FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "First Amendment") is dated
as of the 11th day of June, 1999 among JDN REALTY CORPORATION (the "Borrower"),
WACHOVIA BANK, N.A., as Agent (the "Agent") and WACHOVIA BANK, N.A., PNC BANK,
NATIONAL ASSOCIATION, BANKERS TRUST COMPANY, COMMERZBANK, A.G., ATLANTA AGENCY,
FOUR WINDS FUNDING CORPORATION, FIRST TENNESSEE BANK NATIONAL ASSOCIATION and
SOUTHTRUST BANK, NATIONAL ASSOCIATION, (collectively, the "Banks");
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower, the Agent and the Banks executed and delivered that
certain Amended and Restated Credit Agreement, dated as of September 2, 1998
(the "Credit Agreement");
WHEREAS, the Borrower has requested and the Agent and the Banks have agreed
to certain amendments to the Credit Agreement, subject to the terms and
conditions hereof;
NOW, THEREFORE, for and in consideration of the above premises and other
good and valuable consideration, the receipt and sufficiency of which hereby is
acknowledged by the parties hereto, the Borrower, the Agent and the Banks hereby
covenant and agree as follows:
1. Definitions. Unless otherwise specifically defined herein, each term
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used herein which is defined in the Credit Agreement shall have the meaning
assigned to such term in the Credit Agreement. Each reference to "hereof",
"hereunder", "herein" and "hereby" and each other similar reference and each
reference to "this Agreement" and each other similar reference contained in the
Credit Agreement shall from and after the date hereof refer to the Credit
Agreement as amended hereby.
2. Amendment to Section 1.01. Section 1.01 of the Credit Agreement
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hereby is amended by deleting the definitions of "Eligible Property", "Gross
Asset Value" and "Termination Date"
and by adding the following definitions in appropriate alphabetical sequence:
"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 5.26, and excluding any balloon payments on other Debt.
"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.
"Eligible Construction in Progress" means any Construction in
Progress which is located at a Property in the continental United States of
America and with respect to which at least 50% of the leasable space in
such Property is pre-leased, including at least one anchor tenant.
"Eligible Property" means any retail Property which is either (i)
listed on Exhibit J, (ii) included in Eligible Construction in Progress or
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(iii) which has been approved as an Eligible 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, and an
operating budget for the current Fiscal Year.
"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 (x) 10 (which is the
capitalization rate), times (y) 4 (which is the annualization factor),
times (z) the 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; 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 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.
"Qualified Intermediary" means any Person serving as a "qualified
intermediary" for purposes of a Section 1031 Exchange.
"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
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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.
"Section 0000 Xxxxxxxx" 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.
"Termination Date" means whichever is applicable of (i) May 22,
2002, (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 2.08.
3. Amendment to Section 2.05(b). Section 2.05(b) of the Credit Agreement
----------------------------
hereby is deleted and the following is substituted therefor:
(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.
4. Amendment to Section 2.06(a). Section 2.06(a) of the Credit Agreement
----------------------------
hereby is amended by deleting the table contained therein and by substituting
the following table therefor:
================================================================
Xxxxx X Xxxxx XX Xxxxx XXX Xxxxx XX
================================================================
Debt (greater
Rating than equals
to)BBB+ BBB BBB- (less than)BBB-
and/1/ and/1/ and/1/ xxx/0/
Xxx0 Xxx0 Xxx0 Xxx0
----------------------------------------------------------------
Applicable
================================================================
____________________________
/1/ if applicable
4
----------------------------------------------------------------
Margin 0.90% 1.00% 1.15% 1.50%
================================================================
5. Amendment to Section 2.14. Section 2.14 of the Credit Agreement
-------------------------
hereby is deleted and the following is substituted therefor:
SECTION 2.14. Additional Banks and Commitments. Upon (i) the
--------------------------------
execution of a signature page to this Agreement by a new bank or financial
institution (a "New Bank") and acceptance thereof by the Agent,(ii)
execution and delivery by the Borrower of a Syndicated Loan Note and a
Money Market Loan Note in favor of the New Bank, and (iii) delivery of
notice to the Banks by the Agent setting forth the effective date of the
addition of the New Bank hereunder and the amount of such New Bank's
Commitment, such New Bank shall be for all purposes a Bank party to this
Agreement to the same extent as if it were an original party hereto with a
Commitment as set forth on the signature page executed by the New Bank;
provided, however, (x) the total Commitments of all Banks shall not exceed
in the aggregate $200,000,000 and (y) the Commitments and obligations of
all Banks party hereto prior to the addition of any New Bank shall not be
affected by the addition of such New Bank.
