
Unrelated to JDN Company, Inc
-----------
Total $13,946,131
</TABLE>
(1) NOTE IS BEING AMENDED TO EXTEND MATURITY DATE TO 12/31/00.
(2) NOTE IS BEING AMENDED TO EXTEND MATURITY DATE TO 12/31/00.
140
<PAGE> 148
Schedule 5.17
Existing Investments (16)
As of March 31, 2000
<TABLE>
<CAPTION>
Existing Investments as of March 31, 2000
-------------------------- --------------
<S> <C>
Duck Creek, LLC $ 918,658
Investment JDN/Zaremba $ 957,516
Metro Station, LLC $ 4,604,217
Pecan Park, LLC $ 3,463,747
Hampton Roads Association, LLC $ 600,325
Pepperell Corners, L.P. $ 91,361
-----------------
Investments Total $ 10,635,824
</TABLE>
- ---------------
(16) Exclude Subsidiaries, which are set forth on Schedule 4.08.
141
<PAGE> 149
JDN Realty
Schedule 5.22
Existing Guarantees as of March 31, 2000
<TABLE>
<CAPTION>
Guarantor Borrower Beneficiary/Instrument/Project Amount of Guarantee Maturity
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
JDN Realty Corporation Metro Station, LLC Metro Station, MS Land $ 2,579,584 14-Nov-00
JDN Realty Corporation JDN Development Canton, GA Wal-Mart $ 9,238,311 24-Sep-00
Company, Inc.
JDN Realty Corporation JDN Development Warner Robins, GA Lowe's $ 6,999,049 1-Sep-00
Company, Inc.
Sub-Total $ 18,816,944
Currently Outstanding Letters
of Credit
- -----------------------------
JDN Development Company, Inc. N/A Lexington Fayette County Urban $ 62,862 20-Nov-00
Government
JDN Development Company, Inc. N/A City of Franklin, TN $ 274,000 12-Jun-00
JDN Development Company, Inc. N/A City of Franklin, TN $ 18,000 16-Jun-00
JDN Development Company, Inc. N/A City of Franklin, TN $ 266,000 15-Sep-00
JDN Development Company, Inc. N/A City of Franklin, TN $ 40,000 17-Nov-00
JDN Development Company, Inc. N/A Town of Parker, CO $ 2,006,808 25-Jun-00
JDN Development Company, Inc. N/A Parker, CO Water and Sanitation District $ 357,307 16-Sep-01
JDN Development Company, Inc. N/A Upper Macungie Township Authority $ 170,004 2-Dec-00
JDN Development Company, Inc. N/A Lehigh County Authority $ 202,869 5-Nov-00
------------
Subtotal $ 3,397.850
Grand Total $ 22,214,794
============
</TABLE>
142
<PAGE> 1
$100,000,000
AMENDED AND RESTATED TERM LOAN CREDIT AGREEMENT
DATED AS OF
MAY 19, 2000
AMONG
JDN REALTY CORPORATION
THE BANKS LISTED HEREIN,
WACHOVIA BANK, N.A.,
AS AGENT
and
PNC BANK, NATIONAL ASSOCIATION,
AS DOCUMENTATION AGENT
<PAGE> 2
TABLE OF CONTENTS
CREDIT AGREEMENT
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I DEFINITIONS .............................................................................. 1
SECTION 1.01. Definitions ....................................................................... 1
SECTION 1.02. Accounting Terms and Determinations ............................................... 15
SECTION 1.03. References ........................................................................ 15
SECTION 1.04. Use of Defined Terms .............................................................. 15
SECTION 1.05. Terminology ....................................................................... 15
ARTICLE II THE CREDITS ............................................................................. 15
SECTION 2.01. Commitments to Lend Loans ......................................................... 15
SECTION 2.02. Method of Borrowing Loans ......................................................... 16
SECTION 2.03. Term Notes ........................................................................ 17
SECTION 2.04. Maturity of Loans ................................................................. 17
SECTION 2.05. Interest Rates .................................................................... 17
SECTION 2.06. Optional Prepayments .............................................................. 19
SECTION 2.07. Mandatory Prepayments ............................................................. 19
SECTION 2.08. General Provisions as to Payments ................................................. 19
SECTION 2.09. Computation of Interest and Fees; Payment of Certain Fees ......................... 20
ARTICLE III CONDITIONS TO CLOSING AND BORROWINGS ................................................... 21
SECTION 3.01. Conditions to Closing ............................................................. 21
ARTICLE IV REPRESENTATIONS AND WARRANTIES .......................................................... 23
SECTION 4.01. Corporate Existence and Power ..................................................... 23
SECTION 4.02. Corporate and Governmental Authorization; No Contravention ........................ 23
SECTION 4.03. Binding Effect .................................................................... 23
SECTION 4.04. Financial Information ............................................................. 24
SECTION 4.05. No Litigation ..................................................................... 24
SECTION 4.06. Compliance with ERISA ............................................................. 24
SECTION 4.07. Compliance with Laws; Payment of Taxes ............................................ 24
SECTION 4.08. Guarantors and Subsidiaries ....................................................... 24
SECTION 4.09. Investment Company Act ............................................................ 24
SECTION 4.10. Public Utility Holding Company Act ................................................ 24
SECTION 4.11. Ownership of Property ............................................................. 25
SECTION 4.12. No Default ........................................................................ 25
SECTION 4.13. Full Disclosure ................................................................... 25
SECTION 4.14. Environmental Matters ............................................................. 25
SECTION 4.15. Capital Stock ..................................................................... 25
SECTION 4.16. Margin Stock ...................................................................... 26
SECTION 4.17. Insolvency ........................................................................ 26
SECTION 4.18. Insurance ......................................................................... 26
SECTION 4.19. Real Estate Investment Trust ...................................................... 26
ARTICLE V COVENANTS ................................................................................ 26
SECTION 5.01. Information ....................................................................... 26
SECTION 5.02. Inspection of Property, Books and Records ......................................... 28
SECTION 5.03. Maintenance of Existence .......................................................... 28
SECTION 5.04. Dissolution ....................................................................... 28
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
SECTION 5.05. Consolidations, Mergers and Sales of Assets ....................................... 28
SECTION 5.06. Use of Proceeds ................................................................... 29
SECTION 5.07. Compliance with Laws; Payment of Taxes ............................................ 30
SECTION 5.08. Insurance ......................................................................... 30
SECTION 5.09. Change in Fiscal Year ............................................................. 30
SECTION 5.10. Maintenance of Property ........................................................... 30
SECTION 5.11. Environmental Notices ............................................................. 30
SECTION 5.12. Environmental Matters ............................................................. 30
SECTION 5.13. Environmental Release ............................................................. 30
SECTION 5.14. Transactions with Affiliates ...................................................... 30
SECTION 5.15. Restricted Payments and Debt Repurchases .......................................... 31
SECTION 5.16. Loans or Advances ................................................................. 31
SECTION 5.17. Investments ....................................................................... 31
SECTION 5.18. Restrictions on Ability of Guarantors to Pay Dividends ............................ 32
SECTION 5.19. Ratio of Total Consolidated Liabilities to Gross Asset Value ...................... 32
SECTION 5.20. Ratio of Total Secured Debt to Gross Asset Value .................................. 32
SECTION 5.21. Ratio of EBITDA to Consolidated Interest Expense .................................. 32
SECTION 5.22. Guarantees ........................................................................ 32
SECTION 5.23. Ownership ......................................................................... 32
SECTION 5.24. Status as a REIT .................................................................. 33
SECTION 5.25. Guaranty by the Initial Guarantors; New Subsidiaries to Become Guarantors ......... 33
SECTION 5.26. Ratio of EBITDA to Consolidated Fixed Charges ..................................... 33
SECTION 5.27. Collateral ........................................................................ 33
SECTION 5.28. Financial Adviser ................................................................. 34
SECTION 5.29. Identification of Sources; Projection of Sources and Uses of Funds ................ 35
ARTICLE VI DEFAULTS ................................................................................ 35
SECTION 6.01. Events of Default ................................................................. 35
SECTION 6.02. Notice of Default ................................................................. 37
ARTICLE VII THE AGENT .............................................................................. 37
SECTION 7.01. Appointment; Powers and Immunities ................................................ 37
SECTION 7.02. Reliance by Agent ................................................................. 38
SECTION 7.03. Defaults .......................................................................... 39
SECTION 7.04. Rights of Agent and its Affiliates as a Bank ...................................... 39
SECTION 7.05. Indemnification ................................................................... 39
SECTION 7.06. Consequential Damages ............................................................. 39
SECTION 7.07. Payee of Term Note Treated as Owner ............................................... 40
SECTION 7.08. Nonreliance on Agent and Other Banks .............................................. 40
SECTION 7.09. Failure to Act .................................................................... 40
SECTION 7.10. Resignation or Removal of Agent ................................................... 40
ARTICLE VIII CHANGE IN CIRCUMSTANCES; COMPENSATION ................................................. 41
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair .......................... 41
SECTION 8.02. Illegality ........................................................................ 41
SECTION 8.03. Increased Cost and Reduced Return ................................................. 41
SECTION 8.04. Base Rate Loans Substituted for Euro-Dollar Loans ................................. 42
SECTION 8.05. Compensation ...................................................................... 42
ARTICLE IX MISCELLANEOUS ........................................................................... 43
SECTION 9.01. Notices ........................................................................... 43
SECTION 9.02. No Waivers ........................................................................ 43
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
SECTION 9.03. Expenses; Documentary Taxes ....................................................... 43
SECTION 9.04. Indemnification ................................................................... 44
SECTION 9.05. Setoff; Sharing of Setoffs ........................................................ 44
SECTION 9.06. Amendments and Waivers ............................................................ 45
SECTION 9.07. No Margin Stock Collateral ........................................................ 45
SECTION 9.08. Successors and Assigns ............................................................ 45
SECTION 9.09. Confidentiality ................................................................... 47
SECTION 9.10. Representation by Banks ........................................................... 47
SECTION 9.11. Obligations Several ............................................................... 47
SECTION 9.12. Georgia Law ....................................................................... 47
SECTION 9.13. Severability ...................................................................... 48
SECTION 9.14. Interest .......................................................................... 48
SECTION 9.15. Interpretation .................................................................... 48
SECTION 9.16. Waiver of Jury Trial; Consent to Jurisdiction ..................................... 48
SECTION 9.17. Counterparts ...................................................................... 49
SECTION 9.18. Source of Funds - ERISA ........................................................... 49
</TABLE>
EXHIBIT A Form of Term Note
EXHIBIT B Form of Opinion of Counsel for the Borrower and Initial
Guarantors
EXHIBIT C Form of Opinion of Special Counsel for the Agent
EXHIBIT D Form of Assignment and Acceptance
EXHIBIT E Form of Notice of Borrowing
EXHIBIT F Form of Compliance Certificate
EXHIBIT G Form of Closing Certificate
EXHIBIT H Form of Officer's Certificate for Borrower
EXHIBIT I Form of Guaranty
EXHIBIT J Form of Contribution Agreement
EXHIBIT K Form of Borrowing Base Certificate
EXHIBIT L List of Borrowing Base Properties
EXHIBIT M Form of Mortgage
EXHIBIT N Form of Assignment of Rents
EXHIBIT O Form of Attachment to UCC Financing Statement
EXHIBIT P Form of Hazardous Materials Indemnity Agreement
Schedule 4.08 Subsidiaries
Schedule 4.14 Environmental Matters
Schedule 5.16 Existing Loans and Advances
Schedule 5.17 Existing Investments
Schedule 5.25 Existing Guarantees
iii
<PAGE> 5
AMENDED AND RESTATED TERM LOAN CREDIT AGREEMENT
AMENDED AND RESTATED TERM LOAN CREDIT AGREEMENT dated as of
May 19, 2000 among JDN Realty Corporation, the BANKS listed on the signature
pages hereof, WACHOVIA BANK, N.A., as Agent and PNC BANK, NATIONAL ASSOCIATION,
as Documentation Agent.
WHEREAS, the Borrower, the Banks and the Agent are party to
that certain Term Loan Credit Agreement by and between the Borrower, the Banks
and the Agent dated as of February 17, 1999, as amended by First Amendment to
Credit Agreement dated as of June 18, 1999 (the "Existing Credit Agreement")
and desire to amend and restate the Existing Credit Agreement, including, among
other things, (i) amendments to change the provisions for determining the
Applicable Margin, to provide for Collateral, and (ii) to waive certain Events
of Default under the Existing Agreement;
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The terms as defined in this Section 1.01
shall, for all purposes of this Agreement and any amendment hereto (except as
herein otherwise expressly provided or unless the context otherwise requires),
have the meanings set forth herein:
"Adjusted London Interbank Offered Rate" has the meaning
set forth in Section 2.05(c).
"Affiliate" of any relevant Person means (i) any Person
that directly, or indirectly through one or more intermediaries, controls the
relevant Person (a "Controlling Person"), (ii) any Person (other than the
relevant Person or a Subsidiary of the relevant Person) which is controlled by
or is under common control with a Controlling Person, or (iii) any Person
(other than a Subsidiary of the relevant Person) of which the relevant Person
owns, directly or indirectly, 20% or more of the common stock or equivalent
equity interests. As used herein, the term "control" means possession, directly
or indirectly, of the power to direct or cause the direction of the management
or policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Agent" means Wachovia Bank, N.A., a national banking
association organized under the laws of the United States of America, in its
capacity as agent for the Banks hereunder and in its capacity as the Collateral
Agent, and its successors and permitted assigns in such capacities.
"Agreement" means this Amended and Restated Term Loan
Credit Agreement, together with all amendments and supplements hereto.
"Anchor Tenants" means Wal-Mart Stores, Inc. and Lowe's
Companies, Inc. and their respective Affiliates.
"Anchor Tenant Agreements" means, with respect to each
Anchor Tenant, all Leases, purchase agreements or letters of intent to acquire
property between the Borrower and such Anchor Tenant.
"Anchor Tenant Settlement Agreement" means a settlement
agreement, in form and substance as furnished to the Agent and the Banks prior
to the Closing Date, between the Borrower, the Anchor Tenants and Wal-Mart Real
Estate Business Trust, among other things providing for an Anchor Tenant
Settlement Payment in an aggregate amount not exceeding $10,000,000.
<PAGE> 6
"Anchor Tenant Settlement Payment" means a cash payment
payable to the Anchor Tenants pursuant to and at the closing of the Anchor
Tenant Settlement Agreement.
"Applicable Margin" has the meaning set forth in Section
2.05(a).
"Arranger" means Wachovia Securities, Inc.
"Arranger's Letter Agreement" means that certain letter
agreement, dated as of April 28, 2000, among the Borrower, the Arranger and the
Agent relating to the structure of the Loans, and certain fees from time to
time payable by the Borrower to the Agent, together with all amendments and
supplements thereto.
"Assignee" has the meaning set forth in Section 9.08(c).
"Assignment and Acceptance" means an Assignment and
Acceptance executed in accordance with Section 9.08(c) in the form attached
hereto as Exhibit D.
"Assignment of Rents and Leases" means, for each Borrowing
Base Property, an Assignment of Rents and Leases, signed by the Borrower or a
Guarantor, as applicable, granting and conveying the Agent, for the ratable
benefit of the Banks, a first priority assignment of leases and rents with
respect to such Borrowing Base Property to secure the Secured Obligations,
subject only to Permitted Encumbrances, the form of which for use in the State
of Georgia being attached hereto as Exhibit N, with such form being modified as
appropriate for any other state in which the relevant Borrowing Base Property
is located, as amended or supplemented from time to time.
"Authority" has the meaning set forth in Section 8.02.
"Bank" means each bank listed on the signature pages hereof
as having a Commitment, and its successors and assigns.
"Base Rate" means for any Base Rate Loan for any day, the
rate per annum equal to the higher as of such day of (i) the Prime Rate, or
(ii) one-half of one percent above the Federal Funds Rate. For purposes of
determining the Base Rate for any day, changes in the Prime Rate or the Federal
Funds Rate shall be effective on the date of each such change.
"Base Rate Borrowing" means a Borrowing consisting of Base
Rate Loans.
"Base Rate Loan" means a Loan which bears or is to bear
interest at a rate based upon the Base Rate, and is to be made as a Base Rate
Loan pursuant to the applicable Notice of Borrowing, Section 2.02(f), or
Article VIII, as applicable.
"Base Rent" means, with respect to any Lease, minimum
periodic contractual rent payable thereunder, excluding reimbursement recovery
of common area maintenance or other common property operating expenses and
excluding percentage rent.
"Borrower" means JDN Realty Corporation, a Maryland
corporation, and its successors and its permitted assigns.
"Borrowing" means a borrowing hereunder consisting of Loans
made to the Borrower.
"Borrowing Base" means the sum for all Borrowing Base
Properties of the following amounts determined for each Borrowing Base
Property, as determined by reference to the most recent Borrowing Base
Certificate furnished pursuant to Section 3.01(g) or Section 5.01(i), as
applicable, such
2
<PAGE> 7
amount being equal to the product of (x) the Net Operating Income for the 3
month period ending on the last day of the Fiscal Quarter just ended prior to
the date of determination, times (y) 4 (which is the annualization factor),
divided by 0.10 (which is the capitalization rate), times (z) 0.60 (which is
the advance rate).
"Borrowing Base Certificate" means a certificate
substantially in the form of Exhibit K, duly executed by an authorized officer,
setting forth in reasonable detail the calculations for each component of the
Borrowing Base.
"Borrowing Base Property" means any retail Property which
is: (i) subject to Security Documents which (other than the Hazardous Materials
Indemnity Agreement) have been filed of record in the applicable recording
office, with all filing and recording costs and taxes paid; (ii) not subject to
an Other Mortgage; (iii) at least 80% leased (pursuant to written Leases which
have been signed by both landlord and tenant and under which the payment of
Base Rent has commenced); provided, as to the Property shown on Exhibit L as
no. 379, Village at Noble Farms, located in Suwanee, Georgia, such Property is
77.4% leased as of the Closing Date, but must be at least 80% leased within 3
months after the Closing Date) ; (iv) at least 80% occupied by tenants which
have accepted the premises and signed (together with the landlord) a Lease, and
with respect to which the date for the commencement of payment of Base Rent has
been established; and (v) either (a) listed on Exhibit L on the Closing Date or
(b) has been approved as a Borrowing Base Property by the Required Banks, at
the request of the Borrower, taking into account the following information
concerning the Property provided to the Agent and the Banks by the Borrower: a
physical description, applicable environmental reports, information regarding
its age, location and occupancy, an operating statement and rent roll for the
most recent Fiscal Quarter, an operating budget for the current Fiscal Year and
such other information as the Agent may reasonably request, and listed on a
revised Exhibit L pursuant to Section 5.27(b).
"Capital Stock" means any nonredeemable capital stock or
other ownership interest of the Borrower or any Consolidated Entity (to the
extent issued to a Person other than the Borrower), whether common or
preferred, and including any interest as a member in a limited liability
company.
"CERCLA" means the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C.ss. 9601 et. seq. and its implementing
regulations and amendments.
"CERCLIS" means the Comprehensive Environmental Response
Compensation and Liability Inventory System established pursuant to CERCLA.
"Change of Law" shall have the meaning set forth in Section
8.02.
"Closing Certificate" has the meaning set forth in Section
3.01(e).
"Closing Date" means May 19, 2000.
"Code" means the Internal Revenue Code of 1986, as amended,
or any successor Federal tax code.
"Collateral" means the Borrowing Base Properties and all
other assets subject to the Mortgages and the other Security Documents.
"Collateral Agent" means Wachovia Bank, N.A., a national
banking association organized under the laws of the United States of America,
in its capacity as Collateral Agent for the Banks under the Security Documents,
and its successors and permitted assigns in such capacities.
3
<PAGE> 8
"Commitment" means, with respect to each Bank the amount
set forth opposite the name of such Bank on the signature pages hereof (such
Commitment having been terminated in accordance with the Existing Agreement,
and such term being retained herein solely as a means of reference).
"Compliance Certificate" has the meaning set forth in
Section 5.01(c).
"Consolidated Entity" means at any date any Person the
accounts of which, in accordance with GAAP, are consolidated with those of the
Borrower in its consolidated financial statements as of such date.
"Consolidated Fixed Charges" means, for any period,
determined on a consolidated basis in accordance with GAAP, the sum of (i)
Consolidated Interest Expense for the Fiscal Quarter just ended and the 3
immediately preceding Fiscal Quarters, plus (ii) all dividends paid or declared
but not yet paid by the Borrower on preferred stock during the Fiscal Quarter
just ended and the 3 immediately preceding Fiscal Quarters, plus (iii) the
aggregate amount of scheduled principal amortization paid in the Fiscal Quarter
just ended and the 3 immediately preceding Fiscal Quarters as reflected on the
Borrower's most recent quarterly financial statement submitted to the Banks,
but excluding any principal payments under the Revolving Credit Agreement or
any other agreement pertaining to revolving debt permitted under Section 5.26,
and excluding any balloon payments on other Debt.
"Consolidated Interest Expense" for any period means,
interest expensed in respect of Debt of the Borrower and its Consolidated
Subsidiaries and the Guarantors.
"Consolidated Liabilities" means the sum of (i) all
liabilities that, in accordance with GAAP, should be classified as liabilities
on a consolidated balance sheet of Borrower and its Consolidated Subsidiaries
and the Guarantors, and (ii) to the extent not included in clause (i) of this
definition, all Redeemable Preferred Stock.
"Consolidated Net Income" means, for any period, the Net
Income of the Borrower and its Consolidated Subsidiaries and the Guarantors
determined on a consolidated basis, but excluding (i) extraordinary items and
(ii) any equity interests of the Borrower or any Subsidiary in the unremitted
earnings of any Person that is not a Subsidiary.
"Consolidated Operating Profits" means, for any period, the
Operating Profits of the Borrower and its Consolidated Subsidiaries.
"Consolidated Subsidiary" means at any date any Subsidiary
or other entity the accounts of which, in accordance with GAAP, would be
consolidated with those of the Borrower in its consolidated financial
statements as of such date.
"Construction in Progress" means, for any retail Property,
calculated on a consolidated basis for the Borrower and the Guarantors, the sum
of (x) construction-in-progress as shown from time to time on the books and
records of the Borrower and the Guarantors, maintained in accordance with GAAP,
plus (y) the book value, calculated in accordance with GAAP, of any Property
that (i) previously constituted construction-in-progress and (ii) has not yet
become a Stabilized Property.
"Contribution Agreement" means the Contribution Agreement
of even date herewith in substantially the form of Exhibit J to be executed by
the Borrower and by the Initial Guarantors on the Closing Date and by each of
the Guarantors pursuant to Section 5.25.
"Control" means, with respect to any Person, the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities or otherwise.
4
<PAGE> 9
"Controlled Group" means all members of a controlled group
of corporations and all trades or businesses (whether or not incorporated)
under common control which, together with the Borrower, are treated as a single
employer under Section 414 of the Code.
"Debt" of any Person means at any date, without
duplication, (i) all obligations of such Person for borrowed money, (ii) all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all obligations of such Person to pay the deferred
purchase price of property or services, except trade accounts payable arising
in the ordinary course of business, (iv) all obligations of such Person as
lessee under capital leases, (v) all obligations of such Person to reimburse
any bank or other Person in respect of amounts payable under a banker's
acceptance, (vi) all Redeemable Preferred Stock of such Person (in the event
such Person is a corporation), (vii) all obligations of such Person to
reimburse any bank or other Person in respect of amounts paid or to be paid
under a letter of credit or similar instrument, (viii) all Debt of others
secured by a Lien on any asset of such Person, whether or not such Debt is
assumed by such Person, (ix) all obligations of such Person with respect to
interest rate protection agreements, foreign currency exchange agreements or
other hedging arrangements (valued as the termination value thereof computed in
accordance with a method approved by the International Swap Dealers Association
and agreed to by such Person in the applicable hedging agreement, if any), and
(x) all Debt of others Guaranteed by such Person.
"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.
"Default Rate" means, with respect to any Loan, on any day,
the sum of 2% plus the highest interest rate (including the Applicable Margin)
which may be applicable to any Loans hereunder (irrespective of whether any
such type of Loans are actually outstanding hereunder).
"Development SPE" means a special purpose entity approved
by the Required Banks (which approval shall not be unreasonably withheld or
delayed) formed by an unrelated party for the purpose of owning and developing
property which may be purchased by the Borrower, any Guarantor or an Affiliate
thereof and borrowing money for such purpose, which entity shall be restricted
pursuant to its articles of incorporation from engaging in any business other
than owning and developing property, and activities incidental thereto, and
from incurring any Debt, other than Replacement Property Development Loans and
other Debt incidental thereto.
"Dollars" or "$" means dollars in lawful currency of the
United States of America.
"Domestic Business Day" means any day except a Saturday,
Sunday or other day on which commercial banks in Georgia are authorized by law
to close.
"EBITDA" means at any time the sum of the following,
determined on a consolidated basis for the Borrower and the Guarantors, at the
end of each Fiscal Quarter, for the applicable measuring period: (i)
Consolidated Net Income (but adjusted to add back the amount of the Anchor
Tenant Settlement Payment that is accounted for as an expense in the applicable
period); plus (ii) Consolidated Interest Expense; plus (iii) taxes on income;
plus (iv) depreciation; plus (v) amortization; plus (vi) other non-cash
charges.
"Enforcement Costs" has the meaning set forth in the
Mortgages.
"Environmental Authority" means any foreign, federal,
state, local or regional government that exercises any form of jurisdiction or
authority under any Environmental Requirement.
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<PAGE> 10
"Environmental Authorizations" means all licenses, permits,
orders, approvals, notices, registrations or other legal prerequisites for
conducting the business of the Borrower or any Subsidiary required by any
Environmental Requirement.
"Environmental Judgments and Orders" means all judgments,
decrees or orders arising from or in any way associated with any Environmental
Requirements, whether or not entered upon consent, or written agreements with
an Environmental Authority or other entity arising from or in any way
associated with any Environmental Requirement, whether or not incorporated in a
judgment, decree or order.
"Environmental Liabilities" means any liabilities, whether
accrued, contingent or otherwise, arising from and in any way associated with
any Environmental Requirements.
"Environmental Notices" means notice from any Environmental
Authority or by any other person or entity, of possible or alleged
noncompliance with or liability under any Environmental Requirement, including
without limitation any complaints, citations, demands or requests from any
Environmental Authority or from any other person or entity for correction of
any violation of any Environmental Requirement or any investigations concerning
any violation of any Environmental Requirement.
"Environmental Proceedings" means any judicial or
administrative proceedings arising from or in any way associated with any
Environmental Requirement.
"Environmental Releases" means releases as defined in
CERCLA or under any applicable state or local environmental law or regulation.
"Environmental Requirements" means any legal requirement
relating to health, safety or the environment and applicable to the Borrower,
any Subsidiary or the Properties, including but not limited to any such
requirement under CERCLA or similar state legislation and all federal, state
and local laws, ordinances, regulations, orders, writs, decrees and common law.
"ERISA" means the Employee Retirement Income Security Act
of 1974, as amended from time to time, or any successor law. Any reference to
any provision of ERISA shall also be deemed to be a reference to any successor
provision or provisions thereof.
"Euro-Dollar Borrowing" means a Borrowing consisting of
Euro-Dollar Loans.
"Euro-Dollar Business Day" means any Domestic Business Day
on which dealings in Dollar deposits are carried out in the London interbank
market.
"Euro-Dollar Loan" means a Loan which bears or is to bear
interest at a rate based upon the Adjusted London Interbank Offered Rate, and
to be made as a Euro-Dollar Loan pursuant to the applicable Notice of
Borrowing.
"Euro-Dollar Reserve Percentage" has the meaning set forth
in Section 2.05(c).
"Event of Default" has the meaning set forth in Section
6.01.
"Existing Credit Agreement" has the meaning set forth in
the Recitals hereof.
"Existing Credit Agreement Agent's Letter Agreement" means
that certain letter agreement date as of December 18, 1998, between the
Borrower and the Agent.
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<PAGE> 11
"Existing Credit Agreement Events of Default" means the
"Existing Events of Default" (as defined in the Interim Agreement), and any
Event of Default which may arise out of facts determined by the special
committee of the board of directors of the Borrower investigating the matters
described in the Interim Agreement and related matters and disclosed to the
Agent and the Banks on or before the Closing Date.
"Existing Mortgage Defaulted Debt" means the Debt of the
Borrower or any Subsidiary which is subject to an Other Mortgage and described
in writing to the Agent and the Banks prior to the Closing Date, as to which
the holder of such Debt may allege the existence of certain non-monetary events
of default under the agreements pertaining thereto, but which Existing Mortgage
Defaulted Debt has not been accelerated as a result thereof as of the Closing
Date.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the next higher 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 Domestic
Business Day next succeeding such day, provided that (i) if the day for which
such rate is to be determined is not a Domestic Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the next preceding
Domestic Business Day as so published on the next succeeding Domestic Business
Day, and (ii) if such rate is not so published for any day, the Federal Funds
Rate for such day shall be the average rate charged to the Agent on such day on
such transactions, as determined by the Agent.
"Final Borrowing Base Property Perfection Date" means the
date on which the Security Documents have been executed and delivered, and the
Security Documents (other than the Hazardous Materials Indemnity Agreement)
have been filed of record in the applicable recording office, with all filing
and recording costs and taxes paid, on each Property described on Exhibit L.
"Financing Statement" means, for each Borrowing Base
Property, a Uniform Commercial Code financing statement suitable for use in the
state in which such Borrowing Base Property is located, signed by the Borrower
or a Guarantor, as applicable, the form of attachment thereto being attached
hereto as Exhibit O, together with any related notice filing required by the
law of such state, in each case as amended or supplemented from time to time.
"Fiscal Month" means any fiscal month of the Borrower.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower and the
Guarantors.
"GAAP" means generally accepted accounting principles
applicable in the United States of America applied on a basis consistent with
those which, in accordance with Section 1.02, are to be used in making the
calculations for purposes of determining compliance with the terms of this
Agreement.
"Gross Asset Value" means, on a consolidated basis for the
Borrower and the Guarantors, the sum of (without duplication with respect to
any Property):
(i) an amount equal to the product of (w) the Net Operating
Income for the 3 month period ending on the last day of the
Fiscal Quarter just ended prior to the date of determination,
times (x) 4 (which is the annualization factor), divided by (y)
0.10 (which is the capitalization rate), times (z) 0.60 (which
is the advance rate), from each Property owned by the Borrower
or any Guarantor for at least one Fiscal Quarter; plus
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<PAGE> 12
(ii) an amount equal to the book value as of the last day
of the month just ended prior to the date of determination of
Property owned by the Borrower or any Guarantor for less than a
Fiscal Quarter; plus
(iii) the book value of Construction in Progress on the
last day of the Fiscal Quarter just ended; plus
(iv) the aggregate amount of all (x) unrestricted cash and
accounts receivable which are not past due of the Borrower and
the Guarantors and (y) restricted cash held by a Qualified
Intermediary on behalf of the Borrower or any Guarantor, plus
(v) the aggregate principal amount outstanding of all
Replacement Property Development Loans as to which the
development of the relevant property is controlled by the
Borrower, a Guarantor or an Affiliate thereof.
"Guarantee" by any Person means any obligation, contingent
or otherwise, of such Person directly or indirectly guaranteeing any Debt 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 (i) to secure, purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other obligation (whether arising by
virtue of partnership arrangements, by agreement to keep-well, to purchase
assets, goods, securities or services, to provide collateral security, to
take-or-pay, or to maintain financial statement conditions or otherwise) or
(ii) entered into for the purpose of assuring in any other manner the obligee
of such Debt 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.
"Guarantors" means any one, or more or all, as the context
shall require, of the Initial Guarantors and any Significant Subsidiary or
other Subsidiary which becomes a Guarantor pursuant to Section 5.25(subject to
the provisions of the last sentence of Section 5.05).
"Guaranty" means the Guaranty Agreement in substantially
the form of Exhibit I to be executed by the Initial Guarantors on the Closing
Date and by each of the other Guarantors as required by and pursuant to Section
5.25, unconditionally and jointly and severally Guaranteeing payment of the
Loans, the Term Notes and all other obligations of the Borrower to the Agent
and the Banks hereunder, including without limitation all principal, interest,
fees, costs, and compensation and indemnification amounts.
"Hazardous Materials" includes, without limitation, (a)
solid or hazardous waste, as defined in the Resource Conservation and Recovery
Act of 1980, 42 U.S.C. ss. 6901 et seq. and its implementing regulations and
amendments, or in any applicable state or local law or regulation, (b)
"hazardous substance", "pollutant", or "contaminant" as defined in CERCLA, or
in any applicable state or local law or regulation, (c) gasoline, or any other
petroleum product or by-product, including, crude oil or any fraction thereof,
(d) toxic substances, as defined in the Toxic Substances Control Act of 1976,
or in any applicable state or local law or regulation and (e) insecticides,
fungicides, or rodenticides, as defined in the Federal Insecticide, Fungicide,
and Rodenticide Act of 1975, or in any applicable state or local law or
regulation, as each such Act, statute or regulation may be amended from time to
time.
"Hazardous Materials Indemnity Agreement" means, for each
Borrowing Base Property, a Hazardous Materials Indemnity Agreement, signed by
the Borrower or a Guarantor, as applicable, in the form attached hereto as
Exhibit P, as amended or supplemented from time to time.
"Initial Guarantors" means JDN DCI, JDN AL, JDN Holdings
and JDN LP.
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<PAGE> 13
"Initial New Advances" has the meaning set forth in the
Revolving Credit Agreement.
"Interest Period" means with respect to each Euro-Dollar
Borrowing, the period commencing on the date of such Borrowing and ending on
the numerically corresponding day in the first, second, third or sixth month
thereafter, as the Borrower may elect in the applicable Notice of Borrowing;
provided that:
(a) any Interest Period (subject to paragraph (c) below) which
would otherwise end on a day which is not a Euro-Dollar Business Day shall be
extended to the next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall, subject
to paragraph (c) below, end on the last Euro-Dollar Business Day of the
appropriate subsequent calendar month; and
(c) no Interest Period may be selected which begins before the
Maturity Date and would otherwise end after the Maturity Date.
"Interim Agreement" means the Interim Agreement dated March
2, 2000, but effective as of February 14, 2000 among the Borrower, the Initial
Guarantors, the Agent and the Banks.
"Investment" means any investment in any Person, whether by
means of purchase or acquisition of obligations or securities of such Person,
capital contribution to such Person, loan or advance to such Person, making of
a time deposit with such Person, or assumption of any obligation of such Person
or otherwise.
"JDN AL" means JDN Realty AL, Inc., an Alabama corporation.
"JDN DCI" means JDN Development Company, Inc., a Delaware
corporation.
"JDN Holdings" means JDN Realty Holdings, L.P., a Georgia
limited partnership.
"JDN LP" means JDN Realty, LP, a Delaware corporation.
"JDN Venture" means any Person formed by the Borrower or
any Consolidated Entity: (i) which is not a Consolidated Entity and (ii) in
which the Borrower or such Consolidated Entity owns either (x) 50% or more of
the beneficial interests therein, but does not have "control" thereof within
the meaning set forth in the definition of Affiliate, or (y) 20% or more of the
beneficial interests therein, but does have control thereof.
"Lease" means any tenant lease pursuant to which the
Borrower or any Guarantor leases Property.
"Lending Office" means, as to each Bank, its office located
at its address set forth on the signature pages hereof (or identified on the
signature pages hereof as its Lending Office) or such other office as such Bank
may hereafter designate as its Lending Office by notice to the Borrower and the
Agent.
"Lien" means, with respect to any asset, any mortgage, deed
to secure debt, deed of trust, lien, hypothecation, assignment, pledge, charge,
security interest, security title, preferential or priority arrangement which
has the practical effect of constituting a security interest or encumbrance, or
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<PAGE> 14
encumbrance or servitude of any kind in respect of such asset to secure or
assure payment of a Debt or a Guarantee, whether by consensual agreement or by
operation of statute or other law, or by any agreement, contingent or
otherwise, to provide any of the foregoing. For the purposes of this Agreement,
the Borrower or any Subsidiary shall be deemed to own subject to a Lien any
asset which it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
"Loans" means the loans made by the Banks to the Borrower
pursuant to the terms and conditions set forth in Section 2.01, consisting of
initial Loans made by the Banks on or about the Closing Date (upon satisfaction
of the conditions set forth in Section 3.01) and thereafter, consisting solely
of Refunding Loans, with each Loan being either a Base Rate Loan or a
Euro-Dollar Loan, and references to "Loans" include Base Rate Loans or
Euro-Dollar Loans, or both, as the context shall require.
"Loan Documents" means this Agreement, the Term Notes, the
Guaranty, the Contribution Agreement, the Security Documents and any other
document evidencing, relating to or securing the Loans, and any other document
or instrument delivered from time to time in connection with this Agreement,
the Term Notes, the Loans or the Collateral, as such documents and instruments
may be amended or supplemented from time to time.
"London Interbank Offered Rate" has the meaning set forth
in Section 2.05(c).
"Major Tenant" refers to a tenant of the Borrower or any
Guarantor which occupies space in a Borrowing Base Property pursuant to a Lease
which entitles it to occupy 25,000 square feet or more.
"Margin Stock" means "margin stock" as defined in
Regulations T, U or X.
"Material Adverse Effect" means, with respect to any event,
act, condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental investigation or
proceeding), whether singly or in conjunction with any other event or events,
act or acts, condition or conditions, occurrence or occurrences, whether or not
related, a material adverse change in, or a material adverse effect upon, any
of (a) the financial condition, operations, business, properties or prospects
of the Borrower and the Guarantors taken as a whole, (b) the rights and
remedies of the Agent or the Banks under the Loan Documents, or the ability of
the Borrower or the Guarantors to perform its obligations under the Loan
Documents to which it is a party, as applicable, or (c) the legality, validity
or enforceability of any Loan Document.
"Maturity Date" means whichever is applicable of (i) June
14, 2001, or (ii) the date the Agent declares the Term Notes to be immediately
due and payable in full during the existence of an Event of Default pursuant to
Section 6.01.
"Moody's" means Moody's Investor Service, Inc.
"Mortgage" means a mortgage, deed to secure debt, deed of
trust or other appropriate similar instrument, the form of Mortgage for use in
the State of Georgia being attached hereto as Exhibit M, with such form being
modified as appropriate for any other state in which the relevant Borrowing
Base Property is located), granting and conveying to the Agent, for the ratable
benefit of the Banks, a first priority security title or lien on and security
interest in such Borrowing Base Property to secure the Secured Obligations,
subject only to Permitted Encumbrances.
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"Net Income" means, as applied to any Person for any
period, the aggregate amount of net income of such Person for such period, as
determined in accordance with GAAP.
