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SECURED REVOLVING CREDIT AGREEMENT
dated as of June 24, 1999
among
THE TAUBMAN REALTY GROUP LIMITED PARTNERSHIP,
as Borrower,
THE BANKS SIGNATORY HERETO,
each as a Bank
and
UBS AG, STAMFORD BRANCH,
as Administrative Agent
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS; ETC...............................1
SECTION 1.01. Definitions....................................1
SECTION 1.02. Accounting Terms..............................15
SECTION 1.03. Computation of Time Periods...................15
SECTION 1.04. Rules of Construction.........................15
ARTICLE II THE LOANS.....................................16
SECTION 2.01. The Loans.....................................16
SECTION 2.02. Purpose.......................................16
SECTION 2.03. Advances, Generally...........................16
SECTION 2.04. Procedures for Advances.......................17
SECTION 2.05. Additional Conditions to Advances.............17
SECTION 2.06. Interest Periods; Renewals....................17
SECTION 2.07. Interest......................................18
SECTION 2.08. Fees..........................................18
SECTION 2.09. Notes.........................................18
SECTION 2.10. Prepayments...................................19
SECTION 2.11. Termination of Commitments....................19
SECTION 2.12. Method of Payment.............................19
SECTION 2.13. Elections, Conversions or Continuation of
Loans.........................................20
SECTION 2.14. Minimum Amounts...............................20
SECTION 2.15. Certain Notices Regarding Elections,
Conversions and Continuations of Loans........20
SECTION 2.16. Late Payment Premium..........................20
SECTION 2.17. Letters of Credit.............................21
ARTICLE III YIELD PROTECTION; ILLEGALITY; ETC.............22
SECTION 3.01. Additional Costs..............................22
SECTION 3.02. Limitation on Types of Loans..................23
SECTION 3.03. Illegality....................................24
SECTION 3.04. Treatment of Affected Loans...................24
SECTION 3.05. Certain Compensation..........................25
SECTION 3.06. Capital Adequacy..............................25
SECTION 3.07. Substitution of Banks.........................26
ARTICLE IV CONDITIONS PRECEDENT..........................27
SECTION 4.01. Conditions Precedent to the Initial Advance...27
SECTION 4.02. Conditions Precedent to Advances After the
Initial Advance...............................31
SECTION 4.03. Deemed Representations........................32
ARTICLE V REPRESENTATIONS AND WARRANTIES................32
SECTION 5.01. Due Organization..............................32
SECTION 5.02. Power and Authority; No Conflicts; Compliance
With Laws.....................................32
SECTION 5.03. Legally Enforceable Agreements................32
SECTION 5.04. Litigation....................................33
SECTION 5.05. Good Title to Properties......................33
SECTION 5.06. Taxes.........................................33
SECTION 5.07. ERISA.........................................33
SECTION 5.08. No Default on Outstanding Judgments or Orders.34
SECTION 5.09. No Defaults on Other Agreements...............34
SECTION 5.10. Government Regulation.........................34
SECTION 5.11. Environmental Protection......................34
SECTION 5.12. Solvency......................................34
SECTION 5.13. Financial Statements..........................35
SECTION 5.14. Valid Existence of Affiliates.................35
SECTION 5.15. Insurance.....................................35
SECTION 5.16. Separate Tax and Zoning Lot...................35
SECTION 5.17. Zoning and other Laws; Covenants and
Restrictions..................................35
SECTION 5.18. Utilities Available...........................35
SECTION 5.19. Creation of Liens.............................36
SECTION 5.20. Roads.........................................36
SECTION 5.21. Premises Documents and Leases.................36
SECTION 5.22. Accuracy of Information; Full Disclosure......36
ARTICLE VI AFFIRMATIVE COVENANTS.........................36
SECTION 6.01. Maintenance of Existence......................36
SECTION 6.02. Maintenance of Records........................37
SECTION 6.03. Maintenance of Insurance......................37
SECTION 6.04. Compliance with Laws; Payment of Taxes........37
SECTION 6.05. Right of Inspection...........................37
SECTION 6.06. Compliance With Environmental Laws............37
SECTION 6.07. Payment of Costs..............................37
SECTION 6.08. Maintenance of Properties.....................37
SECTION 6.09. Reporting and Miscellaneous Document
Requirements..................................37
SECTION 6.10. Premises Documents; Leases....................40
SECTION 6.11. Compliance with Covenants, Restrictions and
Easements.....................................40
SECTION 6.12. Management, Leasing and Service Contracts.....40
SECTION 6.13. Correction of Defects.........................41
SECTION 6.14. Estoppel Certificates.........................41
ARTICLE VII NEGATIVE COVENANTS............................41
SECTION 7.01. Mergers Etc...................................41
SECTION 7.02. Investments...................................41
SECTION 7.03. Sale of Assets................................41
SECTION 7.04. Interest Rate Hedging.........................42
SECTION 7.05. Control of Borrower...........................42
SECTION 7.06. Certain Restrictions on Activities of TCI.....42
ARTICLE VIII FINANCIAL COVENANTS AND ADJUSTMENTS...........42
SECTION 8.01. Covenants Subsequent to Certain Events........42
SECTION 8.02. Certain Pro-Forma Adjustments.................43
ARTICLE IX EVENTS OF DEFAULT.............................44
SECTION 9.01. Events of Default.............................44
SECTION 9.02. Remedies......................................46
ARTICLE X ADMINISTRATIVE AGENT; RELATIONS AMONG BANKS...46
SECTION 10.01. Appointment, Powers and Immunities of
Administrative Agent..........................46
SECTION 10.02. Reliance by Administrative Agent..............47
SECTION 10.03. Defaults......................................47
SECTION 10.04. Rights of Administrative Agent as a Bank......48
SECTION 10.05. Sharing of Costs by Banks; Indemnification of
Administrative Agent..........................48
SECTION 10.06. Non-Reliance on Administrative Agent and
Other Banks...................................48
SECTION 10.07. Failure of Administrative Agent to Act........49
SECTION 10.08. Resignation or Removal of Administrative
Agent.........................................49
SECTION 10.09. Amendments Concerning Agency Function.........49
SECTION 10.10. Liability of Administrative Agent.............50
SECTION 10.11. Transfer of Agency Function...................50
SECTION 10.12. Non-Receipt of Funds by Administrative Agent..50
SECTION 10.13. Withholding Taxes.............................50
SECTION 10.14. Minimum Commitment by UBS.....................51
SECTION 10.15. Pro Rata Treatment............................51
SECTION 10.16. Sharing of Payments Among Banks...............51
SECTION 10.17. Possession of Documents.......................51
ARTICLE XI NATURE OF OBLIGATIONS.........................51
SECTION 11.01. Absolute and Unconditional Obligations........51
SECTION 11.02. Non-Recourse..................................52
ARTICLE XII MISCELLANEOUS.................................53
SECTION 12.01. Binding Effect of Request for Advance.........53
SECTION 12.02. Amendments and Waivers........................53
SECTION 12.03. Usury.........................................54
SECTION 12.04. Expenses; Indemnification.....................54
SECTION 12.05. Assignment; Participation.....................56
SECTION 12.06. Documentation Satisfactory....................57
SECTION 12.07. Notices.......................................57
SECTION 12.08. Setoff........................................57
SECTION 12.09. Year 2000.....................................58
SECTION 12.10. Table of Contents; Headings...................58
SECTION 12.11. Severability..................................58
SECTION 12.12. Counterparts..................................58
SECTION 12.13. Integration...................................58
SECTION 12.14. GOVERNING LAW.................................58
SECTION 12.15. Waivers.......................................58
SECTION 12.16. JURISDICTION; IMMUNITIES......................59
SECTION 12.17. Termination of Prior Loan Agreement...........60
EXHIBIT A ......- Assignment and Assumption Agreement
EXHIBIT B ......- Authorization Letter
EXHIBIT C ......- Note
EXHIBIT D ......- List of Affiliates
EXHIBIT E ......- Solvency Certificate
EXHIBIT F ......- Notice of Assignment of Lease
SECURED REVOLVING CREDIT AGREEMENT ("this Agreement") dated as of
June 24, 1999 among THE TAUBMAN REALTY GROUP LIMITED PARTNERSHIP, a limited
partnership organized and existing under the laws of the State of Delaware
("Borrower"), UBS AG, STAMFORD BRANCH, as agent for the Banks (in such capacity,
together with its successors in such capacity, "Administrative Agent"), and UBS
AG, STAMFORD BRANCH (in its individual capacity and not as Administrative Agent,
"UBS") and the other lenders signatory hereto (UBS, the other lenders signatory
hereto and such other lenders who from time to time become Banks pursuant to
Section 3.07 or 12.05, each a "Bank" and collectively, the "Banks").