6. Amendment to Section 5.01(c). Section 5.01(c) of the Credit Agreement
----------------------------
hereby is deleted and the following is substituted therefor:
(c) simultaneously with the delivery of each set of financial
statements referred to in paragraphs (a) and (b) above, a certificate,
substantially in the form of Exhibit F (a "Compliance Certificate"), of the
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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, 5.16, 5.17, 5.20 through 5.25, inclusive, and 5.30 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;
7. Amendment to Section 5.05. Section 5.05 of the Credit Agreement
-------------------------
hereby is deleted and the following is substituted therefor:
SECTION 5.05. Consolidations, Mergers and Sales of Assets.
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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
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substantial part of its assets to, any other Person, provided that:
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(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;
(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
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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
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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
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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
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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, such Guarantor may dissolve and shall be entitled
to obtain from the Agent a written release from the Guaranty, provided that
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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.
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8. Amendment to Section 5.16. Section 5.16 of the Credit Agreement
-------------------------
hereby is deleted and the following is substituted therefor:
SECTION 5.16. Loans or Advances. Neither the Borrower nor any of
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the Guarantors shall make loans or advances to any Person except as
permitted by Section 5.17 and except:
(i) loans or advances to employees and directors not exceeding
$10,000,000 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
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loans, advances or deposits permitted by this Section, and no Default
shall be in existence or be created thereby.
9. New Section 5.30. A new Section 5.30 hereby is added to the Credit
----------------
Agreement, as follows:
SECTION 5.30 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.
10. Amendment to Section 6.01(b). Section 6.01(b) of the Credit Agreement
----------------------------
hereby is deleted and the following is substituted therefor:
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(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 5.30, inclusive; or
11. Amendment to Exhibit F (Compliance Certificate). Exhibit F to the
-----------------------------------------------
Credit Agreement hereby is deleted and Exhibit F attached hereto is substituted
therefor.
12. Restatement of Representations and Warranties. The Borrower hereby
----------- -- --------------- --- ----------
restates and renews each and every representation and warranty heretofore made
by it in the Credit Agreement and the other Loan Documents as fully as if made
on the date hereof and with specific reference to this First Amendment and all
other loan documents executed and/or delivered in connection herewith.
13. Effect of Amendment. Except as set forth expressly hereinabove, all
------ -- ---------
terms of the Credit Agreement and the other Loan Documents shall be and remain
in full force and effect, and shall constitute the legal, valid, binding and
enforceable obligations of the Borrower. The amendments contained herein shall
be deemed to have prospective application only, unless otherwise specifically
stated herein.
14. Ratification. The Borrower hereby restates, ratifies and reaffirms
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each and every term, covenant and condition set forth in the Credit Agreement
and the other Loan Documents effective as of the date hereof.
15. Counterparts. This First Amendment may be executed in any number of
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counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed to be an original and all
of which counterparts, taken together, shall constitute but one and the same
instrument.
16. Section References. Section titles and references used in this First
------- ----------
Amendment shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreements among the parties hereto evidenced hereby.
17. No Default. To induce the Agent and the Banks to enter into this
-- -------
First Amendment and to continue to make advances pursuant to the Credit
Agreement, the Borrower hereby acknowledges and agrees that, as of the date
hereof, and after giving effect to the terms hereof, there exists (i) no Default
or Event of Default and (ii) no right of offset, defense, counterclaim, claim or
objection in favor of the Borrower arising out of or with respect to any of the
Loans or other obligations of the Borrower owed to the Banks under the Credit
Agreement.
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18. Further Assurances. The Borrower agrees to take such further actions
------------------
as the Agent shall reasonably request in connection herewith to evidence the
amendments herein contained to the Borrower.