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<PAGE> 15
"Net Operating Income" means with respect to any Property,
for any period, "property revenues", consisting of the Base Rent due and
payable by a tenant under any Lease together with all other amounts payable
thereunder for the recovery of or reimbursement of common area maintenance
charges or other Property related expenses, all such amounts shall be
attributable to such period and accrued according to GAAP, less (i) all
"property expenses" consisting of expenses incurred or accrued by the Borrower
that are directly related to the operation and ownership of such Property,
including real estate taxes, sales taxes, common area maintenance charges,
accounting and administration, security, utilities, maintenance, janitorial,
premiums for casualty and liability insurance, ground lease payments (excluding
from the foregoing expenses for depreciation, amortization, interest and
leasing commissions with respect to such Property), (ii) an allowance for
property management expenses calculated at 3.0% of Base Rent, and (iii) a
replacement reserve of $0.15 per square foot of the gross leasable area of the
improvements located within the Property. If such period is less than a year,
expenses described in clause (i) above that are payable less frequently than
monthly during the course of a year (e.g. real estate taxes and insurance
premiums) shall be adjusted by "straight lining" the amounts so that such
expenses are accrued on a monthly basis over the course of a year and fairly
stated for each period.
"Non-Recourse Mortgage Debt" means Debt secured by an Other
Mortgage on Property, which the Borrower has determined in good faith is by its
terms non-recourse, except for customary exclusions for environmental
liability, misapplication or fraudulent application of rent after default,
insurance proceeds and condemnation awards and other customary exclusions.
"Notice of Borrowing" has the meaning set forth in Section
2.02.
"Officer's Certificate" has the meaning set forth in
Section 3.01(f).
"Operating Profits" means, as applied to any Person for any
period, the operating income of such Person for such period, as determined in
accordance with GAAP.
"Other Mortgage" means either of the following, in favor of
any Person other than the Agent (i) with respect to any referenced Property, a
mortgage, deed to secure debt, deed of trust or similar instrument encumbering
such Property, and (ii) with respect to the owner of any referenced Property, a
pledge of any of its capital stock or partnership interests.
"Participant" has the meaning set forth in Section 9.08(b).
"PBGC" means the Pension Benefit Guaranty Corporation or
any entity succeeding to any or all of its functions under ERISA.
"Permitted Encumbrances" has the meaning set forth in the
Mortgages.
"Person" means an individual, a corporation, a partnership,
an unincorporated association, a limited liability corporation, a limited
liability partnership, a trust or any other entity or organization, including,
but not limited to, 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 Code and is either (i) maintained by a
member of the Controlled Group for employees of any member of the Controlled
Group or (ii) maintained pursuant to a collective bargaining agreement or any
other arrangement under which more than one employer makes contributions and to
which a member of the Controlled Group is then making or accruing an obligation
to make contributions or has within the preceding 5 plan years made
contributions.
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<PAGE> 16
"Prime Rate" refers to that interest rate so denominated
and set by Wachovia from time to time as an interest rate basis for borrowings.
The Prime Rate is but one of several interest rate bases used by Wachovia.
Wachovia lends at interest rates above and below the Prime Rate.
"Properties" means all real property owned, leased or
otherwise used or occupied by the Borrower or any Guarantor, wherever located.
"Qualified Intermediary" means any Person serving as a
"qualified intermediary" for purposes of a Section 1031 Exchange.
"Quarterly Period" means a 3 month period (or portion
thereof) ending on each March 31, June 30, September 30 and December 31 after
the Closing Date and prior to the Maturity Date.
"Real Property Documents" each of the following for each
Borrowing Base Property: (i) an accurate legal description, (ii) an owner's
affidavit; (iii) a lien search report showing no Other Mortgage and no other
Liens, other than Permitted Encumbrances (or accompanied by evidence of release
of any Liens which are not Permitted Encumbrances), (iv) a mortgagee's title
insurance commitment, subject only to such exceptions as are acceptable to the
Agent (not including an Other Mortgage); (v) copies of recorded documents
giving rise to permitted title exceptions (including easement agreements and
deed covenants); (vi) a current ALTA as-built survey with surveyor's report
from a registered surveyor addressed to the Agent and the title insurer and
certifying as to such matters as are acceptable to the Agent, but in any case
including whether the Property is in a flood plain or other "wetlands" area and
the existence of encroachments; (vii) evidence of payment of property taxes due
and payable, (viii) for all insurance policies maintained by the Borrower, an
insurance certificate complying with the terms of the Mortgage, and naming the
Agent as additional insured and loss payee, as required thereby; (ix) an
updated certified rent roll; (x) copies of all Leases for all Major Tenants now
or hereafter created upon the Property or any part thereof and abstracts of all
other Leases, unless Collateral Agent requests a copy of such other Leases
pursuant to the Mortgage, (xi) subordination, non-disturbance and attornment
agreements in the form specified by the related Lease, if applicable, and
satisfactory to the Agent from each Major Tenant, and, if requested by the
Agent from time to time, from any other tenant; (xii) an estoppel certificate
satisfactory to the Agent from each Major Tenant in the form specified by the
related Lease, if applicable, and satisfactory to the Agent, and, if requested
by the Agent from time to time, from any other tenant; (xiii) evidence of
complying with zoning, including a copy of the certificate of occupancy, (xiv)
evidence of adequate ingress and egress and (xv) such documents as may
reasonably be requested by the Agent; each of the foregoing being obtained by
the Borrower directly or through agents selected by the Borrower from providers
reasonably acceptable to the Agent.
"Redeemable Preferred Stock" of any Person means any
preferred stock issued by such Person which is at any time prior to the
Maturity Date either (i) mandatorily redeemable (by sinking fund or similar
payments or otherwise) or (ii) redeemable at the option of the holder thereof.
"Refunding Loan" means a new Loan made on the day on which
an outstanding Loan is maturing or a Base Rate Borrowing is being converted to a
Euro-Dollar Borrowing, to the extent that the proceeds thereof are used entirely
for the purpose of paying such maturing Loan or Loan being converted.
"Regulation T" means Regulation T of the Board of Governors
of the Federal Reserve System, as in effect from time to time, together with
all official rulings and interpretations issued thereunder.
"Regulation U" means Regulation U of the Board of Governors
of the Federal Reserve System, as in effect from time to time, together with
all official rulings and interpretations issued thereunder.
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<PAGE> 17
"Regulation X" means Regulation X of the Board of Governors
of the Federal Reserve System, as in effect from time to time, together with
all official rulings and interpretations issued thereunder.
"Relinquished Property" means a Property sold to a Person
which is not the Borrower or an Affiliate thereof, and the proceeds of such
sale are held in an exchange account by a Qualified Intermediary, as part of a
Section 1031 Exchange.
"Replacement Property" means a Property acquired as a
replacement for a Relinquished Property as part of a Section 1031 Exchange.
"Replacement Property Development Loan" means a loan by the
Borrower or any Guarantor to a Development SPE, provided that (i) the proceeds
of such loan are used solely for the development of a retail Property that may
be purchased by the Borrower, any Guarantor or any Affiliate thereof, or that
may be transferred to the Borrower, any Guarantor or any Affiliate thereof, as
part of a Section 1031 Exchange, (ii) the principal amount of such loan
outstanding at any time shall not exceed 100% of the aggregate costs actually
incurred (including hard and soft costs) for development of such property,
(iii) such loan accrues interest at a rate which is not less than the interest
rate in effect from time to time with respect to Loans under this Agreement,
with such interest being capitalized during construction and then payable from
available cash flow, (iv) such loan is secured by a first priority mortgage,
deed to secure debt, deed of trust or similar instrument on such Property in
favor of the Borrower or such Guarantor, (v) such loan matures no later than 35
months after the date such loan is made, (vi) 100% of the net proceeds of sale
of portions of such property by the Development SPE shall be paid and applied
as a prepayment on such loan, (vii) such loan is repayable in full at the
earlier of maturity or sale or transfer of all of the remaining property by the
Development SPE, and (viii) such loan remains a performing loan in all material
respects.
"Required Banks" means at any time Banks holding at least
66 2/3% of the aggregate outstanding principal amount of the Loans.
"Restricted Payment" means (i) any dividend or other
distribution on any shares of the Borrower's Capital Stock (except dividends
payable solely in shares of its Capital Stock) or (ii) any payment on account
of the purchase, redemption, retirement or acquisition of (a) any shares of the
Borrower's Capital Stock (except shares acquired upon the conversion thereof
into other shares of its Capital Stock) or (b) any option, warrant or other
right to acquire shares of the Borrower's Capital Stock.
"Revolving Credit Agreement" means the Second Amended and
Restated Credit Agreement dated as of even date herewith, among the Borrower,
the banks listed on the signature pages thereof and Wachovia Bank, N.A., as
Agent, as it may be amended or supplemented from time to time.
"S&P" means Standard & Poor's Ratings Group, a division of
The McGraw-Hill Companies, Inc.
"Section 1031 Exchange" means a sale and exchange of a
Relinquished Property for a Replacement Property pursuant to and qualifying for
tax treatment under Section 1031 of the Code.
"Secured Obligations" has the meaning set forth in the
Mortgages.
"Security Documents" means any one, or more, or all, as the
context shall require, of the Mortgages, the Assignment of Leases and Rents,
the Financing Statements and the Hazardous Materials Indemnity Agreement for
each of the Borrowing Base Properties.
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"Significant Subsidiary" means any Subsidiary which: (i) is
designated by the Borrower in Schedule 4.08 (as amended or supplemented from
time to time) as a Significant Subsidiary; or (ii) either (x) has assets which
constitute more than 5% of Gross Asset Value at the end of the most recent
Fiscal Quarter, or (y) contributed more than 5% of Consolidated Operating
Profits during the most recent Fiscal Quarter and the 3 Fiscal Quarters
immediately preceding such Fiscal Quarter (or, with respect to any Subsidiary
which existed during the entire 4 Fiscal Quarter period but was acquired by the
Borrower during such period, which would have contributed more than 5% of Gross
Asset Value during such period had it been a Subsidiary for the entire period).
"Special Disclosure Materials" means the special disclosure
materials furnished to the Agent and the Banks from time to time at the request
of the Agent pursuant to the Interim Agreement pertaining to the "Undisclosed
Transactions" and "Undisclosed Transactions Matters" (as those terms are
defined therein) and related matters.
"Stabilized Property" means at any time retail Properties
(i) which are at least 90% leased (pursuant to written Leases which have been
signed by both landlord and tenant and under which the payment of Base Rent has
commenced) or (ii) are at least 80% occupied by tenants which have accepted the
premises and signed (together with the landlord) a Lease, and with respect to
which the date for the commencement of payment of Base Rent has been
established.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by the Borrower;
provided, however, that "Subsidiary" shall not include any JDN Venture.
"Taxes" has the meaning set forth in Section 2.08(c).
"Term Notes" means the promissory notes of the Borrower
substantially in the form of Exhibit A evidencing the obligation of the
Borrower to repay the Loans, together with all amendments, consolidations,
modifications, renewals and supplements thereto.
"Third Parties" means all lessees, sublessees, licensees
and other users of the Properties, excluding those users of the Properties in
the ordinary course of the Borrower's business and on a temporary basis.
"Transferee" has the meaning set forth in Section 9.08(d).
"Total Consolidated Liabilities" means at any time, for the
Borrower and the Guarantors, determined on a consolidated basis, the sum of (i)
Consolidated Liabilities, plus (ii) all Debt Guaranteed by the Borrower or any
Guarantor, plus (iii) the face amount of all letters of credit issued for the
account of the Borrower or any Guarantor.
"Total Secured Debt" means at any time, for the Borrower
and the Guarantors, determined on a consolidated basis, the sum of the
following, but only if any Property, or ownership interest of the owner
thereof, is subject to an Other Mortgage with respect thereto: (i) all
indebtedness for borrowed money; (ii) the deferred purchase price of Property;
(iii) all capital leases in which the Borrower is the tenant; (iv) all
obligations to reimburse any bank or other Person in respect of amounts paid or
to be paid under a letter of credit or similar instrument; and (v) all
Guarantees of Debt of Persons other than the Borrower and the Guarantors.
"Transitional Borrowing Base" means the Borrowing Base, but
calculated with respect to all Borrowing Base Properties without regard for
whether any Mortgages have been recorded with respect thereto.
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"Unfunded Vested Liabilities" means, with respect to any
Plan at any time, the amount (if any) by which (i) the present value of all
vested nonforfeitable benefits under such Plan exceeds (ii) the fair market
value of all Plan assets allocable to such benefits, all determined as of the
then most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the Controlled Group to
the PBGC or the Plan under Title IV of ERISA.
"Wachovia" means Wachovia Bank, N.A., a national banking
association, and its successors.
"Wholly Owned Subsidiary" means any Subsidiary all of the
shares of capital stock or other ownership interests of which (except
directors' qualifying shares) are at the time directly or indirectly owned by
the Borrower.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all terms of an accounting character used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared, in
accordance with GAAP, applied on a basis consistent (except for changes
concurred in by the Borrower's independent public accountants or otherwise
required by a change in GAAP) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries
delivered to the Banks unless with respect to any such change concurred in by
the Borrower's independent public accountants or required by GAAP, in
determining compliance with any of the provisions of this Agreement or any of
the other Loan Documents: (i) the Borrower shall have objected to determining
such compliance on such basis at the time of delivery of such financial
statements, or (ii) the Required Banks shall so object in writing within 30
days after the delivery of such financial statements, in either of which events
such calculations shall be made on a basis consistent with those used in the
preparation of the latest financial statements as to which such objection shall
not have been made (which, if objection is made in respect of the first
financial statements delivered under Section 5.01 hereof, shall mean the
financial statements referred to in Section 4.04).
SECTION 1.03. References. Unless otherwise indicated, references in this
Agreement to "Articles", "Exhibits", "Schedules", "Sections" and other
Subdivisions are references to articles, exhibits, schedules, sections and
other subdivisions hereof.
SECTION 1.04. Use of Defined Terms. All terms defined in this Agreement
shall have the same defined meanings when used in any of the other Loan
Documents, unless otherwise defined therein or unless the context shall require
otherwise.
SECTION 1.05. Terminology. All personal pronouns used in this Agreement,
whether used in the masculine, feminine or neuter gender, shall include all
other genders; the singular shall include the plural, and the plural shall
include the singular. Titles of Articles and Sections in this Agreement are for
convenience only, and neither limit nor amplify the provisions of this
Agreement.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend Loans. Each Bank has advanced the Loans
on the "Closing Date " under the Existing Credit Agreement in the amount of its
Commitment and all Loans after the Closing Date hereunder shall be made only as
Refunding Loans.
Each Borrowing under this Section shall be in an aggregate principal amount of
(x) for Base Rate Loans, $5,000,000 or any larger integral multiple of
$1,000,000, and (y) for Euro-Dollar Loans, $10,000,000 or any larger integral
multiple of $1,000,000 and shall be made from the several Banks ratably in
proportion
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to their respective Commitments. Once repaid, Borrowings may not be reborrowed
pursuant hereto except as Refunding Loans.
SECTION 2.02. Method of Borrowing Loans. For all Loans:
(a) The Borrower shall give the Agent notice (a "Notice of Borrowing"),
which shall be substantially in the form of Exhibit E, prior to 11:00 A.M.
(Atlanta, Georgia time) on the same Domestic Business Day as each Base Rate
Borrowing and at least 3 Euro-Dollar Business Days before each Euro-Dollar
Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Domestic Business
Day in the case of a Base Rate Borrowing or a Euro-Dollar Business Day in
the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Loans comprising such Borrowing are to be Base Rate
Loans or Euro-Dollar Loans, and
(iv) in the case of a Euro-Dollar Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
(b) Upon receipt of a Notice of Borrowing, the Agent shall promptly
notify each Bank of the contents thereof and of such Bank's ratable share of
such Borrowing and such Notice of Borrowing, once received by the Agent, shall
not thereafter be revocable by the Borrower.
(c) Not later than 11:00 A.M. (Atlanta, Georgia time), as to Euro-Dollar
Borrowings, and 2:00 P.M. (Atlanta, Georgia time), as to Base Rate Borrowings,
on the date of the initial advance of the Loans, each Bank shall (except as
provided in paragraph (d) of this Section) make available its ratable share of
such Borrowing, in Federal or other funds immediately available in Atlanta,
Georgia, to the Agent at its address determined pursuant to Section 9.01.
Unless the Agent determines that any applicable condition specified in Article
III has not been satisfied, the Agent will make the funds so received from the
Banks available to the Borrower at the Agent's aforesaid address. Unless the
Agent receives notice from a Bank, at the Agent's address referred to in or
specified pursuant to Section 9.01, no later than 4:00 P.M. (local time at such
address) on the date prior to the initial advance of the Loans stating that
such Bank will not make a Loan in connection with such Borrowing, the Agent
shall be entitled to assume that such Bank will make a Loan in connection with
such Borrowing and, in reliance on such assumption, the Agent may (but shall
not be obligated to) make available such Bank's ratable share of such Borrowing
to the Borrower for the account of such Bank. If the Agent makes such Bank's
ratable share available to the Borrower and such Bank does not in fact make its
ratable share of such Borrowing available on such date, the Agent shall be
entitled to recover such Bank's ratable share from such Bank or the Borrower
(and for such purpose shall be entitled to charge such amount to any account of
the Borrower maintained with the Agent), together with interest thereon for
each day during the period from the date of such Borrowing until such sum shall
be paid in full at a rate per annum equal to the rate at which the Agent
determines that it obtained (or could have obtained) overnight Federal funds to
cover such amount for each such day during such period, provided that (i) any
such payment by the Borrower of such Bank's ratable share and interest thereon
shall be without prejudice to any rights that the Borrower may have against
such Bank and (ii) until such Bank has paid its ratable share of such
Borrowing, together with interest pursuant to the foregoing, it will have no
interest in or rights with respect to such Borrowing for any purpose hereunder.
If the Agent does not exercise its option to advance funds for the account of
such Bank, it shall forthwith notify the Borrower of such decision.
(d) All Loans other than the initial advance of the Term Loans shall be
made as Refunding Loans.
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(e) Notwithstanding anything to the contrary contained in this Agreement,
no Euro-Dollar Borrowing may be made if there shall have occurred a Default or
an Event of Default, which Default or Event of Default shall not have been
cured or waived, and all Refunding Loans shall be made as Base Rate Loans (but
shall bear interest at the Default Rate, if applicable).
(f) In the event that a Notice of Borrowing fails to specify whether the
Loans comprising such Borrowing are to be Base Rate Loans or Euro-Dollar Loans,
such Loans shall be made as Base Rate Loans. If the Borrower is otherwise
entitled under this Agreement to repay any Loans maturing at the end of an
Interest Period applicable thereto with the proceeds of a new Borrowing, and
the Borrower fails to repay such Loans using its own moneys and fails to give a
Notice of Borrowing in connection with such new Borrowing, a new Borrowing
shall be deemed to be made on the date such Loans mature in an amount equal to
the principal amount of the Loans so maturing, and the Loans comprising such
new Borrowing shall be Base Rate Loans.
(g) Notwithstanding anything to the contrary contained herein, there
shall not be more than 8 Euro-Dollar Borrowings outstanding at any given time.
SECTION 2.03. Term Notes.
(a) The Loans of each Bank shall be evidenced by a single Term Note
payable to the order of such Bank for the account of its Lending Office in an
amount equal to the principal amount of such Bank's Commitment.
(b) Upon receipt of each Bank's Term Note pursuant to Section 3.01, the
Agent shall deliver such Term Note to such Bank. Each Bank shall record, and
prior to any transfer of its Term Note shall endorse on the schedules forming a
part thereof appropriate notations to evidence, the date, amount and maturity
of, and effective interest rate for, each Loan made by it, the date and amount
of each payment of principal made by the Borrower with respect thereto, and
such schedules of each such Bank's Term Note shall constitute rebuttable
presumptive evidence of the respective principal amounts owing and unpaid on
such Bank's Term Note; provided that the failure of any Bank to make, or error
in making, any such recordation or endorsement shall not affect the obligation
of the Borrower hereunder or under the Term Notes or the ability of any Bank to
assign its Term Note. Each Bank is hereby irrevocably authorized by the
Borrower so to endorse its Term Note and to attach to and make a part of any
Term Note a continuation of any such schedule as and when required.
SECTION 2.04. Maturity of Loans.
(a) Each Euro-Dollar Loan included in any Borrowing shall mature, and the
principal amount thereof shall be due and payable, on the last day of the
Interest Period applicable to such Borrowing.
(b) Notwithstanding the foregoing, the outstanding principal amount of
the Loans, if any, together with all accrued but unpaid interest thereon, if
any, shall be due and payable on the Maturity Date.
SECTION 2.05. Interest Rates.
(a) "Applicable Margin" means: (i) for any Base Rate Loan, 0.00% and (ii)
for each Euro-Dollar Loan, (x) 2.50% until the later of (1) the furnishing to
the Agent of all Real Property Documents pursuant to Section 5.27(a) (other
than items of the types described in the proviso contained in Section 5.27(a)
which the Borrower has been unable to furnish during the 90 day period
described in Section 5.27(a) despite commercially reasonable efforts) and (2)
the date which is 91 days after the Final Borrowing Base Property Perfection
Date, and (y) 2.25% for all Interest Periods commencing thereafter.
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(b) Each Base Rate Loan shall bear interest on the outstanding principal
amount thereof, for each day from the date such Loan is made until it becomes
due, at a rate per annum equal to the Base Rate for such day plus the
Applicable Margin. Such interest shall be payable on the first day of each
month, in arrears. Any overdue principal of and, to the extent permitted by
applicable law, overdue interest on any Base Rate Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the
Default Rate.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for the Interest Period applicable thereto, at a rate
per annum equal to the sum of the Applicable Margin plus the applicable
Adjusted London Interbank Offered Rate for such Interest Period. Such interest
shall be payable for each Interest Period on the last day thereof and, if such
Interest Period is longer than 1 month, at intervals of 1 month after the first
day thereof. Any overdue principal of and, to the extent permitted by law,
overdue interest on any Euro-Dollar Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the Default Rate.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upwards, if necessary, to the next higher 1/100th of 1%) by dividing (i) the
applicable London Interbank Offered Rate for such Interest Period by (ii) 1.00
minus the Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Euro-Dollar
Loan means for the Interest Period of such Euro-Dollar Loan, the rate per annum
determined on the basis of the offered rate for deposits in Dollars of amounts
equal or comparable to the principal amount of such Euro-Dollar Loan offered
for a term comparable to such Interest Period, which rates appear on the
Telerate Page 3750 effective as of 11:00 A.M., London time, 2 Euro-Dollar
Business Days prior to the first day of such Interest Period, provided that if
no such offered rates appear on such page, the "London Interbank Offered Rate"
for such Interest Period will be the arithmetic average (rounded upward, if
necessary, to the next higher 1/100th of 1%) of rates quoted by not less than 2
major banks in New York City, selected by the Agent, at approximately 10:00
A.M., New York City time, 2 Euro-Dollar Business Days prior to the first day of
such Interest Period, for deposits in Dollars offered by leading European banks
for a period comparable to such Interest Period in an amount comparable to the
principal amount of such Euro-Dollar Loan.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in respect of "Eurocurrency liabilities" (or in respect of any
other category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
any Bank to United States residents). The Adjusted London Interbank Offered
Rate shall be adjusted automatically on and as of the effective date of any
change in the Euro-Dollar Reserve Percentage.
(d) The Agent shall determine each interest rate applicable to the Loans
hereunder. The Agent shall give prompt notice to the Borrower and the Banks by
telecopier of each rate of interest so determined, and its determination
thereof shall be conclusive in the absence of manifest error.
(e) After the occurrence and during the continuance of an Event of
Default, the principal amount of the Loans (and, to the extent permitted by
applicable law, all accrued interest thereon) may, at the election of the
Required Banks, bear interest at the Default Rate.
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SECTION 2.06. Optional Prepayments.
(a) The Borrower may, upon at least 1 Domestic Business Days' notice to
the Agent, prepay any Base Rate Borrowing in whole at any time, or from time to
time in part in amounts aggregating at least $25,000,000 or any larger integral
multiple of $25,000,000 (or any lesser amount equal to the outstanding balance
of such Borrowing), by paying the principal amount to be prepaid together with
accrued interest thereon to the date of prepayment. Each such optional
prepayment shall be applied to prepay ratably the Base Rate Loans of the
several Banks included in such Base Rate Borrowing.
(b) Upon 3 Domestic Business Day's prior written notice, the Borrower may
prepay any Euro-Dollar Borrowing in whole at any time, or from time to time in
part in amounts aggregating at least $25,000,000 or any larger integral
multiple of $25,000,000 (or any lesser amount equal to the outstanding balance
of such Borrowing), by paying the principal amount to be prepaid together with
accrued interest thereon to the date of prepayment, plus the amount of
compensation determined to be due pursuant to Section 8.05, if such prepayment
is not made on the last of an Interest Period. Each such optional prepayment
shall be applied to prepay ratably the Euro-Dollar Loans of the several Banks
included in such Euro-Dollar Borrowing.
(c) Upon receipt of a notice of prepayment pursuant to this Section 2.06,
the Agent shall promptly notify each Bank of the contents thereof and of such
Bank's ratable share of such prepayment and such notice, once received by the
Agent, shall not thereafter be revocable by the Borrower.
SECTION 2.07. Mandatory Prepayments. (1) Prior to the Final Borrowing
Base Property Perfection Date, on each date on which the aggregate amount of
all outstanding Loans exceeds the Transitional Borrowing Base as of such date,
the Borrower shall repay or prepay such principal amount of the outstanding
Loans (together with interest thereon and any amount due under Section 8.05(a))
as may be necessary so that after such payment the aggregate unpaid principal
amount of all outstanding Loans does not exceed the Transitional Borrowing Base
as of such date, and (2) from and after the Final Borrowing Base Property
Perfection Date, on such date on which the aggregate principal amount of the
Loans outstanding exceeds the Borrowing Base as of such date, the Borrower
shall repay or prepay such principal amount of the outstanding Loans (together
with interest thereon and any amount due under Section 8.05(a)) as may be
necessary so that after such payment the aggregate unpaid principal amount of
the Loans does not exceed the Borrowing Base as of such date. Each such payment
or prepayment shall be applied ratably to the Loans of the Banks outstanding on
the date of payment or prepayment in the following order of priority: (i)
first, to Base Rate Loans, and (ii) secondly, to Euro-Dollar Loans.
SECTION 2.08. General Provisions as to Payments.
(a) The Borrower shall make each payment of principal of, and interest on,
the Loans and of fees hereunder, not later than 11:00 A.M. (Atlanta, Georgia
time) on the date when due, in Federal or other funds immediately available in
Atlanta, Georgia, to the Agent at its address referred to in Section 9.01. The
Agent will distribute to each Bank its ratable share of each such payment
received by the Agent for the account of the Banks, such payment to be
distributed by the Agent (x) by 2:00 P.M. on the date of receipt by the Agent,
provided that such payment was received by the Agent by 1:00 P.M. (Atlanta,
Georgia time), and (y) by 2:00 P.M. (Atlanta, Georgia time) on the date
following the date of receipt by the Agent, if such payment was received by the
Agent after 1:00 P.M. (Atlanta, Georgia time). If the Agent shall fail to make
such distribution within the time required by the immediately preceding
sentence, such distribution shall be made together with interest thereon, for
each day during the period from the date such distribution should have been so
made until the date such distribution actually is made, at a rate per annum
equal to the Federal Funds Rate.
(b) Whenever any payment of principal of, or interest on, the Base Rate
Loans or of fees hereunder shall be due on a day which is not a Domestic
Business Day, the date for payment thereof shall
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be extended to the next succeeding Domestic Business Day. Whenever any payment
of principal of or interest on, the Euro-Dollar Loans shall be due on a day
which is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month, in which case the
date for payment thereof shall be the next preceding Euro-Dollar Business Day.
(c) All payments of principal, interest and fees and all other amounts to
be made by the Borrower pursuant to this Agreement with respect to any Loan or
fee relating thereto shall be paid without deduction for, and free from, any
tax, imposts, levies, duties, deductions, or withholdings of any nature now or
at anytime hereafter imposed by any governmental authority or by any taxing
authority thereof or therein excluding in the case of each Bank, taxes imposed
on or measured by its net income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Bank is organized or any political
subdivision thereof and, in the case of each Bank, taxes imposed on its income,
and franchise taxes imposed on it, by the jurisdiction of such Bank's
applicable Lending Office or any political subdivision thereof (all such
non-excluded taxes, imposts, levies, duties, deductions or withholdings of any
nature being "Taxes"). In the event that the Borrower is required by applicable
law to make any such withholding or deduction of Taxes with respect to any Loan
or fee or other amount, the Borrower shall pay such deduction or withholding to
the applicable taxing authority, shall promptly furnish to any Bank in respect
of which such deduction or withholding is made all receipts and other documents
evidencing such payment and shall pay to such Bank additional amounts as may be
necessary in order that the amount received by such Bank after the required
withholding or other payment shall equal the amount such Bank would have
received had no such withholding or other payment been made.
Each Bank which is not organized under the laws of the United States
or any state thereof agrees, as soon as practicable after receipt by it of a
request by the Borrower to do so, to file all appropriate forms and take other
appropriate action to obtain a certificate or other appropriate document from
the appropriate governmental authority in the jurisdiction imposing the
relevant Taxes, establishing that it is entitled to receive payments of
principal and interest under this Agreement and the Term Notes without
deduction and free from withholding of any Taxes imposed by such jurisdiction;
provided that if it is unable, for any reason, to establish such exemption, or
to file such forms and, in any event, during such period of time as such
request for exemption is pending, the Borrower shall nonetheless remain
obligated under the terms of the immediately preceding paragraph.
In the event any Bank receives a refund of any Taxes paid by the
Borrower pursuant to this Section 2.08(c), it will pay to the Borrower the
amount of such refund promptly upon receipt thereof; provided that if at any
time thereafter it is required to return such refund, the Borrower shall
promptly repay to it the amount of such refund.
Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower and the
Banks contained in this Section 2.08(c) shall be applicable with respect to any
Participant, Assignee or other Transferee, and any calculations required by
such provisions (i) shall be made based upon the circumstances of such
Participant, Assignee or other Transferee, and (ii) constitute a continuing
agreement and shall survive the termination of this Agreement and the payment
in full or cancellation of the Term Notes.
SECTION 2.09. Computation of Interest and Fees; Payment of Certain Fees.
Interest on Base Rate Loans 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). Interest on Euro-Dollar Loans shall be computed on
the basis of a year of 360 days and paid for the actual number of days elapsed,
calculated as to each Interest Period from and including the first day thereof
to but excluding the last day thereof. Any fees payable 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). The Borrower
shall pay to the
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Agent, for the account and sole benefit of the Agent, such fees and other
amounts at such times as set forth in the Arranger's Letter Agreement, except
as provided in the immediately succeeding sentence. On the earlier of the date
of the first Initial New Advances under the Revolving Credit Agreement and May
26, 2000, the Borrower shall pay to the Agent (i) for the account of each Bank,
an upfront fee in an aggregate amount equal to 0.40% of principal amount
outstanding of such Bank's Loans on the Closing Date, and (ii) for the account
of the Agent and the Arranger, all fees payable to the Agent on the Closing
Date pursuant to the Arranger's Letter Agreement. Such fees shall be fully
earned on the Closing Date and non-refundable when paid. On February 17, 2001,
the Borrower shall pay to the Agent the "Agent's Administrative Fee" described
in the Existing Credit Agreement Agent's Letter Agreement, but such fee shall
be prorated for the period from February 17, 2001 to the Maturity Date.
ARTICLE III
CONDITIONS TO CLOSING AND BORROWINGS
SECTION 3.01. Conditions to Closing. The effectiveness of the Agreement is
subject to the satisfaction of the conditions set forth in this Section 3.01,
including receipt by the Agent of the following (as to the documents described
in paragraphs (a), (c), (d) and (e) below, in sufficient number of counterparts
for delivery of a counterpart to each Bank and retention of one counterpart by
the Agent):
(a) from each of the parties hereto of either (i) a duly executed
counterpart of this Agreement signed by such party or (ii) a facsimile
transmission of such executed counterpart, with the original to be sent to the
Agent by overnight courier);
(b) a duly executed Term Note and a Guaranty duly executed by the Initial
Guarantors and a Contribution Agreement duly executed by the Borrower and the
Initial Guarantors;
(c) an opinion letter of Waller Lansden Dortch & Davis, PLLC, counsel for
the Borrower and the Initial Guarantors, dated as of the Closing Date,
substantially in the form of Exhibit B and covering such additional matters
relating to the transactions contemplated hereby as the Agent or any Bank may
reasonably request;
(d) an opinion of Jones, Day, Reavis & Pogue, special counsel for the
Agent, dated as of the Closing Date, substantially in the form of Exhibit C and
covering such additional matters relating to the transactions contemplated
hereby as the Agent may reasonably request;
(e) a certificate (the "Closing Certificate") substantially in the form of
Exhibit G, dated as of the Closing Date, signed by a principal financial
officer of the Borrower, to the effect that, to the best of his or her
knowledge, (i) no Default has occurred and is continuing on the date of the
first Borrowing and (ii) the representations and warranties of the Borrower
contained in Article IV are true on and as of the date of the first Borrowing
hereunder;
(f) all documents which the Agent or any Bank may reasonably request
relating to the existence of the Borrower and the Initial Guarantors, the
corporate authority for and the validity of this Agreement, the Term Notes, the
Guaranty, the Contribution Agreement, the Security Documents and any other
matters relevant hereto, all in form and substance satisfactory to the Agent,
including, without limitation, a certificate of each of the Borrower and the
Initial Guarantors substantially in the form of Exhibit H (the "Officer's
Certificate"), signed by the Secretary or an Assistant Secretary of the
Borrower and the Initial Guarantors, respectively, and as to the names, true
signatures and incumbency of the officer or officers of the Borrower or Initial
Guarantors authorized to execute and deliver the Loan Documents, and certified
copies of the following items for each of the Borrower and Initial Guarantors
(i) a certificate of the Secretary of State of the State of its incorporation
as to its good standing as a
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corporation incorporated therein, and (ii) the action taken by its Board of
Directors authorizing the execution, delivery and performance of the Loan
Documents to which it is a party;
(g) receipt of the initial Borrowing Base Certificate, showing the
Transitional Borrowing Base as of the last day of the Fiscal Quarter ending
prior to the Closing Date;
(h) the Anchor Tenant Settlement Agreement shall have been executed and
delivered by all parties thereto, and any conditions precedent to effectiveness
thereof shall have been satisfied, in accordance with the terms thereof and the
Agent and the Banks shall have received a copy of such executed agreement,
together with a written acknowledgement from each Anchor Tenant to the effect
that (x) it has been informed of the principal terms and conditions of the
Revolving Credit Agreement, and, for purposes of Section 4(f) of the Anchor
Tenant Settlement Agreement, such terms provide a "Credit Facility" sufficient
to allow the Borrower to undertake the "Pending Transactions" and the "Proposed
Transactions" (as those terms are defined in the Anchor Tenant Settlement
Agreement) in accordance with the Anchor Tenant Settlement Agreement and (y) it
has received payment in full of the $5,000,000 payment required to be made to
it in accordance with Section 4(a) (as to Wal-Mart) or 4(b) (as to Lowe's) of
the Anchor Tenant Settlement Agreement;
(i) the Revolving Loan Credit Agreement shall have been executed and
delivered and the conditions set forth in Section 3.01 thereof (other than the
additional conditions for the funding of the Initial New Advances) shall have
been satisfied;
(j) The Borrower and the Initial Guarantors shall have provided to the
Agent and its counsel, as to each of the Properties listed on Exhibit L, (i) an
accurate legal description, (ii) whether such Property is owned or leased, and
(iii) whether such interests are held by the Borrower or the Initial
Guarantors;
(k) receipt by the Agent of accrued and unpaid fees and interest payable
to the Banks under the Existing Credit Agreement;
(l) counsel for the Agent under the Revolving Credit Facility shall have
received the executed and delivered Security Documents for each of the Initial
Borrowing Base Properties;
(m) the fact that, immediately before and after such funding, no Default
shall have occurred and be continuing; and
(n) the fact that the representations and warranties of the Borrower
contained in Article IV of this Agreement shall be true on and as of the
Closing Date.
Upon satisfaction of all such conditions (i) the Existing Credit Agreement
shall be superceded and replaced hereby (and any Euro-Dollar Loans thereunder
having Interest Periods terminating after the Closing Date shall be deemed to
have arisen and continue hereunder) and (ii) the Existing Credit Agreement
Events of Default shall for all purposes be waived by the Agent and the Banks
and shall not constitute Events of Default hereunder (but the Agent and the
Banks reserve all rights with respect to any Event of Default which may arise
out of facts determined by the special committee of the board of directors of
the Borrower investigating the matters described in the Interim Agreement and
related matters and not disclosed to the Agent or the Banks in writing, in the
Special Disclosure Materials or otherwise, on or before the Closing Date).
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each of the Borrower and (by incorporation by reference in the
Guaranty) the Guarantors, as expressly stated, represents and warrants that:
Section 4.01 Corporate Existence and Power. Each of the Borrower
and the Guarantors is a corporation or partnership duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, is duly qualified to transact business in every jurisdiction
where, by the nature of its business, such qualification is necessary, and has
all corporate or partnership powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted.
Section 4.02 Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Borrower of this
Agreement, the Notes and the other Loan Documents and by the Guarantors of the
Guaranty (i) are within the Borrower's or such Guarantor's corporate or
partnership powers, (ii) have been duly authorized by all necessary corporate or
partnership action, (iii) require no action by or in respect of or filing with,
any governmental body, agency or official, (iv) do not contravene, or constitute
a default under, any provision of applicable law or regulation or of the
certificate of incorporation or by-laws or partnership certificate of the
Borrower or any Guarantor or of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Borrower or any Guarantor and (v) do
not result in the creation or imposition of any Lien on any asset of the
Borrower or any of Guarantor, other than in favor of the Collateral Agent
pursuant to the Security Documents.
Section 4.03 Binding Effect. This Agreement constitutes a valid
and binding agreement of the Borrower enforceable in accordance with its terms,
and the Notes, the Guaranty and the other Loan Documents, when executed and
delivered in accordance with this Agreement, will constitute valid and binding
obligations of the Borrower and the Guarantors party thereto, enforceable in
accordance with their respective terms, provided that the enforceability hereof
and thereof is subject in each case to general principles of equity and to
bankruptcy, insolvency and similar laws affecting the enforcement of creditors'
rights generally.
Section 4.04 Financial Information.
(a) The consolidated balance sheet of the Borrower and JDN DCI as of
December 31, 1999 and the related consolidated statements of income,
shareholders' equity and cash flows for the Fiscal Year then ended, reported on
by Ernst & Young LLP, copies of which shall be delivered to each of the Banks
pursuant to Section 5.01(k), fairly present, in conformity with GAAP, the
consolidated financial position of the Borrower and JDN DCI as of such date and
their consolidated results of operations and cash flows for such periods stated;
provided, however, that this representation and warranty shall not be effective
or be deemed to have been made or given until such delivery of copies thereof to
the Banks pursuant to Section 5.01(k).
(b) Since December 31, 1999 (and excluding matters giving rise to the
Existing Credit Agreement Events of Default, but not excluding any matters
arising out of facts determined by the special committee of the board of
directors of the Borrower investigating the matters described in the Continued
Funding Agreement and related matters and not disclosed to the Agent or the
Banks in writing, in the Special Disclosure Materials or otherwise, on or before
the Closing Date) there has been no event, act, condition or occurrence having a
Material Adverse Effect.