Borrower, as borrower, UBS and the other Banks signatory hereto, as
lenders, and UBS, as administrative agent, are parties to a Revolving Credit
Agreement (the "Prior Loan Agreement"), dated as of September 21, 1998, as
amended, providing for an unsecured revolving loan to Borrower in a principal
amount of up to a maximum of $200,000,000 (the "Prior Loan"). Pursuant to
Section 2.17 of the Prior Loan Agreement, Borrower is required, upon the
occurrence of certain circumstances, to provide certain security for the Prior
Loan and, in connection therewith, to enter into certain new or amended loan
documents and to deliver certain other items to Administrative Agent. Such
circumstances have occurred. To effectuate the modification of the Prior Loan
Agreement and to provide for the required security for the Prior Loan, the
parties hereto have entered into this Agreement, which provides for the making
of a new loan by the Banks, in the same maximum principal amount as the Prior
Loan, and Borrower is causing the Mortgagors (as hereinafter defined) and the
Land Trusts (as hereinafter defined) to grant the Mortgages (as hereinafter
defined). The initial advance of the new loan to be made pursuant to this
Agreement shall be used to repay all amounts owing under the Prior Loan. In
connection with the making of said new loan, the Prior Loan Agreement and the
related loan documents are being terminated. Accordingly, Borrower, each Bank
and Administrative Agent agree as follows:
ARTICLE I
DEFINITIONS; ETC.
SECTION 1.01 Definitions. As used in this Agreement the following terms
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have the following meanings:
"Administrative Agent" has the meaning specified in the preamble.
"Administrative Agent's Office" means Administrative Agent's office
located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or such other address in the
United States as Administrative Agent may designate by written notice to
Borrower and the Banks.
"Affiliate" means, with respect to any Person (the "first Person"),
any other Person (1) which directly or indirectly controls, or is controlled by,
or is under common control with the first Person or (2) 10% or more of the
beneficial interest in which is directly or indirectly owned or held by the
first Person. The term "control" means the possession, directly or indirectly,
of the power, alone, to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract, or otherwise.
"Agency" means the Redevelopment Agency of the City of Santa
Barbara, California.
"Agency Note" means that certain Promissory Note in the principal
amount of $2,000,000 dated September 16, 1988 from the Agency to Santa ▇▇▇▇▇▇▇
Associates, the predecessor-in-interest to Paseo Nuevo Associates.
"Agency Note Assignment" has the meaning specified in paragraph
(24) of Section 4.01.
"Agreement" means this Secured Revolving Credit Agreement, as
amended, supplemented or modified from time to time.
"Anchors" means, for each Property, those department store companies
which own, occupy and/or operate the related Anchor Stores.
"Anchor Stores" means, for each Property, those department stores
located on parcels contiguous to such Property which, together with the
Improvements on such Property, are being operated as an integrated shopping
center pursuant to the REA.
"Applicable Commitment Fee Rate" means the respective rates per
annum determined, at any time, based on the Property Debt Yield at the time, in
accordance with the table below (any change in the Property Debt Yield,
including any change pursuant to Section 2.05, causing it to move to a different
range on said table shall effect an immediate change (as of the date that
financial results are or are required to be reported (whichever is earlier)
pursuant to this Agreement for the calendar quarter for which Property Debt
Yield is being determined or, in the case of an adjustment pursuant to Section
2.05, as of the date specified in said Section) in the Applicable Commitment Fee
Rate).
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Property Debt Yield Applicable Commitment
Fee Rate - secured (% per annum)
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Greater than 15% 0.20%
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Less than or equal to 15% 0.25%
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"Applicable Lending Office" means, for each Bank and for its LIBOR
Loan or Base Rate Loan, as applicable, the lending office of such Bank (or of an
Affiliate of such Bank) designated as such on its signature page hereof or in
the applicable Assignment and Assumption Agreement, or such other office of such
Bank (or of an Affiliate of such Bank) as such Bank may from time to time
specify to Administrative Agent and Borrower as the office by which its LIBOR
Loan or Base Rate Loan, as applicable, is to be made and maintained.
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"Applicable Margin" means with respect to Base Rate Loans and LIBOR
Loans, the respective rates per annum determined, at any time, based on the
Property Debt Yield at the time, in accordance with the table below (any change
in the Property Debt Yield, including any change pursuant to Section 2.05,
causing it to move to a different range on said table shall effect an immediate
change (as of the date that financial results are or are required to be reported
(whichever is earlier) pursuant to this Agreement for the calendar quarter for
which Property Debt Yield is being determined or, in the case of an adjustment
pursuant to Section 2.05, as of the date specified in said Section) in the
Applicable Margin).
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Property Debt Yield Applicable Margin for Applicable Margin
Base Rate Loans for LIBOR Loans
(% per annum) (% per annum)
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Greater than 15% -0- 0.90
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Less than or equal to 15% -0- 1.05
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"Assignee" has the meaning specified in Section 12.05.