19. Governing Law. This First Amendment shall be governed by and
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construed and interpreted in accordance with, the laws of the State of Georgia.
20. Conditions Precedent. This First Amendment shall become effective
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only upon (i) execution and delivery of this First Amendment by the Borrower,
the Agent and the Required Banks; (ii) execution and delivery of the Consent and
Reaffirmation of Guarantor at the end hereof by JDN DCI; (iii) receipt by the
Agent of customary closing documents (including such secretary's certificates,
officer's certificates, good standing certificates and opinions of counsel as
the Agent may reasonably require); (iv) payment to the Agent, for the ratable
account of the Banks, of an extension fee in an amount equal to 0.10% of the
aggregate amount of the Commitments; and (v) payment to the Agent, for the
account of Wachovia Securities, Inc., of the arranger's structuring fee payable
pursuant to the letter agreement between the Borrower, the Agent and Wachovia
Securities, Inc. dated April 26, 1999.
IN WITNESS WHEREOF, the Borrower, the Agent and each of the Banks has
caused this First Amendment to be duly executed, under seal, by its duly
authorized officer as of the day and year first above written.
JDN REALTY CORPORATION, WACHOVIA BANK, N.A.,
as Borrower (SEAL) as Agent and as a Bank (SEAL)
By:______________________ By:_____________________
Title: Title:
PNC BANK, NATIONAL BANKERS TRUST COMPANY,
ASSOCIATION, (SEAL) as a Bank (SEAL)
as a Bank
By:______________________ By:____________________
Title: Title:
COMMERZBANK, A.G., ATLANTA FOUR WINDS FUNDING CORPORATION,
AGENCY, as a Bank (SEAL) as a Bank (SEAL)
By: ___________________________ By:_____________________
Title: Title:
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By:___________________________ By: ____________________
Title: Title:
FIRST TENNESSEE BANK NATIONAL SOUTHTRUST BANK, NATIONAL
ASSOCIATION, (SEAL) ASSOCIATION, (SEAL)
as a Bank as a Bank
By:___________________________ By:_____________________
Title: Title:
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EXHIBIT F
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COMPLIANCE CERTIFICATE
----------------------
Reference is made to the Amended and Restated Credit Agreement dated as of
September 2, 1998, as amended by First Amendment to Credit Agreement dated as of
June 10, 1999 (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:
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COMPLIANCE CHECK LIST
JDN REALTY CORPORATION
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_____________, ____
1. Ratio of Consolidated Total Liabilities to Gross Asset Value (Section 5.20)
The ratio of Total Consolidated Liabilities to Gross Asset Value shall at
all times be equal to or less than 0.55 to 1.0.
(a) Total Consolidated Liabilities
Schedule 1 $_________
(b) Gross Asset Value Schedule 2 $_________
(c) Actual ratio of (a) to (b) _______to 1.0
Maximum ratio 0.55 to 1.0
2. Ratio of Total Secured Debt to Gross Asset Value (Section 5.21)
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.
(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
3. Ratio of EBITDA to Consolidated Interest Expense (Section 5.22)
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.
(a) EBITDA Schedule 4 $_________
(b) Consolidated Interest Expense/2/ $_________
_________________
/2/ During Fiscal Quarter just ended and immediately preceding 3 Fiscal Quarters
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(c) actual ratio of (a) to (b) _____to 1.0
Minimum ratio 2.0 to 1.0
4. Ratio of Unencumbered Assets to Unsecured Funded Debt (Section 5.23)
The ratio of Unencumbered Assets to Unsecured Funded Debt shall at all
times be equal to or greater than 1.75 to 1.00.
(a) Net Operating Income from each
and owned for at least one Fiscal
Quarter Schedule 5 $_________
(b) 10 times (a) $_________
(c) 4 times (b) $_________
(d) book value of each Property not subject
to a Mortgage and owned for less than
one Fiscal Quarter $_________
(e) book value of all Construction in Progress $_________
(f) sum of (c),(d) and (e) $_________
(g) Unsecured Funded Debt Schedule 6 $_________
(h) Actual ratio of (f) to (g) _____ to 1.0
Minimum ratio 1.75 to 1.0
5. Ratio of Unsecured Net Operating Income to Unsecured Interest Expense
(Section 5.24) The ratio of Unsecured Net Operating Income to Unsecured
Interest Expense shall at all times be equal to or greater than 1.75 to
1.0.