Section 4.05 No Litigation. Except for shareholder class action
litigation of the same nature as that commenced against the Borrower and others
in February and March, 2000 in the United Stated
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District Court for the Northern District of Georgia, Atlanta Division, and in
the United States District Court for the Middle District of Tennessee, which has
been disclosed to the Agent and the Banks in the Special Disclosure Materials,
there is no action, suit or proceeding pending, or to the knowledge of the
Borrower threatened, against or affecting the Borrower, any Guarantor or any
Subsidiary before any court or arbitrator or any governmental body, agency or
official which could have a Material Adverse Effect or which in any manner draws
into question the validity of or could impair the ability of the Borrower or any
Guarantor to perform its obligations under, this Agreement, the Notes, the
Guaranty or any of the other Loan Documents.
Section 4.06 Compliance with ERISA.
(a) The Borrower and each member of the Controlled Group have fulfilled
their obligations under the minimum funding standards of ERISA and the Code with
respect to each Plan and are in compliance in all material respects with the
presently applicable provisions of ERISA and the Code, and have not incurred any
liability to the PBGC or a Plan under Title IV of ERISA.
(b) Neither the Borrower nor any member of the Controlled Group is or
ever has been obligated to contribute to any Multiemployer Plan.
Section 4.07 Compliance with Laws; Payment of Taxes. To the best
of the Borrower's knowledge, and except as may arise as a result of the
"Undisclosed Transactions" and "Undisclosed Transactions Matters" (as defined in
the Continued Funding Agreement), the Borrower and each Guarantor and each
Subsidiary is in compliance with all applicable laws, regulations and similar
requirements of governmental authorities, except where such compliance is being
contested in good faith through appropriate proceedings. There have been filed
on behalf of the Borrower and each Guarantor and each Subsidiary all material
Federal, state and local income, excise, property and other tax returns which
are required to be filed by them and all taxes due pursuant to such returns or
pursuant to any assessment received by or on behalf of the Borrower and each
Guarantor and each Subsidiary have been paid, except as may arise as a result of
the "Undisclosed Transactions" and "Undisclosed Transactions Matters" (as
defined in the Continued Funding Agreement). The charges, accruals and reserves
on the books of the Borrower and each Guarantor and each Subsidiary in respect
of taxes or other governmental charges are, in the opinion of the Borrower,
adequate.
Section 4.08 Guarantors and Subsidiaries. Each of the Guarantors
and the Subsidiaries is a corporation or partnership duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization, is duly qualified to transact business in every jurisdiction
where, by the nature of its business, such qualification is necessary, and has
all corporate or partnership powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted. The Borrower has no Subsidiaries except for those Subsidiaries listed
on Schedule 4.08, which accurately sets forth each such Subsidiary's complete
name and jurisdiction of organization and whether it is a Significant
Subsidiary. The Borrower shall send to the Agent and the Banks, promptly after
the relevant occurrence, an updated complete Schedule 4.08 to reflect the
addition or deletion of any Subsidiary and the change of any Subsidiary to a
Significant Subsidiary.
Section 4.09 Investment Company Act. Neither the Borrower nor any
Guarantor or Subsidiary is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
Section 4.10 Public Utility Holding Company Act. Neither the
Borrower nor any Guarantor or Subsidiary is 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", as such terms are
defined in the Public Utility Holding Company Act of 1935, as amended.
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Section 4.11 Ownership of Property. Each of the Borrower, the
Guarantors and the Subsidiaries has title to its properties sufficient for the
conduct of its business.
Section 4.12 No Default. To the best of Borrower's knowledge, and
after giving effect to the waiver contained at the end of Section 3.01, except
for the Existing Mortgage Defaulted Debt, no event of default is in existence
under or with respect to any agreement, instrument or undertaking to which the
Borrower or any Guarantor or Subsidiary is a party or by which it or any of its
property is bound which could have or cause a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
Section 4.13 Full Disclosure. All information heretofore furnished
by the Guarantors or the Borrower to the Agent or any Bank for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by the Guarantors or the Borrower to
the Agent or any Bank will be, true, accurate and complete in every material
respect or based on reasonable estimates on the date as of which such
information is stated or certified. The Borrower and the Guarantors have
disclosed to the Banks in writing any and all facts which could have or cause a
Material Adverse Effect.
Section 4.14 Environmental Matters.
(a) Except as set forth in Schedule 4.14, to the best of the Borrower's
knowledge, neither the Borrower nor any Guarantor or Subsidiary is subject to
any Environmental Liability which could have or cause a Material Adverse Effect
and none of the Guarantors, the Borrower or any Subsidiary has been designated
as a potentially responsible party under CERCLA or under any state statute
similar to CERCLA. None of the Properties has been identified on any current or
proposed (i) National Priorities List under 40 C.F.R. ss. 300, (ii) CERCLIS list
or (iii) any list arising from a state statute similar to CERCLA.
(b) Except as set forth in Schedule 4.14, to the best of the Borrower's
knowledge, no Hazardous Materials have been or are being used, produced,
manufactured, processed, treated, recycled, generated, stored, disposed of,
managed or otherwise handled at, or shipped or transported to or from the
Properties or are otherwise present at, on, in or under the Properties, or, to
the best of the knowledge of the Borrower, at or from any adjacent site or
facility, except for Hazardous Materials, such as cleaning solvents, pesticides
and other materials used, produced, manufactured, processed, treated, recycled,
generated, stored, disposed of, managed, or otherwise handled in the ordinary
course of business in material compliance with all applicable Environmental
Requirements.
(c) Except as set forth in Schedule 4.14, to the best of the Borrower's
knowledge, each of the Borrower and its Subsidiaries and Affiliates has procured
all Environmental Authorizations necessary for the conduct of its business, and
is in compliance with all Environmental Requirements in connection with the
operation of the Properties and the Borrower's, and each of its Subsidiary's and
Affiliate's, respective businesses.
Section 4.15 Capital Stock. All Capital Stock, debentures, bonds,
notes and all other securities of the Borrower and its Subsidiaries which are
corporations presently issued and outstanding are validly and properly issued in
all material respects in accordance with all applicable laws, including, but not
limited to, the "Blue Sky" laws of all applicable states and the federal
securities laws, except as may be otherwise determined in the shareholder class
action litigation described in Section 4.05. The issued shares of Capital Stock
of the Borrower's Wholly Owned Subsidiaries are owned by the Borrower free and
clear of any Lien or adverse claim. At least a majority of the issued shares of
capital stock of each of the Borrower's other Subsidiaries (other than Wholly
Owned Subsidiaries) is owned by the Borrower, and all
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such shares which are owned by the Borrower are owned by it free and clear of
any Lien or adverse claim.
Section 4.16 Margin Stock. Neither the Borrower nor any Guarantor
or Subsidiary is engaged principally, or as a significant part of its business,
in the business of purchasing or carrying any Margin Stock, and no part of the
proceeds of any Loan will be used to purchase or carry any Margin Stock or to
extend credit to others for the purpose of purchasing or carrying any Margin
Stock (other than loans to employees for the purchase of Capital Stock pursuant
to options granted by the Borrower), or be used for any purpose which violates,
or which is inconsistent with, the provisions of Regulation T, U or X.
Section 4.17 Insolvency. After giving effect to the execution and
delivery of the Loan Documents and the making of the Loans under this Agreement:
(i) the Borrower will not (x) be "insolvent," within the meaning of such term as
used in O.C.G.A. ss. 18-2-22 or as defined in ss. 101 of the "Bankruptcy Code",
or Section 2 of either the "UFTA" or the "UFCA", or as defined or used in any
"Other Applicable Law" (as those terms are defined below), or (y) be unable to
pay its debts generally as such debts become due within the meaning of Section
548 of the Bankruptcy Code, Section 4 of the UFTA or Section 6 of the UFCA, or
(z) have an unreasonably small capital to engage in any business or transaction,
whether current or contemplated, within the meaning of Section 548 of the
Bankruptcy Code, Section 4 of the UFTA or Section 5 of the UFCA; and (ii) the
obligations of the Borrower under the Loan Documents and with respect to the
Loans will not be rendered avoidable under any Other Applicable Law. For
purposes of this Section 4.17, "Bankruptcy Code" means Title 11 of the United
States Code, "UFTA" means the Uniform Fraudulent Transfer Act, "UFCA" means the
Uniform Fraudulent Conveyance Act, and "Other Applicable Law" means any other
applicable law pertaining to fraudulent transfers or acts voidable by creditors,
in each case as such law may be amended from time to time.
Section 4.18 Insurance. Each of the Borrower, the Guarantors and
the Subsidiaries has (i) obtained (either in the name of the Borrower or in such
Subsidiary's own name), or has caused its tenants to obtain (or, for tenants
approved by the Agent) to provide self-insurance with respect thereto), with
financially sound and reputable insurance companies, all-risk insurance in at
least such amounts and against at least such risks (including on all its
property, and public liability and worker's compensation) as are usually insured
against in the same general area by companies of established repute engaged in
the same or similar business and (ii) from and after the delivery of the Real
Property Documents pursuant to Section 5.27(b), such insurance as is required by
the Security Documents. The Borrower has preserved any and all rights which it
has under any fidelity or directors and officers insurance policy with respect
to claims arising out of actions which gave rise to the Existing Credit
Agreement Events of Default.
Section 4.19 Real Estate Investment Trust. The Borrower is qualified
under the Code as a real estate investment trust.
ARTICLE V
COVENANTS
The Borrower and (by incorporation by reference in the Guaranty) the
Guarantors agree that, so long as any Bank has any Commitment hereunder or any
amount payable hereunder or under any Note remains unpaid:
Section 5.01 Information. The Borrower will deliver to each of the
Banks:
(a) as soon as available and in any event within 90 days after the end
of each Fiscal Year, commencing with the Fiscal Year ending December 31, 2000,
either (i) an executed copy of the Annual Report on Form 10-K for such Fiscal
Year, or (ii) a consolidated balance sheet of the Borrower and the Guarantors as
of the end of such Fiscal Year and the related consolidated statements of
income,
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shareholders' equity and cash flows for such Fiscal Year, setting forth
in each case in comparative form the figures for the previous fiscal year, in
either case audited by Ernst & Young LLP or other independent public accountants
of nationally recognized standing, with such audit opinion to be free of
exceptions and qualifications not acceptable to the Required Banks;
(b) as soon as available and in any event within 45 days after the end
of each of the first 3 Fiscal Quarters of each Fiscal Year, commencing with the
Fiscal Quarter ending June 30, 2000, either (i) an executed copy of the
Quarterly Report on Form 10-Q for such Fiscal Quarter, or (ii) a consolidated
balance sheet of the Borrower and the Guarantors as of the end of such Fiscal
Quarter and the related statement of income and statement of cash flows for such
Fiscal Quarter and for the portion of the Fiscal Year ended at the end of such
Fiscal Quarter, setting forth in each case in comparative form the figures for
the corresponding Fiscal Quarter and the corresponding portion of the previous
Fiscal Year, all certified (subject to normal year-end adjustments) as to
fairness of presentation, GAAP and consistency by the chief financial officer or
the chief accounting officer of the Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in paragraphs (a) and (b) above, but in no event later
than the date such statements are due, a certificate, substantially in the form
of Exhibit F (a "Compliance Certificate"), of the chief financial officer or the
chief accounting officer of the Borrower (i) setting forth in reasonable detail
the calculations required to establish whether the Borrower was in compliance
with the requirements of Sections 5.05, 5.15 through 5.22, inclusive, and 5.26
on the date of such financial statements and (ii) stating whether any Default
exists on the date of such certificate and, if any Default then exists, setting
forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of annual financial
statements referred to in paragraph (a) above, a statement of the firm of
independent public accountants which reported on such statements to the effect
that nothing has come to their attention to cause them to believe that any
Default existed under Sections 5.15, 5.16, and 5.19 through 5.22, inclusive,
Section 5.26 or Section 6.01(e) or (f) on the date of such financial statements;
(e) within 5 Domestic Business Days after the Borrower becomes aware of
the occurrence of any Default, a certificate of the chief financial officer or
the chief accounting officer of the Borrower setting forth the details thereof
and the action which the Borrower is taking or proposes to take with respect
thereto;
(f) promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(g) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and annual, quarterly or monthly reports which the
Borrower shall have filed with the Securities and Exchange Commission;
(h) if and when any member of the Controlled Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA, a copy of such notice; or (iii)
receives notice from the PBGC under Title IV of ERISA of an intent to terminate
or appoint a trustee to administer any Plan, a copy of such notice;
(i) within 45 days after the end of each Fiscal Quarter, a Borrowing
Base Certificate as of the last day of the Fiscal Quarter just ended, and,
immediately prior to the date of any removal or addition
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of any Property from the Borrowing Base, a Borrowing Base Certificate as of such
date, giving effect to such removal or addition;
(j) simultaneously with the delivery of each set of financial
statements referred to in paragraphs (a) and (b) above, operating statements for
each Borrowing Base Property for the period covered by such financial
statements;
(k) on or before June 15, 2000, the consolidated balance sheet of the
Borrower and JDN DCI as of December 31, 1999 and the related consolidated
statements of income, shareholders' equity and cash flows for the Fiscal Year
then ended, reported on by Ernst & Young LLP without material qualification, and
a copy of the Borrower's Annual Report on Form 10-K for such Fiscal Year;
(l) as soon as received by management in final form, a copy of Ernst &
Young LLP's management letter relating to the financial reports described in
paragraph (k) above;
(m) furnish the projections described in Section 5.29 at the times
specified and pursuant to the terms contained in such section; and
(n) from time to time such additional information regarding the
financial position or business of the Borrower and the Guarantors as the Agent,
at the request of any Bank, may reasonably request.
Section 5.02 Inspection of Property, Books and Records. The
Borrower and the Guarantors will (i) keep proper books of record and account in
which full, true and correct entries in conformity with GAAP shall be made of
all material dealings and transactions in relation to its business and
activities; and (ii) permit representatives of any Bank at such Bank's expense
prior to the occurrence of a Default and at the Borrower's expense after the
occurrence of a Default 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. The Borrower and the
Guarantors agree to cooperate and assist in such visits and inspections, in each
case at such reasonable times and as often as may reasonably be desired.
Section 5.03 Maintenance of Existence. The Borrower shall and the
Guarantors will each maintain its corporate or partnership existence and carry
on its business in substantially the same manner and in substantially the same
fields as such business is now carried on and maintained.
Section 5.04 Dissolution. Neither the Borrower nor any of the
Guarantors shall suffer or permit dissolution or liquidation either in whole or
in part or redeem or retire any shares of its own stock or that of any
Guarantor, except an established stock repurchase program of which the Agent has
been notified or through corporate reorganization to the extent permitted by
Section 5.05.
Section 5.05 Consolidations, Mergers and Sales of Assets. Neither
the Borrower nor any of the Guarantors will consolidate or merge with or into,
or acquire all or substantially all of the assets or stock of any other Person,
or sell, lease or otherwise transfer all or any substantial part of its assets
to, any other Person, provided that:
(i) the Borrower may merge with another Person if (x) such
Person was organized under the laws of the United States of America or
one of its states, (y) the Borrower is the corporation surviving such
merger and (z) immediately after giving effect to such merger, no
Default shall have occurred and be continuing;
(ii) Guarantors may merge with one another, and the Guarantors
may sell, lease or otherwise transfer assets to the Borrower;
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(iii) any sale for cash only of Property by JDN DCI, pursuant
to reasonable terms which are no less favorable to JDN DCI than would
be obtained in a comparable arm's length transaction with a Person
which is not an Affiliate, for fair market value (as determined in good
faith by the Board of Directors of JDN DCI or the Borrower or an
Executive Committee thereof), provided that the proceeds thereof are
used by JDN DCI, or are distributed by JDN DCI to the Borrower or a
Guarantor to be used by it, for the purchase of comparable property, to
repay Debt or to fund new development, or otherwise to be retained by
it for working capital;
(iv) the sale by the Borrower or a Guarantor of a Relinquished
Property as part of a Section 1031 Exchange; provided that such sale is
pursuant to reasonable terms which are no less favorable to the
Borrower or such Guarantor than would be obtained in a comparable arm's
length transaction with a Person which is not an Affiliate, for fair
market value (as determined in good faith by the Board of Directors of
the Borrower or such Guarantor or an Executive Committee thereof),
provided that the proceeds thereof are used by the Borrower or such
Guarantor for the purchase of Replacement Property;
(v) the foregoing limitation on the acquisition of all or
substantially all the assets or stock of another Person shall not
prohibit, during any Fiscal Quarter, the acquisition of all or
substantially all of the assets or stock of another Person unless the
aggregate assets or stock acquired in a single acquisition or series of
related acquisitions of all or substantially all of the assets or stock
of another Person by the Borrower and the Guarantors during such Fiscal
Quarter constituted more than 20% of Gross Asset Value at the end of
the most recent Fiscal Quarter immediately preceding such Fiscal
Quarter;
(vi) the foregoing limitation on the sale, lease or other
transfer of assets shall not prohibit, during any Fiscal Quarter, a
transfer of assets (in a single transaction or in a series of related
transactions) unless the aggregate assets to be so transferred, when
combined with all other assets transferred, by the Borrower and the
Guarantors during such Fiscal Quarter and the immediately preceding 3
Fiscal Quarters (but in each case excluding transfers permitted under
clauses (i) through (iv) above), constituted more than 25% of Gross
Asset Value at the end of the most recent Fiscal Quarter immediately
preceding such Fiscal Quarter.
In the case of any Guarantor which transfers substantially all of its assets
pursuant to clause (vi) of the preceding sentence, and in the case of any
Guarantor the stock of which is being sold and with respect to which clause (vi)
would have been satisfied if the transaction had been a sale of assets of such
Guarantor, so long as such Guarantor does not own a Borrowing Base Property,
such Guarantor may dissolve and shall be entitled to obtain from the Agent a
written release from the Guaranty, provided that it can demonstrate to the
reasonable satisfaction of the Agent that (A) it has repaid in full all Debt
owed to the Borrower or any other Guarantor and (B) such sale was for cash and
in the case of an asset transfer, the net cash proceeds received in connection
therewith are being distributed to the Borrower as part of such dissolution, and
upon obtaining such written release, it shall no longer be a Guarantor for any
purpose hereunder.
Section 5.06 Use of Proceeds. The proceeds of the Loans may be
used for working capital and general corporate purposes, and proceeds of the
Initial New Advances may be used to pay all or part of the Anchor Tenant
Settlement Payment; provided, however, that no portion of the proceeds of the
Loans will be used by the Borrower or any Subsidiary (i) in connection with,
whether directly or indirectly, any tender offer for, or other acquisition of,
stock of any corporation with a view towards obtaining control of such other
corporation, unless such tender offer or other acquisition is to be made on a
negotiated basis with the approval of the Board of Directors of the Person to be
acquired, and the provisions of Section 5.17 would not be violated, (ii)
directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of purchasing or carrying any Margin Stock, or (iii) for any purpose
in violation of any applicable law or regulation.
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Section 5.07 Compliance with Laws; Payment of Taxes. The Borrower
and the Guarantors will, and will cause each member of the Controlled Group to,
comply with applicable laws (including but not limited to ERISA), regulations
and similar requirements of governmental authorities (including but not limited
to PBGC), except where the necessity of such compliance is being contested in
good faith through appropriate proceedings diligently pursued. The Borrower and
the Guarantors will pay promptly when due all taxes, assessments, governmental
charges, claims for labor, supplies, rent and other obligations which, if
unpaid, might become a lien against the Property of the Borrower or any
Guarantor, except liabilities being contested in good faith and against which,
if requested by the Agent, the Borrower will set up reserves in accordance with
GAAP.
Section 5.08 Insurance. The Borrower and the Guarantors will
maintain (i) (either in the name of the Borrower or in such Guarantor's own
name), or will cause its tenants to obtain, with financially sound and reputable
insurance companies (or, for tenants which have been approved in writing by the
Agent self insurance), all-risk insurance on all its property in at least such
amounts and against at least such risks (including on all its property, and
public liability and worker's compensation) as are usually insured against in
the same general area by companies of established repute engaged in the same or
similar business and (ii) such insurance as is required by the Security
Documents. The Borrower shall preserve any and all rights which it has under any
fidelity or directors and officers insurance policy with respect to claims
arising out of actions which gave rise to the Existing Credit Agreement Events
of Default.
Section 5.09 Change in Fiscal Year. The Borrower and each of the
Guarantors agrees that it will not change its Fiscal Year without the consent of
the Required Banks.
Section 5.10 Maintenance of Property. The Borrower and each
Guarantor shall maintain or caused to be maintained all of its Properties and
assets in good condition, repair and working order, ordinary wear and tear
excepted.
Section 5.11 Environmental Notices. The Borrower and each
Guarantor shall furnish to the Banks and the Agent prompt written notice of all
Environmental Liabilities, pending, threatened or anticipated Environmental
Proceedings, Environmental Notices, Environmental Judgments and Orders, and
Environmental Releases at, on, in, under or in any way affecting the Properties
or any adjacent property, and all facts, events, or conditions that could lead
to any of the foregoing.
Section 5.12 Environmental Matters. The Borrower and the
Guarantors will not, and will not permit any Third Party to, use, produce,
manufacture, process, treat, recycle, generate, store, dispose of, manage at, or
otherwise handle, or ship or transport to or from the Properties any Hazardous
Materials except for Hazardous Materials such as cleaning solvents, pesticides
and other similar materials used, produced, manufactured, processed, treated,
recycled, generated, stored, disposed, managed, or otherwise handled in the
ordinary course of business in compliance with all applicable Environmental
Requirements.
Section 5.13 Environmental Release. The Borrower and each
Guarantor agrees that upon the occurrence of an Environmental Release at or on
any of the Properties it will act immediately to investigate the extent of, and
to take appropriate remedial action to eliminate, such Environmental Release,
whether or not ordered or otherwise directed to do so by any Environmental
Authority.
Section 5.14 Transactions with Affiliates. Neither the Borrower
nor any of the Guarantors shall enter into, or be a party to, any transaction
with any Affiliate of the Borrower or such Guarantor (which Affiliate is not the
Borrower or a Guarantor), except as permitted by law and in the ordinary course
of business and pursuant to reasonable terms which are no less favorable to
Borrower or such Subsidiary than would be obtained in a comparable arm's length
transaction with a Person which is not an Affiliate.
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Section 5.15 Restricted Payments and Debt Repurchases. The
Borrower's Restricted Payments in any calendar year shall not exceed (i) for the
calendar year ending December 31, 2000, 100%, and (ii) for all calendar years
thereafter, 95% of "REIT taxable income" (as defined in the Code) for such
period, unless the Borrower must pay out an amount in excess of 100% or 95%, as
applicable, of REIT taxable income to permit the Borrower to preserve its status
as a real estate investment trust, or avoid payment of excise tax or income tax
related to undistributed income, under the applicable provisions of the Code and
except for Restricted Payments necessary to fund the purchase of Capital Stock
pursuant to employee benefit plans in the ordinary course of business or to
satisfy the requirements of stock option plans in effect as of the Closing Date.
The Borrower shall not directly or indirectly repurchase (or finance the
repurchase) of, or make any voluntary prepayments on, Debt of the types
described in clauses (i), (ii), (viii) and (x) of the definition of Debt
(whether secured or unsecured), other than Debt hereunder or under the Term
Credit Agreement or from the net proceeds of the sale of Property (other than
any Borrowing Base Property which has not been released pursuant to Section
5.27(b)).
Section 5.16 Loans or Advances. Loans and advances of the Borrower
and the Guarantors as of the Closing Date (other than to Subsidiaries, which are
set forth in Schedule 4.08, or in any Guarantor), are set forth in Schedule
5.16. Neither the Borrower nor any of the Guarantors shall make loans or
advances after the Closing Date to any Person except as permitted by Section
5.17 and except:
(i) loans or advances to employees and directors not exceeding
$1,000,000 in the aggregate principal amount outstanding at any time;
(ii) deposits required by government agencies or public
utilities;
(iii) Replacement Property Development Loans and loans or
advances from the Borrower to a Guarantor or from a Guarantor to the
Borrower or another Guarantor; and/or
(iv) other loans and advances by the Borrower and the
Guarantors to any JDN Venture which (x) are evidenced by notes (and, if
requested by the Agent, acting at the direction of the Required Banks,
with such notes, together with any related mortgage, have been assigned
to and pledged with the Agent, for the benefit of itself and the Banks,
as security for the payment of all obligations of the Borrower to the
Agent and the Banks hereunder) and (y) are in an amount which, together
with Investments permitted by clause (vi) of Section 5.17, do not
exceed 15% of Gross Asset Value as of the end of the most recent Fiscal
Quarter;
provided that after giving effect to the making of any loans, advances or
deposits permitted by this Section, and no Default shall be in existence or be
created thereby.
Section 5.17 Investments. Investments of the Borrower and the
Guarantors as of the Closing Date (other than in Subsidiaries, which are set
forth in Schedule 4.08, or in any Guarantors), are set forth on Schedule 5.17.
Neither the Borrower nor any of the Guarantors shall make Investments after the
Closing Date in any Person except as permitted by Section 5.16 and except
Investments in:
(i) direct obligations of the United States Government
maturing within one year;
(ii) certificates of deposit issued by a commercial bank whose
credit is satisfactory to the Agent;
(iii) commercial paper rated A1 or the equivalent thereof by
S&P or P1 or the equivalent thereof by Moody's and in either case
maturing within 6 months after the date of acquisition;
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(iv) tender bonds the payment of the principal of and interest
on which is fully supported by a letter of credit issued by a United
States bank whose long-term certificates of deposit are rated at least
AA or the equivalent thereof by S&P and Aa or the equivalent thereof by
Moody's,; and
(v) Investments consisting of the acquisition of all or
substantially all of the assets or stock of another Person permitted by
Section 5.05(iii); and/or
(vi) other Investments by the Borrower and the Guarantors in
an amount which, (x) together with loans and advances permitted by
clause (iv) of Section 5.16, do not exceed 15% of Gross Asset Value as
of the end of the most recent Fiscal Quarter, and (y) with respect to
Investments in Persons over which, after giving effect to such
Investment, the Borrower or the Guarantors do not have Control, do not
exceed 5% of Gross Asset Value as of the end of the most recent Fiscal
Quarter;
provided, however, immediately after giving effect to the making of any
Investment, no Default shall have occurred and be continuing.
Section 5.18 Restrictions on Ability of Guarantors to Pay
Dividends. The Borrower shall not permit any Guarantor to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any such Guarantor to (i) pay any
dividends or make any other distributions on its Capital Stock or any other
interest or (ii) make or repay any loans or advances to the Borrower or the
parent of such Guarantor.
Section 5.19 Ratio of Total Consolidated Liabilities to Gross
Asset Value. The ratio of Total Consolidated Liabilities to Gross Asset Value
shall at all times be equal to or less than 0.60 to 1.0.
Section 5.20 Ratio of Total Secured Debt to Gross Asset Value. The
ratio of Total Secured Debt to Gross Asset Value shall at all times be equal to
or less than 0.40 to 1.0.
Section 5.21 Ratio of EBITDA to Consolidated Interest Expense. The
ratio of EBITDA to Consolidated Interest Expense for the Fiscal Quarter just
ended and the 3 immediately preceding Fiscal Quarters will not be less than 2.0
to 1.00, calculated at the end of each Fiscal Quarter.
Section 5.22 Guarantees. Neither the Borrower nor any Guarantor
will create, assume or suffer to exist any Guarantees of Debt of other Persons,
except (i) Guarantees in existence on March 31, 2000 in the aggregate amount as
of March 31, 2000 of $22,214,794 and set forth on Schedule 5.22, (ii) Guarantees
of Debt of the Borrower or other Guarantors and (iii) other Guarantees in an
aggregate amount not exceeding at any time 10% of Gross Asset Value as of the
last day of the Fiscal Quarter just ended.
Section 5.23 Ownership. The Borrower shall at all times own 99% of
the capital stock of JDN DCI, subject to the following provisions.
Notwithstanding any provision of this Agreement to the contrary, the Banks
acknowledge and agree that the Borrower, in response to changes dictated by the
Ticket to Work and Work Incentives Improvement Act of 1999 (the "REIT Revision
Act") must effect a restructuring and/or change in ownership of JDN DCI during
the period between January 1, 2001 and April 30, 2001. It is the intent of the
parties to this Agreement that the Borrower be permitted to (1) divest itself of
a sufficient number of shares of the capital stock of JDN DCI such that it does
not, after April 30, 2001, own greater that 10% of the voting securities or
greater than 10% of the value of JDN DCI or (2) acquire directly or indirectly
50% or more of the voting securities of JDN DCI through a statutory merger or
otherwise, where the surviving corporation is a "taxable REIT subsidiary" (as
defined in the Code). If the Borrower acquires directly or indirectly 50% or
more of the voting securities of JDN
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DCI or its successor on or before April 30, 2001, the Borrower covenants and
agrees not to divest itself of control of JDN DCI or its successor during the
term of this Agreement without the consent of the Banks.
Section 5.24 Status as a REIT. The Borrower shall at all times
maintain its status as a real estate investment trust under the Code.
Section 5.25 Guaranty by the Initial Guarantors; New Subsidiaries
to Become Guarantors. Each of the Initial Guarantors shall become a Guarantor on
the Closing Date, as contemplated in Section 3.01. Any Subsidiary acquired or
created after the Closing Date, must become a Guarantor promptly upon becoming a
Significant Subsidiary, in each case by (x) executing and delivering to the
Agent a counterpart of the Guaranty and a counterpart of the Contribution
Agreement (which the Borrower agrees to execute when the additional Guarantor
executes it), thereby becoming a party to each of them, (y) delivering to the
Agent an opinion of counsel to such Subsidiary, in substantially the form and
substance of Exhibit B, but limited to such Subsidiary and the Guaranty and
Contribution Agreement, and excluding paragraph 2 thereof, and (z) delivering to
the Agent documents pertaining to the Subsidiary reasonably requested by the
Agent of the types described in paragraph (f) of Section 3.01, but relating to
the Guaranty and the Contribution Agreement. In addition, if any Borrowing Base
Property contributed or substituted after the Closing Date pursuant to Section
5.27(b) is owned by a Subsidiary which is not a Significant Subsidiary, it shall
nevertheless become a Guarantor pursuant to the foregoing and comply with the
provisions of Section 5.27(b) with respect to such Borrowing Base Property.
Section 5.26 Ratio of EBITDA to Consolidated Fixed Charges. The
ratio of EBITDA to Consolidated Fixed Charges for the Fiscal Quarter just ended
and the 3 immediately preceding Fiscal Quarters will not be less than 1.75 to
1.00, calculated at the end of each Fiscal Quarter.
Section 5.27 Collateral.
(a) It is the intent of the parties hereto that the Secured Obligations
shall be secured by the Collateral. On or prior to the Closing Date, the
Borrower, JDN AL and JDN Holdings will execute and deliver to the Collateral
Agent the Security Documents pertaining to the Properties described in Exhibit J
as Initial Borrowing Base Properties, and the Security Documents (other than the
Hazardous Materials Indemnity Agreement) shall be filed for record at the
earliest practicable time, and in any event prior to the making of any Initial
New Advances. Within 3 days after the delivery thereof to the Borrower, the
Borrower, JDN AL and JDN Holdings, as applicable, shall execute and deliver to
the Collateral Agent the Security Documents pertaining to the other Properties
described on Exhibit J as being Borrowing Base Properties, and the Security
Documents (other than the Hazardous Materials Indemnity Agreement) shall be
filed for record (as applicable) at the earliest practicable time. On and after
the Closing Date, the Borrower shall commence and diligently pursue the delivery
to the Agent of all of the Real Property Documents pertaining to each of the
Borrowing Base Properties, which, as to each Borrowing Base Property, shall be
delivered as soon as all items other than the items described in clauses (xi)
and (xii) of the definition of Real Property Documents are available, and within
90 days after the Closing Date, the Borrower and the Guarantors shall have
completed the delivery to the Agent all of the Real Property Documents
pertaining to each of the Borrowing Base Properties, which in all cases must be
reasonably satisfactory to the Agent; provided, however, as to the items
described in clauses (xi) and (xii) of the definition of Real Property
Documents, such obligation shall be to use commercially reasonable efforts
during such 90 day period (and thereafter) to obtain and deliver such items to
the Collateral Agent from Major Tenants and, if requested by the Agent from time
to time, from any other tenants. The Borrower and Agent shall agree on a
stipulated value for establishing mortgagee title insurance Coverage on each
Borrowing Base Property. The Borrower shall pay all recording fees and costs and
stamp, intangible or other taxes payable in connection with the filing for
record the Security Documents.
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(b) The parties acknowledge and agree that the Properties on Exhibit J
as of the Closing Date will, on the Final Borrowing Base Perfection Date (and
assuming no change in Net Operating Income) produce an aggregate Borrowing Base
of $169,206,912. In order to permit the Borrower to have access to the full
aggregate amount of the Commitments, while preserving the right of all the Banks
to approve the beginning Borrowing Base Properties, the Borrower may, for a
period of 6 months from the Closing Date, offer to contribute an additional
Property (or Properties) as a Borrowing Base Property, and any such additional
Property (an "Additional Contributed Beginning Property") shall become a
Borrowing Base Property only if approved by each of the Banks and upon
satisfying all other criteria for constituting a Borrowing Base Property. In the
event that any Borrowing Base Property fails to satisfy the criteria for
constituting a Borrowing Base Property set forth in the definition thereof such
Property being an "Ineligible Property" so long as it fails to satisfy such
criteria, but upon subsequently satisfying such criteria, if such Property has
not been released pursuant hereunder, and not an Ineligible Property, the
Borrower shall notify the Agent thereof as soon as it becomes aware thereof and
such fact shall be included in the next Borrowing Base Certificate, and (i) such
Ineligible Property shall not be included in the calculation of the Borrowing
Base for purposes of Borrowings pursuant to Section 2.01, (ii) the mandatory
prepayment provisions of Section 2.10(b) shall apply, and (iii) the Collateral
Agent shall nevertheless not release such Property from the related Security
Documents unless and until a release is permitted pursuant and subject to this
Section 5.27(b). No Borrowing Base Property may be released without the consent
of all of the Banks, or contributed without the consent of the Required Banks
(or all of the Banks, with respect to an Additional Contributed Beginning
Property), in each case in their reasonable discretion; provided, that the
Borrower or a Guarantor shall be entitled to a release of a Borrowing Base
Property: (1) in exchange for a substitute Property having equal or greater
value (using the Borrowing Base calculation with respect thereto) and quality
(including as to tenant mix and tenant credit quality) as is determined by the
Agent and the Required Banks in their reasonable discretion and is in all other
respects acceptable to the Agent and the Required Banks in their reasonable
discretion, subject to the last sentence of this paragraph (b); or (2) such
Borrowing Base Property is being released for sale or refinancing and, except
with respect to an Ineligible Property, the Agent receives, for the ratable
benefit of the Banks, a prepayment on the Loans in connection therewith in an
amount equal to the greater of (x) the net proceeds from such sale or
refinancing (net of direct customary closing expenses and fees) and (y) an
amount equal to 108% of the Borrowing Base attributable to such Borrowing Base
Property, and the aggregate Commitments are permanently reduced by the amount of
such prepayment. In connection with (x) any such request for a release,
contribution or substitution, the Borrower shall provide to Agent and the Banks
an analysis of any proposed release, contribution (including an Additional
Contributed Beginning Property) or substitution of a Borrowing Base Property
that shall demonstrate Borrower's continued compliance with the Loan Documents
after giving effect to such release, contribution or substitution; and (y) any
such request for a contribution (including an Additional Contributed Beginning
Property) or substitution, the Borrower shall pay to the Agent and Banks an
appropriate fee (determined by Agent) to accommodate the review and
administration of such contribution or substitution. Such fees shall be no less
than $5,000 to the Agent and $20,000 to the Banks in each instance or
combination of instances whereby more than one property is simultaneously
substituted or contributed. In no event shall the combined fee in any instance
exceed $40,000. As a condition of any contribution or substitution, the Agent
shall have received the Security Documents and Real Property Documents
satisfactory to it with respect to the contributed or replacement Property and
all other requirements for constituting a Borrowing Base Property shall have
been satisfied. In addition, whenever a Borrowing Base Property is released,
contributed (including an Additional Contributed Beginning Property) and/or
substituted, the Borrower shall provide to the Agent a revised Exhibit J
containing the relevant information as to all of the Borrowing Base Properties
after giving effect to such release, contribution and/or substitution, which
revised Exhibit J shall be distributed to the Banks by the Agent upon the
Agent's determination that it is in compliance with the terms of this Agreement.
Upon request of any Bank, to satisfy the bank regulatory or examination
requirements or requests of internal or external bank examiners, the Agent
shall, at the expense of the Borrower, but in the name of the Agent, acting on
behalf of the Banks, obtain written appraisal reports on any or all of the
Borrowing Base Properties which (i) complies with Title XI of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989, as amended, 12 U.S.C.
3331, et seq., and The Regulations and Statements of General Policy on
Appraisals promulgated by the Federal Deposit Insurance Corporation, 12 C.F.R.
Part 32, as amended, and (ii) is performed by a state-certified real estate
appraiser certified under the laws of any state. Such appraisals shall be no
more frequent than once per 12 month period for any Property.
Section 5.28 Financial Adviser The Borrower shall use its best
efforts to retain a financial advisor to assess alternative capital plans, at
the earliest practicable time, and in any event within 6 months after the
Closing Date. Such financial advisor shall be either (i) a reputable investment
banking
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firm which is or is affiliated with a member of the New York Stock Exchange with
total assets (including assets of its affiliates) of at least $500,000,000 or
(ii) or approved by the Required Banks
Section 5.29 Identification of Sources; Projection of Sources and
Uses of Funds The Borrower shall (i) identify and establish, to the reasonable
satisfaction of the Agent and the Required Banks, the sources of funds (either
externally financed or internally generated) that are required to fund its
Investments and operations (including the funding of projects to their
completion), while maintaining compliance with the financial covenants contained
herein and maintaining current the payment of all operational, development and
financial obligations and (ii) provide to the Agent and the Banks a quarterly
projection of its sources and uses of cash in form and substance satisfactory to
the Agent and the Required Banks, highlighting all new such Investments and
operations and identifying the sources of funds available to fund such
Investments and operations.