"Assignment and Assumption Agreement" means an Assignment and
Assumption Agreement, substantially in the form of EXHIBIT A, pursuant to which
a Bank assigns and an Assignee assumes rights and obligations in accordance with
Section 12.05.
"Authorization Letter" means a letter agreement executed by Borrower
in the form of EXHIBIT B.
"Bank" and "Banks" have the respective meanings specified in the
preamble.
"Bank Parties" means Administrative Agent and the Banks.
"Banking Day" means (1) any day on which commercial banks are not
authorized or required to close in New York City and (2) whenever such day
relates to a LIBOR Loan, an Interest Period with respect to a LIBOR Loan, or
notice with respect to a LIBOR Loan, a day on which dealings in Dollar deposits
are also carried out in the London interbank market and banks are open for
business in London.
"Base Rate" means, for any day, the higher of (1) the Federal Funds
Rate for such day plus 0.50% or (2) the Prime Rate for such day.
"Base Rate Loan" means all or any portion (as the context requires)
of a Bank's Loan which shall accrue interest at a rate determined in relation to
the Base Rate.
"Borrower's Accountants" means Deloitte & Touche, or such other
accounting firm(s) selected by Borrower and reasonably acceptable to the
Required Banks.
"Borrower" has the meaning specified in the preamble.
3
"Capital Lease" means any lease which has been or should be
capitalized on the books of the lessee in accordance with GAAP.
"Capitalization Value" means, at any time, the sum of (1) Combined
EBITDA for the twelve (12)-month period ending with the most recently ended
calendar quarter, capitalized at an annual rate equal to 8.00%, (2) Borrower's
beneficial share of unrestricted Cash and Cash Equivalents (i. e., Cash and Cash
Equivalents that are not pledged or the use of which is not restricted by the
terms of any document or agreement) of Borrower and its Consolidated Businesses
and UJVs and (3) without duplication, the cost basis of properties of Borrower
under development. For the purposes of this definition, in no event shall (x)
properties under development constitute in excess of 15% of Capitalization Value
or (y) leasing commissions payable by third parties and/or management and
development fees contribute to greater than 5% of Capitalization Value.
"Cash and Cash Equivalents" means (1) cash, (2) marketable direct
obligations issued or unconditionally guaranteed by the United States government
and backed by the full faith and credit of the United States government, (3)
domestic and Eurodollar certificates of deposit and time deposits, bankers'
acceptances and floating rate certificates of deposit issued by any commercial
bank organized under the Laws of the United States, any state thereof or the
District of Columbia, any foreign bank, or its branches or agencies (fully
protected against currency fluctuations), which, at the time of acquisition, are
rated A-1 or better by S&P or P-1 or better by ▇▇▇▇▇'▇, provided that the
maturities thereof shall not exceed one (1) year from the date of acquisition
and (4) shares of Fidelity Institutional Money Market Fund or comparable money
market funds.
"Closing Date" means the date this Agreement has been executed by
all parties.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" means the Mortgaged Property under each Mortgage and
any other collateral now or hereafter given for the Loans.
"Combined EBITDA" means, for any period of time, (1) revenues less
operating costs (including general and administrative expenses) before interest,
depreciation and amortization and unusual items for Borrower and its
Consolidated Businesses (including, without limitation, non-recurring items such
as gains or losses from asset sales) and adjusted to eliminate the effects of
straight lining of rents plus (2) Borrower's beneficial interest in revenues
less operating costs (including general and administrative expenses) before
interest, depreciation and amortization and unusual items (after eliminating
appropriate intercompany amounts) (including, without limitation, non-recurring
items such as gains or losses from asset sales) and adjusted to eliminate the
effects of straight lining of rents applicable to each of the UJVs. For purposes
of this definition, gains or losses from peripheral land sales, to the extent
such gains or losses total less than $5,000,000 in any twelve (12)-month period,
shall be treated in accordance with the accounting principles reflected in
Borrower's form 10-K for 1997.
"Consolidated Businesses" means, collectively (1) each Affiliate of
Borrower, all of the equity interests of which are, or, under GAAP, are deemed
to be, owned by Borrower and
4
(2) ▇▇▇▇-Co Management Inc., The Taubman Company Limited Partnership and their
respective Affiliates so long as more than 90% of the equity interests in the
entities referred to in this clause (2) are owned directly or indirectly by
Borrower.
"Consolidated Outstanding Indebtedness" means, as of any time, all
indebtedness and liability for borrowed money (which shall be deemed to include
obligations as lessee under Capital Leases), secured or unsecured, of Borrower
and all indebtedness and liability for borrowed money (which shall be deemed to
include obligations as lessee under Capital Leases), secured or unsecured,
attributable to Borrower's beneficial interest in its Consolidated Businesses,
including mortgage and other notes payable but excluding any indebtedness which
is margin indebtedness secured by cash and cash equivalent securities, as
reflected in the TRG Consolidated Financial Statements.
"Contingent Liabilities" means the sum of (1) those liabilities, as
determined in accordance with GAAP, set forth and quantified as contingent
liabilities in the notes to the TRG Consolidated Financial Statements and (2)
contingent liabilities, other than those described in the foregoing clause (1),
which represent direct payment guaranties of Borrower; provided, however, that
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Contingent Liabilities shall exclude contingent liabilities which represent the
"Other Party's Share" of "Duplicated Obligations" (as such quoted terms are
hereinafter defined). "Duplicated Obligations" means, collectively, all those
payment guaranties in respect of Debt of UJVs for which Borrower and another
party are jointly and severally liable, where the other party is, in the sole
judgment of the Required Banks, capable of satisfying the Other Party's Share of
such obligation; and "Other Party's Share" means such other party's fractional
beneficial interest in the UJV in question.
"Continue", "Continuation" and "Continued" refer to the continuation
pursuant to Section 2.13 of a LIBOR Loan as a LIBOR Loan from one Interest
Period to the next Interest Period.
"Convert", "Conversion" and "Converted" refer to a conversion
pursuant to Section 2.13 of a Base Rate Loan into a LIBOR Loan or a LIBOR Loan
into a Base Rate Loan, each of which may be accompanied by the transfer by a
Bank (at its sole discretion) of all or a portion of its Loan from one
Applicable Lending Office to another.
"Debt" means (1) indebtedness or liability for borrowed money, or
for the deferred purchase price of property or services (including trade
obligations), (2) obligations as lessee under Capital Leases, (3) current
liabilities in respect of unfunded vested benefits under any Plan, (4)
obligations under letters of credit issued for the account of any Person, (5)
all obligations arising under bankers' or trade acceptance facilities, (6) all
guarantees, endorsements (other than for collection or deposit in the ordinary
course of business), and other contingent obligations to purchase any of the
items included in this definition, to provide funds for payment, to supply funds
to invest in any Person, or otherwise to assure a creditor against loss, (7) all
obligations secured by any Lien on property owned by the Person whose Debt is
being measured, whether or not the obligations have been assumed and (8) all
obligations under any agreement providing for contingent participation or other
hedging mechanisms with respect to interest payable on any of the items
described above in this definition.