(a) Unsecured Net Operating Income Schedule 5 $_________
(b) Unsecured Interest Expense/2/ $_________
(c) Actual ratio of (a) to (b) ____ to 1.0
Minimum ratio 1.75 to 1.0
___________________
/2/ Include only Consolidated Interest Expense for Fiscal Quarter attributable
to Unsecured Funded Debt.
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6. Restricted Payments (Section 5.15)/3/
The Borrower's Restricted Payments in any calendar year shall not exceed
95% of Funds from Operations for such period, unless (i) the Borrower must
pay out an amount in excess of 95% of Funds from Operations to permit the
Borrower to preserve its status as a real estate investment trust under the
applicable provision of the Code.
(a) Restricted Payments for current
calendar year $_________
(b) Funds from Operations for current
calendar year Schedule 7 $_________
(c) 95% of (b) $_________
Limitation: (a) may not exceed (c)
7. Guarantees (Section 5.25)
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 May 23, 1997 in the aggregate as of August 31, 1998 of
21,770,661, (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.
(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)
8. Consolidations, Mergers and Sales of Assets (Section 5.05)
_____________________
/3/ 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, ____
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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:
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[(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.
(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 $_________
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(f) Sum of (d) and (e) $_________
(g) 25% of (b) $_________
Limitation: (f) may not exceed (g)
9. Loans or Advances (Section 5.16)
Neither the Borrower nor any of the Guarantors shall make loans or advances
to any Person except as permitted by Section 5.17 and except:
(i) loans or advances to employees and directors not exceeding
$10,000,000 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;
(a) Loans and advances to officers
and directors $_________
Limitation $10,000,000
(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 10 below
10. 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), are set forth on
Schedule 5.17. Neither the Borrower nor any of the Guarantors
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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;
(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) $_________
Limitation: (c) may not exceed (e)
(f) Investments included in line (b) in
Persons over which the Borrower or the
Guarantors do not have control $_________
(g) 5% of (d) $_________
Limitation: (f) may not exceed (g)
11. Ratio of EBITDA to Consolidated Fixed Charges (Section 5.30)
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.
(a) EBITDA Schedule 4 $_________
(b) Consolidated Interest Expense/4/ $_________
(c) dividends paid or declared
______________________
/4/ During Fiscal Quarter just ended and immediately preceding 3 Fiscal
Quarters
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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
_________________________
/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 5.26
and excluding any balloon payments on other Debt.
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Schedule 1
----------
Total Consolidated Liabilities
------------------------------
(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) $__________
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Schedule 2
----------
Gross Asset Value
-----------------
(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 $__________
(b) 40 times (a) $__________
(c) book value of each Property owned by
the Borrower or any Guarantor
for less than one Fiscal Quarter $__________
(d) book value of Construction in
Progress of each Property owned
by the Borrower or any Guarantor $__________
(e) aggregate amount of all restricted
cash held by a Qualified Intermediary
on behalf of the Borrower or any
Guarantor $__________
(f)) 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 (b) through (f)) $__________
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Schedule 3
----------
Total Secured Debt/6/
---------------------
INTEREST FINAL
RATE/7/ MATURITY TOTAL
------- -------- -----
Money Borrowed
--------------
_____________________________ __________ __________ $_________
_____________________________ __________ __________ $_________
_____________________________ __________ __________ $_________
_____________________________ __________ __________ $_________
_____________________________ __________ __________ $_________
Total Money Borrowed $_________
Deferred Purchase Price/8/
--------------------------
_____________________________ __________ __________ $_________
_____________________________ __________ __________ $_________
_____________________________ __________ __________ $_________
_____________________________ __________ __________ $_________
Total Deferred Purchase Price $_________
Capital Leases in which Borrower is the Tenant
----------------------------------------------
____________________________________________________________ $_________
____________________________________________________________ $_________
Total Capital Leases $_________
Letter of Credit Reimbursement
Obligations
-----------
____________________________________________________________ $_________
____________________________________________________________ $_________
Total Letter of Credit
Reimbursement Obligations $_________
Guarantees of Debt of Persons other than Borrower and Guarantors
----------------------------------------------------------------
_____________________________ __________ __________ $_________
_____________________________ __________ __________ $_________
__________________________
/6/ Include only Debt secured by a 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.