ARTICLE VI
DEFAULTS
Section 6.01 Events of Default. If one or more of the following
events ("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of any Loan
or shall fail to pay any interest on any Loan within 5 Domestic Business Days
after such interest shall become due, or shall fail to pay any fee or other
amount payable hereunder within 5 Domestic Business Days after such fee or other
amount becomes due; or
(b) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.01(e), 5.01(i), 5.02(ii), 5.03 through 5.06, inclusive,
or Sections 5.17 through 5.26, inclusive; or
(c) the Borrower or any Guarantor shall fail to observe or perform any
covenant or agreement contained or incorporated by reference in this Agreement
(other than those covered by paragraph (a) or (b) above) or the Guaranty or any
of the Security Documents and such failure shall not have been cured within 30
days after the earlier to occur of (i) written notice thereof has been given to
the Borrower or such Guarantor by the Agent at the request of any Bank or (ii)
the Borrower or such Guarantor otherwise becomes aware of any such failure; or
(d) any representation, warranty, certification or statement made by
the Borrower or any Guarantor in Article IV of this Agreement or the Guaranty or
any of the Security Documents or in any certificate, financial statement or
other document delivered pursuant to this Agreement or the Guaranty shall prove
to have been incorrect or misleading in any material respect when made (or
deemed made); or
(e) the Borrower or any Guarantor shall fail to make any payment in
respect of Debt in an aggregate principal amount outstanding in excess of
$5,000,000 (other than the Notes) when due or within any applicable grace
period; or
(f) any event or condition shall occur which results in the
acceleration of the maturity of Debt in an aggregate principal amount
outstanding in excess of $5,000,000 of the Borrower or any Guarantor (including,
without limitation, any required mandatory prepayment or "put" of such Debt to
the Borrower or any Guarantor) or enables (or, with the giving of notice or
lapse of time or both, would enable) the holders of such Debt or commitment or
any Person acting on such holders' behalf to accelerate the maturity thereof or
terminate any such commitment (including, without limitation, any required
mandatory prepayment or "put" of such Debt to the Borrower or any Guarantor);
provided, however, that there shall be excluded from the foregoing the Existing
Mortgage Defaulted Debt, so long as it has not been accelerated; or
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(g) failure of any JDN Venture to make any payment when due, including
payment of principal or interest (whether by acceleration or otherwise), on any
obligation of such JDN Venture, the aggregate outstanding principal amount of
which (whether or not then due) exceeds $5,000,000, or there shall occur any
event or condition which results in the acceleration of the maturity of such
obligation (including, without limitation, any required mandatory prepayment of
"put" to such JDN Venture or to the Borrower or any Guarantor) or the
termination of any commitment pertaining thereto; provided, however, that there
shall be excluded from the foregoing the Existing Mortgage Defaulted Debt, so
long as it has not been accelerated; or
(h) the Borrower or any Guarantor shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally, or shall admit in writing its
inability, to pay its debts as they become due, or shall take any corporate or
partnership action to authorize any of the foregoing; or
(i) an involuntary case or other proceeding shall be commenced against
the Borrower or any Guarantor seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against the Borrower or any Guarantor under the federal
bankruptcy laws as now or hereafter in effect; or
(j) the Borrower or any member of the Controlled Group shall fail to
pay when due any material amount which it shall have become liable to pay to the
PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a
Plan or Plans shall be filed under Title IV of ERISA by the Borrower, any member
of the Controlled Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to
terminate or to cause a trustee to be appointed to administer any such Plan or
Plans or a proceeding shall be instituted by a fiduciary of any such Plan or
Plans to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall
not have been dismissed within 30 days thereafter; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree adjudicating that
any such Plan or Plans must be terminated;
(k) one or more judgments or orders for the payment of money in an
aggregate amount in excess of $5,000,000 shall be rendered against the Borrower
or any Guarantor and such judgment or order shall continue unsatisfied and
unstayed for a period of 30 days; or
(l) a federal tax lien shall be filed against the Borrower or any
Guarantor under Section 6323 of the Code or a lien of the PBGC shall be filed
against the Borrower or any Subsidiary under Section 4068 of ERISA and in either
case such lien shall remain undischarged for a period of 25 days after the date
of filing; or
(m) (i) any Person or two or more Persons acting in concert, other than
J. Donald Nichols, Elizabeth L. Nichols or their immediate family members, or
trusts or other entities established for the benefit of any of them, shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of 1934) of
20% or more of the outstanding shares of the voting stock of the Borrower; or
(ii) as of any date a majority of the Board of Directors of the Borrower
consists of individuals who were not either (A) directors of the Borrower as of
the corresponding date of the previous year, (B) selected or nominated to become
directors by the Board
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of Directors of the Borrower of which a majority consisted of individuals
described in clause (A), or (C) selected or nominated to become directors by the
Board of Directors of the Borrower of which a majority consisted of individuals
described in clause (A) and individuals described in clause (B); or
(n) the occurrence of any event, act, occurrence, or condition which
the Required Banks determine has caused a Material Adverse Effect; or
(o) (i) the Borrower or any Guarantor shall deny or disaffirm its
obligations under any Security Document or (ii) any Security Document shall
cease to be in full force and effect, other than solely as a result of acts or
omissions of the Collateral Agent, and except to the extent fully covered by
title insurance, unless, within 30 days of notice to the Borrower by the Agent,
the Borrower or a Guarantor, as the case may be, has executed Security Documents
which effect a complete cure, or the Borrowing Base Property involved has been
replaced by a new Borrowing Base Property pursuant and subject to the provisions
of Section 5.27(b);
then, and in every such event, (i) the Agent shall, if requested by the Required
Banks, by notice to the Borrower terminate the Commitments and they shall
thereupon terminate, (ii) the Agent shall, if requested by the Required Banks,
by notice to the Borrower declare the Notes (together with accrued interest
thereon), and all other amounts payable hereunder and under the other Loan
Documents, to be, and the Notes, including the Swing Loan Note (together with
accrued interest thereon), and all other amounts payable hereunder and under the
other Loan Documents shall thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower together with interest at the Default Rate
accruing on the principal amount thereof from and after the date of such Event
of Default; provided that if any Event of Default specified in paragraph (h) or
(i) above occurs with respect to the Borrower, without any notice to the
Borrower or any other act by the Agent or the Banks, the Commitments shall
thereupon terminate and the Notes (together with accrued interest thereon) and
all other amounts payable hereunder and under the other Loan Documents shall
automatically and without notice become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower together with interest thereon at the Default Rate
accruing on the principal amount thereof from and after the date of such Event
of Default, and (iii) the Agent shall exercise such rights, powers and remedies
under the Security Documents as shall be requested by the Required Banks, and
apply the proceeds of any such actions pursuant to the provisions thereof.
Notwithstanding the foregoing, the Agent shall have available to it all other
remedies at law or equity, and shall exercise any one or all of them at the
request of the Required Banks. Following acceleration of the Notes by the Agent,
nothing contained in this Agreement shall limit the right of a Bank from
initiating or conducting any litigation or collection proceedings, other than
with respect to the Collateral, or from exercising any other rights or remedies,
with respect to the Note on which it is named as payee.
Section 6.02 Notice of Default. The Agent shall give notice to the
Borrower of any Default under Section 6.01(c) promptly upon being requested to
do so by any Bank and shall thereupon notify all the Banks thereof.
ARTICLE VII
THE AGENT
Section 7.01 Appointment; Powers and Immunities. Each Bank hereby
irrevocably appoints and authorizes the Agent to act as its agent hereunder and
under the other Loan Documents, and as the Collateral Agent under the Security
Documents, with such powers as are specifically delegated to the Agent by the
terms hereof and thereof, together with such other powers as are reasonably
incidental thereto. The Agent: (a) shall have no duties or responsibilities
except as expressly set forth in this Agreement and the other Loan Documents,
and shall not by reason of this Agreement or any other Loan Document be a
trustee for any Bank; (b) shall not be responsible to the Banks for any
recitals, statements,
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representations or warranties contained in this Agreement or any other Loan
Document, or in any certificate or other document referred to or provided for
in, or received by any Bank under, this Agreement or any other Loan Document, or
for the validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document or any other document referred to or
provided for herein or therein or for the value, title, condition, fitness for
use of or otherwise with respect to the Collateral or as to the perfection or
priority of the Liens or security interests created thereby (and it makes no
representation or warranty with respect thereto), or for insuring or inspecting
the Collateral or for paying or discharging any tax, assessment, governmental
charge or Lien affecting the Collateral, or for any failure by the Borrower to
perform any of its obligations hereunder or thereunder; (c) shall not be
required to initiate or conduct any litigation or collection proceedings
hereunder or under any other Loan Document except to the extent requested by the
Required Banks and shall not be liable for any action taken or omitted to be
taken at the direction of the Required Banks, and (d) shall not be responsible
for any action taken or omitted to be taken by it hereunder or under any other
Loan Document or any other document or instrument referred to or provided for
herein or therein or in connection herewith or therewith, except for its own
gross negligence or willful misconduct. The Agent may employ agents and
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any such agents or attorneys-in-fact selected by it with reasonable care. The
Agent, in its capacity as Collateral Agent under the Security Documents, with
the consent of the Required Banks, shall have power to appoint one or more
persons to act as co-agent or co-agents, jointly with the Collateral Agent, or
separate agent or separate agents, of all or any part of the Collateral, and to
vest in such person or persons, in such capacity, such title to the Collateral
or any part thereof, and such rights, powers, duties, trusts or obligations as
the Collateral Agent, with the consent of the Required Banks, may consider
necessary or desirable in any case only for the purpose of meeting any legal
requirements of any jurisdiction in which any part of the Collateral may at the
time be located. Absent any specific agreement to the contrary, any co-agent or
co-agents appointed hereunder shall, to the extent applicable, have the rights,
obligations and duties of the Collateral Agent hereunder. The provisions of this
Article VII are solely for the benefit of the Agent and the Banks, and the
Borrower shall not have any rights as a third party beneficiary of any of the
provisions hereof. In performing its functions and duties under this Agreement
and under the other Loan Documents, the Agent shall act solely as agent of the
Banks and does not assume and shall not be deemed to have assumed any obligation
towards or relationship of agency or trust with or for the Borrower. The duties
of the Agent shall be ministerial and administrative in nature, and the Agent
shall not have by reason of this Agreement or any other Loan Document a
fiduciary relationship in respect of any Bank. Except as otherwise provided in
this Agreement, during the existence of a Default or an Event of Default, the
Agent, as Collateral Agent, agrees to make only such demands and give only such
notices under the Security Documents as it is instructed in writing to give, and
to take only such action to enforce the Security Documents and to only collect
and/or dispose of the Collateral or any portion thereof as it is instructed in
writing to take, collect or dispose of any of the Collateral pursuant to
applicable law, by the Required Banks. The Collateral Agent agrees not to
release the Collateral or any portion thereof except in accordance with the
provisions of this Agreement and the other Loan Documents. The Collateral Agent
shall not grant any consent (except as expressly contemplated by this Agreement
or the other Loan Documents) or waiver in connection with, execute any amendment
to or modification of, or exercise any discretion granted to it under any of the
Security Documents, except in accordance with Section 9.06. Notwithstanding
anything herein to the contrary, the Collateral Agent shall not be required to
take any action that is in its opinion contrary to law or to the terms of this
Agreement or any of the Security Documents, or would in its reasonable opinion
subject it or any of its agents, officers, employees or directors to personal
liability.
Section 7.02 Reliance by Agent. The Agent shall be entitled to
rely upon any certification, notice or other communication (including any
thereof by telephone, telecopier, telegram or cable) believed by it to be
genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants or other experts selected by the Agent. As to any
matters not expressly provided for by this Agreement or any
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other Loan Document, the Agent shall in all cases be fully protected in acting,
or in refraining from acting, hereunder and thereunder in accordance with
instructions signed by the Required Banks, and such instructions of the Required
Banks in any action taken or failure to act pursuant thereto shall be binding on
all of the Banks.
Section 7.03 Defaults. The Agent shall not be deemed to have
knowledge of the occurrence of a Default or an Event of Default (other than the
nonpayment of principal of or interest on the Loans) unless the Agent has
received notice from a Bank or the Borrower specifying such Default or Event of
Default and stating that such notice is a "Notice of Default". In the event that
the Agent receives such a notice of the occurrence of a Default or an Event of
Default, the Agent shall give prompt notice thereof to the Banks. The Agent
shall give each Bank prompt notice of each nonpayment of principal of or
interest on the Loans whether or not it has received any notice of the
occurrence of such nonpayment. The Agent shall (subject to Section 9.06) take
such action hereunder with respect to such Default or Event of Default as shall
be directed by the Required Banks, provided that, unless and until the Agent
shall have received such directions, the Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests of
the Banks.
Section 7.04 Rights of Agent and its Affiliates as a Bank. With
respect to the Loans made by the Agent and any Affiliate of the Agent, Wachovia
in its capacity as a Bank hereunder and any Affiliate of the Agent or such
Affiliate in its capacity as a Bank hereunder shall have the same rights and
powers hereunder as any other Bank and may exercise the same as though Wachovia
were not acting as the Agent, and the term "Bank" or "Banks" shall, unless the
context otherwise indicates, include Wachovia in its individual capacity and any
Affiliate of the Agent in its individual capacity. The Agent and any Affiliate
of the Agent may (without having to account therefor to any Bank) accept
deposits from, lend money to and generally engage in any kind of banking, trust
or other business with the Borrower (and any of the Borrower's Affiliates) as if
Wachovia were not acting as the Agent, and the Agent and any Affiliate of the
Agent may accept fees and other consideration from the Borrower (in addition to
any agency fees and arrangement fees heretofore agreed to between the Borrower
and the Agent) for services in connection with this Agreement or any other Loan
Document or otherwise without having to account for the same to the Banks.
Section 7.05 Indemnification. Each Bank severally agrees to
indemnify the Agent, to the extent the Agent shall not have been reimbursed by
the Borrower, ratably in accordance with its Commitment, for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including, without limitation, counsel fees and disbursements)
or disbursements of any kind and nature whatsoever, which may be imposed on,
incurred by or asserted against the Agent in any way relating to or arising out
of this Agreement or any other Loan Document or any other documents contemplated
by or referred to herein or therein or the transactions contemplated hereby or
thereby, including, without limitation, any environmental liabilities arising
from or related to any of the Collateral and any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses arising
from any action taken at the direction of the Required Banks to enforce the
Security Documents (excluding, unless an Event of Default has occurred and is
continuing, the normal administrative out of pocket costs and expenses incident
to the performance of its agency duties hereunder) or the enforcement of any of
the terms hereof or thereof or any such other documents; provided that no Bank
shall be liable for any of the foregoing to the extent they arise from the
negligence or willful misconduct of the Agent.
Section 7.06 Consequential Damages. THE AGENT SHALL NOT BE
RESPONSIBLE OR LIABLE TO ANY BANK, THE BORROWER OR ANY OTHER PERSON OR ENTITY
FOR ANY PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A
RESULT OF THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
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Section 7.07 Payee of Note Treated as Owner. The Agent may deem
and treat the payee of any Note as the owner thereof for all purposes hereof
unless and until a written notice of the assignment or transfer thereof shall
have been filed with the Agent and the provisions of Section 9.08(c) have been
satisfied. Any requests, authority or consent of any Person who at the time of
making such request or giving such authority or consent is the holder of any
Note shall be conclusive and binding on any subsequent holder, transferee or
assignee of that Note or of any Note or Notes issued in exchange therefor or
replacement thereof.
Section 7.08 Nonreliance on Agent and Other Banks. Each Bank
agrees that it has, independently and without reliance on the Agent or any other
Bank, and based on such documents and information as it has deemed appropriate,
made its own credit analysis of the Borrower and decision to enter into this
Agreement and that it will, independently and without reliance upon the Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement or any of the other Loan
Documents. The Agent shall not be required to keep itself (or any Bank) informed
as to the performance or observance by the Borrower of this Agreement or any of
the other Loan Documents or any other document referred to or provided for
herein or therein or to inspect the properties or books of the Borrower or any
other Person. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Agent hereunder or under
the other Loan Documents, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the affairs,
financial condition or business of the Borrower or any other Person (or any of
their Affiliates) which may come into the possession of the Agent.
Section 7.09 Failure to Act. Except for action expressly required
of the Agent hereunder or under the other Loan Documents, the Agent shall in all
cases be fully justified in failing or refusing to act hereunder and thereunder
unless it shall receive further assurances to its satisfaction by the Banks of
their indemnification obligations under Section 7.05 against any and all
liability and expense which may be incurred by the Agent by reason of taking,
continuing to take, or failing to take any such action.
Section 7.10 Resignation or Removal of Agent. Subject to the
appointment and acceptance of a successor Agent as provided below, the Agent may
resign at any time (both as Agent and as Collateral Agent) by giving notice
thereof to the Banks and the Borrower and the Agent (both as Agent and as
Collateral Agent) may be removed at any time with or without cause by the
Required Banks. Upon any such resignation or removal, the Required Banks shall
have the right to appoint a successor Agent (both as Agent and as Collateral
Agent). If no successor Agent shall have been so appointed by the Required Banks
and shall have accepted such appointment within 30 days after the retiring
Agent's notice of resignation or the Required Banks' removal of the retiring
Agent, then the retiring Agent may, on behalf of the Banks, appoint a successor
Agent (both as Agent and as Collateral Agent). Any successor Agent shall be a
bank which has a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder, and the
retiring Agent shall cooperate in the execution and recording of any amendments
to the Security Documents which are necessary to reflect the identity of the
successor Collateral Agent. After any retiring Agent's resignation or removal
hereunder as Agent, the provisions of this Article VII shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as the Agent hereunder.
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ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
Section 8.01 Basis for Determining Interest Rate Inadequate or
Unfair. If on or prior to the first day of any Interest Period:
(a) the Agent determines that deposits in Dollars (in the applicable
amounts) are not being offered in the relevant market for such Interest Period,
or
(b) the Required Banks advise the Agent that the London Interbank
Offered Rate as determined by the Agent will not adequately and fairly reflect
the cost to such Banks of funding the Euro-Dollar Loans for such Interest
Period,
the Agent shall forthwith give notice thereof to the Borrower and the Banks,
whereupon until the Agent notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, the obligations of the Banks to make
Euro-Dollar Loans specified in such notice shall be suspended. Unless the
Borrower notifies the Agent at least 2 Domestic Business Days before the date of
any Borrowing of such Euro-Dollar Loans for which a Notice of Borrowing has
previously been given that it elects not to borrow on such date, such Borrowing
shall instead be made as a Base Rate Borrowing.
Section 8.02 Illegality. If, after the date hereof, the adoption
of any applicable law, rule or regulation, or any change therein or any existing
or future law, rule or regulation, 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 (any such
agency being referred to as an "Authority" and any such event being referred to
as a "Change of Law"), or compliance by any Bank (or its Lending Office) with
any request or directive (whether or not having the force of law) of any
Authority shall make it unlawful or impossible for any Bank (or its Lending
Office) to make, maintain or fund its Euro-Dollar Loans and such Bank shall so
notify the Agent, the Agent shall forthwith give notice thereof to the other
Banks and the Borrower, whereupon until such Bank notifies the Borrower and the
Agent that the circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Dollar Loans shall be suspended. Before
giving any notice to the Agent pursuant to this Section, such Bank shall
designate a different Lending Office if such designation will avoid the need for
giving such notice and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. If such Bank shall determine that it may not
lawfully continue to maintain and fund any of its outstanding Euro-Dollar Loans
to maturity and shall so specify in such notice, the Borrower shall immediately
prepay in full the then outstanding principal amount of each Euro-Dollar Loan of
such Bank, together with accrued interest thereon and any amount due such Bank
pursuant to Section 8.05(a). Concurrently with prepaying each such Euro-Dollar
Loan, the Borrower shall borrow a Base Rate Loan in an equal principal amount
from such Bank (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other Banks), and
such Bank shall make such a Base Rate Loan.
Section 8.03 Increased Cost and Reduced Return.
(a) If after the date hereof, a Change of Law or compliance by any Bank
(or its Lending Office) with any request or directive (whether or not having the
force of law) of any Authority:
(i) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement (including, without limitation,
any such requirement imposed by the Board of Governors of the Federal
Reserve System, but excluding with respect to any Euro-Dollar Loan any
such requirement included in an applicable Euro-Dollar Reserve
Percentage) against assets of, deposits with or for the account of, or
credit extended by, any Bank (or its Lending Office); or
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(ii) shall impose on any Bank (or its Lending Office) or on
the United States market for certificates of deposit or the London
interbank market any other condition affecting its Euro-Dollar Loans,
its Notes or its obligation to make Euro-Dollar Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Loan, or to reduce the amount
of any sum received or receivable by such Bank (or its Lending Office) under
this Agreement or under its Notes with respect thereto, by an amount deemed by
such Bank to be material, then, within 15 days after demand by such Bank (with a
copy to the Agent), the Borrower shall pay to such Bank such additional amount
or amounts as will compensate such Bank for such increased cost or reduction.
(b) If any Bank shall have determined that after the date hereof the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change therein, or any change in the interpretation or administration
thereof, or compliance by any Bank (or its Lending Office) with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any Authority, has or would have the effect of reducing the rate of return on
such Bank's capital as a consequence of its obligations hereunder to a level
below that which such Bank could have achieved but for such adoption, change or
compliance (taking into consideration such Bank's policies with respect to
capital adequacy) by an amount deemed by such Bank to be material, then from
time to time, within 15 days after demand by such Bank, the Borrower shall pay
to such Bank such additional amount or amounts as will compensate such Bank for
such reduction.
(c) Each Bank will promptly notify the Borrower and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section and will designate a
different Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. A certificate of any Bank claiming
compensation under this Section and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
(d) The provisions of this Section 8.03 shall be applicable with
respect to any Participant, Assignee or other Transferee, and any calculations
required by such provisions shall be made based upon the circumstances of such
Participant, Assignee or other Transferee.
Section 8.04 Base Rate Loans Substituted for Euro-Dollar Loans. If
(i) the obligation of any Bank to make or maintain any Euro-Dollar Loans has
been suspended pursuant to Section 8.02 or (ii) any Bank has demanded
compensation under Section 8.03, and the Borrower shall, by at least 5
Euro-Dollar Business Days' prior notice to such Bank through the Agent, have
elected that the provisions of this Section shall apply to such Bank, then,
unless and until such Bank notifies the Borrower that the circumstances giving
rise to such suspension or demand for compensation no longer apply:
(a) all Loans which would otherwise be made by such Bank as Euro-Dollar
Loans shall be made instead as Base Rate Loans (in all cases interest and
principal on such Loans shall be payable contemporaneously with the related
Euro-Dollar Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans has been repaid, all payments
of principal which would otherwise be applied to repay such Euro-Dollar Loans
shall be applied to repay its Base Rate Loans instead.
Section 8.05 Compensation. Upon the request of any Bank, delivered
to the Borrower and the Agent, the Borrower shall pay to such Bank such amount
or amounts as shall compensate such Bank for any loss, cost or expense incurred
by such Bank as a result of:
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(a) any payment or prepayment (pursuant to Section 2.09, 2.10, 6.01,
8.02 or otherwise) of a Euro-Dollar Loan on a date other than the last day of an
Interest Period for such Loan; or
(b) any failure by the Borrower to prepay a Euro-Dollar Loan on the
date for such prepayment specified in the relevant notice of prepayment
hereunder; or
(c) any failure by the Borrower to borrow a Euro-Dollar Loan on the
date for the Euro-Dollar Borrowing of which such Euro-Dollar Loan is a part
specified in the applicable Notice of Borrowing delivered pursuant to Section
2.02;
such compensation to include, without limitation, if such Euro-Dollar Loan is a
Euro-Dollar Loan, an amount equal to the excess, if any, of (x) the amount of
interest which would have accrued on the amount so paid or prepaid or not
prepaid or borrowed for the period from the date of such payment, prepayment or
failure to prepay or borrow to the last day of the then current Interest Period
for such Euro-Dollar Loan (or, in the case of a failure to prepay or borrow, the
Interest Period for such Euro-Dollar Loan which would have commenced on the date
of such failure to prepay or borrow) at the applicable rate of interest for such
Euro-Dollar Loan provided for herein over (y) the amount of interest (as
reasonably determined by such Bank) such Bank would have paid on deposits in
Dollars of comparable amounts having terms comparable to such period placed with
it by leading banks in the London interbank market.
ARTICLE IX
MISCELLANEOUS
Section 9.01 Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including telecopier or similar
writing) and shall be given to such party at its address or telecopier number
set forth on the signature pages hereof or such other address or telecopier
number as such party may hereafter specify for the purpose by notice to each
other party. Each such notice, request or other communication shall be effective
(i) if given by telecopier, when such telecopy is transmitted to the telecopier
number specified in this Section and the confirmation is received, (ii) if given
by mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid or (iii) if given by any other
means, when delivered at the address specified in this Section; provided that
notices to the Agent under Article II or Article VIII shall not be effective
until received.
Section 9.02 No Waivers. No failure or delay by the Agent or any
Bank in exercising any right, power or privilege hereunder or under any Note or
other 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 herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section 9.03 Expenses; Documentary Taxes. The Borrower shall pay
(i) all reasonable out-of-pocket expenses of the Agent, including reasonable
fees and disbursements of special counsel for the Agent, in connection with the
preparation of this Agreement and the other Loan Documents, any waiver or
consent hereunder or thereunder or any amendment hereof or thereof or any
Default or alleged Default hereunder or thereunder and (ii) if a Default occurs,
all reasonable out-of-pocket expenses incurred by the Agent and the Banks,
including reasonable fees and disbursements of counsel, in connection with such
Default and collection and other enforcement proceedings resulting therefrom,
including reasonable out-of-pocket expenses incurred in enforcing this Agreement
and the other Loan Documents and all Enforcement Costs. The Borrower shall
indemnify the Agent and each Bank against any transfer taxes, documentary taxes,
assessments or charges made by any Authority by reason of the execution and
delivery of this Agreement or the other Loan Documents.
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Section 9.04 Indemnification. The Borrower shall indemnify the
Agent, the Banks and each Affiliate thereof and their respective directors,
officers, employees and agents from, and hold each of them harmless against, any
and all losses, liabilities, claims or damages to which any of them may become
subject, insofar as such losses, liabilities, claims or damages arise out of or
result from any actual or proposed use by the Borrower of the proceeds of any
extension of credit by any Bank hereunder or breach by the Borrower of this
Agreement or any other Loan Document or from any investigation, litigation
(including, without limitation, any actions taken by the Agent or any of the
Banks to enforce this Agreement or any of the other Loan Documents) or other
proceeding (including, without limitation, any threatened investigation or
proceeding) relating to the foregoing, or from use or condition of the
Collateral or from any claims arising or asserted as a result of the use,
condition, occupancy or ownership by the Borrower or any Guarantor of any of the
Collateral, or by reason of the interests of the Collateral Agent therein or
arising from its serving in such capacity, and the Borrower shall reimburse the
Agent and each Bank, and each Affiliate thereof and their respective directors,
officers, employees and agents, upon demand for any expenses (including, without
limitation, legal fees) incurred in connection with any such investigation or
proceeding; but excluding any such losses, liabilities, claims, damages or
expenses incurred by reason of the gross negligence or willful misconduct of the
Person to be indemnified.
Section 9.05 Setoff; Sharing of Setoffs.
(a) The Borrower hereby grants to the Agent and each Bank a lien for
all indebtedness and obligations owing to them from the Borrower upon all
deposits or deposit accounts, of any kind, or any interest in any deposits or
deposit accounts thereof, now or hereafter pledged, mortgaged, transferred or
assigned to the Agent or any such Bank or otherwise in the possession or control
of the Agent or any such Bank for any purpose for the account or benefit of the
Borrower and including any balance of any deposit account or of any credit of
the Borrower with the Agent or any such Bank, whether now existing or hereafter
established hereby authorizing the Agent and each Bank at any time or times with
or without prior notice to apply such balances or any part thereof to such of
the indebtedness and obligations owing by the Borrower to the Banks and/or the
Agent then past due and in such amounts as they may elect, and whether or not
the collateral, if any, or the responsibility of other Persons primarily,
secondarily or otherwise liable may be deemed adequate. For the purposes of this
paragraph, all remittances and property shall be deemed to be in the possession
of the Agent or any such Bank as soon as the same may be put in transit to it by
mail or carrier or by other bailee.
(b) Each Bank agrees that if it shall, by exercising any right of
setoff or counterclaim or resort to collateral security or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest owing
with respect to the Note held by it which is greater than the proportion
received by any other Bank in respect of the aggregate amount of all principal
and interest owing with respect to the Note held by such other Bank, the Bank
receiving such proportionately greater payment shall purchase such
participations in the Notes held by the other Banks owing to such other Banks,
and such other adjustments shall be made, as may be required so that all such
payments of principal and interest with respect to the Notes held by the Banks
owing to such other Banks shall be shared by the Banks pro rata; provided that
(i) nothing in this Section shall impair the right of any Bank to exercise any
right of setoff or counterclaim it may have and to apply the amount subject to
such exercise to the payment of indebtedness of the Borrower other than its
indebtedness under the Notes, and (ii) if all or any portion of such payment
received by the purchasing Bank is thereafter recovered from such purchasing
Bank, such purchase from each other Bank shall be rescinded and such other Bank
shall repay to the purchasing Bank the purchase price of such participation to
the extent of such recovery together with an amount equal to such other Bank's
ratable share (according to the proportion of (x) the amount of such other
Bank's required repayment to (y) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Borrower
agrees, to the fullest extent it may effectively do so under applicable law,
that any holder of a participation in a Note, whether or not acquired
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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 the Borrower in the
amount of such participation.
Section 9.06 Amendments and Waivers.
(a) Any provision of this Agreement, the Notes or any other Loan
Documents may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Borrower and the Required Banks (and, if the
rights or duties of the Agent are affected thereby, by the Agent); provided
that, unless signed by all Banks, no such amendment or waiver shall, unless
signed by all Banks, (i) increase the Commitment of any Bank or subject any Bank
to any additional obligation, (ii) reduce the principal of or rate of interest
on any Loan or any fees (other than fees payable to the Agent) hereunder, (iii)
extend the date fixed for any payment of principal of or interest on any Loan or
any fees hereunder, (iv) reduce the amount of principal, interest or fees due on
any date fixed for the payment thereof, (v) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Notes, or the
percentage of Banks, which shall be required for the Banks or any of them to
take any action under this Section or any other provision of this Agreement,
(vi) change the manner of application of any payments made under this Agreement
or the Notes, (vii) release or substitute all or any substantial part of the
Collateral (other than as expressly provided in this Agreement or the other Loan
Documents), or (viii) release any Guarantee given to support payment of the
Loans, (ix) change the definition of "Borrowing Base" or (x) amend the
provisions of Section 9.05.
(b) The Borrower will not solicit, request or negotiate for or with
respect to any proposed waiver or amendment of any of the provisions of this
Agreement except through the Agent, unless each Bank shall be informed thereof
by the Borrower and shall be afforded an opportunity of considering the same and
shall be supplied by the Borrower with sufficient information to enable it to
make an informed decision with respect thereto. Executed or true and correct
copies of any waiver or consent effected pursuant to the provisions of this
Agreement shall be delivered by the Borrower to each Bank forthwith following
the date on which the same shall have been executed and delivered by the
requisite percentage of Banks. The Borrower will not, directly or indirectly,
pay or cause to be paid any remuneration, whether by way of supplemental or
additional interest, fee or otherwise, to any Bank (in its capacity as such) as
consideration for or as an inducement to the entering into by such Bank of any
waiver or amendment of any of the terms and provisions of this Agreement unless
such remuneration is concurrently paid, on the same terms, ratably to all such
Banks.
Section 9.07 No Margin Stock Collateral. Each of the Banks
represents to the Agent and each of the other Banks that it in good faith is
not, directly or indirectly (by negative pledge or otherwise), relying upon any
Margin Stock as collateral in the extension or maintenance of the credit
provided for in this Agreement.
Section 9.08 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;
provided that the Borrower may not assign or otherwise transfer any of its
rights under this Agreement.
(b) Any Bank may at any time sell to one or more Persons (each a
"Participant") participating interests in any Loan owing to such Bank, any Note
held by such Bank, any Commitment hereunder or any other interest of such Bank
hereunder. In the event of any such sale by a Bank of a participating interest
to a Participant, such Bank's obligations under this Agreement shall remain
unchanged, such Bank shall remain solely responsible for the performance
thereof, such Bank shall remain the holder of any such Note for all purposes
under this Agreement, and the Borrower and the Agent shall continue to deal
solely and directly with such Bank in connection with such Bank's
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rights and obligations under this Agreement. In no event shall a Bank that sells
a participation be obligated to the Participant to take or refrain from taking
any action hereunder except that such Bank may agree that it will not (except as
provided below), without the consent of the Participant, agree to (i) the change
of any date fixed for the payment of principal of or interest on the related
loan or loans, (ii) the change of the amount of any principal, interest or fees
due on any date fixed for the payment thereof with respect to the related loan
or loans, (iii) the change of the principal of the related loan or loans, (iv)
any change in the rate at which either interest is payable thereon or (if the
Participant is entitled to any part thereof) fee is payable hereunder from the
rate at which the Participant is entitled to receive interest or fee (as the
case may be) in respect of such participation, (v) the release without
substitution of all or any substantial part of the Collateral, or (vi) the
release of any Guarantee given to support payment of the Loans. Each Bank
selling a participating interest in any Loan, Note, Commitment or other interest
under this Agreement, shall, within 10 Domestic Business Days of such sale,
provide the Borrower and the Agent with written notification stating that such
sale has occurred and identifying the Participant and the interest purchased by
such Participant. The Borrower agrees that each Participant shall be entitled to
the benefits of Article VIII with respect to its participation in Loans
outstanding from time to time.
(c) Any Bank may at any time assign to one or more banks or financial
institutions (each an "Assignee") all or a proportionate part of its rights and
obligations under this Agreement, the Notes and the other Loan Documents, and
such Assignee shall assume all such rights and obligations, pursuant to an
Assignment and Acceptance, executed by such Assignee, such transferor Bank and
the Agent (and, in the case of an Assignee that is not then a Bank, subject to
clause (iii) below, by the Borrower); provided that (i) no interest may be sold
by a Bank pursuant to this paragraph (c) unless the Assignee shall agree to
assume ratably equivalent portions of the transferor Bank's Commitment, (ii) if
a Bank is assigning only a portion of its Commitment, then, the amount of the
Commitment being assigned (determined as of the effective date of the
assignment) shall be in an amount not less than $5,000,000, (iii) except during
the continuance of a Default, no interest may be sold by a Bank pursuant to this
paragraph (c) to any Assignee that is not then a Bank (or an Affiliate of a
Bank) without the consent of the Borrower and the Agent, which consent shall not
be unreasonably withheld, and (iv) a Bank may not have more than 3 Assignees
that are not then Banks at any one time. Upon (A) execution of the Assignment
and Acceptance by such transferor Bank, such Assignee, the Agent and (if
applicable) the Borrower, (B) delivery of an executed copy of the Assignment and
Acceptance to the Borrower and the Agent, (C) payment by such Assignee to such
transferor Bank of an amount equal to the purchase price agreed between such
transferor Bank and such Assignee, and (D) payment of a processing and
recordation fee of $2,500 to the Agent, such Assignee shall for all purposes be
a Bank party to this Agreement and shall have all the rights and obligations of
a Bank under this Agreement to the same extent as if it were an original party
hereto with a Commitment as set forth in such instrument of assumption, and the
transferor Bank shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by the Borrower, the
Banks or the Agent shall be required. Upon the consummation of any transfer to
an Assignee pursuant to this paragraph (c), the transferor Bank, the Agent and
the Borrower shall make appropriate arrangements so that, if required, a new
Note is issued to each of such Assignee and such transferor Bank.
(d) Subject to the provisions of Section 9.09, the Borrower authorizes
each Bank to disclose to any Participant, Assignee or other transferee (each a
"Transferee") and any prospective Transferee any and all financial information
in such Bank's possession concerning the Borrower which has been delivered to
such Bank by the Borrower pursuant to this Agreement or which has been delivered
to such Bank by the Borrower in connection with such Bank's credit evaluation
prior to entering into this Agreement.
46
<PAGE> 51
(e) No Transferee shall be entitled to receive any greater payment
under Section 8.03 than the transferor Bank would have been entitled to receive
with respect to the rights transferred, unless such transfer is made with the
Borrower's prior written consent or by reason of the provisions of Section 8.02
or 8.03 requiring such Bank to designate a different Lending Office under
certain circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.
(f) Anything in this Section 9.08 to the contrary notwithstanding,
any Bank may assign and pledge all or any portion of the Loans and/or
obligations owing to it to any Federal Reserve Bank or the United States
Treasury as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any Operating Circular issued by
such Federal Reserve Bank, provided that any payment in respect of such assigned
Loans and/or obligations made by the Borrower to the assigning and/or pledging
Bank in accordance with the terms of this Agreement shall satisfy the Borrower's
obligations hereunder in respect of such assigned Loans and/or obligations to
the extent of such payment. No such assignment shall release the assigning
and/or pledging Bank from its obligations hereunder.
SECTION 9.09. Confidentiality. Each Bank agrees to exercise
commercially reasonable efforts to keep any information delivered or made
available by the Borrower to it which is clearly indicated to be confidential
information, confidential from anyone other than persons employed or retained by
such Bank who are or are expected to become engaged in evaluating, approving,
structuring or administering the Loans; provided that nothing herein shall
prevent any Bank from disclosing such information (i) to any other Bank, (ii)
upon the order of any court or administrative agency, (iii) upon the request or
demand of any regulatory agency or authority having jurisdiction over such Bank,
(iv) which has been publicly disclosed, (v) to the extent reasonably required in
connection with any litigation to which the Agent, any Bank or their respective
Affiliates may be a party, (vi) to the extent reasonably required in connection
with the exercise of any remedy hereunder, (vii) to such Bank's legal counsel
and independent auditors, and (viii) to any actual or proposed Participant,
Assignee or other Transferee of all or part of its rights hereunder which has
agreed in writing to be bound by the provisions of this Section 9.09; provided
that should disclosure of any such confidential information be required by
virtue of clause (ii) of the immediately preceding sentence, to the extent
permitted by law, any relevant Bank shall promptly notify the Borrower of same
so as to allow the Borrower to seek a protective order or to take any other
appropriate action; provided, further, that, no Bank shall be required to delay
compliance with any directive to disclose any such information so as to allow
the Borrower to effect any such action.
SECTION 9.10. Representation by Banks. Each Bank hereby represents
that it is a commercial lender or financial institution which makes loans in the
ordinary course of its business and that it will make its Loans hereunder for
its own account in the ordinary course of such business; provided that, subject
to Section 9.08, the disposition of the Term Note or Term Notes held by that
Bank shall at all times be within its exclusive control.
SECTION 9.11. Obligations Several. The obligations of each Bank
hereunder are several, and no Bank shall be responsible for the obligations or
commitment of any other Bank hereunder. Nothing contained in this Agreement and
no action taken by the Banks pursuant hereto shall be deemed to constitute the
Banks to be a partnership, an association, a joint venture or any other kind of
entity. The amounts payable at any time hereunder to each Bank shall be a
separate and independent debt, and each Bank shall be entitled to protect and
enforce its rights arising out of this Agreement or any other Loan Document and
it shall not be necessary for any other Bank to be joined as an additional party
in any proceeding for such purpose.
SECTION 9.12. Georgia Law. This Agreement and each Term Note shall be
construed in accordance with and governed by the law of the State of Georgia.
47
<PAGE> 52
SECTION 9.13. Severability. In case any one or more of the provisions
contained in this Agreement, the Term Notes or any of the other Loan Documents
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein and
therein shall not in any way be affected or impaired thereby and shall be
enforced to the greatest extent permitted by law.
SECTION 9.14. Interest. In no event shall the amount of interest, and
all charges, amounts or fees contracted for, charged or collected pursuant to
this Agreement, the Term Notes or the other Loan Documents and deemed to be
interest under applicable law (collectively, "Interest") exceed the highest rate
of interest allowed by applicable law (the "Maximum Rate"), and in the event any
such payment is inadvertently received by any Bank, then the excess sum (the
"Excess") shall be credited as a payment of principal, unless the Borrower shall
notify such Bank in writing that it elects to have the Excess returned
forthwith. It is the express intent hereof that the Borrower not pay and the
Banks not receive, directly or indirectly in any manner whatsoever, interest in
excess of that which may legally be paid by the Borrower under applicable law.