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"Default" means any event which with the giving of notice or lapse
of time, or both, would become an Event of Default.
"Default Rate" means a rate per annum equal to (1) with respect to
Base Rate Loans, a variable rate 3% above the rate of interest then in effect
thereon (including the Applicable Margin) and (2) with respect to LIBOR Loans, a
fixed rate 3% above the rate(s) of interest in effect thereon (including the
Applicable Margin) at the time of Default until the end of the then current
Interest Period therefor and, thereafter, a variable rate 3% above the rate of
interest for a Base Rate Loan (including the Applicable Margin).
"Disposition" means a sale (whether by assignment, transfer or
Capital Lease) of an asset.
"Distributable Cash Flow" means Funds From Operations.
"Dollars" and the sign "$" mean lawful money of the United States
of America.
"Elect", "Election" and "Elected" refer to election, if any, by
Borrower pursuant to Section 2.13 to have all or a portion of an advance of the
Loans be outstanding as LIBOR Loans.
"Engineering Consultant" means ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ or other firm
designated by Administrative Agent from time to time for any Property.
"Environmental Discharge" means any discharge or release of any
Hazardous Materials in violation of any applicable Environmental Law.
"Environmental Law" means any Law relating to pollution or the
environment, including Laws relating to noise or to emissions, discharges,
releases or threatened releases of Hazardous Materials into the work place, the
community or the environment, or otherwise relating to the generation,
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials.
"Environmental Notice" means any written complaint, order, citation,
letter, inquiry, notice or other written communication from any Person (1)
affecting or relating to Borrower's or any Mortgagor's compliance with any
Environmental Law in connection with any activity or operations at any time
conducted by Borrower or any Mortgagor, (2) relating to the occurrence or
presence of or exposure to or possible or threatened or alleged occurrence or
presence of or exposure to Environmental Discharges or Hazardous Materials at
any of Borrower's or any Mortgagor's locations or facilities (including each of
the Properties), including, without limitation, (a) the existence of any
contamination or possible or threatened contamination at any such location or
facility and (b) remediation of any Environmental Discharge or Hazardous
Materials at any such location or facility or any part thereof or (3) relating
to any violation or alleged violation of any relevant Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, including any rules and regulation promulgated
thereunder.
6
"ERISA Affiliate" means any corporation or trade or business which
is a member of the same controlled group of organizations (within the meaning of
Section 414(b) of the Code) as Borrower or is under common control (within the
meaning of Section 414(c) of the Code) with Borrower or any Mortgagor.
"Event of Default" has the meaning specified in Section 9.01.
"Fairlane" means the parcel(s) of real property owned by Fairlane
Partnership located in Dearborn, Michigan, together with the Improvements
thereon.
"Fairlane Partnership" means Fairlane Town Center, a Michigan
co-partnership of which Borrower is the managing general partner and the owner,
directly or indirectly, of a 100% beneficial interest.
"Federal Funds Rate" means, for any day, the rate per annum
(expressed on a 360-day basis of calculation) equal to the weighted average of
the rates on overnight federal funds transactions as published by the Federal
Reserve Bank of New York for such day provided that (1) if such day is not a
Banking Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the immediately preceding Banking Day as so published on the
next succeeding Banking Day and (2) if no such rate is so published on such next
succeeding Banking Day, the Federal Funds Rate for such day shall be the average
of the rates quoted by three (3) Federal Funds brokers to Administrative Agent
on such day on such transactions.
"Fiscal Year" means each period from January 1 to December 31.
"Fixed Charges" means, for any period of time, the sum of (1)
Interest Expense, (2) dividends payable on preferred equity interests and (3)
all scheduled principal payments made or required to be made during such period
on Debt of Borrower and that attributable to Borrower's beneficial interest in
its Consolidated Business and UJVs, excluding, however, balloon payments of
principal due upon the stated maturity of any such Debt.
"Funds From Operations" means, for any period of time, net income of
Borrower and its Consolidated Businesses, as determined in accordance with GAAP,
excluding gains (or losses) from debt restructuring and sales of property and
without taking into account straight-lining of rents, plus depreciation related
to real estate and amortization, less amounts distributed by Borrower as
preferred distributions, and after adjustments to reflect Borrower's pro rata
share of UJVs (which will be calculated to reflect Funds From Operations on the
same basis). For purposes of this definition, gains or losses from peripheral
land sales, to the extent such gains or losses total less than $5,000,000 in any
twelve (12)-month period, shall be treated in accordance with the accounting
principles reflected in Borrower's form 10-K for 1997.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time, applied on a basis consistent
with those used in the preparation of the financial statements referred to in
Section 5.13 (except for changes concurred in by Borrower's Accountants).
"Good Faith Contest" means the contest of an item if (1) the item is
diligently contested in good faith, and, if appropriate, by proceedings timely
instituted, (2) adequate
7
reserves are established with respect to the contested item, (3) during the
period of such contest, the enforcement of any contested item is effectively
stayed and (4) the failure to pay or comply with the contested item during the
period of the contest is not likely to result in a Material Adverse Change.
"Governmental Approvals" means any authorization, consent, approval,
license, permit, certification, or exemption of, registration or filing with or
report or notice to, any Governmental Authority.
"Governmental Authority" means any nation or government, any state
or other political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Hazardous Materials" means any pollutant, effluents, emissions,
contaminants, toxic or hazardous wastes or substances, as any of those terms are
defined from time to time in or for the purposes of any relevant Environmental
Law, including asbestos fibers and friable asbestos, polychlorinated biphenyls,
and any petroleum or hydrocarbon-based products or derivatives.
"Improvements" means, for each Property, all improvements now or
hereafter located thereon, other than improvements owned by tenants or utility
companies.
"Indemnity" means, for each Property, an agreement from Borrower and
the applicable Mortgagor whereby, among other things, the Banks and
Administrative Agent are indemnified regarding Hazardous Materials.
"Initial Advance" means the first advance of proceeds of the
Loans.
"Interest Expense" means, for any period of time, the consolidated
interest expense (without deduction of consolidated interest income) of Borrower
and its Consolidated Businesses, including, without limitation or duplication
(or, to the extent not so included, with the addition of), (1) the portion of
any rental obligation in respect of any Capital Lease obligation allocable to
interest expense in accordance with GAAP, (2) the amortization of Debt
discounts, (3) any payments or receipts (other than up-front fees) with respect
to interest rate swap or similar agreements, (4) any dividends attributable to
any equity security which may be converted into a debt security of Borrower at
any time or is mandatorily redeemable for cash within twenty (20) years from its
initial issuance and (5) the interest expense and items listed in clauses (1)
through (4) above applicable to each of the UJVs multiplied by Borrower's
respective beneficial interests in the UJVs (it being understood that the items
listed in clauses (1), (2) and (3) above shall be considered part of Interest
Expense even if, due to a change in GAAP, such items would no longer be
considered interest expense under GAAP).