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_____________________________ __________ __________ $_________
_____________________________ __________ __________ $_________
_____________________________ __________ __________ $_________
TOTAL SECURED DEBT $_________
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Schedule 4
----------
EBITDA
------
____ quarter ____
consolidated net income $________
less extraordinary gains ($________)
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 $________
less extraordinary gains ($________)
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 $________
less extraordinary gains ($________)
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 $________
less extraordinary gains ($________)
plus extraordinary losses $________
plus Consolidated Interest Expense $________
plus taxes on income $________
plus depreciation and amortization $________
plus other non-cash charges $________
Total $________
EBITDA $
========
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Schedule 5
----------
Net Operating Income/9/
-----------------------
(for Fiscal Quarter just ended)
____ quarter ____
Property revenues $________
less Property expenses
(excluding depreciation, amortization
and debt service) ($________)
less management fee (3% of gross
rental income, excluding
percentage rents) ($________)
less capital reserve ($0.15 per leasable
square foot) ($________)
NET OPERATING INCOME $________
______________________________
/9/ Include only Properties not subject to a Mortgage and owned for at least
one Fiscal Quarter
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Schedule 6
----------
Unsecured Funded Debt/10/
-------------------------
INTEREST FINAL
RATE/11/ MATURITY TOTAL
-------- -------- -----
Money Borrowed
--------------
_____________________________ __________ _________ $_________
_____________________________ __________ _________ $_________
_____________________________ __________ _________ $_________
_____________________________ __________ _________ $_________
_____________________________ __________ _________ $_________
Total Money Borrowed $_________
_______
Deferred Purchase Price/12/
---------------------------
_____________________________ __________ _________ $_________
_____________________________ __________ _________ $_________
_____________________________ __________ _________ $_________
_____________________________ __________ _________ $_________
Total Deferred Purchase Price $_________
Capital Leases in which the Borrower is the tenant
--------------------------------------------------
___________________________________________________________ $_________
___________________________________________________________ $_________
Total Capital Leases $_________
Letter of Credit Reimbursement
_________________________
/10/ Include only Debt not secured by a Mortgage
/11/ If rate is fixed, insert contract rate. If rate is floating, state that.
/12/ Exclude trade accounts payable in the ordinary course of business.
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Obligations
-----------
___________________________________________________________ $_________
___________________________________________________________ $_________
Total Letter of Credit
Reimbursement Obligations $_________
Guarantees of Debt of Persons other than Borrower and Guarantors
----------------------------------------------------------------
_____________________________ ___________ __________ __________
_____________________________ ___________ __________ __________
_____________________________ ___________ __________ __________
_____________________________ ___________ __________ __________
_____________________________ ___________ __________ __________
TOTAL UNSECURED FUNDED DEBT $
==========
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Schedule 7/13/
--------------
Funds from Operations/1/
------------------------
(for Fiscal Year just ended)
Net income $________
plus depreciation and amortization
of real estate assets $________
plus net loss/(gain) on real estate
sales $________
plus loss/(gains) on extraordinary
items $________
plus depreciation of real estate
assets held in unconsolidated
entities $________
FUNDS FROM OPERATIONS $________
_______________________________
/13/ Include only with the first Compliance Certificate furnished after the
end of each Fiscal year.
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CONSENT AND REAFFIRMATION OF GUARANTOR
The undersigned (i) acknowledges receipt of the foregoing First Amendment
to Credit Agreement (the "First Amendment"), (ii) consents to the execution and
delivery of the First Amendment by the parties thereto and (iii) reaffirms all
of its obligations and covenants under the Guaranty Agreement dated as of
September 2, 1998 executed by it, and agrees that none of such obligations and
covenants shall be affected by the execution and delivery of the First
Amendment.
JDN DEVELOPMENT COMPANY, INC. (SEAL)
By: ______________________
Title:
_________________________
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