The right to accelerate maturity of any of the Loans does not include the right
to accelerate any interest that has not otherwise accrued on the date of such
acceleration, and the Agent and the Banks do not intend to collect any unearned
interest in the event of any such acceleration. All monies paid to the Agent or
the Banks hereunder or under any of the Term Notes or the other Loan Documents,
whether at maturity or by prepayment, shall be subject to rebate of unearned
interest as and to the extent required by applicable law. By the execution of
this Agreement, the Borrower covenants, to the fullest extent permitted by law,
that (i) the credit or return of any Excess shall constitute the acceptance by
the Borrower of such Excess, and (ii) the Borrower shall not seek or pursue any
other remedy, legal or equitable , against the Agent or any Bank, based in whole
or in part upon contracting for charging or receiving any Interest in excess of
the Maximum Rate. For the purpose of determining whether or not any Excess has
been contracted for, charged or received by the Agent or any Bank, all interest
at any time contracted for, charged or received from the Borrower in connection
with this Agreement, the Term Notes or any of the other Loan Documents shall, to
the extent permitted by applicable law, be amortized, prorated, allocated and
spread in equal parts throughout the full term of the Commitments. The Borrower,
the Agent and each Bank shall, to the maximum extent permitted under applicable
law, (i) characterize any non-principal payment as an expense, fee or premium
rather than as Interest and (ii) exclude voluntary prepayments and the effects
thereof. The provisions of this Section shall be deemed to be incorporated into
each Term Note and each of the other Loan Documents (whether or not any
provision of this Section is referred to therein). All such Loan Documents and
communications relating to any Interest owed by the Borrower and all figures set
forth therein shall, for the sole purpose of computing the extent of obligations
hereunder and under the Term Notes and the other Loan Documents be automatically
recomputed by the Borrower, and by any court considering the same, to give
effect to the adjustments or credits required by this Section.
SECTION 9.15. Interpretation. No provision of this Agreement or any of
the other Loan Documents shall be construed against or interpreted to the
disadvantage of any party hereto by any court or other governmental or judicial
authority by reason of such party having or being deemed to have structured or
dictated such provision.
SECTION 9.16. Waiver of Jury Trial; Consent to Jurisdiction. The
Borrower (a) and each of the Banks and the Agent irrevocably waives, to the
fullest extent permitted by law, any and all right to trial by jury in any legal
proceeding arising out of this Agreement, any of the other Loan Documents, or
any of the transactions contemplated hereby or thereby, (b) submits to the
nonexclusive personal jurisdiction in the State of Georgia, the courts thereof
and the United States District Courts sitting therein, for the enforcement of
this Agreement, the Term Notes and the other Loan Documents, (c) waives any and
all personal rights under the law of any jurisdiction to object on any basis
(including, without limitation, inconvenience of forum) to jurisdiction or venue
within the State of Georgia for the purpose of litigation to enforce this
Agreement, the Term Notes or the other Loan Documents, and (d) agrees that
service of
48
<PAGE> 53
process may be made upon it in the manner prescribed in Section 9.01 for the
giving of notice to the Borrower. Nothing herein contained, however, shall
prevent the Agent from bringing any action or exercising any rights against any
security and against the Borrower personally, and against any assets of the
Borrower, within any other state or jurisdiction.
SECTION 9.17. Counterparts. 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.
SECTION 9.18. Source of Funds -- ERISA. Each of the Banks hereby
severally (and not jointly) represents to the Borrower that no part of the funds
to be used by such Bank to fund the Loans hereunder from time to time
constitutes (i) assets allocated to any separate account maintained by such Bank
in which any employee benefit plan (or its related trust) has any interest nor
(ii) any other assets of any employee benefit plan. As used in this Section, the
terms "employee benefit plan" and "separate account" shall have the respective
meanings assigned to such terms in Section 3 of ERISA.
49
<PAGE> 54
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, under seal, by their respective authorized officers as of the day
and year first above written.
JDN REALTY CORPORATION (SEAL)
By:
--------------------------------------------
Title:
JDN Realty Corporation
359 East Paces Ferry Road
Suite 400
Atlanta, Georgia 30305
Attention: Craig Macnab
Chief Executive Officer
Telecopier number: 404-504-6446
Confirmation number: 404-504-6703
50
<PAGE> 55
COMMITMENTS WACHOVIA BANK, N.A., as Agent and
as a Bank (SEAL)
$15,000,000 By:
--------------------------------------------
Title:
Lending Office
Wachovia Bank, N.A.
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: Steven B. Wood
Telecopier number: 404-332-4066
Confirmation number: 404-332-5671
51
<PAGE> 56
COMMERZBANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES (SEAL)
$20,000,000 By:
--------------------------------------------
Title:
By:
--------------------------------------------
Title:
Lending Office
Commerzbank AG, New York and Grand
Cayman Branches
2 World Financial Center
New York, New York 10281
Attention: Mr. Marcus Perry
Telecopier number: 212-266-7565
Confirmation number: 212-266-7581
52
<PAGE> 57
BANKERS TRUST COMPANY (SEAL)
$15,000,000 By:
--------------------------------------------
Title:
Lending Office
Bankers Trust Company
130 Liberty Street, 25th Floor
New York, New York 10017
Attention: Mr. Jeffrey Baevsky
Telecopier number: 212-669-0764
Confirmation number: 212-250-4466
53
<PAGE> 58
PNC BANK, NATIONAL ASSOCIATION (SEAL)
$15,000,000 By:
--------------------------------------------
Title:
Lending Office
PNC Bank, National Association
One PNC Plaza
249 Fifth Avenue
Mail Stop P1-POPP-19-2
Pittsburgh, Pennsylvania 15222
Attention: Wayne Robertson
Real Estate Banking
Telecopier number: 412-762-6500
Confirmation number: 412-762-8452
54
<PAGE> 59
THE BANK OF NOVA SCOTIA (SEAL)
$15,000,000 By:
--------------------------------------------
Title:
Lending Office
Bank of Nova Scotia
The Bank of Nova Scotia
One Liberty Plaza
New York, New York 10006
Attention: Mr. Michael McCarthy
Telecopier number: 212-225-5166
Confirmation number: 212-225-5151
55
<PAGE> 60
SOUTHTRUST BANK, NATIONAL ASSOCIATION (SEAL)
$10,000,000 By:
--------------------------------------------
Title:
Lending Office
Southtrust Bank, National Association
Institutional Real Estate Group
420 North 20th Street, Suite 1100
Birmingham, Alabama 35203
Attention: Ms. Lynn W. Feuerlein
Telecopier number: 205-254-8270
Confirmation number: 205-254-5870
56
<PAGE> 61
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION (SEAL)
$10,000,000 By:
--------------------------------------------
Title:
Lending Office
701 Market Street
Chattanooga, TN 37402
Attention: Mr. Timothy L. Collins
Telecopier number: 423-757-4040
Confirmation number: 423-757-4205
TOTAL COMMITMENTS:
$100,000,000
57
<PAGE> 62
EXHIBIT A
TERM NOTE
Atlanta, Georgia
May 19, 2000
For value received, JDN REALTY CORPORATION, a Maryland
corporation (the "Borrower"), promises to pay to the order of
_____________________________________, a ____________________ (the "Bank"), for
the account of its Lending Office, the principal sum of
___________________________________ AND NO/100 DOLLARS ($____________), or such
lesser amount as shall equal the unpaid principal amount of each Loan made by
the Bank to the Borrower pursuant to the Credit Agreement referred to below, on
the dates and in the amounts provided in the Credit Agreement. The Borrower
promises to pay interest on the unpaid principal amount of this Term Note on the
dates and at the rate or rates provided for in the Credit Agreement. Interest on
any overdue principal of and, to the extent permitted by law, overdue interest
on the principal amount hereof shall bear interest at the Default Rate, as
provided for in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in Federal or other
immediately available funds at the office of Wachovia Bank, N.A., 191 Peachtree
Street, N.E., Atlanta, Georgia 30303-1757, or such other address as may be
specified from time to time pursuant to the Credit Agreement.
All Loans made by the Bank, the respective maturities thereof,
the interest rates from time to time applicable thereto, and all repayments of
the principal thereof shall be recorded by the Bank and, prior to any transfer
hereof, endorsed by the Bank on the schedule attached hereto, or on a
continuation of such schedule attached to and made a part hereof; provided that
the failure of the Bank to make any such recordation or endorsement shall not
affect the obligations of the Borrower hereunder or under the Credit Agreement.
This Term Note is one of the Term Notes referred to in the
Amended and Restated Term Loan Credit Agreement dated as of May 19, 2000 among
the Borrower, the Banks listed on the signature pages thereof, Wachovia Bank,
N.A., as Agent and PNC Bank, National Association, as Documentation Agent (as
the same may be amended and modified from time to time, the "Credit Agreement")
and replaces the Term Note issued pursuant to the Term Loan Credit Agreement
dated as of February 17, 1999, as amended by First Amendment to Term Loan Credit
Agreement dated as of June 14, 1999. Reference is made to the Credit Agreement
for provisions for the optional and mandatory prepayment and the repayment
hereof and the acceleration of the maturity hereof, as well as the obligation of
the Borrower to pay all costs of collection, including reasonable attorneys
fees, in the event this Term Note is collected by law or through an attorney at
law.
The Borrower hereby waives presentment, demand, protest,
notice of demand, protest and nonpayment and any other notice required by law
relative hereto, except to the extent as otherwise may be expressly provided for
in the Credit Agreement.
IN WITNESS WHEREOF, the Borrower has caused this Term Note to
be duly executed, under seal, by its duly authorized officer as of the day and
year first above written.
JDN REALTY CORPORATION (SEAL)
By:
----------------------------------------
Title:
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<PAGE> 63
TERM NOTE (cont'd)
<TABLE>
<CAPTION>
Loans and Payments of Principal
- ---------------------------------------------------------------------------------------------------
Base Rate or Amount of
Date Euro-Dollar Loan Amount of Loan Principal Repaid Maturity Date Notation Made By
<S> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
59
<PAGE> 64
EXHIBIT B
OPINION OF
COUNSEL FOR THE BORROWER AND THE INITIAL GUARANTORS
[Dated as provided in Section 3.01 of
the Credit Agreement]
To the Banks and the Agent
Referred to Below
c/o Wachovia Bank, N.A.,
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: Steven B. Wood
Dear Sirs:
We have acted as counsel for JDN Realty Corporation, a
Maryland corporation (the "Borrower"), and JDN Development Company, Inc., a
Delaware corporation ("JDN DCI"), JDN Realty AL, Inc. ("JDN AL"), JDN Realty
Holdings, L.P. ("JDN Holdings") and JDN Realty, LP, Inc. ("JDN LP") (JDN DCI,
JDN AL, JDN Holdings and JDN LP being sometimes referred to as the Initial
Guarantors"), in connection with the Amended and Restated Term Loan Credit
Agreement (the "Credit Agreement") dated as of May 19, 2000, among the Borrower,
the banks listed on the signature pages thereof, Wachovia Bank, N.A., as Agent
and PNC Bank, National Association, as Documentation Agent. Terms defined in the
Credit Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate or partnership
records, certificates of public officials and other instruments and have
conducted such other investigations of fact and law as we have deemed necessary
or advisable for purposes of this opinion. We have assumed for purposes of our
opinions set forth below that the execution and delivery of the Credit Agreement
by each Bank and by the Agent have been duly authorized by each Bank and by the
Agent.
Upon the basis of the foregoing, we are of the opinion that:
1. The Borrower is a corporation duly incorporated,
validly existing and in good standing under the laws of Maryland and has all
corporate powers required to carry on its business as now conducted. Each of JDN
DCI and JDN LP is a corporation duly incorporated, validly existing and in good
standing under the laws of Delaware and has all corporate powers required to
carry on its business as now conducted. JDN AL is a corporation duly
incorporated, validly existing and in good standing under the laws of Alabama
and has all corporate powers required to carry on its business as now conducted.
JDN Holdings is a limited partnership duly organized, validly existing and in
good standing under the laws of Georgia and has all corporate powers required to
carry on its business as now conducted.
2. The execution, delivery and performance by the
Borrower and the Initial Guarantors, as applicable, of the Credit Agreement, the
Term Notes and the other Loan Documents to which it is a party, (i) are within
its corporate or partnership powers, (ii) have been duly authorized by all
necessary corporate or partnership action, (iii) require no action by or in
respect of, or filing with, any
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<PAGE> 65
governmental body, agency or official, (iv) do not contravene, or constitute a
default under, any provision of applicable law or regulation or of the
certificate of incorporation or by-laws or partnership certificate of the
Borrower or the Initial Guarantors or of any agreement, judgment, injunction,
order, decree or other instrument which to our knowledge is binding upon the
Borrower or the Initial Guarantors and (v) to our knowledge, except as provided
in the Credit Agreement, do not result in the creation or imposition of any Lien
on any asset of the Borrower or the Initial Guarantors any of the Subsidiaries,
except in favor of the Collateral Agent to secure the Secured Obligations
pursuant to the Security Documents.
3. The Loan Documents to which the Borrower is a party
constitute (or as to the Security Documents to which it is a party, will
constitute, when executed and delivered in accordance with the Agreement) valid
and binding agreements of the Borrower, and the Loan Documents to which the
Guarantor is a party constitute (or as to the Security Documents, will
constitute, when executed and delivered in accordance with the Agreement) valid
and binding agreement of the Initial Guarantors, in each case enforceable
against it in accordance with its terms, except as such enforceability may be
limited by: (i) bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally and (ii) general principles of equity.
4. To our knowledge, there is no action, suit or
proceeding pending, or threatened, against or affecting the Borrower before any
court or arbitrator or any governmental body, agency or official which in any
manner questions the validity or enforceability of any of the Loan Documents.
5. The Borrower is not an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
6. The Borrower is not a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company", as such terms are
defined in the Public Utility Holding Company Act of 1935, as amended.
We are qualified to practice in the State of Georgia and do
not purport to be experts on any laws other than the laws of the United States
and the State of Georgia and this opinion is rendered only with respect to such
laws, and, as expressly provided and subject to the limitations contained in the
last sentence of this paragraph, the corporate law of the States of Maryland and
Delaware. We have made no independent investigation of the laws of any other
jurisdiction. As to (x) the opinions expressed in paragraph 1 with respect to
due incorporation, valid existence and good standing in Maryland of the
Borrower, our opinion is based solely on our review of the good standing
certificate issued by the Secretary of State of Maryland previously delivered to
you, and (y) the opinions expressed in paragraph 1 and clause (ii) of paragraph
2 with respect to the Borrower's corporate powers under Maryland law, we have
relied solely on our review of Sections 2-101 through 2-104, inclusive, of the
Maryland General Corporation Law, and our review of the Borrower's Articles of
Incorporation and Bylaws and relevant resolutions of its Board of Directors. As
to (x) the opinions expressed in paragraph 1 with respect to as to due
incorporation, valid existence and good standing in Delaware of the Initial
Guarantors, our opinion is based solely on our review of the good standing
certificate issued by the Secretary of State of Delaware previously delivered to
you, and (y) the opinions expressed in paragraph 1 and clause (ii) of paragraph
2 with respect to JDN LP's corporate powers under Delaware law, we have relied
on our general understanding of the State of Delaware General Corporation Law,
and our review of JDN LP's Articles of Incorporation and Bylaws and relevant
resolutions of its Board of Directors.
This opinion is delivered to you in connection with the
transaction referenced above and may only be relied upon by you, any Assignee,
Participant or other Transferee under the Credit Agreement, and Jones, Day,
Reavis & Pogue without our prior written consent.
Very truly yours,
61
<PAGE> 66
EXHIBIT C
OPINION OF
JONES, DAY, REAVIS & POGUE,
SPECIAL COUNSEL FOR THE AGENT
[Dated as provided in Section 3.01 of
the Credit Agreement]
To the Banks and the Agent
Referred to Below
c/o Wachovia Bank, N.A.,
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: Steven B. Wood
Telecopier number: 404-332-4066
Confirmation number: 404-332-5671
Dear Sirs:
We have participated in the preparation of the Amended and
Restated Term Loan Credit Agreement (the "Credit Agreement") dated as of May 19,
2000, among JDN Realty Corporation, a Maryland corporation (the "Borrower"), the
banks listed on the signature pages thereof (the "Banks"), Wachovia Bank, N.A.,
as Agent (the "Agent") and PNC Bank, National Association, as Documentation
Agent, and have acted as special counsel for the Agent for the purpose of
rendering this opinion pursuant to Section 3.01(d) of the Credit Agreement.
Terms defined in the Credit Agreement are used herein as therein defined.
This opinion letter is limited by, and is in accordance with,
the January 1, 1992 edition of the Interpretive Standards applicable to Legal
Opinions to Third Parties in Corporate Transactions adopted by the Legal Opinion
Committee of the Corporate and Banking Law Section of the State Bar of Georgia
which Interpretive Standards are incorporated herein by this reference.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, and assuming the due
authorization, execution and delivery of the Credit Agreement, each of the Term
Notes and the other Loan Documents to which the Borrower is a party by or on
behalf of the Borrower, and of the Guaranty and the other Loan Documents to
which any of the Initial Guarantors is a party by such Initial Guarantor, we are
of the opinion that the Credit Agreement constitutes a valid and binding
agreement of the Borrower, each Term Note constitutes valid and binding
obligations of the Borrower, each of the other Loan Documents to which the
Borrower is a party constitutes a valid and binding obligation of the Borrower,
the Guaranty constitutes a valid and binding agreement of the Initial
Guarantors, and each of the other Loan Documents to which any of the Initial
Guarantors is a party constitutes (or as to the Security Documents, will
constitute, when executed and delivered in accordance with this Agreement) a
valid and binding obligation of such Initial Guarantor, enforceable in
accordance with its terms except as: (i) the enforceability thereof may be
affected by bankruptcy, insolvency, reorganization, fraudulent conveyance,
voidable preference, moratorium or
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<PAGE> 67
similar laws applicable to creditors' rights or the collection of debtors'
obligations generally; (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability; and (iii) the enforceability of certain of the remedial, waiver
and other provisions of the Credit Agreement, the Term Notes, the Guaranty and
the other Loan Documents may be further limited by the laws of the State of
Georgia; provided that such additional laws do not, in our opinion,
substantially interfere with the practical realization of the benefits expressed
in the Credit Agreement, the Term Notes, the Guaranty and the other Loan
Documents, except for the economic consequences of any procedural delay which
may result from such laws.
In giving the foregoing opinion, we express no opinion as to
the effect (if any) of any law of any jurisdiction except the State of Georgia.
We express no opinion as to the effect of the compliance or noncompliance of the
Agent or any of the Banks with any state or federal laws or regulations
applicable to the Agent or any of the Banks by reason of the legal or regulatory
status or the nature of the business of the Agent or any of the Banks.
This opinion is delivered to you in connection with the
transaction referenced above and may only be relied upon by you and any
Assignee, Participant or other Transferee under the Credit Agreement without our
prior written consent.
Very truly yours,
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EXHIBIT D
ASSIGNMENT AND ACCEPTANCE
Dated __________________, ____
Reference is made to the Amended and Restated Term
Loan Credit Agreement dated as of May 19, 2000 (together with all
amendments and modifications thereto, the "Credit Agreement") among JDN
Realty Corporation, a Maryland corporation (the "Borrower"), the Banks
(as defined in the Credit Agreement), Wachovia Bank, N.A., as Agent
(the "Agent") and PNC Bank, National Association, as Documentation
Agent. Terms defined in the Credit Agreement are used herein with the
same meaning.
________________________________________________ (the "Assignor") and
________________________________________________ (the "Assignee") agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, without
recourse to the Assignor, and the Assignee hereby purchases and assumes from the
Assignor, a _____% interest in and to all of the Assignor's rights and
obligations under the Credit Agreement as of the Effective Date (as defined
below) (including, without limitation, in the Loans owing to the Assignor and
the Term Note held by the Assignor.
2. The Assignor (i) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement or any other instrument or document furnished pursuant
thereto, other than that it is the legal and beneficial owner of the interest
being assigned by it hereunder, that such interest is free and clear of any
adverse claim and that as of the date hereof the aggregate outstanding principal
amount of Loans owing to it (without giving effect to assignments thereof which
have not yet become effective) is $__________; (ii) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or the performance or observance by the Borrower of any of its
obligations under the Credit Agreement or any other instrument or document
furnished pursuant thereto; and (iii) attaches the Term Note referred to in
paragraph 1 above and requests that the Agent exchange such Term Note for [a new
Term Note dated ____________, ____ in the principal amount of $__________
payable to the order of the Assignee] [new Term Notes as follows: a (i) Term
Note dated ______________, ____ in the principal amount of $_____________
payable to the order of the Assignor and (ii) Term Note dated _____________,
____ in the principal amount of $______________ payable to the order of the
Assignee].
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.04(a) thereof (or any more recent financial statements of the
Borrower delivered pursuant to Section 5.01(a) or (b) thereof) and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (ii) agrees
that it will, independently and without reliance upon the Agent, the Assignor or
any other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (iii) confirms that it is a bank
or financial institution; (iv) appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under the Credit
Agreement as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (v) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Bank; (vi) specifies as
its Lending Office (and address for notices) the office set forth beneath its
name on the
64
<PAGE> 69
signature pages hereof, (vii) represents and warrants that the execution,
delivery and performance of this Assignment and Acceptance are within its
corporate powers and have been duly authorized by all necessary corporate
action, (viii) makes the representation and warranty contained in Section 9.18
of the Credit Agreement[, and (ix) attaches the forms prescribed by the Internal
Revenue Service of the United States certifying as to the Assignee's status for
purposes of determining exemption from United States withholding taxes with
respect to all payments to be made to the Assignee under the Credit Agreement
and the Term Notes or such other documents as are necessary to indicate that all
such payments are subject to such taxes at a rate reduced by an applicable tax
treaty].
4. The Effective Date for this Assignment and Acceptance shall be
_______________, ____ (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Agent for execution and
acceptance by the Agent and to the Borrower for execution by the Borrower.
5. Upon such execution and acceptance by the Agent [and execution
by the Borrower] [IF REQUIRED BY THE CREDIT AGREEMENT], from and after the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent rights and obligations have been transferred to it by this
Assignment and Acceptance, have the rights and obligations of a Bank thereunder
and (ii) the Assignor shall, to the extent its rights and obligations have been
transferred to the Assignee by this Assignment and Acceptance, relinquish its
rights (other than under Sections 8.03, 9.03 and 9.04 of the Credit Agreement)
and be released from its obligations under the Credit Agreement.
6. Upon such execution and acceptance by the Agent [and execution
by the Borrower] [IF REQUIRED BY THE CREDIT AGREEMENT], from and after the
Effective Date, the Agent shall make all payments in respect of the interest
assigned hereby to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments for periods prior to such acceptance by the
Agent directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of Georgia.
[NAME OF ASSIGNOR]
By:
---------------------------------------------
Title:
[NAME OF ASSIGNEE]
By:
---------------------------------------------
Title:
Lending Office:
[Address]
65
<PAGE> 70
WACHOVIA BANK, N.A.,
As Agent
By:
---------------------------------------------
Title:
JDN REALTY CORPORATION
IF REQUIRED BY THE CREDIT AGREEMENT
By:
---------------------------------------------
Title:
66
<PAGE> 71
EXHIBIT E
NOTICE OF BORROWING
------------------, ----
Wachovia Bank, N.A., as Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: Syndications Group
Re: Amended and Restated Term Loan Credit Agreement (as amended
and modified from time to time, the "Credit Agreement") dated
as of May 19, 2000 by and among JDN Realty Corporation, the
Banks from time to time parties thereto, Wachovia Bank, N.A.,
as Agent and PNC Bank, National Association, as Documentation
Agent.
Gentlemen:
Unless otherwise defined herein, capitalized terms used herein
shall have the meanings attributable thereto in the Credit Agreement.
This Notice of Borrowing is delivered to you pursuant to
Section 2.02 of the Credit Agreement.
The Borrower hereby requests a [Euro-Dollar Borrowing] [Base
Rate Borrowing] in the aggregate principal amount of $______________ to be made
on ______________, ____, and for interest to accrue thereon at the rate
established by the Credit Agreement for [Euro-Dollar Loans] [Base Rate Loans].
The duration of the Interest Period with respect thereto shall be [1 month] [2
months] [3 months] [6 months].
The calculation of the amounts described in Section 2.07 of
the Credit Agreement is as follows(1):
<TABLE>
<S> <C>
(a) [Transitional](2) Borrowing Base per most recent Borrowing
Base Certificate $
-------------
(b) Principal amount outstanding under Loans $
-------------
</TABLE>
The Borrower hereby certifies that, as of the date hereof,
none of the Borrowing Base Properties included in the most recent Borrowing Base
Certificate is subject to an Other Mortgage.
- ------------------------
(1) Limitation: If (b) exceeds (a), the excess must be prepaid.
(2) Use this term prior to the Final Borrowing Base Perfection
Date
67
<PAGE> 72
The Borrower has caused this Notice of Borrowing to be
executed and delivered by its duly authorized officer this _______ day of
___________________, ____.
JDN REALTY CORPORATION
By:
-----------------------------------------
Title:
68
<PAGE> 73
EXHIBIT F
COMPLIANCE CERTIFICATE
Reference is made to the Amended and Restated Term Loan Credit
Agreement dated as of May 19, 2000 (as so amended and as hereafter modified and
supplemented and in effect from time to time, the "Credit Agreement") by and
among JDN Realty Corporation, the Banks from time to time parties thereto, and
Wachovia Bank, N.A., as Agent. Capitalized terms used herein shall have the
meanings ascribed thereto in the Credit Agreement.
Pursuant to Section 5.01(c) of the Credit Agreement,
____________________, the duly authorized __________________ of the Borrower,
hereby (i) certifies to the Agent and the Banks that the information contained
in the Compliance Check List attached hereto is true, accurate and complete as
of ____________, ____, and that no Default is in existence on and as of the date
hereof and (ii) restates and reaffirms that the representations and warranties
contained in Article IV of the Credit Agreement are true on and as of the date
hereof as though restated on and as of this date.
JDN REALTY CORPORATION
By:
---------------------------------------
Its:
69
<PAGE> 74
COMPLIANCE CHECK LIST
JDN REALTY CORPORATION
---------------------
------------, ----
1. Ratio of Consolidated Total Liabilities to Gross Asset Value (Section
5.19)
The ratio of Total Consolidated Liabilities to Gross Asset Value shall
at all times be equal to or less than 0.60 to 1.0.
<TABLE>
<S> <C> <C>
(a) Total Consolidated Liabilities Schedule 1 $
----------
(b) Gross Asset Value Schedule 2 $
----------
(c) Actual ratio of (a) to (b) ___ to 1.0
Maximum ratio 0.60 to 1.0
</TABLE>
2. Ratio of Total Secured Debt to Gross Asset Value (Section 5.20)
The ratio of Total Secured Debt to Gross Asset Value shall at all times
be equal to or less than 0.40 to 1.0.
<TABLE>
<S> <C>
(a) Total Secured Debt Schedule 3 $
----------
(b) Gross Asset Value Schedule 2 $
----------
(c) Actual ratio of (a) to (b) ___ to 1.0
Maximum ratio 0.40 to 1.0
</TABLE>
3. Ratio of EBITDA to Consolidated Interest Expense (Section 5.21)
The ratio of EBITDA to Consolidated Interest Expense for the Fiscal
Quarter just ended and the 3 immediately preceding Fiscal Quarters will
not be less than 2.0 to 1.00, calculated at the end of each Fiscal
Quarter.
<TABLE>
<S> <C>
(a) EBITDA Schedule 4 $
---------
(b) Consolidated Interest Expense(3) $
---------
(c) actual ratio of (a) to (b) ____ to 1.0
Minimum ratio 2.0 to 1.0
</TABLE>
- -------------------------------------
(3) During Fiscal Quarter just ended and immediately preceding 3
Fiscal Quarters
70
<PAGE> 75
4. Restricted Payments (Section 5.15)(4)
The Borrower's Restricted Payments in any calendar year shall not
exceed (i) for the calendar year ending December 31, 2000, 100%, and
(ii) for all calendar years thereafter, 95% of "REIT taxable income"
(as defined in the Code) for such period, unless the Borrower must pay
out an amount in excess of 100% or 95%, as applicable, of REIT taxable
income to permit the Borrower to preserve its status as a real estate
investment trust, or avoid payment of excise tax or income tax related
to undistributed income, under the applicable provisions of the Code
and except for Restricted Payments necessary to fund the purchase of
Capital Stock pursuant to employee benefit plans in the ordinary course
of business or to satisfy the requirements of stock option plans in
effect as of the Closing Date. The Borrower shall not directly or
indirectly repurchase (or finance the repurchase) of, or make any
voluntary prepayments on, Debt of the types described in clauses (i),
(ii), (viii) and (x) of the definition of Debt (whether secured or
unsecured), other than Debt hereunder or under the Term Credit
Agreement or from the net proceeds of the sale of Property (other than
any Borrowing Base Property which has not been released pursuant to
Section 5.27(b)).
<TABLE>
<S> <C>
(a) Restricted Payments for current calendar year(5) $
----------
(b) REIT taxable income for current
calendar year $
----------
(c) [100%] [95%] of (b) $
----------
Limitation: (a) may not exceed (c)
</TABLE>
5. Guarantees (Section 5.22)
Neither the Borrower nor any Guarantor will create, assume or suffer to
exist any Guarantees of Debt of other Persons, except (i) Guarantees in
existence on March 31, 2000 in the aggregate amount as of March 31,
2000 of $22,214,794 and set forth on Schedule 5.22, (ii) Guarantees of
Debt of the Borrower or other Guarantors and (iii) other Guarantees in
an aggregate amount not exceeding at any time 10% of Gross Asset Value
as of the last day of the Fiscal Quarter just ended.
<TABLE>
<S> <C>
(a) Amount Guaranteed by other Guarantees
not permitted by clauses (i) and (ii) $
-----------
(b) Gross Asset Value Schedule 2 $
-----------
(c) 10% of (b) $
-----------
Limitation: (a) may not exceed (c)
</TABLE>
- --------------------------
(4) Include this paragraph 6 and Schedule 7 only with the first Compliance
Certificate furnished after the end of each Fiscal Year. Amounts
included herein are for the year ended December 31, _________
(5) Other than Restricted Payments excepted by Section 5.15
71
<PAGE> 76
6. Consolidations, Mergers and Sales of Assets (Section 5.05)
Neither the Borrower nor any of the Guarantors will consolidate or
merge with or into, or acquire all or substantially all of the assets
or stock of any other Person, or sell, lease or otherwise transfer all
or any substantial part of its assets to, any other Person, provided
that:
[(i) . . . (iv)]
(v) the foregoing limitation on the acquisition of all or
substantially all the assets or stock of another Person shall not prohibit,
during any Fiscal Quarter, the acquisition of all or substantially all of the
assets or stock of another Person unless the aggregate assets or stock acquired
in a single acquisition or series of related acquisitions of all or
substantially all of the assets or stock of another Person by the Borrower and
the Guarantors during such Fiscal Quarter constituted more than 20% of Gross
Asset Value at the end of the most recent Fiscal Quarter immediately preceding
such Fiscal Quarter;
(vi) the foregoing limitation on the sale, lease or other transfer
of assets shall not prohibit, during any Fiscal Quarter, a transfer of assets
(in a single transaction or in a series of related transactions) unless the
aggregate assets to be so transferred, when combined with all other assets
transferred, by the Borrower and the Guarantors during such Fiscal Quarter and
the immediately preceding 3 Fiscal Quarters (but in each case excluding
transfers permitted under clauses (i) through (iv) above), constituted more than
25% of Gross Asset Value at the end of the most recent Fiscal Quarter
immediately preceding such Fiscal Quarter.
<TABLE>
<S> <C>
(a) Aggregate amount of assets or stock
acquired in a single acquisition or
series of related acquisitions
during Fiscal Quarter just ended $
-----------
(b) Gross Asset Value Schedule 2 $
-----------
(c) 20% of (b) $
-----------
Limitation: (a) may not exceed (c)
(d) Aggregate amount of assets sold
during Fiscal Quarter just
ended $
-----------
(e) Aggregate amount of assets sold
during 3 prior Fiscal Quarters $
-----------
(f) Sum of (d) and (e) $
-----------
(g) 25% of (b) $
-----------
Limitation: (f) may not exceed (g)
</TABLE>
7. Loans or Advances (Section 5.16)
Loans and advances of the Borrower and the Guarantors as of the Closing
Date (other than to Subsidiaries, which are set forth in Schedule 4.08,
or in any Guarantor), are set forth in Schedule 5.16. Neither the
Borrower nor any of the Guarantors shall make loans or advances after
the Closing Date to any Person except as permitted by Section 5.17 and
except:
72
<PAGE> 77
(i) loans or advances to employees and directors not exceeding
$1,000,000 in the aggregate principal amount outstanding at any time;
[(ii) . . . (iii)]
(iv) other loans and advances by the Borrower and the Guarantors to any
JDN Venture which (x) are evidenced by notes (and, if requested by the
Agent, acting at the direction of the Required Banks, with such notes,
together with any related mortgage, have been assigned to and pledged
with the Agent, for the benefit of itself and the Banks, as security
for the payment of all obligations of the Borrower to the Agent and the
Banks hereunder) and (y) are in an amount which, together with
Investments permitted by clause (vi) of Section 5.17, do not exceed 15%
of Gross Asset Value as of the end of the most recent Fiscal Quarter;
<TABLE>
<S> <C>
(a) Loans and advances to officers and directors $
-----------
Limitation $1,000,000
(b) Other loans and advances evidenced by notes (and, if required,
pledged with Agent) and not permitted by clauses (i) through (iii) $
-----------
(c) See line (e) and "Limitation" of paragraph 8 below
</TABLE>
8. Investments (Section 5.17)
Investments of the Borrower as of the Closing Date (other than in
Subsidiaries, which are set forth in Schedule 4.08, or in any
Guarantors), are set forth on Schedule 5.17. Neither the Borrower nor
any of the Guarantors shall make Investments after the Closing Date in
any Person except as permitted by Section 5.16 and except Investments
in:
[(i) . . . (v)]
(vi) other Investments by the Borrower and the Guarantors in an
amount which, (x) together with loans and advances permitted by clause
(iv) of Section 5.16, do not exceed 15% of Gross Asset Value as of the
end of the most recent Fiscal Year, and (y) with respect to Investments
in Persons over which, after giving effect to such Investment, the
Borrower or the Guarantors do not have Control, do not exceed 5% of
Gross Asset Value as of the end of the most recent Fiscal Year;
<TABLE>
<S> <C>
(a) Line (b) of paragraph 9 above $
-----------
(b) Other Investments not permitted by
clauses (i) through (v) $
-----------
(c) Sum of (a) and (b) $
-----------
(d) Gross Asset Value Schedule 2 $
-----------
15% of (d) $
-----------
Limitation: (c) may not exceed (e)
</TABLE>
73
<PAGE> 78
<TABLE>
<S> <C>
(e) Investments included in line (b) in Persons over which
the Borrower or the Guarantors do not have control $
-----------
(f) 5% of (d) $
-----------
</TABLE>
Limitation: (f) may not exceed (g)
9. Ratio of EBITDA to Consolidated Fixed Charges (Section 5.28)
The ratio of EBITDA to Consolidated Fixed Charges for the Fiscal
Quarter just ended and the 3 immediately preceding Fiscal Quarters will
not be less than 1.75 to 1.00, calculated at the end of each Fiscal
Quarter.
<TABLE>
<S> <C>
(a) EBITDA Schedule(4) $
-----------
(b) Consolidated Interest Expense(6) $
-----------
(c) dividends paid or declared
but not yet paid on preferred stock(4) $
-----------
(d) aggregate amount of scheduled
principal amortization paid(7) $
-----------
(e) sum of (b) through (d) $
-----------
(f) actual ratio of (a) to (e) ____ to 1.0
Minimum ratio 1.75 to 1.0
</TABLE>
- ------------------------
(6) During Fiscal Quarter just ended and immediately preceding 3 Fiscal
Quarters
(7) During Fiscal Quarter just ended and immediately preceding 3 Fiscal
Quarters, but excluding any principal payments under this Agreement
or any other agreement pertaining to revolving debt permitted under
Section 5.24 and excluding any balloon payments on other Debt.
74
<PAGE> 79
Schedule 1
Total Consolidated Liabilities
<TABLE>
<S> <C>
(a) Consolidated Liabilities $
---------
(b) Debt Guaranteed by Borrower or any Guarantor $
---------
(c) face amount of all letters of credit
issued for the account of the Borrower
or any Guarantor $
---------
TOTAL CONSOLIDATED LIABILITIES (sum of (a) through (c)
$
---------
</TABLE>
75
<PAGE> 80
Schedule 2
Gross Asset Value
<TABLE>
<S> <C>
(a) Net Operating Income for the 3 month period ending on the last
day of the month just ended prior to the date of
determination, from each Property owned by the Borrower or any
Guarantor for at least one Fiscal Quarter Schedule 5 $
-----------
(b) 4 times (a) $
-----------
(c) (b) divided by 0.10 $
-----------
(d) book value of each Property owned by
the Borrower or any Guarantor
for less than one Fiscal Quarter $
-----------
(e) book value of Construction in
Progress of each Property owned
by the Borrower or any Guarantor $
-----------
(f) aggregate amount of all unrestricted
cash and accounts receivable not past due
of the Borrower and the
Guarantors $
-----------
(g) aggregate amount of all restricted cash held by a Qualified
Intermediary on behalf of the Borrower or any
Guarantor $
-----------
(h) aggregate principal amount outstanding of all Replacement
Property Development Loans as to which the development of the
relevant property is controlled by the Borrower, a Guarantor
or an Affiliate thereof $
-----------
GROSS ASSET VALUE (sum of (c) through (h)) $
-----------
</TABLE>
76
<PAGE> 81
Schedule 3
Total Secured Debt(8)
<TABLE>
<CAPTION>
INTEREST FINAL
RATE(9) MATURITY TOTAL
------- -------- -----
Money Borrowed
- --------------
<S> <C> <C> <C>
$
- -------------------------------------------- ------------------ ------------------ ----------
$
- -------------------------------------------- ------------------ ------------------ ----------
$
- -------------------------------------------- ------------------ ------------------ ----------
$
- -------------------------------------------- ------------------ ------------------ ----------
- -------------------------------------------- ------------------ ------------------ $ ----------
Total Money Borrowed $ ----------
Deferred Purchase Price(10)
- -------------------------------------------- ------------------ ------------------ $ ----------
- -------------------------------------------- ------------------ ------------------ $ ----------
- -------------------------------------------- ------------------ ------------------ $ ----------
- -------------------------------------------- ------------------ ------------------ $ ----------
Total Deferred Purchase Price $ ----------
</TABLE>
- ---------------------------
(8) Include only Debt secured by an Other Mortgage
(9) If rate is fixed, insert contract rate. If rate is floating, state
that.
(10) Exclude trade accounts payable in the ordinary course of business.