"Interest Period" means, with respect to any LIBOR Loan, the period
commencing on the date the same is advanced, converted from a Base Rate Loan or
Continued, as the case may be, and ending, as Borrower may select pursuant to
Section 2.06, on the numerically corresponding day in the first, second or third
calendar month thereafter, provided that, in any case, each such Interest Period
which commences on the last Banking Day of a calendar month (or on any day for
which there is no numerically corresponding day in the appropriate subsequent
calendar month) shall end on the last Banking Day of the appropriate calendar
month.
8
"La Cumbre" means the parcel(s) of real property, a leasehold
interest in which is owned by La Cumbre Associates, located in Santa Barbara,
California, together with the Improvements thereon.
"La Cumbre Associates" means La Cumbre Shopping Center Associates, a
California general partnership of which Borrower is the managing general partner
and the owner, directly or indirectly, of a 100% beneficial interest.
"Land Trust" means, with respect to Regency Square, each of (i) the
trust created pursuant to Land Trust Agreement (Ground Landlord), dated as of
January 28, 1990, between Home Beneficial Life Insurance Company and Sovran
Bank, N.A., as trustee ("Sovran") and (ii) the trust created pursuant to Land
Trust Agreement (Ground Tenant), dated as of January 29, 1990, between
Quioccasin Limited Partnership and Sovran, under each of which trusts Regency
Square Associates is currently the sole beneficiary and First Union National
Bank is currently the trustee.
"Land Trust Assignment" means that certain Collateral Assignment
under Land Trusts, dated as of the date hereof, from Regency Square Associates
to Administrative Agent to secure the Loans, with regard to Regency Square
Associates' respective interests in the Land Trusts.
"Law" means any federal, state or local statute, law, rule,
regulation, ordinance, order, code, or rule of common law, now or hereafter in
effect, and any judicial or administrative interpretation thereof by a
Governmental Authority or otherwise, including any judicial or administrative
order, consent decree or judgment.
"Letter of Credit" has the meaning specified in Section 2.17(a).
"Leverage Ratio" means the ratio, expressed as a percentage, of
Total Outstanding Indebtedness to Capitalization Value.
"LIBOR Base Rate" means, with respect to any Interest Period
therefor, the rate per annum quoted at approximately 11:00 a.m., New York time,
by UBS two (2) Banking Days prior to the first day of such Interest Period for
the offering to leading banks in the London interbank market of Dollar deposits
in immediately available funds, for a period, and in an amount, comparable to
such Interest Period and principal amount of the LIBOR Loan in question
outstanding during such Interest Period.
"LIBOR Interest Rate" means, for any LIBOR Loan, a rate per annum
determined by Administrative Agent to be equal to the quotient of (1) the LIBOR
Base Rate for such LIBOR Loan for the Interest Period therefor divided by (2)
one minus the LIBOR Reserve Requirement for such LIBOR Loan for such Interest
Period.
"LIBOR Loan" means all or any portion (as the context requires) of
any Bank's Loan which shall accrue interest at rate(s) determined in relation to
LIBOR Interest Rate(s).
"LIBOR Reserve Requirement" means, for any LIBOR Loan, the rate at
which reserves (including any marginal, supplemental or emergency reserves) are
actually required to be maintained during the Interest Period for such LIBOR
Loan under Regulation D by the applicable Bank against "Eurocurrency
liabilities" (as such term is used in Regulation D). Without limiting
9
the effect of the foregoing, the LIBOR Reserve Requirement shall also reflect
any other reserves actually required to be maintained by any Bank by reason of
any Regulatory Change against (1) any category of liabilities which includes
deposits by reference to which the LIBOR Base Rate is to be determined as
provided in the definition of "LIBOR Base Rate" in this Section 1.01 or (2) any
category of extensions of credit or other assets which include loans the
interest rate on which is determined on the basis of rates referred to in said
definition of "LIBOR Base Rate".
"Lien" means any mortgage, deed of trust, pledge, security interest,
hypothecation, assignment for collateral purposes, deposit arrangement, lien
(statutory or other), or other security agreement or charge of any kind or
nature whatsoever of any third party (excluding any right of setoff but
including, without limitation, any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing, and the filing of any financing statement under the
Uniform Commercial Code or comparable Law of any jurisdiction to evidence any of
the foregoing).
"Loan" and "Loans" have the respective meanings specified in
Section 2.01.
"Loan Commitment" means, with respect to each Bank, the obligation
to make a Loan in the principal amount set forth below or in the applicable
Assignment and Assumption Agreement, as such amount may be modified from time to
time in accordance with the provisions of Section 2.11, 3.07 or 12.05:
Bank Loan Commitment
---- ---------------
UBS $35,000,000
Comerica Bank 25,000,000
PNC Bank, National Association 25,000,000
Fleet National Bank 25,000,000
The Chase Manhattan Bank 25,000,000
Bayerische Hypo- und Vereinsbank AG, New York 20,000,000
Branch
Commerzbank Aktiengesellschaft, Chicago Branch 15,000,000
Dresdner Bank AG, New York and Grand Cayman 15,000,000
Branches
Bayerische Landesbank 7,500,000
Landesbank Hessen-Thuringen Girozentrale 7,500,000
------------
$200,000,000
============
"Loan Documents" means this Agreement, the Notes, the Mortgage and
related Uniform Commercial Code financing statements for each Property, the
Indemnity for each Property, the Land Trust Assignment and related Uniform
Commercial Code financing
10
statements, the Agency Note Assignment and related Uniform Commercial Code
financing statements and the Solvency Certificates.
"Major Lease" means a lease demising 5,000 square feet or more of
gross leasable area of the Improvements on any Property.
"Material Adverse Change" means either (1) a material adverse change
in the status of the business, results of operations, financial condition,
property or prospects of Borrower or any Mortgagor or (2) any event or
occurrence of whatever nature which is likely to (x) have a material adverse
effect on the ability of Borrower or any Mortgagor to perform its obligations
under the Loan Documents or (y) create, in the sole and absolute judgment
(reasonably exercised) of Administrative Agent, a material risk of sale or
forfeiture of any of the Mortgaged Property (other than an immaterial portion
thereof) under any Mortgage or otherwise materially impair any of the Mortgaged
Property under any Mortgage or the Banks' rights therein.
"Maturity Date" means September 21, 2001.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Mortgage" means, for each Property, the Mortgage (or Deed of
Trust), Assignment of Leases and Rents and Security Agreement in respect
thereof, dated the date hereof, from the applicable Mortgagor (and in the case
of Regency Square, the Land Trusts) for the benefit of Administrative Agent, as
agent for the Banks, to secure the payment and performance of the Obligations.
The principal amount of each Mortgage is $200,000,000, except for the Mortgage
of Paseo Nuevo, which is in the principal amount of $54,100,000.
"Mortgaged Property" means, for each Property, the applicable
Mortgagor's/Land Trust's interest in the Property, the Improvements thereon and
all other property constituting the "Mortgaged Property", as said quoted term is
defined in the applicable Mortgage.
"Mortgagor" means, with respect to Fairlane, Fairlane Partnership;
with respect to La Cumbre, La Cumbre Associates; with respect to Paseo Nuevo,
Paseo Nuevo Associates; and with respect to Regency Square, Regency Square
Associates.
"Mortgagor Financial Statement" means, for each Mortgagor, a balance
sheet and related statement of operations, accumulated deficiency in assets and
cash flows, and footnotes thereto, of such Mortgagor, prepared in accordance
with GAAP.
"Multiemployer Plan" means a Plan defined as such in Section 3(37)
of ERISA to which contributions have been made by Borrower or any ERISA
Affiliate and which is covered by Title IV of ERISA.
"Net Worth" means the excess of Capitalization Value over Total
Outstanding Indebtedness.
"Note" and "Notes" have the respective meanings specified in
Section 2.09.
11
"Obligations" means each and every obligation, promise, covenant and
agreement of Borrower, now or hereafter existing, contained in this Agreement,
the Notes and any of the other Loan Documents, whether for principal,
reimbursement obligations, interest, fees, expenses, late charges, indemnities
or otherwise, and any amendments, supplements, extensions, renewals or
replacements of any of said documents, including but not limited to, all
indebtedness, obligations and liabilities (and all increases or additions
thereto) of Borrower or any Mortgagor or Land Trust to Administrative Agent or
any Bank now existing or hereafter incurred under or arising out of or in
connection with this Agreement, the Notes, the other Loan Documents, and any
documents or instruments executed in connection therewith; in each case whether
direct or indirect, joint or several, absolute or contingent, liquidated or
unliquidated, now or hereafter existing, renewed or restructured, whether or not
from time to time decreased or extinguished and later increased, created or
incurred, and including all indebtedness of Borrower or any Mortgagor or Land
Trust under any instrument now or hereafter evidencing or securing any of the
foregoing.
"Parent" means, with respect to any Bank, any Person controlling
such Bank.
"Paseo Nuevo" means the parcel(s) of real property, a leasehold
interest in which is owned by Paseo Nuevo Associates, located in Santa Barbara,
California, together with the Improvements thereon.
"Paseo Nuevo Associates" means Paseo Nuevo Associates, a California
general partnership of which Borrower is the managing general partner and the
owner, directly or indirectly, of a 100% beneficial interest.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan" means any employee benefit or other plan established or
maintained, or to which contributions have been made, by Borrower, any Mortgagor
or any ERISA Affiliate and which is covered by Title IV of ERISA or to which
Section 412 of the Code applies.
"Premises Documents" means, for each Property, the REA for such
Property and the other "Premises Documents," as such term is defined in the
Mortgage for such Property.
"presence", when used in connection with any Environmental Discharge
or Hazardous Materials, means and includes presence, generation, manufacture,
installation, treatment, use, storage, handling, repair, encapsulation,
disposal, transportation, spill, discharge and release.
"Prime Rate" means that rate of interest from time to time announced
by UBS at its Principal Office as its prime commercial lending rate.
12
"Principal Office" means the principal office of UBS in Stamford,
Connecticut, presently located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
"Prior Loan" and "Prior Loan Agreement" have the respective meanings
specified in the preamble.
"Pro Rata Share" means, for purposes of this Agreement and with
respect to each Bank, a fraction, the numerator of which is the amount of such
Bank's Loan Commitment and the denominator of which is the Total Loan
Commitment.
"Prohibited Transaction" means any transaction set forth in Section
406 of ERISA or Section 4975 of the Code.
"Property" means, respectively, each of Fairlane, La Cumbre,
Paseo Nuevo and Regency Square.
"Property Debt Yield" means, for any calendar quarter, the ratio
(expressed as a percentage) of (1) Property EBITDA for the twelve (12)-month
period ending with such calendar quarter to (2) the outstanding principal
balance under the Notes plus the total outstanding amount of Letters of Credit
as of the end of such calendar quarter.
"Property EBITDA" means that portion of Combined EBITDA
attributable to the Properties.
"REA" means, for each Property, any reciprocal easement and
operating or similar agreement by and among the Mortgagor or Land Trust and the
Anchors (together with any agreements supplemental or incidental thereto)
pursuant to which the Improvements and the related Anchor Stores are being
operated as an integrated regional shopping center. The REA for each Property is
more particularly described in the Mortgage for such Property.
"Regency Square" means the parcel(s) of real property, located in
Richmond, Virginia, the legal fee interest in which is held by one of the Land
Trusts, a legal leasehold interest in a portion of which is owned by the other
Land Trust, and the beneficial interest in which is owned by Regency Square
Associates, together with the Improvements thereon.
"Regency Square Associates" means TRG-Regency Square Associates, a
Virginia general partnership of which Borrower is the managing general partner
and the owner, directly or indirectly, of a 100% beneficial interest.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System, as the same may be amended or supplemented from time to
time, or any similar Law from time to time in effect.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as the same may be amended or supplemented from time to
time.
"Regulatory Change" means, with respect to any Bank, any change
after the date of this Agreement in United States federal, state, municipal or
foreign laws or regulations
13
(including Regulation D) or the adoption or making after such date of any
interpretations, directives or requests applying to a class of banks including
such Bank of or under any United States, federal, state, municipal or foreign
laws or regulations (whether or not having the force of law) by any court or
governmental or monetary authority charged with the interpretation or
administration thereof.
"Reportable Event" means any of the events set forth in Section
4043(b) of ERISA.
"Required Banks" means at any time the Banks having Loan Commitments
aggregating at least 66-2/3% of the aggregate amount of all Loan Commitments;
provided, however, that during the existence of an Event of Default, the
-------- -------
"Required Banks" shall be the Banks holding at least 66-2/3% of the then
aggregate unpaid principal amount of the Loans.
"Restricted Payment" has the meaning specified in Section 8.01(5).
"Secured Indebtedness" means that portion of Total Outstanding
Indebtedness that is secured.
"SFGLA" means square feet of gross leaseable area.
"Solvency Certificate" means a certificate in substantially the form
of EXHIBIT E, to be delivered by Borrower and each Mortgagor pursuant to the
terms of this Agreement.
"Solvent" means, when used with respect to any Person, that (1) the
fair value of the property of such Person, on a going concern basis, is greater
than the total amount of liabilities (including, without limitation, contingent
liabilities) of such Person, (2) the present fair saleable value of the assets
of such Person, on a going concern basis, is not less than the amount that will
be required to pay the probable liabilities of such Person on its debts as they
become absolute and matured, (3) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability to
pay as such debts and liabilities mature, (4) such Person is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute unreasonably
small capital after giving due consideration to the prevailing practice in the
industry in which such Person is engaged and (5) such Person has sufficient
resources, provided that such resources are prudently utilized, to satisfy all
of such Person's obligations. Contingent liabilities will be computed at the
amount that, in light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or
matured liability.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies.