77
<PAGE> 82
Capital Leases in which Borrower is the Tenant
<TABLE>
<S> <C>
$
- ------------------------------------------------------------------------------------------------- -----------
$
- ------------------------------------------------------------------------------------------------- -----------
Total Capital Leases $
------------
Letter of Credit Reimbursement
Obligations
$
- -------------------------------------------------------------------------------------------------
------------
$
- -------------------------------------------------------------------------------------------------
------------
Total Letter of Credit
Reimbursement Obligations $
------------
</TABLE>
Guarantees of Debt of Persons other than Borrower and Guarantors
<TABLE>
<S> <C> <C> <C>
$
- -------------------------------------------- ------------------ ------------------ ------------
$
- -------------------------------------------- ------------------ ------------------ ------------
$
- -------------------------------------------- ------------------ ------------------ ------------
$
- -------------------------------------------- ------------------ ------------------ ------------
$
- -------------------------------------------- ------------------ ------------------ ------------
TOTAL SECURED DEBT $
============
</TABLE>
78
<PAGE> 83
Schedule 4
EBITDA
<TABLE>
<S> <C>
quarter
- --- ---
consolidated net income(11) $
--------
less extraordinary gains $( )
--------
plus extraordinary losses $
--------
plus Consolidated Interest Expense $
--------
plus taxes on income $
--------
plus depreciation and amortization $
--------
plus other non-cash charges $
--------
Total $
--------
quarter
- --- ---
consolidated net income(10) $
--------
less extraordinary gains $( )
--------
plus extraordinary losses $
--------
plus Consolidated Interest Expense $
--------
plus taxes on income $
--------
plus depreciation and amortization $
--------
plus other non-cash charges $
--------
Total $
--------
quarter
- --- ---
consolidated net income(10) $
--------
less extraordinary gains $( )
--------
plus extraordinary losses $
--------
plus Consolidated Interest Expense $
--------
plus taxes on income $
--------
plus depreciation and amortization $
--------
plus other non-cash charges $
--------
Total $
--------
quarter
- --- ---
consolidated net income(10) $
--------
less extraordinary gains $( )
--------
plus extraordinary losses $
--------
plus Consolidated Interest Expense $
--------
plus taxes on income $
--------
plus depreciation and amortization $
--------
plus other non-cash charges $
--------
Total $
--------
EBITDA $
========
</TABLE>
- ---------------
(11) Add back the amount of Anchor Tenant Settlement Payment in the
applicable period
79
<PAGE> 84
Schedule 5
Net Operating Income(12)
(for Fiscal Quarter just ended)
<TABLE>
<S> <C>
quarter
- --- ---
Property revenues $
less Property expenses(13)
(excluding depreciation, amortization
and debt service) $( )
----------
less management fee (3% of gross
rental income, excluding
percentage rents) $( )
----------
less capital reserve ($0.15 per leasable
square foot) $( )
----------
NET OPERATING INCOME $
----------
</TABLE>
- ---------------
(12) Include only Properties owned for at least one Fiscal Quarter
(13) If such period is less than a year, expenses that are payable less
frequently than monthly during the course of a year (e.g. real estate taxes and
insurance premiums) shall be adjusted by "straight lining" the amounts so that
such expenses are accrued on a monthly basis over the course of a year and
fairly stated for each period.
80
<PAGE> 85
EXHIBIT G
JDN REALTY CORPORATION
CLOSING CERTIFICATE
Reference is made to the Amended and Restated Term Loan
Credit Agreement (the "Credit Agreement") dated as of May 19, 2000, among JDN
Realty Corporation, the Banks listed therein, Wachovia Bank, N.A., as Agent and
PNC Bank, National Association, as Documentation Agent. Capitalized terms used
herein have the meanings ascribed thereto in the Credit Agreement.
Pursuant to Section 3.01(e) of the Credit Agreement,
____________________, the duly authorized ____________________ of JDN Realty
Corporation, hereby certifies to the Agent and the Banks that, to the best of
my knowledge, (i) no Default has occurred and is continuing as of the date
hereof, and (ii) the representations and warranties contained in Article IV of
the Credit Agreement are true on and as of the date hereof.
Certified as May 19, 2000.
By:
---------------------------------
Printed Name:
--------------------
Title:
---------------------------
81
<PAGE> 86
EXHIBIT H
JDN REALTY CORPORATION
SECRETARY'S CERTIFICATE
The undersigned, ______________________,____________________,
Secretary of JDN Realty Corporation, a Maryland corporation (the "Borrower"),
hereby certifies that [s]he has been duly elected, qualified and is acting in
such capacity and that, as such, [s]he is familiar with the facts herein
certified and is duly authorized to certify the same, and hereby further
certifies, in connection with the Amended and Restated Term Loan Credit
Agreement dated as of May 19, 2000 among the Borrower, Wachovia Bank, N.A. as
Agent and as a Bank, and certain other Banks listed on the signature pages
thereof, that:
1. There has been no amendment, modification or alteration of
the Certificate of Incorporation of the Borrower since February 17, 1999
[EXCEPT __________, A COPY OF WHICH IS ATTACHED HERETO].
2. There has been no amendment, modification or alteration of
the Bylaws of the Borrower since February 17, 1999, [EXCEPT __________, A COPY
OF WHICH IS ATTACHED HERETO].
3. Attached hereto as Exhibit C is a complete and correct
copy of the resolutions duly adopted by the Board of Directors of the Borrower
on April 27, 2000 approving, and authorizing the execution and delivery of, the
Credit Agreement, the Term Notes and the other Loan Documents (as such terms
are defined in the Credit Agreement) to which the Borrower is a party. Such
resolutions have not been repealed or amended and are in full force and effect,
and no other resolutions or consents have been adopted by the Board of
Directors of the Borrower in connection therewith.
4. , who is of the Borrower
signed the Credit Agreement, the Notes and the other Loan Documents to which
the Borrower is a party, was duly elected, qualified and acting as such at the
time [s]he signed the Credit Agreement, the Term Notes and other Loan Documents
to which the Borrower is a party, and [his/her] signature appearing on the
Credit Agreement, the Notes and the other Loan Documents to which the Borrower
is a party is [his/her] genuine signature.
IN WITNESS WHEREOF, the undersigned has hereunto set
[his/her] hand as of May 19, 2000.
------------------------------------------
82
<PAGE> 87
EXHIBIT I
GUARANTY
THIS GUARANTY (this "Guaranty") is made as of May 19, 2000 by
JDN DEVELOPMENT COMPANY, INC., a Delaware corporation, JDN REALTY AL, INC., an
Alabama corporation, JDN REALTY, LP, INC., a Delaware corporation and JDN
REALTY HOLDINGS, L.P., a Georgia limited partnership (each an "Initial
Guarantor" and a "Guarantor"; the terms "Guarantor" and "Guarantors" shall
include any Subsidiary of JDN Realty Corporation which becomes a Guarantor
pursuant to Section 15 hereof and Section 5.25 of the Credit Agreement referred
to below) in favor of the Agent, for the ratable benefit of the Banks, under
the Credit Agreement referred to below;
W I T N E S S E T H
WHEREAS, JDN REALTY CORPORATION, a Maryland corporation (the
"Borrower"), WACHOVIA BANK, N.A., as Agent (the "Agent") and PNC Bank, National
Association, as Documentation Agent and certain other Banks from time to time
party thereto have entered into a certain Amended and Restated Term Loan Credit
Agreement dated as of May 19, 2000 (as amended as of the date hereof and as it
may be amended or modified further from time to time, the "Credit Agreement"),
providing, subject to the terms and conditions thereof, for term loans to be
made by the Banks to the Borrower which will the benefit the Guarantors;
WHEREAS, it is required by Section 5.25 of the Credit
Agreement, that the Initial Guarantors execute and deliver this Guaranty
whereby it and, together with other Guarantors which become such as
contemplated in Section 15 hereof, shall guarantee the payment when due of all
principal, interest and other amounts that shall be at any time payable by the
Borrower under the Credit Agreement, the Term Notes and the other Loan
Documents; and
WHEREAS, in consideration of the financial and other support
that the Borrower has provided, and such financial and other support as the
Borrower may in the future provide, to the Guarantors, whether directly or
indirectly, and in order to induce the Banks and the Agent to enter into the
Credit Agreement, the Guarantors are willing to guarantee the obligations of
the Borrower under the Credit Agreement, the Term Notes, and the other Loan
Documents;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions. Terms defined in the Credit Agreement
and not otherwise defined herein have, as used herein, the respective meanings
provided for therein.
SECTION 2. Representations and Warranties. The Guarantors
incorporate herein by reference as fully as if set forth herein all of the
representations and warranties pertaining to the Guarantors contained in
Article IV of the Credit Agreement (which representations and warranties shall
be deemed to have been renewed by the Guarantors upon each Borrowing under the
Credit Agreement).
SECTION 3. Covenants. The Guarantors covenant that, so long
as any Bank has any Commitment outstanding under the Credit Agreement or any
amount payable under the Credit Agreement or any Term Note shall remain unpaid,
the Guarantors will fully comply with those covenants set forth in Article V of
the Credit Agreement pertaining to the Guarantors, and the Guarantors
incorporate herein by reference as fully as if set forth herein all of such
covenants.
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<PAGE> 88
SECTION 4. The Guaranty. The Guarantors hereby irrevocably,
unconditionally and jointly and severally guarantee (i) the full and punctual
payment (whether at stated maturity, upon acceleration or otherwise) of the
principal of and interest on each Term Note issued by the Borrower pursuant to
the Credit Agreement, and the full and punctual payment of all other amounts
payable by the Borrower under the Credit Agreement, including, without
limitation, all Loans and interest thereon, all compensation and
indemnification amounts and fees payable pursuant to the Credit Agreement and
the Agent's Letter Agreement, and (ii) the timely performance of all other
obligations of the Borrower under the Credit Agreement and the other Loan
Documents (all of the foregoing obligations being referred to collectively as
the "Guaranteed Obligations"). Upon failure by the Borrower to pay punctually
any such amount or perform such obligations, each of the Guarantors agrees that
it shall forthwith on demand pay the amount not so paid at the place and in the
manner specified in the Credit Agreement, the relevant Term Note or the
relevant Loan Document, as the case may be, or perform such obligation in
accordance with the terms and conditions therefor specified in the Credit
Agreement or the other Loan Documents, and pay all costs of collection,
including reasonable attorneys fees; provided that, notwithstanding the
provisions of O.C.G.A. ss. 13-1-11(a)(2) to the contrary, the Guarantor shall
not be obligated to pay more than the attorneys fees actually incurred in
connection with such collection.
SECTION 5. Guaranty Unconditional. The obligations of the
Guarantor hereunder shall be unconditional and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise,
waiver or release in respect of any obligation of the
Borrower under the Credit Agreement, any Term Note, or any
other Loan Document, by operation of law or otherwise or any
obligation of any other guarantor of any of the Guaranteed
Obligations;
(ii) any modification or amendment of or supplement
to the Credit Agreement, any Term Note, or any other Loan
Document;
(iii) any release, nonperfection or invalidity of
any direct or indirect security, if any, for any obligation
of the Borrower under the Credit Agreement, any Term Note,
any Loan Document, or any obligations of any other guarantor
of any of the Guaranteed Obligations;
(iv) any change in the corporate or partnership
structure or ownership of the Borrower or any Guarantor or
any other guarantor of any of the Guaranteed Obligations, or
any insolvency, bankruptcy, reorganization or other similar
proceeding affecting the Borrower, or any other Guarantor or
any other guarantor of the Guaranteed Obligations, or its
assets or any resulting release or discharge of any
obligation of the Borrower, or any other Guarantor or any
other guarantor of any of the Guaranteed Obligations;
(v) the existence of any claim, setoff or other
rights which the Guarantors may have at any time against the
Borrower, any other Guarantor or any other guarantor of any
of the Guaranteed Obligations, the Agent, any Bank or any
other Person, whether in connection herewith or any unrelated
transactions, provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory
counterclaim;
(vi) any invalidity or unenforceability relating to
or against the Borrower, or any other Guarantor or any other
guarantor of any of the Guaranteed Obligations, for any
reason related to the Credit Agreement, any other Loan
Document, or any other Guaranty, or any provision of
applicable law or regulation purporting to prohibit the
payment by the Borrower, or any other Guarantor or any other
guarantor of the Guaranteed Obligations, of the principal of
or interest on any Term Note or any other
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<PAGE> 89
amount payable by the Borrower under the Credit Agreement,
the Term Notes, or any other Loan Document; or
(vii) any other act or omission to act or delay of
any kind by the Borrower, any other Guarantor or any other
guarantor of the Guaranteed Obligations, the Agent, any Bank
or any other Person or any other circumstance whatsoever
which might, but for the provisions of this paragraph,
constitute a legal or equitable discharge of the Guarantor's
obligations hereunder.
SECTION 6. Discharge Only Upon Payment In Full; Reinstatement
In Certain Circumstances. The Guarantors' obligations hereunder shall remain in
full force and effect until all Guaranteed Obligations shall have been paid in
full and the Commitments under the Credit Agreement shall have terminated or
expired. If at any time any payment of the principal of or interest on any Term
Note or any other amount payable by the Borrower under the Credit Agreement or
any other Loan Document is rescinded or must be otherwise restored or returned
upon the insolvency, bankruptcy or reorganization of the Borrower or otherwise,
the Guarantors' obligations hereunder with respect to such payment shall be
reinstated as though such payment had been due but not made at such time.
SECTION 7. Waiver of Notice by the Guarantors. The Guarantors
irrevocably waive acceptance hereof, presentment, demand, protest and, to the
fullest extent permitted by law, any notice not provided for herein, as well as
any requirement that at any time any action be taken by any Person against the
Borrower, any other Guarantor or any other guarantor of the Guaranteed
Obligations, or any other Person.
SECTION 8. Stay of Acceleration. If acceleration of the time
for payment of any amount payable by the Borrower under the Credit Agreement,
any Term Note or any other Loan Document is stayed upon the insolvency,
bankruptcy or reorganization of the Borrower, all such amounts otherwise
subject to acceleration under the terms of the Credit Agreement, any Term Note
or any other Loan Document shall nonetheless be payable by the Guarantors
hereunder forthwith on demand by the Agent made at the request of the Required
Banks.
SECTION 9. Notices. All notices, requests and other
communications to any party hereunder shall be given or made by telecopier or
other writing and telecopied or mailed or delivered to the intended recipient
at its address or telecopier number set forth on the signature pages hereof or
such other address or telecopy number as such party may hereafter specify for
such purpose by notice to the Agent in accordance with the provisions of
Section 9.01 of the Credit Agreement. Except as otherwise provided in this
Guaranty, all such communications shall be deemed to have been duly given when
transmitted by telecopier, or personally delivered or, in the case of a mailed
notice, 3 Domestic Business Days after such communication is deposited in the
mails with first class postage prepaid, in each case given or addressed as
aforesaid.
SECTION 10. No Waivers. No failure or delay by the Agent or
any Banks in exercising any right, power or privilege hereunder 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 this Guaranty, the Credit
Agreement, the Term Notes, and the other Loan Documents shall be cumulative and
not exclusive of any rights or remedies provided by law.
SECTION 11. Successors and Assigns. This Guaranty is for the
benefit of the Agent and the Banks and their respective successors and assigns
and in the event of an assignment of any amounts payable under the Credit
Agreement, the Term Notes, or the other Loan Documents, the rights hereunder,
to the extent applicable to the indebtedness so assigned, may be transferred
with such indebtedness. This Guaranty may not be assigned by the Guarantors
without the prior written consent of
85
<PAGE> 90
the Agent and the Required Banks, and shall be binding upon the Guarantors and
their respective successors and permitted assigns.
SECTION 12. Changes in Writing. Neither this Guaranty nor any
provision hereof may be changed, waived, discharged or terminated orally, but
only in writing signed by the Guarantors and the Agent, with the consent of the
Required Banks.
SECTION 13. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER
OF JURY TRIAL. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF GEORGIA. EACH OF THE GUARANTOR AND THE AGENT
HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF GEORGIA AND OF ANY GEORGIA STATE COURT
SITTING IN ATLANTA, GEORGIA AND FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING
OUT OF OR RELATING TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY.
THE GUARANTORS IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH ANY OF THEM 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. EACH OF THE GUARANTORS AND THE AGENT HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 14. Taxes, etc. All payments required to be made by
the Guarantor hereunder shall be made without setoff or counterclaim and free
and clear of and without deduction or withholding for or on account of, any
present or future taxes, levies, imposts, duties or other charges of whatsoever
nature imposed by any government or any political or taxing authority pursuant
and subject to the provisions of Section 2.08(c) of the Credit Agreement, the
terms of which are incorporated herein by reference as to the Guarantors as
fully as if set forth herein, and for such purposes, the rights and obligations
of the Borrower under such Section shall devolve to the Guarantors as to
payments required to be made by the Guarantors hereunder.
SECTION 15. Additional Guarantors; Release of Guarantors.
Section 5.25 of the Credit Agreement provides that all new Significant
Subsidiaries and certain other Subsidiaries must become Guarantors, by, among
other things, executing and delivering to the Agent a counterpart of this
Guaranty. Any Subsidiary which executes and delivers to the Agent a counterpart
of this Guaranty shall be a Guarantor for all purposes hereunder. Under certain
circumstances described in the last sentence of Section 5.05 of the Credit
Agreement, Guarantors may obtain from the Agent a written release from this
Guaranty pursuant to the provisions of such sentence, and upon obtaining such
written release, any such Subsidiary shall no longer be a Guarantor hereunder.
Each other Guarantor consents and agrees to any such release and agrees that no
such release shall affect its obligations hereunder.
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<PAGE> 91
SECTION 16. Other Waivers by the Guarantors. The Guarantors
hereby expressly waive, renounce, and agree not to assert, any right, claim or
cause of action, including, without limitation, a claim for reimbursement,
subrogation, indemnification or otherwise, against the Borrower arising out of
or by reason of this Guaranty or the obligations of the Guarantors hereunder,
including, without limitation, the payment or securing or purchasing of any of
the Guaranteed Obligations by the Guarantors, until payment in full of the
Guaranteed Obligations. The waiver, renunciation and agreement contained in the
immediately preceding sentence is for the benefit of the Agent and the Banks
and also for the benefit of the Borrower who may assert the benefits thereof as
a third-party beneficiary, and the Guarantors may be released from such waiver,
renunciation and agreement only by the execution and delivery, by the Agent,
the Required Banks and the Borrower, of an instrument expressly releasing the
Guarantors therefrom.
IN WITNESS WHEREOF, the Initial Guarantors have caused this
Guaranty to be duly executed, under seal, by its authorized officer as of the
date first above written.
JDN DEVELOPMENT COMPANY, INC.
By:
---------------------------
Title:
JDN REALTY AL, INC.
By:
---------------------------
Title:
JDN REALTY, LP, INC.
By:
---------------------------
Title:
JDN REALTY HOLDINGS, L.P.
By:
---------------------------
Its General Partner
By:
-----------------
Title:
87
<PAGE> 92
EXHIBIT J
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "Agreement") is entered
into as of May 19, 2000, by and between JDN REALTY CORPORATION, a Maryland
corporation (the "Principal") and JDN DEVELOPMENT COMPANY, INC. a Delaware
corporation, JDN Realty AL, Inc., an Alabama corporation, JDN REALTY, LP, INC.,
a Delaware corporation and JDN REALTY HOLDINGS, L.P., a Georgia limited
partnership (each an "Initial Guarantor" and a "Guarantor"; the terms
"Guarantor" and "Guarantors" shall include any Subsidiary of JDN Realty
Corporation which becomes a Guarantor pursuant to the last paragraph hereof and
Section 5.25 of the Credit Agreement referred to below). The Principal and each
of the Guarantors are sometimes hereinafter referred to individually as a
"Contributing Party" and collectively as the "Contributing Parties").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Amended and Restated Term
Loan Credit Agreement, dated as of May 19, 2000 among the Principal, the Banks
party thereto, Wachovia Bank, N.A., as Agent and PNC Bank, National
Association, as Documentation Agent (such agreement, as amended as of the date
hereof and as the same may from time to time be amended, modified, restated or
extended, being hereinafter referred to as the "Credit Agreement"; capitalized
terms used herein shall have the meanings ascribed thereto in the Credit
Agreement), the Banks have agreed to extend term loans to the Principal;
WHEREAS, it is required by Section 5.25 of the Credit
Agreement that the Initial Guarantors and each Significant Subsidiary and
certain other Subsidiaries execute and deliver that certain Guaranty, dated as
of even date herewith (such agreement, as the same may from time to time be
amended, modified, restated or extended, being hereinafter referred to as the
"Guaranty"), pursuant to which, among other things, the Initial Guarantors and,
together with Significant Subsidiaries which become Guarantors as contemplated
in the last paragraph hereof, have jointly and severally agreed to guarantee
the "Guaranteed Obligations" (as defined in the Guaranty); and
WHEREAS, the Principal owns most of the beneficial interests
in the Initial Guarantors, and each Guarantor other than JDN DCI is a direct or
indirect subsidiary of the Principal and is engaged in businesses related to
those of the Principal and each other Guarantor, and each of the Guarantors
will derive direct or indirect economic benefit from the effectiveness and
existence of the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the
covenants hereinafter contained, and to induce each Guarantor to enter into the
Guaranty, it is agreed as follows:
To the extent that any Guarantor shall, under the Guaranty,
make a payment (a "Guarantor Payment") of a portion of the Guaranteed
Obligations, then, without limiting its rights of subrogation against the
principal, such Guarantor shall be entitled to contribution and indemnification
from, and be reimbursed by, each of the other Contributing Parties in an
amount, for each such Contributing Party, equal to a fraction of such Guarantor
Payment, the numerator of which fraction is such Contributing Party's Allocable
Amount and the denominator of which is the sum of the Allocable Amounts of all
of the Contributing Parties.
As of any date of determination, the "Allocable Amount" of
each Contributing Party shall be equal to the maximum amount of liability which
could be asserted against such Contributing Party hereunder with respect to the
applicable Guarantor Payment without (i) rendering such Contributing Party
"insolvent" within the meaning of Section 101(31) of the Federal Bankruptcy
Code (the "Bankruptcy
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<PAGE> 93
Code") or Section 2 of either the Uniform Fraudulent Transfer Act (the "UFTA")
or the Uniform Fraudulent Conveyance Act (the "UFCA"), (ii) leaving such
Contributing Party with unreasonably small capital, within the meaning of
Section 548 of the Bankruptcy Code or Section 4 of the UFTA or Section 5 of the
UFCA, or (iii) leaving such Contributing Party unable to pay its debts as they
become due within the meaning of Section 548 of the Bankruptcy Code or Section
4 of the UFTA or Section 6 of the UFCA.
This Agreement is intended only to define the relative rights
of the Contributing Parties, and nothing set forth in this Agreement is
intended to or shall impair the obligations of the Guarantors, jointly and
severally, to pay any amounts, as and when the same shall become due and
payable in accordance with the terms of the Guaranty.
The parties hereto acknowledge that the rights of
contribution and indemnification hereunder shall constitute assets in favor of
each Guarantor to which such contribution and indemnification is owing.
This Agreement shall become effective upon its execution by
each of the Contributing Parties and shall continue in full force and effect
and may not be terminated or otherwise revoked by any Contributing Party until
all of the Guaranteed Obligations shall have been indefeasibly paid in full (in
lawful money of the United States of America) and discharged and the Credit
Agreement and financing arrangements evidenced and governed by the Credit
Agreement shall have been terminated. Each Contributing Party agrees that if,
notwithstanding the foregoing, such Contributing Party shall have any right
under applicable law to terminate or revoke this Agreement, and such
Contributing Party shall attempt to exercise such right, then such termination
or revocation shall not be effective until a written notice of such revocation
or termination, specifically referring hereto and signed by such Contributing
Party, is actually received by each of the other Contributing Parties and by
the Agent at its notice address set forth in the Credit Agreement. Such notice
shall not affect the right or power of any Contributing Party to enforce rights
arising prior to receipt of such written notice by each of the other
Contributing Parties and the Agent. If any Bank grants additional loans to the
Principal or takes other action giving rise to additional Guaranteed
Obligations after any Contributing Party has exercised any right to terminate
or revoke this Agreement but before the Agent receives such written notice, the
rights of each other Contributing Party to contribution and indemnification
hereunder in connection with any Guarantor Payments made with respect to such
loans or Guaranteed Obligations shall be the same as if such termination or
revocation had not occurred.
Section 5.25 of the Credit Agreement provides that new
Significant Subsidiaries and certain other Subsidiaries must become Guarantors
by, among other things, executing and delivering to the Agent a counterpart of
the Guaranty and of this Contribution Agreement. Any Subsidiary which executes
and delivers to the Agent a counterpart of the Guaranty and of this
Contribution Agreement shall be a Guarantor for all purposes hereunder. Under
certain circumstances described in the last sentence of Section 5.05 of the
Credit Agreement, Guarantors may obtain from the Agent a written release from
the Guaranty pursuant to the provisions of such sentence, and upon obtaining
such written release, any such Subsidiary shall no longer be a Guarantor or
Contributing Party hereunder, and such release shall automatically and without
further action constitute a release by each other Contributing Party of all
obligations of such Subsidiary hereunder. Each other Guarantor consents and
agrees to any such release and agrees that no such release shall affect its
obligations hereunder, except as to the Subsidiary so released.
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<PAGE> 94
IN WITNESS WHEREOF, each Contributing Party has executed and
delivered this Agreement, under seal, as of the date first above written.
JDN REALTY CORPORATION (SEAL)
By:
-------------------------------
Title:
JDN REALTY AL, INC. (SEAL)
By:
-------------------------------
Title:
JDN DEVELOPMENT COMPANY, INC.
By:
-------------------------------
Title:
JDN REALTY, LP, INC.
By:
-------------------------------
Title:
JDN REALTY HOLDINGS, L.P.
By:
-------------------------------
Its General Partner
By:
--------------------
Title:
90
<PAGE> 95
EXHIBIT K
BORROWING BASE CERTIFICATE
Reference is made to the Amended and Restated Term Loan
Credit Agreement dated as of May 19, 2000 (as modified and supplemented and in
effect from time to time, the "Credit Agreement") among JDN Realty Corporation,
the Banks from time to time parties thereto, Wachovia Bank, N.A., as Agent and
PNC Bank, National Association, as Documentation Agent. Capitalized terms used
herein shall have the meanings ascribed thereto in the Credit Agreement.
Pursuant to Section [3.01(h)][5.01(i)] of the Credit
Agreement,_______ , the duly authorized ___________ of the Borrower, hereby (i)
certifies to the Agent and the Banks that each of the Borrowing Base Properties
satisfies the criteria set forth in the definition thereof for being included
as a Borrowing Base Property, and the calculation of the Borrowing Base
contained in this Borrowing Base Certificate is true, accurate and complete in
all material respects, as of ____, ____.
The calculation of the Borrowing Base is as follows:
The calculation of the [Transitional]14 Borrowing Base is as
follows:
<TABLE>
<S> <C>
(a) Net Operating Income for the 3 month period ending
on the last day of the Fiscal Quarter just ended
prior to the date of determination, from each
Borrowing Base Property owned by the Borrower or any
Guarantor for at least one
Fiscal Quarter $
-----------
(b) 10 times (a)
$
-----------
(c) 4 times (b)
$
-----------
(d) 0.60 times
$
-----------
[TRANSITIONAL] BORROWING BASE: amount of (d) $
-----------
</TABLE>
JDN REALTY CORPORATION
By:
----------------------------
Its:
- ---------------
(14) Include this term prior to the Final Borrowing Base Property
Perfection Date.
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<PAGE> 96
EXHIBIT L
LIST OF BORROWING BASE PROPERTIES
<TABLE>
<CAPTION>
Total % %
Property Year Company 1Q 2000 Occupied Leased
Number Property Name Location Built GLA sf(15) NOI(16) 3/31/00 3/31/00
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
177 Opelika Lowe's Opelika, AL 1999 135,197 $ 238,934 100.0% 100.0%
180 Scottsboro Marketplace Scottsboro, AL 1999 40,569 88,755 100.0% 100.0%
210 Brandon Lakes Village Brandon, FL 1997 115,952 336,123 100.0% 100.0%
343 Lawrenceville CVS Lawrenceville, GA 1998 10,126 55,874 100.0% 100.0%
344 Lawrenceville Town Center Lawrenceville, GA 1989 322,262 443,328 98.8% 98.8%
347 Midway S/C Loganville, GA 1995 91,199 217,720 98.7% 98.7%
352 Macon K-Mart Macon, GA 1999 102,101 216,169 100.0% 100.0%
379 Village at Noble Farms Suwanee, GA 1997 43,394 137,760 77.4% 77.4%
384 Cofer Crossing Tucker, GA 1998 126,957 206,313 98.6% 98.6%
410 Cross Pointe Center Fayetteville, NC 1985 204,299 287,509 80.7% 80.7%
420 Eastridge Crossing Hendersonville, NC 1988 170,793 173,639 100.0% 100.0%
505 Ashley Crossing Charleston, SC 1991 196,053 356,272 99.3% 99.3%
607 Millcreek Commons Antioch, TN 1990 51,534 82,653 100.0% 100.0%
610 Farragut Pointe Farragut, TN 1991 71,315 113,691 94.7% 94.7%
622 Battlewood Franklin, TN 1990 54,412 91,995 85.3% 85.3%
640 Country Bridge Arlington 1993 64,225 132,916 100.0% 100.0%
(Memphis, TN)
651 Plaza South Murfreesboro, TN 1972 71,028 86,456 89.0% 89.0%
710 Township Marketplace Monaca, PA 1997 230,962 357,300 98.2% 98.2%
755 Candler's Station Lynchburg, VA 1990 275,769 432,010 83.6% 83.6%
761 Genito Crossing Midlothian, VA 1985 79,410 159,377 90.5% 90.5%
--------------------------------------------------------------------------------------------------------------------
TOTAL 2,457,557 $ 4,214,794
20 Properties
BORROWING BASE $101,155,056
</TABLE>
- ---------------
(15) "GLA" Refers to gross leasable area of building improvements on any
Borrowing Base Property, expressed in square feet
(16) "NOI" refers to Net Operating Income, as defined in the Credit
Agreement to which this Exhibit J is attached
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<PAGE> 97
EXHIBIT M
Form of Mortgage
(to be modified in compliance with state law)
Prepared By and
After Recording Return To:
A. Michael Lee, Esq.
Jones, Day, Reavis & Pogue
3500 SunTrust Plaza
303 Peachtree Street, N.E.
Atlanta, Georgia 30308-3242
DEED TO SECURE DEBT AND SECURITY AGREEMENT
THIS INSTRUMENT (this "Instrument") is made and entered into as of
this ___ day of ____________, 2000, by and between JDN REALTY CORPORATION, a
Maryland corporation, having a mailing address of 359 East Paces Ferry Road,
Suite 400, Atlanta, Georgia 30305 ("Obligor"), and WACHOVIA BANK, N.A.
("Wachovia"), having a mailing address of 191 Peachtree Street, 30th Floor,
Atlanta, Georgia 30303, as agent (together with its successors and assigns,
"Collateral Agent") for itself and each other lender (collectively, the
"Banks") which is or may hereafter become a party to that certain Amended and
Restated Term Loan Credit Agreement, dated as of May 19, 2000, by and among
Obligor, Collateral Agent and Banks (as may be amended or otherwise
supplemented for time to time, the "Credit Agreement").
W I T N E S S E T H:
That for and in consideration of the sum of Ten and No/100 Dollars
($10.00) and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and in order to secure the indebtedness and other
obligations of Obligor hereinafter set forth, Obligor does hereby grant,
bargain, sell, convey, assign, transfer and set over unto Collateral Agent, for
the ratable benefit of Banks and their successors and assigns all of the
following described land and interests in land, estates, easements, rights,
improvements, property, fixtures, equipment, furniture, furnishings, appliances
and appurtenances (collectively, the "Property"):
(a) All those tracts or parcels of land and easements more
particularly described in Exhibit "A" attached hereto and by this reference
made a part hereof (the "Land").
(b) All buildings, structures and improvements of every nature
whatsoever now or hereafter situated on the Land, and all gas and electric
fixtures, radiators, heaters, engines and machinery, boilers, ranges, elevators
and motors, plumbing and heating fixtures, carpeting and other floor coverings,
fire extinguishers and any other safety equipment required by governmental
regulation or law, washers, dryers, water heaters, mirrors, mantels, air
conditioning apparatus, refrigerating plants, refrigerators, cooking apparatus
and appurtenances, window screens, awnings and storm sashes, which are or shall
be owned by Obligor and attached to said buildings, structures or improvements
and all other furnishings, furniture, fixtures, machinery, equipment,
appliances, vehicles, building supplies and materials, books and records,
chattels, inventory, accounts, farm products, consumer goods, general
intangibles and personal property of every kind and nature whatsoever now or
hereafter owned by Obligor and located in, on or about, or used or intended to
be used with or in connection with the use, operation or enjoyment of the
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Property, including all extensions, additions, improvements, betterments,
after-acquired property, renewals, replacements and substitutions, or proceeds
from a permitted sale of any of the foregoing, and all the right, title and
interest of Obligor in any such furnishings, furniture, fixtures, machinery,
equipment, appliances, vehicles and personal property subject to or covered by
any prior security agreement, conditional sales contract, chattel mortgage or
similar lien or claim, together with the benefit of any deposits or payments
now or hereafter made by Obligor or on behalf of Obligor, all of which are
hereby declared and shall be deemed to be fixtures and accessions to the Land
and a part of the Property as between the parties hereto and all persons
claiming by, through or under them, and which shall be deemed to be a portion
of the security for the indebtedness herein described and to be secured by this
Instrument.
(c) All easements, rights-of-way, strips and gores of land,
vaults, streets, ways, alleys, passages, sewer rights, waters, water courses,
water rights and powers, minerals, flowers, shrubs, crops, trees, timber and
other emblements now or hereafter located on the Land or under or above the
same or any part or parcel thereof, and all estates, rights, titles, interests,
privileges, liberties, tenements, hereditaments and appurtenances, reversion
and reversions, remainder and remainders, whatsoever, in any way belonging,
relating or appertaining to the Land or any part thereof, or which hereafter
shall in any way belong, relate or be appurtenant thereto, whether now owned or
hereafter acquired by Obligor.
(d) All income, rents, issues, profits and revenues of the
Property from time to time accruing (including, without limitation, all
payments under leases or tenancies, proceeds of insurance, condemnation
payments, tenant security deposits whether held by Obligor or in a trust
account, and escrow funds), and all the estate, right, title, interest,
property, possession, claim and demand whatsoever at law, as well as in equity,
of Obligor of, in and to the same; reserving only the right to Obligor to
collect the same (other than insurance proceeds and condemnation payments) so
long as Obligor is not in default hereunder.
TO HAVE AND TO HOLD the Property and all parts, rights, members and
appurtenances thereof, to the use, benefit and behoof of Collateral Agent for
the ratable benefit of Banks and their respective successors and assigns, IN
FEE SIMPLE forever; and Obligor covenants that Obligor is lawfully seized and
possessed of the Property as aforesaid, and has good right to convey the same,
that the same is unencumbered except for those matters expressly set forth in
Exhibit "B" attached hereto and by this reference made a part hereof (the
"Permitted Encumbrances"), and that Obligor does warrant and will forever
defend the title thereto against the claims of all persons whomsoever, except
as to those matters set forth in said Exhibit "B" attached hereto.
This conveyance is intended to operate and is to be construed as a
deed passing the title to the Property to Collateral Agent and is made under
those provisions of the existing laws of the State of Georgia relating to deeds
to secure debt, and not as a mortgage, and is given to secure the following
described indebtedness (collectively, the "Secured Obligations"):
(a) The Loans (as defined in the Credit Agreement) evidenced by
those certain promissory notes made by Obligor in the aggregate principal
amount of One Hundred Million and No/100 Dollars ($100,000,000.00), due June
14, 2001, or such earlier date as may be established pursuant to the Credit
Agreement (such notes, as any of them may be amended or otherwise modified from
time to time, are herein collectively referred to as the "Note").
(b) The performance and discharge of each and every obligation,
covenant and agreement of Assignor contained herein and in the other Loan
Documents (as defined in the Credit Agreement).
(c) Any and all additional advances made by any Bank to protect
or preserve the Property or the lien and security title hereof in and to the
Property, or for taxes, assessments or insurance premiums as
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hereinafter provided (whether or not Obligor remains the owner of the Property
at the time of such advances).
(d) Any and all other indebtedness now or hereafter owing by
Obligor to any Bank pursuant to the terms of the Credit Agreement, whether now
existing or hereafter arising or incurred, however evidenced or incurred,
whether express or implied, direct or indirect, absolute or contingent, due or
to become due, including, without limitation, all principal, interest, fees,
expenses, yield maintenance amounts and indemnification amounts, and all
renewals, modifications, consolidations, replacements and extensions thereof.
(e) All reasonable out-of-pocket costs and expenses incurred by
the Collateral Agent in connection with the enforcement and collection of the
Secured Obligations, including, without limitation, all attorneys' fees and
disbursements, and all other such costs and expenses described in and incurred
pursuant to the Note, the Credit Agreement, this Instrument, and the other Loan
Documents (as defined in the Credit Agreement) (collectively, the "Enforcement
Costs").
Should the Secured Obligations secured by this Instrument be paid
according to the tenor and effect thereof when the same shall become due and
payable, and should Obligor perform all covenants herein contained in a timely
manner, then this Instrument shall be cancelled and surrendered.
Obligor hereby further covenants and agrees with Collateral Agent as
follows:
ARTICLE I
SECTION 1.01. Payment of Secured Obligations. Obligor will pay the
Secured Obligations according to the tenor thereof and all other sums now or
hereafter secured hereby promptly as the same shall become due.
SECTION 1.02. Representations and Warranties. Obligor represents and
warrants to Collateral Agent, for the ratable benefit of Banks, that, as of the
date hereof:
(a) The Property is the Borrowing Base Property (as defined in
the Credit Agreement) described on Exhibit "C" attached hereto and by this
reference made a part hereof.
(b) The Property is free from any mechanics' or materialmen's liens or
claims.
(c) Obligor has no notice, information or knowledge of any change
contemplated in any applicable law, ordinance, regulation, or restriction; or
any judicial, administrative, governmental or quasi-governmental action; of any
action by adjacent land owners; or of any natural or artificial conditions
existing upon the Property which would limit, restrict, or prevent the
contemplated or intended use and purpose of the Property.
(d) There is no pending condemnation or similar proceeding affecting
the Property, or any portion thereof, nor to the best knowledge of Obligor, is
any such action being presently contemplated.
(e) No part of the Property is being used for agricultural purposes or
being used for a personal residence by Obligor or any shareholder of Obligor.
(f) The Property is undamaged by fire, windstorm, or other casualty.
(g) The Property complies in all material respects with all zoning and
subdivision ordinances, energy and environmental codes, building and use
restrictions and codes, and any
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requirements with respect to licenses, permits and agreements necessary for the
lawful use and operation of the Property.
(h) The heating, electrical, sanitary sewer plumbing, storm sewer
plumbing, potable water plumbing and other building equipment, fixtures and
fittings in the existing improvements on the Property are in good condition and
working order, are adequate in quantity and quality for normal and usual use,
and are fit for the purposes intended and the use contemplated.