"Supplemental Fee Letter" means that certain letter agreement, dated
the date hereof, between UBS and Borrower.
"TCI" means Taubman Centers, Inc., a Michigan corporation,
Borrower's managing general partner.
14
"TCI Financial Statements" means the consolidated balance sheet and
related consolidated statement of operations, accumulated deficiency in assets
and cash flows, and footnotes thereto, of TCI, prepared in accordance with GAAP.
"Title Insurer" means, for each Property, the issuer(s) of the title
insurance policy(ies) insuring the Mortgage thereon.
"Total Loan Commitment" means the sum of the Loan Commitments of
all the Banks.
"Total Outstanding Indebtedness" means the sum, without duplication,
of (1) Consolidated Outstanding Indebtedness, (2) TRG's Share of UJV Combined
Outstanding Indebtedness and (3) Contingent Liabilities.
"TRG Consolidated Financial Statements" means the consolidated
balance sheet and related consolidated statement of operations, accumulated
deficiency in assets and cash flows, and footnotes thereto, of Borrower,
prepared in accordance with GAAP.
"TRG's Share of UJV Combined Outstanding Indebtedness" means the sum
of the indebtedness of each of the UJVs contributing to UJV Combined Outstanding
Indebtedness multiplied by Borrower's respective beneficial interests in each
such UJV.
"UBS" has the meaning specified in the preamble.
"UJV Combined Outstanding Indebtedness" means, as of any time, all
indebtedness and liability for borrowed money (which shall be deemed to include
obligations as lessee under Capital Leases), secured or unsecured, of the UJVs,
including mortgage and other notes payable but excluding any indebtedness which
is margin indebtedness secured by cash and cash equivalent securities, as
reflected in the balance sheets of each of the UJVs, prepared in accordance with
GAAP.
"UJVs" means the unconsolidated joint ventures in which Borrower
owns a beneficial interest and which are accounted for under the equity method
in the TRG Consolidated Financial Statements.
SECTION 1.02 Accounting Terms. All accounting terms not specifically
----------------
defined herein shall be construed in accordance with GAAP, and all financial
data required to be delivered hereunder shall be prepared in accordance with
GAAP.
SECTION 1.03 Computation of Time Periods. Except as otherwise provided
---------------------------
herein, in this Agreement, in the computation of periods of time from a
specified date to a later specified date, the word "from" means "from and
including" and words "to" and "until" each means "to but excluding".
SECTION 1.04 Rules of Construction. Except as otherwise provided or
---------------------
indicated, when used in this Agreement (1) "or" is not exclusive, (2) a
reference to a Law includes any amendment or modification to such Law, (3) a
reference to a Person includes its permitted successors and permitted assigns,
(4) all references to the singular shall include the
15
plural and vice versa, (5) a reference to an agreement, instrument or document
---- -----
shall include such agreement, instrument or document as the same may be amended,
modified or supplemented from time to time in accordance with its terms and as
permitted by the Loan Documents, (6) all references to Articles, Sections,
Exhibits or Schedules shall be to Articles and Sections of, and Exhibits and
Schedules to, this Agreement, (7) "hereunder", "herein", "hereof" and the like
refer to this Agreement as a whole and (8) all Exhibits and Schedules to this
Agreement shall be incorporated into this Agreement.
ARTICLE II
THE LOANS
SECTION 2.01 The Loans. Subject to the terms and conditions of this
---------
Agreement, each of the Banks severally agrees to make a loan to Borrower (each
such loan by a Bank, a "Loan"; such loans, collectively, the "Loans") pursuant
to which each Bank shall from time to time advance and re-advance to Borrower an
amount equal to the excess of the amount of such Bank's Loan Commitment over the
amount of all previous advances made by such Bank under its Loan Commitment
which remain unpaid. For purposes of the immediately preceding sentence, a
Bank's Pro Rata Share of the amount of outstanding Letters of Credit shall be
deemed to be advanced. Within the limits set forth herein, Borrower may borrow
from time to time under this Section 2.01 and prepay from time to time pursuant
to Section 2.10 (subject, however, to the restrictions on prepayment set forth
in such Section) and thereafter re-borrow pursuant to this Section 2.01.
The Loans may be outstanding as (1) Base Rate Loans, (2) LIBOR Loans
or (3) a combination of the foregoing, as Borrower shall elect and notify
Administrative Agent in accordance with Section 2.15. The LIBOR Loan and Base
Rate Loan of each Bank shall be maintained at such Bank's Applicable Lending
Office for its LIBOR Loan and Base Rate Loan, respectively.
The obligations of the Banks under this Agreement are several, and
no Bank shall be responsible for the failure of any other Bank to make any
advance of a Loan to be made by such other Bank. However, the failure of any
Bank to make any advance of the Loan to be made by it hereunder on the date
specified therefor shall not relieve any other Bank of its obligation to make
any advance of its Loan specified hereby to be made on such date.
SECTION 2.02 Purpose. Borrower shall use the proceeds of the Loans for
-------
general partnership purposes of Borrower and its Consolidated Businesses and
UJVs, including costs incurred in connection with acquisitions. All or part of
the Initial Advance shall be used to repay all sums owing under the Prior Loan.
In no event shall proceeds of the Loans be used for any illegal purpose or for
the purpose, whether immediate, incidental or ultimate, of buying or carrying
"margin stock" within the meaning of Regulation U.
SECTION 2.03 Advances, Generally. The Initial Advance shall be made
---------------------
upon satisfaction of the conditions set forth in Section 4.01. Subsequent
advances shall be made no more frequently than weekly upon satisfaction of the
conditions set forth in Section 4.02. The amount of each advance subsequent to
the Initial Advance shall be in the minimum amount of
16
$2,000,000 (unless less than $2,000,000 is available for disbursement pursuant
to the terms hereof at the time of any subsequent advance, in which case the
amount of such subsequent advance shall be equal to such remaining availability)
and in integral multiples of $100,000 above such amount.
SECTION 2.04 Procedures for Advances. Borrower shall submit to
---------------------------
Administrative Agent a request for each advance hereunder, stating the amount
requested and certifying the purpose for which such advance is to be used, no
later than 10:00 a.m. (New York time) on the date three (3) Banking Days prior
to the date the advance is to be made. Administrative Agent, upon its receipt
and approval of the requisite documents for the advance, will so notify the
Banks either by telephone or by facsimile. Not later than 10:00 a.m. (New York
time) on the date of each advance, each Bank shall, through its Applicable
Lending Office and subject to the conditions of this Agreement, make the amount
to be advanced by it on such day available to Administrative Agent, at
Administrative Agent's Office and in immediately available funds for the account
of Borrower. The amount so received by Administrative Agent shall, subject to
the conditions of this Agreement, be made available to Borrower, in immediately
available funds, by Administrative Agent's crediting an account of Borrower
designated by Borrower and maintained with Administrative Agent at
Administrative Agent's Office.