(i) The Property is covered by a tax parcel(s) which pertain to the
Property only and not to any property which is not subject to this Instrument.
(j) The Property is improved with a shopping center and related parking
and has frontage on, and direct access for ingress and egress to a public
street.
(k) Obligor has good and clear record and marketable title in fee to
such of the Property as is real property, subject to no liens, encumbrances or
restrictions other than Permitted Encumbrances. There have been no labor or
materials furnished to the Property that have not been paid for in full.
SECTION 1.03. Taxes, Liens and Other Charges.
(a) In the event of the passage of any state, federal, municipal or
other governmental law, order, rule or regulation, subsequent to the date
hereof, in any manner changing or modifying the laws now in force governing the
taxation of debts secured by deeds to secure debt or the manner of collecting
taxes so as to adversely affect Banks, Obligor will promptly pay any such tax.
If Obligor fails to make such prompt payment or if, in the opinion of Collateral
Agent, any such state, federal, municipal, or other governmental law, order,
rule or regulation prohibits Obligor from making such payment or would penalize
Banks if Obligor makes such payment or if, in the opinion of Collateral Agent,
the making of such payment might result in the imposition of interest beyond the
maximum amount permitted by applicable law, then the entire balance of the
principal sum secured by this Instrument and all interest accrued thereon shall,
at the option of Collateral Agent, become immediately due and payable unless
Obligor shall substitute property unaffected by such tax considerations for the
Property and otherwise satisfy the conditions for release of the Property set
forth in Section 5.27 of the Credit Agreement.
(b) Obligor will pay all taxes, liens, assessments and charges of every
character including all utility charges, whether public or private, already
levied or assessed or that may hereafter be levied or assessed upon or against
the Property as required under the Credit Agreement.
(c) Obligor will not suffer any mechanic's, materialmen's, laborer's,
statutory or other lien to be created and to remain outstanding upon all or any
part of the Property, other than Permitted Encumbrances.
SECTION 1.04. Insurance.
(a) To the extent insurance is not provided or self-insured by the
tenant, Obligor shall procure for, deliver to and maintain for the benefit of
Collateral Agent and Banks during the term of this Instrument, original
insurance policies (or a master policy) issued by insurance companies, in
amounts, in form and substance, and with expiration dates acceptable to
Collateral Agent and containing non-contributory standard mortgagee clauses,
their equivalent or a satisfactory mortgagee loss payable endorsement in favor
of Collateral Agent, providing the following types of insurance on the Property:
(i) insurance against loss or damage by fire, lightning,
vandalism, malicious mischief and flood (if the Land is in an area
which is considered a flood risk area by the U.S. Department of Housing
and Urban Development), and against such other hazards as are presently
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included in so-called "all risk replacement cost insurance" and against
such other insurable hazards as, under good insurance practices, from
time to time are insured against for properties of similar character
and location; the amount of which insurance shall be not less than the
balance of the Secured Obligations evidenced by the Note and the Credit
Agreement nor less than one hundred percent (100%) of the full
replacement cost of the Property without deduction for depreciation;
and which policies of insurance shall contain satisfactory replacement
cost endorsements;
(ii) when obtainable from the United States of America or any
agency or instrumentality thereof, and when and as reasonably required
by Collateral Agent, war risk insurance in the maximum amount available
up to an amount equal to the replacement cost of the Property;
(iii) rent or business interruption insurance against loss of
income arising out of damage or destruction by fire, lightning,
vandalism, malicious mischief and flood and such other hazards as are
presently included in so-called "all risk replacement cost insurance"
in the amount equal to the gross annual income derived by Obligor from
the Property; and
(iv) such other insurance on the Property or any replacements
or substitutions therefor and in such amounts as may from time to time
be reasonably required by Collateral Agent against other insurable
casualties which at the time are commonly insured against in the case
of premises similarly situated, due regard being given to the height
and type of the improvements, their construction, location, use and
occupancy, or any replacements or substitutions therefor.
(b) Collateral Agent is hereby authorized and empowered, at its option,
to adjust or compromise any loss under any insurance policies maintained
pursuant to this Paragraph 1.04, and to collect and receive the proceeds from
any such policy or policies. Each insurance company is hereby authorized and
directed to make payment for all such losses directly to Collateral Agent,
instead of to Obligor and Collateral Agent jointly. In the event any insurance
company fails to disburse directly and solely to Collateral Agent but disburses
instead either solely to Obligor or to Obligor and Collateral Agent jointly,
Obligor agrees immediately to endorse and transfer such proceeds to Collateral
Agent. Upon the failure of Obligor to endorse and transfer such proceeds as
aforesaid, Collateral Agent may execute such endorsements or transfers for and
in the name of Obligor and Obligor hereby irrevocably appoints Collateral Agent
as Obligor's agent and attorney-in-fact so to do. After deducting from said
insurance proceeds all of its expenses incurred in the collection and
administration of such sums, including attorneys' fees, Collateral Agent may
apply the net proceeds or any part thereof, at its option, (i) to the payment of
the Secured Obligations hereby secured, whether or not due and in whatever order
Collateral Agent elects, (ii) to the repair and/or restoration of the Property,
or (iii) for any other purposes or objects for which Collateral Agent is
entitled to advance funds under this Instrument; all without affecting the lien
of this Instrument. Collateral Agent shall not be held responsible for any
failure to collect any insurance proceeds due under the terms of any policy
regardless of the cause of such failure.
(c) At least thirty (30) days prior to the expiration date of each
policy maintained pursuant to this Paragraph 1.04, a renewal or replacement
thereof satisfactory to Collateral Agent shall be delivered to Collateral Agent.
Obligor shall deliver to Collateral Agent receipts evidencing the payment for
all such insurance policies and renewals or replacements. The delivery of any
insurance policies hereunder shall constitute an assignment of all unearned
premiums as further security hereunder. In the event of the foreclosure of this
Instrument or any other transfer of title to the Property in extinguishment of
the Secured Obligations secured hereby, all right, title and interest of Obligor
in and to all insurance policies then in force shall pass to the purchaser or
lender.
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SECTION 1.05. Condemnation. If all or any material portion of the
Property shall be damaged or taken through condemnation (which term when used in
this Instrument shall include any damage or taking by any governmental authority
or any transfer by private sale in lieu thereof), either temporarily or
permanently, and if a Default or Event of Default is also in existence, then
Collateral Agent shall be entitled to receive all compensation, awards and other
payments or relief thereof, and Collateral Agent is hereby authorized, at its
option, to commence, appear in and prosecute, in its own or in Obligor's name,
any action or proceeding relating to any condemnation, and to settle or
compromise any claim in connection therewith. All such compensation, awards,
damages, claims, rights of action and proceeds and the right thereto are hereby
assigned by Obligor to Collateral Agent. After deducting from said condemnation
proceeds all of its expenses incurred in the collection and administration of
such sums, including attorney's fees, Collateral Agent may apply the net
proceeds or any part thereof, at its option, (a) to the payment of the Secured
Obligations hereby secured, whether or not due and in whatever order Collateral
Agent elects, (b) to the repair and/or restoration of the Property or (c) for
any other purposes or objects for which Collateral Agent is entitled to advance
funds under this Instrument, all without affecting the lien of this Instrument;
and any balance of such monies then remaining shall be paid to Obligor. Obligor
agrees to execute such further assignment of any compensation, awards, damages,
claims, rights of action and proceeds as Collateral Agent may require.
SECTION 1.06. Restoration and Repair. Notwithstanding anything to the
contrary contained herein, Collateral Agent agrees to make insurance and
condemnation proceeds available for the restoration or repair of the Property
under such safeguards and controls as Collateral Agent may reasonably require
and in accordance with standard construction loan procedures provided that: (i)
no Default or Event of Default shall exist; (ii) the restoration or repair shall
be done under the supervision of an architect (or, at Collateral Agent's option,
an engineer) acceptable to Collateral Agent and pursuant to plans and
specifications approved by Collateral Agent; (iii) satisfactory evidence is
delivered to Collateral Agent that the Property can be rebuilt to substantially
the same condition as when originally financed and can thereafter continue to be
operated for the purposes utilized prior to such condemnation or casualty; (iv)
satisfactory evidence is delivered to Collateral Agent that the appraised value
of the Property after such restoration or repair shall not be less than its
appraised value as of the date hereof; and (v) tenants of the Property as
designated by Collateral Agent shall certify to Collateral Agent their intention
to continue to occupy the Property without any abatement or adjustment of rental
payments (other than temporary abatements during the period of restoration and
repair).
SECTION 1.07. Care, Use and Management of Property.
(a) Obligor will keep, or cause to be kept, the buildings, roads and
walkways, landscaping and all other improvements of any kind now or hereafter
erected on the Land or any part thereof in good condition and repair, will not
commit or suffer any material waste and will not do or suffer to be done
anything which will increase the risk of fire or other hazard to the Property or
any part thereof.
(b) Obligor will not remove or demolish nor alter the structural
character of any building located on the Land in a manner that would materially
and adversely affect its value without the written consent of Collateral Agent.
(c) If the Property or any part thereof is materially damaged by fire
or any other cause, Obligor will give immediate written notice thereof to
Collateral Agent.
(d) To the extent permitted under the terms of the applicable Leases,
each Bank or its representative is hereby authorized to enter upon and inspect
the Property at any time during normal business hours.
(e) Obligor will promptly comply with all present and future laws,
ordinances, rules and regulations of any governmental authority affecting the
Property or any part thereof.
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(f) If all or any part of the Property shall be damaged by fire or
other casualty, Obligor will promptly restore the Property to the equivalent of
its original condition; and if a part of the Property shall be damaged through
condemnation, Obligor will promptly restore, repair or alter the remaining
portions of the Property in a manner satisfactory to Collateral Agent.
Notwithstanding the foregoing, Obligor shall not be obligated to so restore
unless in each instance, Collateral Agent agrees to make available to Obligor
(pursuant to a procedure satisfactory to Collateral Agent) any net insurance or
condemnation proceeds actually received by Collateral Agent hereunder in
connection with such casualty loss or condemnation, to the extent such proceeds
are required to defray the expense of such restoration; provided, however, that
the insufficiency of any such insurance or condemnation proceeds to defray the
entire expense of restoration shall in no way relieve Obligor of its obligation
to restore. In the event all or any portion of the Property shall be damaged or
destroyed by fire or other casualty or by condemnation, Obligor shall promptly
deposit with Collateral Agent a sum equal to the amount by which the estimated
cost of the restoration of the Property (as determined by Collateral Agent in
its good faith judgment) exceeds the actual net insurance or condemnation
proceeds received by Collateral Agent in connection with such damage or
destruction.
SECTION 1.08. Leases and Other Agreements Affecting Property. Obligor
will duly and punctually perform in all material respects all terms, covenants,
conditions and agreements binding upon it under any Lease or any other agreement
of any nature whatsoever which involves or affects the Property or any part
thereof. Obligor will furnish Collateral Agent with executed copies of the
Leases for all Major Tenants now or hereafter created upon the Property or any
part thereof and abstracts of all other Leases, unless Collateral Agent requests
a copy of such other Leases in which case Obligor will furnish copies of such
Leases to Collateral Agent. Obligor will not, without the express written
consent of Collateral Agent, modify in any material respect, surrender or
terminate, either orally or in writing, any Lease with a Major Tenant now
existing or hereafter created upon the Property or any part thereof, nor will
Obligor permit an assignment or a subletting by any Major Tenant without the
prior express written consent of Collateral Agent. Obligor will not accept
payment of rent more than one (1) month in advance without the prior written
consent of Collateral Agent. In order to further secure payment of the Secured
Obligations and the observance, performance and discharge of Obligor's
obligations, Obligor hereby collaterally assigns, transfers and sets over under
Collateral Agent all of Obligor's right, title and interest in, to and under all
Leases affecting the Property or any part thereof and in and to all of the
rents, issues, profits, revenues, awards and other benefits now or hereafter
arising from the use and enjoyment of the Property or any part thereof;
reserving only the right to Obligor to collect and use the same so long as
Obligor is not in default hereunder.
Collateral Agent shall be entitled to require, and Obligor shall use
its best efforts to obtain, the execution of tenant estoppels and subordination,
non-disturbance and attornment agreements from any Major Tenant in a form
specified by the related tenant Lease, if any, and acceptable to Collateral
Agent. Obligor hereby authorizes and directs each present and future tenant of
the Property to pay to Collateral Agent all rents and any other sums due Obligor
as landlord and to perform for the direct benefit of Collateral Agent any other
obligations of such tenant to Obligor as landlord, as if Collateral Agent were
the landlord under such tenant's Lease, immediately upon receipt of a written
demand by Collateral Agent to make such payment or perform such obligation
during the existence of an Event of Default. No such demand by Collateral Agent
shall constitute or be deemed to constitute any assumption by Collateral Agent
of any obligations of the landlord under such tenant's Lease. Subject only to
compliance by Collateral Agent with the provisions of Paragraph 2.01, no such
demand by Collateral Agent shall constitute or be deemed to constitute any
wrongful interference by Collateral Agent in the affairs or business
relationships for ascertaining whether any such demand by Collateral Agent is
authorized or whether a default by Obligor has occurred under this Instrument.
Obligor hereby waives any right, claim or action Obligor may now or hereafter
have against any such tenant by reason of such tenant's payment to or
performance for Collateral Agent as described above, and any such payment to or
performance for
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Collateral Agent shall discharge the obligation of such tenant to make such
payment to, or perform such obligation for, Obligor.
Obligor shall furnish the Collateral Agent with signed copies of all
new, modified or renewal Leases for Major Tenants and abstracts of all new,
modified or renewal Leases for non-Major Tenants, unless Collateral Agent
requests a copy of such other Leases in which event Obligor shall furnish copies
of such other Leases to Collateral Agent.
SECTION 1.09. Security Agreement. Insofar as the machinery, apparatus,
equipment, fittings, fixtures, building supplies and materials, and articles of
personal property either referred to or described in this Instrument, or in any
way connected with the use and enjoyment of the Property is concerned, this
Instrument is hereby made and declared to be a security agreement, encumbering
each and every item of personal property included herein, in compliance with the
provisions of the Uniform Commercial Code as enacted in the state wherein the
Land is situated. A financing statement or statements and a UCC-2 Notice of
Fixture Filing reciting this Instrument to be a security agreement, affecting
all of said personal property aforementioned, shall be executed by Obligor and
Collateral Agent and appropriately filed. The remedies for any violation of the
covenants, terms and conditions of the security agreement herein contained shall
be (i) as prescribed herein, or (ii) as prescribed by general law, or (iii) as
prescribed by the specific statutory consequences now or hereafter enacted and
specified in said Uniform Commercial Code, all at Collateral Agent's sole
election. Obligor and Collateral Agent agree that the filing of such financing
statement(s) and the UCC-2 Notice of Fixture Filing in the records normally
having to do with personal property shall never be construed as in any way
derogating from or impairing this declaration and hereby stated intention of
Obligor and Collateral Agent that everything used in connection with the
production of income from the Property and/or adapted for use therein and/or
which is described or reflected in this Instrument, is, and at all times and for
all purposes and in all proceedings both legal or equitable shall be, regarded
as part of the real estate irrespective of whether (i) any such item is
physically attached to the improvements, (ii) serial numbers are used for the
better identification of certain items capable of being thus identified in a
recital contained herein, or (iii) any such item is referred to or reflected in
any such financing statement(s) or the UCC-2 Notice of Fixture Filing so filed
at any time. Similarly, the mention in any such financing statement(s) or the
UCC-2 Notice of Fixture Filing of the rights in and to (1) the proceeds of any
fire and/or hazard insurance policy, or (2) any award in eminent domain
proceedings for a taking or for loss of value, or (3) Obligor's interest as
lessor in any present or future Lease or rights to income growing out of the use
and/or occupancy of the Property, whether pursuant to Lease or otherwise, shall
never be construed as in anyway altering any of the rights of Collateral Agent
as determined by this Instrument or impugning the priority of Collateral Agent's
lien granted hereby or by any other recorded document, but such mention in such
financing statement(s) or the UCC-2 Notice of Fixture Filing is declared to be
for the protection of Collateral Agent in the event any court shall at any time
hold with respect to the foregoing (1), (2) or (3), that notice of Collateral
Agent's priority of interest to be effective against a particular class of
persons, must be filed in the Uniform Commercial Code records.
SECTION 1.10. Further Assurances; After-Acquired Property. At any time,
and from time to time, upon request by Collateral Agent, Obligor will make,
execute and deliver or cause to be made, executed and delivered, to Collateral
Agent and, where appropriate, cause to be recorded and/or filed and from time to
time thereafter to be rerecorded and/or refiled at such time and in such offices
and places as shall be deemed desirable by Collateral Agent, any and all such
other and further deeds to secure debt, security agreements, financing
statements, notice filings, continuation statements, instruments of further
assurance, certificates and other documents as may, in the opinion of Collateral
Agent, be necessary or desirable in order to effectuate, complete, or perfect,
or to continue and preserve (a) the obligation of Obligor under the Note, the
Credit Agreement and this Instrument and (b) this Instrument as a first and
prior lien upon and security title in and to all of the Property, whether now
owned or hereafter acquired by Obligor. Upon any failure by Obligor so to do,
Collateral Agent may make, execute, record, file, re-record
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and/or refile any and all such deeds to secure debt, security agreements,
financing statements, continuation statements, instruments, certificates, and
documents for and in the name of Obligor and Obligor hereby irrevocably appoints
Collateral Agent the agent and attorney-in-fact of Obligor so to do. The lien
hereof will automatically attach, without further act, to all after acquired
property attached to and/or used in the operation of the Property or any part
thereof.
SECTION 1.11. Expenses. Obligor will pay or reimburse Collateral Agent,
upon demand therefor, for all reasonable attorney's fees, costs and expenses
incurred by Collateral Agent in any suit, action, legal proceeding or dispute of
any kind in which Banks or Collateral Agent is made a party or appears as party
plaintiff or defendant, affecting or arising in connection with the Secured
Obligations secured hereby, this Instrument or the interest created herein, or
the Property, including, but not limited to, the exercise of the power of sale
contained in this Instrument, any condemnation action involving the Property or
any action to protect the security hereof; and any such amounts paid by Banks or
Collateral Agent shall be added to the Secured Obligations secured by the lien
of this Instrument.
SECTION 1.12. Subrogation. Collateral Agent shall be subrogated to the
claims and liens of all parties whose claims or liens are discharged or paid
with the proceeds of the Secured Obligations secured hereby.
SECTION 1.13. Limit of Validity. If from any circumstances whatsoever
fulfillment of any provision of this Instrument or of the Note, at the time
performance of such provision shall be due, shall involve transcending the limit
of validity presently prescribed by any applicable usury statute or any other
applicable law, with regard to obligations of like character and amount, then
ipso facto the obligation to be fulfilled shall be reduced to the limit of such
validity, so that in no event shall any exaction be possible under this
Instrument or under the Note that is in excess of the current limit of such
validity, but such obligation shall be fulfilled to the limit of such validity.
The provisions of this Paragraph 1.13 shall control every other provision of
this Instrument and of the Note.
SECTION 1.14. Use of Property. Obligor shall not be permitted to alter
or change the use of the Property or to abandon the Property without the prior
written consent of Collateral Agent.
SECTION 1.15. Conveyance of Property. Obligor hereby acknowledges to
Collateral Agent that (a) the identity and expertise of Obligor was and
continues to be a material circumstance upon which Collateral Agent has relied
in connection with, and which constitute valuable consideration to Collateral
Agent for, the extending to Obligor of the loan evidenced by the Note, and (b)
any change in such identity or expertise could materially impair or jeopardize
the security for the payment of the Secured Obligations granted to Collateral
Agent by this Instrument. Obligor therefore covenants and agrees with Collateral
Agent, as part of the consideration for the extending to Obligor of the loans
evidenced by the Note, that Obligor shall not convey, transfer, assign, further
encumber or pledge any or all of its interest in the Property without the prior
written consent of Collateral Agent, except as permitted by the Credit
Agreement.
ARTICLE II
SECTION 2.01. Events of Default. The terms "Default", "Event of
Default" or "Events of Default", wherever used in this Instrument, shall have
the meaning provided for in the Credit Agreement and shall include the failure
of Obligor to perform any of its obligations under this Instrument or any of the
Loan Documents (as defined in the Credit Agreement), provided, however,
immediately upon the occurrence of an Event of Default, and without regard to
any time periods or opportunities to cure described in the Loan Documents (as
defined in the Credit Agreement), Collateral Agent may make written demand upon
any and all tenants of the Property to pay to Collateral Agent all rents and
other sums and to perform for the direct benefit of Collateral Agent all
obligations of such tenants, as provided in Paragraph 1.07.
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SECTION 2.02. Acceleration of Maturity. If an Event of Default shall
have occurred and be continuing, then the entire Secured Obligations secured
hereby shall, as permitted by the terms of the Credit Agreement, immediately
become due and payable without notice or demand, time being of the essence of
this Instrument.
SECTION 2.03. Right to Enter and Take Possession.
(a) If an Event of Default shall have occurred and be continuing,
Obligor upon demand of Collateral Agent, shall forthwith surrender to Collateral
Agent the actual possession of the Property and if, and to the extent, permitted
by law, Collateral Agent itself, or by such officers or agents as it may
appoint, may enter and take possession of all the Property without the
appointment of a receiver, or an application therefor, and may exclude Obligor
and its agents and employees wholly therefrom, and may have joint access with
Obligor to the books, papers and accounts of Obligor.
(b) If Obligor shall for any reason fail to surrender or deliver the
Property or any part thereof after such demand by Collateral Agent, Collateral
Agent may obtain a judgment or decree conferring upon Collateral Agent the right
to immediate possession or requiring Obligor to deliver immediate possession of
the Property to Collateral Agent. Obligor will pay to Collateral Agent, upon
demand, all expenses of obtaining such judgment or decree, including reasonable
compensation to Collateral Agent, its attorneys and agents; and all such
expenses and compensation shall, until paid, be secured by the lien of this
Instrument.
(c) Upon every such entering upon or taking of possession, Collateral
Agent may hold, store, use, operate, manage and control the Property and conduct
the business thereof, and, from time to time (i) make all necessary and proper
maintenance, repairs, renewals, replacements, additions, betterments and
improvements thereto and thereon and purchase or otherwise acquire additional
fixtures, personalty and other property; (ii) insure or keep the Property
insured; (iii) manage and operate the Property and exercise all the rights and
powers of Obligor to the same extent as Obligor could in its own name or
otherwise with respect to the same; and (iv) enter into any and all agreements
with respect to the exercise by others of any of the powers herein granted
Collateral Agent, all as Collateral Agent from time to time may determine to be
in its best interest. Collateral Agent may collect and receive all the rents,
issues, profits and revenues from the Property, including those past due as well
as those accruing thereafter, and, after deducting (1) all expenses of taking,
holding, managing and operating the Property (including compensation for the
services of all persons employed for such purposes); (2) the cost of all such
maintenance, repairs, renewals, replacements, additions, betterments,
improvements, purchases and acquisitions; (3) the cost of such insurance; (4)
such taxes, assessments and other similar charges as Collateral Agent may at its
option pay; (5) other proper charges upon the Property or any part thereof; and
(6) the reasonable compensation, expenses and disbursements of the attorneys and
agents of Collateral Agent, Collateral Agent shall apply the remainder of the
monies and proceeds so received by Collateral Agent, first, ratably as to each
Bank, to the payment of accrued interest; and second, ratably as to each Bank,
to the payment of overdue installments of principal. Collateral Agent shall have
no obligation to discharge any duties of a landlord to any tenant or to incur
any liability as a result of any exercise by Collateral Agent of any rights
under this Instrument or otherwise. Collateral Agent shall not be liable for any
failure to collect rents, issues, profits and revenues from the Property, nor
shall Collateral Agent be liable to account for any such rents, issues, profits
or revenues unless actually received by Collateral Agent.
(d) Whenever all that is due upon the Secured Obligations and under any
of the terms, covenants, conditions and agreements of this Instrument, shall
have been paid and all Events of Default made good, Collateral Agent shall
surrender possession of the Property to Obligor, its successors or assigns. The
same right of taking possession, however, shall exist if any subsequent Event of
Default shall occur and be continuing.
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SECTION 2.04. Performance by Collateral Agent. If Obligor shall Default
in the payment, performance or observance of any term, covenant or condition of
this Instrument, Collateral Agent may, so long as such Default continues, at its
option, pay, perform or observe the same, and all payments made or costs or
expenses incurred by Collateral Agent in connection therewith, shall be secured
hereby and shall be, upon demand, immediately repaid by Obligor to Collateral
Agent with interest thereon at the Default Rate (as defined in the Credit
Agreement). Collateral Agent shall be the sole judge of the necessity for any
such actions and of the amounts to be paid. Collateral Agent is hereby empowered
to enter and to authorize others to enter upon the Land or any part thereof for
the purpose of performing or observing any such defaulted term, covenant or
condition without thereby becoming liable to Obligor or any person in possession
holding under Obligor.
SECTION 2.05. Receiver. If an Event of Default shall have occurred and
be continuing, Collateral Agent, upon application to a court of competent
jurisdiction, shall be entitled as a matter of strict right without notice and
without regard to the occupancy or value of any security for the Secured
Obligations secured hereby or the solvency of any party bound for its payment,
to the appointment of a receiver to take possession of and to operate the
Property and to collect and apply the rents, issues, profits and revenues
thereof. The receiver shall have all of the rights and powers permitted under
the laws of the State of Georgia. Obligor will pay to Collateral Agent upon
demand all expenses, including receiver's fees, attorney's fees, costs and
agent's compensation, incurred pursuant to the provisions of this Paragraph
2.05; and all such expenses shall be secured by this Instrument.
SECTION 2.06. Enforcement.
(a) If an Event of Default shall have occurred and be continuing,
Collateral Agent, at its option, may sell the Property or any part of the
Property at public sale or sales before the door of the courthouse of the county
in which the Property or any part of the Property is situated, to the highest
bidder for cash, in order to pay the Secured Obligations secured hereby and
accrued interest thereon and insurance premiums, liens, assessments, taxes and
charges, including utility charges, if any, with accrued interest thereon, and
all expenses of the sale and of all proceedings in connection therewith,
including actual attorney's fees, if incurred, after advertising the time, place
and terms of sale once a week for four (4) weeks immediately preceding such sale
(but without regard to the number of days) in a newspaper in which Sheriff's
sales are advertised in said county. At any such public sale, Collateral Agent
may execute and deliver to the purchaser a conveyance of the Property or any
part of the Property in fee simple, with full warranties of title and to this
end, Obligor hereby constitutes and appoints Collateral Agent the agent and
attorney-in-fact of Obligor to make such sale and conveyance, and thereby to
divest Obligor of all right, title or equity that Obligor may have in and to the
Property and to vest the same in the purchaser or purchasers at such sale or
sales, and all the acts and doings of said agent and attorney-in-fact are hereby
ratified and confirmed and any recitals in said conveyance or conveyances as to
facts essential to a valid sale shall be binding upon Obligor. The aforesaid
power of sale and agency hereby granted are coupled with an interest and are
irrevocable by death or otherwise, are granted as cumulative of the other
remedies provided hereby or by law for collection of the Secured Obligations
secured hereby and shall not be exhausted by one exercise thereof but may be
exercised until full payment of all Secured Obligations secured hereby.
(b) If an Event of Default shall have occurred and be continuing,
Collateral Agent may, in addition to and not in abrogation of the rights covered
under subparagraph (a) of this Paragraph 2.06, either with or without entry or
taking possession as herein provided or otherwise, proceed by a suit or suits in
law or in equity or by any other appropriate proceeding or remedy (i) to enforce
payment of the Secured Obligations or the performance of any term, covenant,
condition or agreement of this Instrument or any other right, and (ii) to pursue
any other remedy available to it, all as Collateral Agent shall determine most
effectual for such purposes.
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SECTION 2.07. Purchase by Collateral Agent. Upon any foreclosure sale,
Collateral Agent, on behalf of the Banks, may bid for and purchase the Property
and shall be entitled to apply all or any part of the Secured Obligations
secured hereby as a credit to the purchase price.
SECTION 2.08. Application of Proceeds of Sale. In the event of a
foreclosure sale of the Property, the proceeds of said sale shall be applied,
first, to the expenses of such sale and of all proceedings in connection
therewith, including attorney's fees, then to insurance premiums, liens,
assessments, taxes and charges including utility charges advanced by Collateral
Agent or Banks, then, ratably as to each Bank, to payment of the outstanding
principal balance of the Secured Obligations secured hereby, then, ratably as to
each Bank, to the accrued interest on all of the foregoing, then, ratably as to
each Bank, to payment of any other Secured Obligations secured hereby, and
finally, the remainder, if any, shall be paid to Obligor.
SECTION 2.09. Obligor as Tenant Holding Over. In the event of any such
foreclosure sale by Collateral Agent, Obligor shall be deemed a tenant holding
over and shall forthwith deliver possession to the purchaser or purchasers at
such sale or be summarily dispossessed according to provisions of law applicable
to tenants holding over.
SECTION 2.10. Waiver of Appraisement, Valuation, Stay, Extension and
Redemption Laws. Obligor agrees to the full extent permitted by law, that in
case of a Default or Event of Default on the part of Obligor hereunder, neither
Obligor nor anyone claiming through or under it shall or will set up, claim or
seek to take advantage of any appraisement, valuation, stay, extension,
homestead, exemption or redemption laws now or hereafter in force, in order to
prevent or hinder the enforcement or foreclosure of this Instrument, or the
absolute sale of the Property, or the final and absolute putting into possession
thereof, immediately after such sale, of the purchasers thereat, and Obligor,
for itself and all who may at any time claim through or under it, hereby waives
to the full extent that it may lawfully so do, the benefit of all such laws, and
any and all right to have the assets comprised in the security intended to be
created hereby marshaled upon any foreclosure of the lien hereof.
SECTION 2.11. Waiver of Homestead. Obligor hereby waives and renounces
all homestead and exemption rights provided for by the Constitution and the laws
of the United States and of any state, in and to the Property as against the
collection of the Secured Obligations, or any part hereof.
SECTION 2.12. Leases. Collateral Agent, at its option, is authorized to
foreclose this Instrument subject to the rights of any tenants of the Property,
and the failure to make any such tenants parties to any such foreclosure
proceedings and to foreclose their rights will not be, nor be asserted to be by
Obligor, a defense to any proceedings instituted by Collateral Agent to collect
the sums secured hereby.
SECTION 2.13. Discontinuance of Proceedings and Restoration of the
Parties. In case Collateral Agent shall have proceeded to enforce any right,
power or remedy under this Instrument by foreclosure, entry or otherwise, and
such proceedings shall have been discontinued or abandoned for any reason, or
shall have been determined adversely to Collateral Agent, then and in every such
case Obligor and Collateral Agent shall be restored to their former positions
and rights hereunder, and all rights, powers and remedies of Collateral Agent
shall continue as if no such proceeding had been taken.
SECTION 2.14. Remedies Cumulative. No right, power or remedy conferred
upon or reserved to Collateral Agent by this Instrument is intended to be
exclusive of any other right, power or remedy, but each and every such right,
power and remedy shall be cumulative and concurrent and shall be in addition to
any other right, power and remedy given hereunder or now or hereafter existing
at law or in equity or by statute.
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SECTION 2.15. Waiver.
(a) No delay or omission of Collateral Agent or of any Bank to exercise
any right, power or remedy accruing upon any Default shall exhaust or impair any
such right, power or remedy or shall be construed to be a waiver of any such
Default, or acquiescence therein; and every right, power and remedy given by
this Instrument to Collateral Agent may be exercised from time to time and as
often as may be deemed expedient by Collateral Agent. No consent or waiver,
expressed or implied, by Collateral Agent to or of any breach or Default by
Obligor in the performance of the obligations thereof hereunder shall be deemed
or construed to be a consent or waiver to or of any other breach or Default in
the performance of the same or any other obligations of Obligor hereunder.
Failure on the part of Banks to complain of any act or failure to act or to
declare an Event of Default, irrespective of how long such failure continues,
shall not constitute a waiver by any Bank of its rights hereunder or impair any
rights, powers or remedies consequent on any breach or Default by Obligor.
(b) If Banks (i) grant forbearance or an extension of time for the
payment of any sums secured hereby; (ii) take other or additional security for
the payment of any sums secured hereby; (iii) waive or do not exercise any right
granted herein or in the Note, the Credit Agreement or any other Loan Document
(as defined in the Credit Agreement); (iv) release any part of the Property from
the lien of this Instrument or otherwise changes any of the terms, covenants,
conditions or agreements of the Note or this Instrument; (v) consent to the
filing of any map, plat or replat affecting the Property; (vi) consent to the
granting of any easement or other right affecting the Property; or (vii) make or
consent to any agreement subordinating the lien hereof, any such act or omission
shall not release, discharge, modify, change or affect the original liability
under the Note, the Credit Agreement, this Instrument or any other obligation of
Obligor or any subsequent purchaser of the Property or any part thereof, or any
maker, co-signer, endorser, surety or guarantor; nor shall any such act or
omission preclude Collateral Agent from exercising any right, power or privilege
herein granted or intended to be granted in the event of any Default then made
or of any subsequent Default; nor, except as otherwise expressly provided in an
instrument or instruments executed by Collateral Agent, shall the lien of this
Instrument be altered thereby. In the event of the sale or transfer by operation
of law or otherwise of all or any part of the Property, Collateral Agent,
without notice, is hereby authorized and empowered to deal with any such vendee
or transferee with reference to the Property or the Secured Obligations secured
hereby, or with reference to any of the terms, covenants, conditions or
agreements hereof, as fully and to the same extent as it might deal with the
original parties hereto and without in any way releasing or discharging any
liabilities, obligations or undertakings.
SECTION 2.16. Suits to Protect the Property. Collateral Agent shall
have power (a) to institute and maintain such suits and proceedings as it may
deem expedient to prevent any impairment of the Property by any acts which may
be unlawful or in violation of this Instrument, (b) to preserve or protect its
interest in the Property and in the rents, issues, profits and revenues arising
therefrom, and (c) to restrain the enforcement of or compliance with any
legislation or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid, if the enforcement of or compliance with
such enactment, rule or order would impair the security hereunder or be
prejudicial to the interest of Banks.
SECTION 2.17. Collateral Agent May File Proofs of Claim. In the case of
any receivership, insolvency, bankruptcy, reorganization, arrangement,
adjustment, composition or other proceedings affecting Obligor, its creditors or
its property, Collateral Agent, to the extent permitted by law, shall be
entitled to file such proofs of claim and other documents as may be necessary or
advisable in order to have the claims of Collateral Agent allowed in such
proceedings for the entire amount due and payable by Obligor under this
Instrument at the date of the institution of such proceedings and for any
additional amount which may become due and payable by Obligor hereunder after
such date.
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SECTION 2.18. WAIVER OF OBLIGOR'S RIGHTS. BY EXECUTION OF THIS
INSTRUMENT, AND BY INITIALING THIS PARAGRAPH 2.18, OBLIGOR EXPRESSLY: (A)
ACKNOWLEDGES THE RIGHT OF COLLATERAL AGENT AND/OR BANKS TO ACCELERATE THE
SECURED OBLIGATIONS AND THE POWER OF ATTORNEY GIVEN HEREIN TO COLLATERAL AGENT
TO SELL THE PROPERTY BY NONJUDICIAL FORECLOSURE UPON DEFAULT BY OBLIGOR WITHOUT
ANY JUDICIAL HEARING AND WITHOUT ANY NOTICE OTHER THAN SUCH NOTICE (IF ANY) AS
IS SPECIFICALLY REQUIRED TO BE GIVEN UNDER THE PROVISIONS OF THIS INSTRUMENT;
(B) WAIVES ANY AND ALL RIGHTS WHICH OBLIGOR MAY HAVE UNDER THE CONSTITUTION OF
THE UNITED STATES (INCLUDING, WITHOUT LIMITATION, THE FIFTH AND FOURTEENTH
AMENDMENTS THEREOF), THE VARIOUS PROVISIONS OF THE CONSTITUTIONS FOR THE SEVERAL
STATES, OR BY REASON OF ANY OTHER APPLICABLE LAW, TO NOTICE AND TO JUDICIAL
HEARING PRIOR TO THE EXERCISE BY COLLATERAL AGENT OF ANY RIGHT OR REMEDY HEREIN
PROVIDED TO COLLATERAL AGENT, EXCEPT SUCH NOTICE (IF ANY) AS IS SPECIFICALLY
REQUIRED TO BE PROVIDED IN THIS INSTRUMENT; (C) ACKNOWLEDGES THAT OBLIGOR HAS
READ THIS INSTRUMENT AND ANY AND ALL QUESTIONS REGARDING THE LEGAL EFFECT OF
THIS INSTRUMENT AND ITS PROVISIONS HAVE BEEN EXPLAINED FULLY TO OBLIGOR AND
OBLIGOR HAS CONSULTED WITH COUNSEL OF OBLIGOR'S CHOICE PRIOR TO EXECUTING THIS
INSTRUMENT; AND (D) ACKNOWLEDGES THAT ALL WAIVERS OF THE AFORESAID RIGHTS OF
OBLIGOR HAVE BEEN MADE KNOWINGLY, INTENTIONALLY AND WILLINGLY BY OBLIGOR AS PART
OF A BARGAINED FOR LOAN TRANSACTION.
INITIALED BY OBLIGOR:
---------
SECTION 2.19. Claims Against Collateral Agent and Banks. No action at
law or in equity shall be commenced, or allegation made, or defense raised, by
Obligor against Collateral Agent or Banks for any claim under or related to this
Instrument, the Note, the Credit Agreement or any other instrument, document,
transfer, conveyance, assignment or loan agreement given by Obligor with respect
to the Secured Obligations secured hereby, or related to the conduct of the
parties thereunder, unless written notice of such claim, expressly setting forth
the particulars of the claim alleged by Obligor, shall have been given to
Collateral Agent within sixty (60) days from and after the initial awareness of
Obligor of the event, omission or circumstances forming the basis of Obligor for
such claim. Any failure by Obligor to timely provide such written notice to
Collateral Agent shall constitute a waiver by Obligor of such claim.
SECTION 2.20. Actions by Collateral Agent. All actions taken by
Collateral Agent hereunder shall be taken at the direction of the Required Banks
(as defined in the Credit Agreement).
ARTICLE III
SECTION 3.01. Successors and Assigns. This Instrument shall inure to
the benefit of and be binding upon Obligor and Collateral Agent and their
respective heirs, executors, legal representatives, successors and assigns.
Whenever a reference is made in this Instrument to Obligor or Collateral Agent
such reference shall be deemed to include a reference to the heirs, executors,
legal representatives, successors and assigns of Obligor or Collateral Agent.
SECTION 3.02. Terminology. All personal pronouns used in this
Instrument whether used in the masculine, feminine or neuter gender, shall
include all other genders; the singular shall include the plural, and vice
versa. Titles and Articles are for convenience only and neither limit nor
amplify the provisions of this Instrument itself, and all references herein to
Articles, Paragraphs or subparagraphs thereof, shall
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refer to the corresponding Articles, Paragraphs or subparagraphs thereof, of
this Instrument unless specific reference is made to such Articles, Paragraphs
or subparagraphs thereof of another document or instrument.
SECTION 3.03. Severability. If any provision of this Instrument or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Instrument and the
application of such provisions to other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.
SECTION 3.04. Applicable Law. This Instrument shall be interpreted,
construed and enforced according to the laws of the State of Georgia.
SECTION 3.05. Notices. Except as otherwise provided herein, any notice
or other communication required hereunder shall be in writing, and shall be
deemed to have been validly served, given or delivered the next succeeding
Domestic Business Day (as defined in the Credit Agreement) after timely delivery
to the courier, if sent by overnight courier; at the time delivered by hand, if
personally delivered; or when receipt is acknowledged, if (i) telecopied
(followed by delivery of written copy thereof sent by overnight courier on the
same day as such notice is given), or (ii) sent by registered or certified mail,
return receipt requested, addressed to Obligor or Collateral Agent as follows:
If to Obligor:
JDN Realty Corporation
359 East Paces Ferry Road
Suite 400
Atlanta, Georgia 30305
Attn: Chief Financial Officer
Telecopy Number: (404) 364-6446
Telephone Number: (404) 262-3252
with a copy to:
Waller Lansden Dortch & Davis, PLLC
Nashville Suite Center
511 Union Street, Suite 2100
Nashville, Tennessee 37219-8966
Attn: Ralph Davis, Esq.
Telecopy Number: (615) 244-6804
Telephone Number: (615) 244-6380
If to Collateral Agent:
Wachovia Bank, N.A.
191 Peachtree Street
Atlanta, Georgia 30303-1757
Attention: Steven B. Wood
Telecopier Number: 404-332-4066
Confirmation Number: 404-332-5671
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with a copy to:
Jones, Day, Reavis & Pogue
3500 SunTrust Plaza
303 Peachtree Street, Suite 3500
Atlanta, Georgia 30308
Attn: Christopher L. Carson, Esq.
Telecopy Number: (404) 581-8330
Telephone Number: (404) 581-8035
or, to such other address as any party may designate for itself by like notice.
SECTION 3.06. Replacement of Note. Upon receipt of evidence reasonably
satisfactory to Obligor of the loss, theft, destruction or mutilation of the
Note (or any of them), and in the case of any such loss, theft or destruction,
upon delivery of an indemnity agreement reasonably satisfactory to Obligor or,
in the case of any such mutilation, upon surrender and cancellation of the Note,
Obligor will execute and deliver, in lieu thereof, a replacement Note, identical
in form and substance to such Note and dated as of the date of such Note and
upon such execution and delivery all references in this Instrument to such Note
shall be deemed to refer to such replacement Note.
SECTION 3.07. Assignment. This Instrument is assignable by Collateral
Agent, and any assignment hereof by Collateral Agent shall operate to vest in
the assignee all rights and powers herein conferred upon and granted to
Collateral Agent.
SECTION 3.08. Time of the Essence. Time is of the essence with respect
to each and every covenant, agreement and obligation of Obligor under this
Instrument, the Note, the Credit Agreement and any and all other instruments now
or hereafter evidencing, securing or otherwise relating to the Secured
Obligations.
SECTION 3.09. Deferred Effect of Representations, Warranties, and
Covenants. This Instrument has been executed and delivered by the Obligor prior
to the performance by Obligor of any investigation regarding the Property or any
other matters. Accordingly, the parties hereto have agreed that notwithstanding
anything in this Instrument to the contrary, (i) the Obligor shall have until
August 11, 2000 to comply with its obligations hereunder as long as it is
diligently pursuing performance during such period, (ii) the Obligor may deliver
subordination, non-disturbance and attornment agreements after August 11, 2000
as long as it continues exercising commercially reasonable efforts to obtain
them, and (iii) representations and warranties shall not be effective until
August 11, 2000, except that Obligor represents and warrants as of the date
hereof that (A) there is no Other Mortgage affecting the Property that cannot be
immediately discharged, and agrees to immediately discharge any Other Mortgage
upon discovery, and (B) the information set forth in Exhibit C is true and
correct in all material respects.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Obligor has executed this Instrument under seal, as
of the day and year first above written.
Signed, sealed and delivered JDN REALTY CORPORATION, a Maryland
by Obligor in the presence of: corporation
By:
- ----------------------------- -------------------------------
Unofficial Witness Printed Name:
---------------------
Printed Title:
--------------------
- -----------------------------
Notary Public Attest:
---------------------------
Printed Name:
--------------------
Commission Expiration Date: Printed Title:
--------------------
[NOTARIAL SEAL] [CORPORATE SEAL]
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EXHIBIT "A"
Description of Land
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<PAGE> 115
EXHIBIT "B"
Permitted Encumbrances
1. Liens granted to the Collateral Agent for the benefit of the Banks;
2. Liens for taxes, assessments or other governmental charges that are not
delinquent or remain payable without any penalty or that are being contested in
good faith by appropriate proceedings, provided that if reasonably requested by
the Collateral Agent, the Obligor has established reserves with respect thereto
in accordance with generally accepted accounting principles;
3. Easements, rights of way, restrictive covenants, conditions, zoning
restrictions and other similar title, survey or other encumbrances on real
estate that do not materially impair the current use and value of the property
to which they relate, and any other title exceptions, as may be hereafter agreed
to by Collateral Agent in writing;
4. Carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like non-consequential liens arising in the ordinary course of business
that are not overdue for a period of more than thirty (30) days, or, if overdue
for more than thirty (30) days, (i) which are being contested in good faith and
by appropriate proceedings; (ii) do not affect a material portion of the
Collateral, and (iii) for which adequate reserves in accordance with generally
accepted accounting principles have been established on the books of the
Borrower;
5. Liens in respect of any writ of execution, attachment, garnishment,
judgment or award in an amount less than $1,000,000, the time for appeal or
petition for rehearing of which shall not have expired, or in respect of which
an appeal or appropriate proceeding for review is being prosecuted in good faith
and a stay of execution pending such appeal or proceeding for review has been
secured;
6. Any other liens or encumbrances as Collateral Agent may approve in
writing from time to time
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EXHIBIT "C"
Borrowing Base Property Information
The Property described in this Instrument is the Borrowing Base
Property described below and listed on Exhibit "J" to the Credit Agreement.
- ---------------------------------------------------------------------------
Property Number
- ---------------------------------------------------------------------------
Owner (fee interest) of Property
- ---------------------------------------------------------------------------
Property Name
- ---------------------------------------------------------------------------
Location
- ---------------------------------------------------------------------------
Year Built
- ---------------------------------------------------------------------------
Acreage of Property
- ---------------------------------------------------------------------------
Gross Leasable Area of Improvements (s.f.)
- ---------------------------------------------------------------------------
1st Q 2000 Net Operating Income
- ---------------------------------------------------------------------------
% Leased 3/31/00
- ---------------------------------------------------------------------------
% Occupied 3/31/00 [or later]
- ---------------------------------------------------------------------------
112
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EXHIBIT N
Form of Assignment of Rents
(to be modified for compliance with state law)
PREPARED BY AND AFTER
RECORDING, RETURN TO:
A. Michael Lee, Esq.
Jones, Day, Reavis & Pogue
3500 SunTrust Plaza
303 Peachtree Street N.E.
Atlanta, Georgia 30308
ASSIGNMENT OF LEASES AND RENTS
THIS ASSIGNMENT OF LEASES AND RENTS (this "Assignment") is made as of
__________ ___, 2000, by JDN REALTY CORPORATION, a Maryland corporation
("Assignor"), having its principal place of business at 359 East Paces Ferry
Road, Atlanta, Georgia 30305, to WACHOVIA BANK, N.A., having its principal place
of business at 191 Peachtree Street, N.E., Atlanta, Georgia 30303 (together with
its successors and assigns, "Collateral Agent"), as Collateral Agent for itself
and each other lender (collectively, the "Banks") which is or may hereafter
become a party to that certain Amended and Restated Term Loan Credit Agreement,
dated as of May 19, 2000, by and among Assignor, Collateral Agent and the Banks
(as may be amended or otherwise supplemented from time to time, the "Credit
Agreement").
Assignor, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, does hereby GRANT, SELL, CONVEY,
ASSIGN, TRANSFER, SET OVER AND DELIVER to Collateral Agent, for the ratable
benefit of the Banks, as collateral security, the entire lessor's interest in
and to all leases, subleases, tenant contracts, rental agreements, occupancy
agreements or agreements of a similar nature, now or hereafter affecting the
Property (as defined in the Deed to Secure Debt and Security Agreement dated of
even date herewith executed by Assignor in favor of Collateral Agent (the
"Instrument")), or any part thereof, which Property includes that certain lot or
piece of land, more particularly described in Exhibit A attached hereto,
together with all guarantees of the foregoing (all of the leases and other
agreements and guarantees described above together with all present and future
leases and present and future agreements and any extension or renewal of the
same hereinafter collectively referred to as the "Leases");
TOGETHER WITH all rents, income, issues, revenues and profits arising
from the Leases and renewals thereof and together with all rents, income, issues
and profits from the use, enjoyment and occupancy of the Property (including,
but not limited to, minimum rents, additional rents, percentage rents,
deficiency rents, security deposits and liquidated damages
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following default under any Leases, all proceeds payable under any policy of
insurance, all of Assignor's rights to recover monetary amounts from any lessee
under the Leases in bankruptcy including, without limitation, rights of recovery
for use and occupancy and damage claims arising out of defaults under the
Leases, including rejection of a Lease, together with any sums of money that may
now or at any time hereafter be or become due and payable to Assignor by virtue
of any and all royalties, overriding royalties, bonuses, delay rentals and any
other amount of any kind or character arising under any and all present and all
future oil, gas and mining Leases covering the Property or any part thereof, and
all proceeds and other amounts paid or owing to Assignor under or pursuant to
any and all contracts and bonds relating to the construction, erection or
renovation of the Property and all rents under and as defined in the Lease) (all
of the rights described above hereinafter collectively referred to as the
"Rents").
THIS ASSIGNMENT is made for the purposes of securing the following
described indebtedness (collectively the "Secured Obligations"):
(a) The Loans (as defined in the Credit Agreement) in the aggregate
principal amount of One Hundred Million and No/100 Dollars ($100,000,000.00),
and secured by the Instrument covering the Property.
(b) The performance and discharge of each and every obligation,
covenant and agreement of Assignor contained herein and in the other Loan
Documents (as defined in the Credit Agreement).
(c) Any and all additional advances made by any Bank to protect or
preserve the Property or the lien and security title hereof in and to the
Property, or for taxes, assessments or insurance premiums as hereinafter
provided (whether or not Assignor remains the owner of the Property at the time
of such advances).
(d) Any and all other indebtedness now or hereafter owing to Assignor
to any Bank pursuant to the terms of the Credit Agreement, whether now existing
or hereafter arising or incurred, however evidenced or incurred, whether express
or implied, direct or indirect, absolute or contingent, due or to become due,
including, without limitation, all principal, interest, fees, expenses, yield
maintenance amounts and indemnification amounts, and all renewals,
modifications, consolidations, replacements and extensions thereof.
(e) The Enforcement Costs (as defined in the Instrument).
Assignor warrants to Collateral Agent that (a) Assignor is the sole
owner of the entire lessor's interest in the Leases; (b) the Leases have not
been altered, modified or amended in any manner whatsoever except as disclosed
to Collateral Agent and, to the best knowledge of Obligor, are valid,
enforceable and in full force and effect; (c) neither the Leases nor the Rents
reserved in the Leases have been assigned or otherwise pledged or hypothecated;
(d) none of the Rents have been collected for more than one (1) month in
advance; (e) Assignor has full power and authority to execute and deliver this
Assignment and the execution and delivery of this Assignment has been duly
authorized and does not conflict with or constitute a default under any law,
judicial order or other agreement affecting Assignor or the Property; and (f)
there exist no known offsets or defenses to the payment of any portion of the
Rents.
Assignor covenants with Collateral Agent that Assignor (a) shall
observe and perform all the obligations imposed upon the lessor under the Leases
and shall not do or permit to be done anything to materially impair the value of
the Leases as security for the Secured Obligations; (b)
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<PAGE> 119
shall not collect any Rents more than one (1) month in advance; (c) shall not
execute any other assignment of lessor's interest in the Leases or the Rents;
(d) shall execute and deliver at the request of Collateral Agent all such
further assurances, confirmations or assignments in connection with the Property
as Collateral Agent shall from time to time reasonably require; (e) shall
deliver to Collateral Agent executed copies of all Leases for Major Tenants now
existing or hereafter arising and abstracts of all other Leases, unless
Collateral Agent requests a copy of such Leases in which event Obligor shall
furnish copies of such Leases to Collateral Agent.
THIS ASSIGNMENT is made on the following terms, covenants and
conditions:
1. Present Assignment. Assignor does hereby absolutely and unconditionally
assigns to Collateral Agent, Assignor's right, title and interest in
and to any and all Leases and Rents, it being intended by Assignor that
this assignment constitute a present, absolute assignment and not an
assignment for additional security only. Assignor agrees to execute and
deliver to Collateral Agent such additional instruments, in form and
substance satisfactory to Collateral Agent, as may hereinafter be
requested by Collateral Agent to further evidence and confirm said
assignment. Such assignment to Collateral Agent shall not be construed
to bind Collateral Agent to the performance of any of the covenants,
conditions, or provisions contained in any of the Leases or otherwise
to impose any obligation upon Collateral Agent. Collateral Agent is
hereby granted and assigned by Assignor the right to enter the Property
for the purpose of enforcing its interest in the Leases and the Rents,
this Assignment constituting a present, absolute and unconditional
assignment of the Leases and Rents. Assignor shall authorize and
direct, and does hereby authorize and direct each and every present and
future tenant under the Leases to pay all Rents directly to Collateral
Agent after an Event of Default upon receipt of written demand from
Collateral Agent.
2. License. Although this Assignment constitutes a present and absolute
assignment of all Rents, so long as there shall exist no Event of
Default under the Instrument or the Credit Agreement, Assignor shall
have a mere license, revocable as set forth herein, to collect, but not
more than thirty (30) days prior to accrual, all Rents and to retain,
use and enjoy the same. Upon the occurrence of any Event of Default,
the license granted in this Paragraph 2 shall automatically, without
further act by Collateral Agent, cease and terminate, and thereafter,
any Rents received by Assignor shall be held in trust for the benefit
of, and shall be immediately remitted by Assignor to, Collateral Agent.
3. Remedies of Collateral Agent. If an Event of Default under the
Instrument or the Credit Agreement shall have occurred and be
continuing, Assignor, upon demand of Collateral Agent, shall forthwith
surrender to Collateral Agent the actual possession of the Property and
if, and to the extent, permitted by law, Collateral Agent itself, or by
such officers or agents as it may appoint, may enter and take
possession of all the Property without the appointment of a receiver,
or an application therefor, and may exclude Assignor and its agents and
employees wholly therefrom, and may have joint access with Assignor to
the books, papers and accounts of Assignor pertaining to the Property.
If Assignor shall for any reason fail to surrender or deliver the
Property or any part thereof after such demand by Collateral Agent,
Collateral Agent may obtain a judgment or decree conferring upon
Collateral Agent the right to immediate possession or requiring
Assignor to deliver immediate possession of the Property to Collateral
Agent, to the entry of which judgment or decree Assignor hereby
specifically consents. Upon every such entering upon or taking of
possession, Collateral Agent may hold, store, use, operate, manage and
control the Property and conduct the business thereof, and, from time
to time (a) make all
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<PAGE> 120
necessary and proper maintenance, repairs, renewals, replacements,
additions, betterments and improvements thereto and thereon and
purchase or otherwise acquire additional fixtures, personalty and other
property; (b) insure or keep the Property insured; (c) manage and
operate the Property and exercise all the rights and powers of Assignor
to the same extent as Assignor could in its own name or otherwise with
respect to the same; and (d) enter into any and all agreements with
respect to the exercise by others of any of the powers herein granted
Collateral Agent, all as Collateral Agent from time to time may
determine to be in its best interest, including, without limitation,
the modification, enforcement, cancellation or acceptance of surrender
of any Assigned Leases now in effect or hereafter in effect on the
Property or any part thereof; the removal and eviction of any
sublessee, and; any increases or decreases in Rents. Collateral Agent
may collect and receive all the Rents, including those past due as well
as those accruing thereafter, and, after deducting (i) all expenses of
taking, holding, managing and operating the Property (including
compensation for the services of all persons employed for such
purposes); (ii) the cost of all such maintenance, repairs, renewals,
replacements, additions, betterments, improvements, purchases and
acquisitions; (iii) the cost of such insurance; (iv) such taxes,
assessments and other similar charges as Collateral Agent may at its
option pay; (v) other proper charges upon the Property or any part
thereof; and (vi) the reasonable compensation, expenses and
disbursements of the attorneys and agents of Collateral Agent,
Collateral Agent shall apply the remainder of the monies and proceeds
so received by Collateral Agent first, ratably as to each Bank, to
payment of the outstanding principal balance of the Secured
Obligations, then, ratably as to each Bank, to the accrued interest on
all of the foregoing, then ratably as to each Bank, to payment of any
other Secured Obligations, and, finally, the remainder if any shall be
paid to Assignor. Anything in this Paragraph 4 to the contrary
notwithstanding, Collateral Agent shall not be obligated to discharge
or perform the duties of a landlord to any tenant or incur any
liability as a result of the exercise by Collateral Agent of its rights
under this Assignment, and Collateral Agent shall be liable to account
only for the rents, income, issues, profits and revenues actually
received by Collateral Agent. Whenever all that is due upon such
interest, deposits and principal installments and under any of the
terms, covenants, conditions and agreements under the Instrument and
the Credit Agreement, shall have been paid and all Events of Default
made good, Collateral Agent shall surrender possession of the Property
to Assignor, its successors or assigns. The same right of taking
possession, however, shall exist if any subsequent Event of Default
shall occur and be continuing. In connection with any action taken by
the Collateral Agent pursuant to this Paragraph 4, the Collateral Agent
shall not be liable for any loss sustained by Assignor resulting from
any act or omission of the Collateral Agent in administering, managing,
operating or controlling the Property, including a loss arising from
the ordinary negligence of the Collateral Agent, unless such loss is
caused by its own gross negligence or willful misconduct and bad faith,
nor shall the Collateral Agent be obligated to perform or discharge any
obligation, duty or liability of Assignor. Assignor hereby assents to,
ratifies and confirms any and all actions of the Collateral Agent with
respect to the Property taken under this Paragraph 4.
4. No Liability of Collateral Agent. The Collateral Agent is fully
authorized to receive and receipt for said revenues and proceeds; to
endorse and cash any and all checks and drafts payable to the order of
Assignor or the Collateral Agent for the account of Assignor received
from or in connection with said revenues or proceeds and apply the
proceeds thereof to the payment of the Secured Obligations, when
received, regardless of the maturity of any of the Loans, or any
installment thereof; and to execute transfer and division orders in the
name of Assignor, or otherwise, with warranties binding Assignor.
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<PAGE> 121
The Collateral Agent shall not be liable for any delay, neglect, or
failure to effect collection of any proceeds or to take any other
action in connection therewith or hereunder; but shall have the right,
at its election, in the name of Assignor or otherwise, to prosecute and
defend any and all actions or legal proceedings deemed advisable by the
Collateral Agent in order to collect such funds and to protect the
interests of the Collateral Agent and/or Assignor, with all costs,
expenses and attorney's fees incurred in connection therewith being
paid by Assignor.
5. Other Remedies and Non-Waiver. No right, power or remedy conferred upon
or reserved to Collateral Agent by this Assignment is intended to be
exclusive of any other right, power or remedy, but each and every such
right, power and remedy shall be cumulative and concurrent and shall be
in addition to any other right, power and remedy given hereunder or now
or hereafter existing at law or in equity or by statute. No delay or
omission of Collateral Agent or of any Banks to exercise any right,
power or remedy accruing upon any default shall exhaust or impair any
such right, power or remedy or shall be construed to be a waiver of any
such default, or acquiescence therein; and every right, power and
remedy given by this Assignment to Collateral Agent may be exercised
from time to time and as often as may be deemed expedient by Collateral
Agent. No consent or waiver, expressed or implied, by Collateral Agent
to or of any breach or default by Assignor in the performance of the
obligations thereof hereunder shall be deemed or construed to be a
consent or waiver to or of any other breach or default in the
performance of the same or any other obligations of Assignor hereunder.
Failure on the part of Collateral Agent to complain of any act or
failure to act or to declare an Event of Default under the Instrument
or the Credit Agreement, irrespective of how long such failure
continues, shall not constitute a waiver by Collateral Agent of its
rights hereunder or impair any rights, powers or remedies of Collateral
Agent consequent on any breach or default by Assignor. Nothing
contained in this Assignment and no act done or omitted by Collateral
Agent pursuant to the power and rights granted to Collateral Agent
hereunder shall be deemed to be a waiver by Assignee of its rights and
remedies under the other Loan Documents and this Assignment is made and
accepted without prejudice to any of the rights and remedies possessed
by Collateral Agent under the terms thereof. The right of the
Collateral Agent to collect the Rent and to enforce any other security
thereof held by it may be exercised by Collateral Agent either prior to
simultaneously with or subsequent to any action taken by it hereunder.
6. Actions of Collateral Agent. All actions taken by Collateral Agent
hereunder shall be taken at the direction of the Required Banks (as
defined in the Credit Agreement).
7. No Instrument in Possession. Nothing herein contained shall be
construed as constituting Collateral Agent a "mortgagee in possession"
in the absence of the taking of actual possession of the Property by
Collateral Agent. In the exercise of the powers herein granted to
Collateral Agent, no liability shall be asserted or enforced against
Collateral Agent, all such liability being expressly waived and
released by Assignor.
8. No Oral Change. This Assignment may not be modified, amended, waived,
extended, changed, discharged or terminated orally, or by any act or
failure to act on the part of Assignor or Collateral Agent, but only by
an agreement in writing signed by the party against whom the
enforcement of any modification, amendment, waiver, extension, change,
discharge or termination is sought.
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9. Certain Definitions. Unless the context clearly indicates a contrary
intent or unless otherwise specifically provided herein, words used in
this Assignment may be used interchangeable in singular or plural form
and the word "Assignor" shall mean "each Assignor and any subsequent
owner or owners of the Property or any part thereof or any interest
therein," the word "Collateral Agent" shall mean "Collateral Agent and
any subsequent beneficiary of the Instrument," the word "Loans" shall
have the meaning set forth in the Credit Agreement, the word "person"
shall include an individual, corporation, partnership, trust,
unincorporated association, government, governmental authority, and any
other entity, the words "Property" shall include any portion of the
Property and any interest therein; whenever the context may require,
any pronouns used herein shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns and pronouns
shall include the plural and vice versa. All other capitalized terms
used, but not defined herein, shall have the meaning set forth in the
Credit Agreement.
10. Inapplicable Provisions. If any term, covenant or condition of this
Assignment is held to be invalid, illegal or unenforceable in any
respect, this Assignment shall be construed without such provision.
11. Counterparts. This Assignment may be executed in any number of
counterparts each of which shall be deemed to be an original but all of
which when taken together shall constitute one agreement.
12. GOVERNING LAW; JURISDICTION. THIS ASSIGNMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE REAL
PROPERTY ENCUMBERED BY THE INSTRUMENT IS LOCATED AND THE APPLICABLE
LAWS OF THE UNITED STATES OF AMERICA. ASSIGNOR HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY COURT OF COMPETENT JURISDICTION
LOCATED IN THE STATE IN WHICH THE PROPERTY IS LOCATED IN CONNECTION
WITH ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS ASSIGNMENT.
13. Successors and Assigns. Assignor may not assign its rights under this
Assignment. Assignor hereby acknowledges and agrees that Collateral
Agent may assign this Assignment without Assignor's consent. Subject to
the foregoing, this Assignment shall be binding upon, and shall inure
to the benefit of, Assignor and the Collateral Agent and their
respective successors and assigns.
14. Termination of Assignment. Upon payment in full of the Secured
Obligations and the delivery and recording of a satisfaction, release
or discharge of the Instrument duly executed by Collateral Agent, this
Assignment shall become and be void and of no effect.
THIS ASSIGNMENT shall inure to the benefit of Collateral Agent and any
subsequent beneficiary of the Instrument and shall be binding upon Assignor, and
Assignor's heirs, executors, administrators, successors and assigns and any
subsequent owner of the Property.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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<PAGE> 123
Assignor has executed this instrument under seal as of the day and year
first above written.
ASSIGNOR:
Signed, sealed and delivered JDN REALTY CORPORATION, a Maryland
Assignor in the presence of: corporation by
By:
- ----------------------------- --------------------------------
Unofficial Witness Printed Name:
----------------------
Printed Title:
--------------------
- -----------------------------
Notary Public
Attest:
----------------------------
Commission Expiration Date: Printed Name:
----------------------
Printed Title:
---------------------
[NOTARIAL SEAL]
[CORPORATE SEAL]
119
<PAGE> 124
EXHIBIT A
Legal Description
120
<PAGE> 125
EXHIBIT O
Form of Attachment to UCC Financing Statement
SCHEDULE A
The types or items of property covered by this Financing Statement are as
follows:
All of Debtor's right, title and interest in and to any and all
buildings, structures and improvements of every nature whatsoever now or
hereafter situated on those tracts or parcels of land and easements more
particularly described on Exhibit A attached hereto and by this reference made a
part hereof (the "Land"), and all gas and electric fixtures, radiators, heaters,
engines and machinery, boilers, ranges, elevators and motors, plumbing and
heating fixtures, carpeting and other floor coverings, fire extinguishers and
any other safety equipment required by governmental regulation or law, washers,
dryers, water heaters, mirrors, mantels, air conditioning apparatus,
refrigerating plants, refrigerators, cooking apparatus and appurtenances, window
screens, awnings and storm sashes, which are or shall be owned by Debtor and
attached to said buildings, structures or improvements and all other
furnishings, furniture, fixtures, machinery, equipment, appliances, vehicles,
building supplies and materials, books and records, chattels, inventory,
accounts, farm products, consumer goods, general intangibles and personal
property of every kind and nature whatsoever now or hereafter owned by Debtor
and located in, on or about, or used or intended to be used with or in
connection with the use, operation or enjoyment of the property described
herein, including all extensions, additions, improvements, betterments,
after-acquired property, renewals, replacements and substitutions, or proceeds
from a permitted sale of any of the foregoing, and all the right, title and
interest of Debtor in any such furnishings, furniture, fixtures, machinery,
equipment, appliances, vehicles and personal property subject to or covered by
any prior security agreement, conditional sales contract, chattel mortgage or
similar lien or claim, together with the benefit of any deposits or payments now
or hereafter made by Debtor or on behalf of Debtor, all of which are hereby
declared and shall be deemed to be fixtures and accessions to the Land and a
part of the property described herein as between the parties hereto and all
persons claiming by, through or under them.
Together with all easements, rights-of-way, strips and gores of land,
vaults, streets, ways, alleys, passages, sewer rights, waters, water courses,
water rights and powers, minerals, flowers, shrubs, crops, trees, timber and
other emblements now or hereafter located on the Land or under or above the same
or any part or parcel thereof, and all estates, rights, titles, interests,
privileges, liberties, tenements, hereditaments and appurtenances, reversion and
reversions, remainder and remainders, whatsoever, in any way belonging, relating
or appertaining to the Land or any part thereof, or which hereafter shall in any
way belong, relate or be appurtenant thereto, whether now owned or hereafter
acquired by Debtor.
Together with all income, rents, issues, profits and revenues of the
Property from time to time accruing (including, without limitation, all payments
under leases or tenancies, proceeds of insurance, condemnation payments, tenant
security deposits whether held by Debtor or in a trust account, and escrow
funds), and all the estate, right, title, interest, property, possession, claim
and demand whatsoever at law, as well as in equity, of Debtor of, in and to the
same.
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SCHEDULE B
Signature of Debtor
JDN REALTY CORPORATION, a
Maryland corporation
By:
----------------------------
Printed Name:
------------------
Printed Title:
-----------------
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EXHIBIT P
Form of Hazardous Materials Indemnity Agreement
(to be modified for compliance with state law)
HAZARDOUS MATERIALS INDEMNITY AGREEMENT
1. The undersigned JDN REALTY CORPORATION, a Maryland corporation
("Obligor") to induce WACHOVIA BANK, N.A. together with its successors
and assigns, "Collateral Agent"), as Collateral Agent for itself and
each other lender (collectively, the "Banks") which is or may become a
party to that certain Second Amended and Restated Credit Agreement,
dated as of May 19, 2000, by and among Obligor, Collateral Agent and
Banks (as may be amended or otherwise supplemented from time to time,
the "Credit Agreement"), and the Banks to (i) modify the Credit
Agreement and (ii) to accept the Instrument (as hereinafter defined) as
collateral for the Secured Obligations (as defined in the Instrument),
and with knowledge that Collateral Agent and Banks intend to rely upon
the certifications and undertakings set forth herein, agrees to
indemnify Collateral Agent and Banks and hold Collateral Agent and
Banks harmless from and against any and all loss, liability, damage and
expense, including reasonable attorneys' fees and costs, suffered or
incurred by Collateral Agent or Bank, whether as holder of the Note
secured by the Instrument encumbering the land (the "Premises")
described on Exhibit "A" hereto, as mortgagee in possession or as
successor-in-interest to Obligor by foreclosure, deed or deed in lieu
of foreclosure, in connection with or arising out of Hazardous
Materials (as defined in the Credit Agreement) upon the Premises,
including any loss of value of the Premises as a result of the
foregoing. So long as Obligor is the owner of the Premises, Obligor
shall have the right to participate with Collateral Agent in any
settlement or other negotiations with respect to any indemnified claim,
but in no event shall Obligor enter into any agreement related to such
settlement or negotiations that may affect Collateral Agent's and/or
any Bank's interests without the consent of Collateral Agent
2. It is understood and agreed that the foregoing undertaking to indemnify
and hold harmless Collateral Agent and Banks shall arise (a) upon the
assertion against Collateral Agent and/or any Bank of any claim
relating to the presence of Hazardous Materials upon the Premises
(unless Obligor proves that such materials were introduced onto the
Premises after acquisition of title by Collateral Agent and/or Banks)
or (b) if the claim arises because Obligor has failed to comply with
any law applicable to Hazardous Materials, and shall continue in full
force and effect as long as Collateral Agent or any Bank retains an
estate or interest in the Premises pursuant to the Instrument or holds
an indebtedness secured by a purchase money mortgage, deed to secure
debt or deed of trust given by a purchaser at foreclosure or trustee's
sale or from Banks, or pursuant to a foreclosure or acceptance of a
deed in lieu or under threat of foreclosure in regard to any thereof or
so long as any Bank shall have liability by reason of having held such
estate or interest in the Premises, and such undertaking shall in no
event be limited, terminated or extinguished by, or merged into, the
exercise of any of Banks' remedies under the Loans (as defined in the
Credit Agreement) or any of the Loan Documents (as defined in the
Credit Agreement), or otherwise. Except as may be otherwise expressly
agreed in writing, the liability of any party under this Agreement
shall in no way be limited or
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<PAGE> 128
impaired by any amendment or modification of any of the Loan Documents.
In addition, the liability of any party under this Agreement shall in
no way be limited or impaired by (i) any extensions of time for
performance required by any of the Loan Documents, (ii) any sale,
assignment or foreclosure of any Loan Document or any sale or transfer
of all or any part of the Premises, (iii) any exculpatory provision in
any of the Loan Documents limiting Bank's recourse to property
encumbered by the Loan Documents or to any other security, or limiting
Banks' rights to a deficiency judgment against Obligor, except as
otherwise expressly provided in the Loan Documents, (iv) the release of
Obligor or any other person from performance or observance of any of
the agreements, covenants, terms or conditions contained in any of the
Loan Documents by operation of law, Collateral Agent's or Banks'
voluntary act, or otherwise, (v) the release or substitution in whole
or in part of any security for the Note, (vi) Collateral Agent's or
Banks' failure to record or file any Loan Document (or Banks' improper
recording or filing of any thereof) or Collateral Agent's or Banks'
failure otherwise to perfect, protect, secure or insure any security
interest or lien given as security for the Loans; and, in any such
case, whether with or without notice to Obligor and with or without
consideration, (vii) any limitation of liability language in any Loan
Documents, unless such limitation of liability language expressly
limits liability hereunder or with respect hereto, or (viii) repayment
of the Loans.
3. No provision of this Agreement may be changed, waived, discharged or
terminated verbally or by any other means except by an instrument in
writing signed by the party against whom enforcement of the change,
waiver, discharge or termination is sought.
4. Except as herein provided, this Agreement shall be binding upon Obligor
and Obligor's successors and assigns and shall inure to the benefit of
Collateral Agent and Banks and Collateral Agent's or Banks' successors
and assigns owning the Loan Documents or any interest therein. The
indemnity agreement of Obligor hereunder shall be binding on all
successors in interest of Obligor and on each and every transferee and
purchaser of the Premises or any part thereof or interest therein.
5. This Agreement and the rights and obligations of the parties hereunder
shall in all respects be governed by, and construed and enforced in
accordance with, the laws of the State of Georgia.
6. The capitalized terms used in this Agreement shall, unless the context
otherwise requires, have the same meanings as terms defined in the Deed
to Secure Debt and Security Agreement (the "Instrument") of even date
herewith, recorded or intended to be recorded in the Office of the
Clerk of Superior Court of ____________________ County, Georgia.
7. Any notices required to be given hereunder shall be given in the manner
set forth for notices in the Instrument.
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IN WITNESS WHEREOF, Obligor has executed this Agreement under seal as
of the day of , 2000.
OBLIGOR:
JDN REALTY CORPORATION, a
Maryland corporation
By:
--------------------------------
Printed Name:
----------------------
Printed Title:
--------------------
Attest:
----------------------------
Printed Name:
----------------------
Printed Title:
---------------------
[CORPORATE SEAL]
125
<PAGE> 130
EXHIBIT "A"
Legal Description
126
<PAGE> 131
Schedule 4.08
Subsidiaries
SIGNIFICANT SUBSIDIARIES
<TABLE>
<CAPTION>
Name Jurisdiction of Incorporation/Organization
- ---- ------------------------------------------
<S> <C>
JDN Realty, LP, Inc. Delaware
JDN Realty Holdings, L.P. Georgia
</TABLE>
OTHER SUBSIDIARIES:
<TABLE>
<CAPTION>
Name Jurisdiction of Incorporation/Organization
- ---- ------------------------------------------
<S> <C>
Black Cherry Limited Liability Company Colorado
JDN Realty AL, Inc. Alabama
JDN Realty Corporation, GP, Inc. Delaware
Georgia Finance Association Delaware
JDN West Allis Associates Limited Partnership Georgia
JDN Real Estate-McDonough, L.P. Georgia
</TABLE>
127
<PAGE> 132
SCHEDULE 4.14
Environmental Matters
The Borrower discloses the existence of a remediation agreement
(relating to a leaking, underground storage tank) entered into between the State
of Georgia and the owner of the Stop `n' Go site adjacent to the QuikTrip parcel
located at the Borrower's Lawrenceville Property.
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<PAGE> 133
SCHEDULE 5.16
Existing Loans and Advance
<TABLE>
<CAPTION>
Borrower Name / Repayment
Relation to JDN Lender Loan Schedule,
(Exact Namestyle) (JDN entity) Balance Maturity Purpose/Security/Description
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Argus Properties, LLC (1) JDN $206,574 Balance due at Line of credit Secured by Fees and
Development Maturity of 5/5/00 Commissions
Unrelated to JDN Company, Inc.
Denver Urban Renewal Black Cherry, 771,135 Balance due at Improvements to surrounding
Authority LLC Maturity of 7/12/01 infrastructure secured by tax
increment financing
Unrelated to JDN
Development Authority of JDN Realty 1,342,673 Balance due at Water and Sewage Revenue Bonds
Forsyth County Corporation Maturity of 1/1/17
Unrelated to JDN
Duck Creek, LLC JDN Realty 8,000,000 Balance due at Loan Secured by Property
Corporation Maturity of 5/1/02
JDN Development Company,
Inc. Owns 50%
Barry E. Dotson and JDN 549,958 Balance due at Line of credit Secured by Fees and
Robert A. Martin (2) Development Maturity of 4/3/00 Commissions
Company, Inc
Unrelated to JDN
Riverbend LLP JDN 3,075,791 Balance due at First Mortgage on Property
Development Maturity of 9/21/00
Unrelated to JDN Company, Inc
-----------
Total $13,946,131
</TABLE>
- ---------------
(1) NOTE IS BEING AMENDED TO EXTEND MATURITY DATE TO 12/31/00.
(2) NOTE IS BEING AMENDED TO EXTEND MATURITY DATE TO 12/31/00.
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<PAGE> 134
SCHEDULE 5.17
Existing Investments(17)
As of March 31, 2000
<TABLE>
<CAPTION>
Existing Investments as of March 31, 2000
- -------------------------- --------------
<S> <C>
Duck Creek, LLC $ 918,658
Investment JDN/Zaremba $ 957,516
Metro Station, LLC $ 4,604,217
Pecan Park, LLC $ 3,463,747
Hampton Roads Association, LLC $ 600,325
Pepperell Corners, L.P. $ 91,361
-----------
Investments Total $10,635,824
</TABLE>
- ---------------
(17) Exclude Subsidiaries, which are set forth on Schedule 4.08
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<PAGE> 135
JDN Realty Schedule 5.22
Existing Guarantees as of March 31, 2000
<TABLE>
<CAPTION>
Guarantor Borrower Beneficiary/Instrument/Project Amount of Guarantee Maturity
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
JDN Realty Corporation Metro Station, LLC Metro Station, MS Land $ 2,579,584 14-Nov-00
JDN Realty Corporation JDN Development Canton, GA Wal-Mart $ 9,238,311 24-Sep-00
Company, Inc.
JDN Realty Corporation JDN Development Warner Robins, GA Lowe's $ 6,999,049 1-Sep-00
Company, Inc.
Sub-Total $ 18,816,944
</TABLE>
<TABLE>
<CAPTION>
Currently Outstanding Letters of Credit
- ---------------------------------------
<S> <C> <C> <C> <C>
JDN Development Company, Inc. N/A Lexington Fayette County Urban Government $ 62,862 20-Nov-00
JDN Development Company, Inc. N/A City of Franklin, TN $ 274,000 12-Jun-00
JDN Development Company, Inc. N/A City of Franklin, TN $ 18,000 16-Jun-00
JDN Development Company, Inc. N/A City of Franklin, TN $ 266,000 15-Sep-00
JDN Development Company, Inc. N/A City of Franklin, TN $ 40,000 17-Nov-00
JDN Development Company, Inc. N/A Town of Parker, CO $ 2,006,808 25-Jun-00
JDN Development Company, Inc. N/A Parker, CO Water and Sanitation District $ 357,307 16-Sep-01
JDN Development Company, Inc. N/A Upper Macungie Township Authority $ 170,004 2-Dec-00
JDN Development Company, Inc. N/A Lehigh County Authority $ 202,869 5-Nov-00
-------------
Subtotal $ 3,397,850
Grand Total $ 22,214,794
==============
</TABLE>
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