SECTION 2.05 Additional Conditions to Advances. Each advance of the
---------------------------------
Loans shall be subject, in addition to the other limitations and conditions set
forth herein, to, at Administrative Agent's request, Administrative Agent's
receipt of a certificate, of the sort required by paragraph (3)(b) of Section
6.09, which shall demonstrate Borrower's compliance, as of the end of the most
recently ended calendar quarter for which financial results are required
hereunder to have been reported by Borrower (and taking into account pro-forma
adjustments for all acquisitions and Dispositions subsequent to the end of such
quarter required to be reported pursuant to paragraph (7) of Section 6.09), with
all covenants enumerated in said paragraph (3)(b), assuming that the amount that
will be outstanding under the Loans following the making of the advance that is
being requested was outstanding as of the end of such most recently ended
calendar quarter.
For purposes of the definitions of the "Applicable Commitment Fee
Rate" and "Applicable Margin" in Section 1.01, the Property Debt Yield shall be
adjusted in accordance with the foregoing covenant compliance calculations as of
the date of each advance of the Loans and upon each acquisition and Disposition
required to be reported pursuant to paragraph (7) of Section 6.09.
SECTION 2.06 Interest Periods; Renewals. In the case of the LIBOR Loans,
----------------
Borrower shall select an Interest Period of any duration in accordance with the
definition of Interest Period in Section 1.01, subject to the following
limitations: (1) no Interest Period may extend beyond the Maturity Date, (2) if
an Interest Period would end on a day which is not a Banking Day, such Interest
Period shall be extended to the next Banking Day, unless such Banking Day would
fall in the next calendar month, in which event such Interest Period shall end
on the immediately preceding Banking Day and (3) only five (5) discrete segments
of a Bank's Loan bearing interest at a LIBOR Interest Rate, for a designated
Interest Period, pursuant to a particular Election, Conversion or Continuation,
may be outstanding at any one time (each such
17
segment of each Bank's Loan corresponding to a proportionate segment of each of
the other Banks' Loans).
Upon notice to Administrative Agent as provided in Section 2.15,
Borrower may Continue any LIBOR Loan on the last day of the Interest Period of
the same or different duration in accordance with the limitations provided
above. If Borrower shall fail to give notice to Administrative Agent of such a
Continuation, such LIBOR Loan shall automatically become a Base Rate Loan on the
last day of the current Interest Period.
SECTION 2.07 Interest. Borrower shall pay interest to Administrative
--------
Agent for the account of the applicable Bank on the outstanding and unpaid
principal amount of the Loans, at a rate per annum as follows: (1) for Base Rate
Loans at a rate equal to the Base Rate plus the Applicable Margin and (2) for
LIBOR Loans at a rate equal to the applicable LIBOR Interest Rate plus the
Applicable Margin. Any principal amount not paid when due (when scheduled, at
acceleration or otherwise) shall bear interest thereafter, payable on demand, at
the Default Rate.
The interest rate on Base Rate Loans shall change when the Base Rate
changes. Interest on Base Rate Loans and LIBOR Loans shall not exceed the
maximum amount permitted under applicable law. Interest shall be calculated for
the actual number of days elapsed on the basis of, in the case of Base Rate
Loans and LIBOR Loans, three hundred sixty (360) days.
Accrued interest shall be due and payable in arrears upon and with
respect to any prepayment of principal and on the first Banking Day of each
calendar month; provided, however, that interest accruing at the Default Rate
-------- -------
shall be due and payable on demand.
SECTION 2.08 Fees. (a) Borrower shall during the term of the Loans,
----
pay to Administrative Agent for the account of each Bank a commitment fee
computed on the daily unused Loan Commitment of such Bank (it being understood
that the amount of outstanding Letters of Credit shall be considered "used" for
this purpose), at a rate per annum equal to the daily Applicable Commitment Fee
Rate, calculated on the basis of a year of three hundred sixty (360) days for
the actual number of days elapsed. The accrued commitment fees shall be due and
payable in arrears on the first Banking Day of each month after the Closing
Date, and upon the Maturity Date or earlier termination of the Loan Commitments.
(b) Borrower shall pay to Administrative Agent, for the accounts of
the parties specified therein, the fees provided for, on the dates specified, in
the Supplemental Fee Letter.
SECTION 2.09 Notes. The Loan made by each Bank under this Agreement
-----
shall be evidenced by, and repaid with interest in accordance with, a promissory
note of Borrower in the form of EXHIBIT C duly completed and executed by
Borrower, in a principal amount equal to such Bank's Loan Commitment, payable to
such Bank for the account of its Applicable Lending Office (each such note, as
the same may hereafter be amended, modified, extended, severed, assigned,
substituted, renewed or restated from time to time, including any substitute
note pursuant to Section 3.07 or 12.05, a "Note"; all such notes, collectively,
the "Notes"). The Notes shall mature, and all outstanding principal and accrued
interest and other sums thereunder shall be paid in full, on the Maturity Date,
as the same may be accelerated.
18
Each Bank is hereby authorized by Borrower to endorse on the
schedule attached to the Notes held by it, the amount of each advance, and each
payment of principal received by such Bank for the account of its Applicable
Lending Office(s) on account of its Loan, which endorsement shall, in the
absence of manifest error, be conclusive as to the outstanding balance of the
Loan made by such Bank. The failure by any Bank to make such notations with
respect to its Loan or each advance or payment shall not limit or otherwise
affect the obligations of Borrower under this Agreement or the Notes.
SECTION 2.10 Prepayments. Borrower may, upon at least one (1) Banking
-----------
Day's notice to Administrative Agent in the case of the Base Rate Loans, and at
least two (2) Banking Days' notice to Administrative Agent in the case of LIBOR
Loans, prepay the Loans, provided that (1) any partial prepayment under this
Section shall be in integral multiples of $1,000,000, (2) a LIBOR Loan may be
prepaid only on the last day of the Applicable Interest Period for such LIBOR
Loan and (3) each prepayment under this Section shall include all interest
accrued on the amount of principal prepaid through the date of prepayment.
SECTION 2.11 Termination of Commitments. (a) At any time, Borrower shall
--------------------------
have the right, without premium or penalty, to terminate the unused Loan
Commitments, in whole or in part, from time to time, provided that (1) Borrower
shall give notice of each such termination to Administrative Agent, specifying
the amount of the termination, no later then 10:00 a.m. (New York time) on the
date which is fifteen (15) days prior to the effectiveness of such termination,
(2) the Loan Commitments of each of the Banks must be terminated ratably and
simultaneously with those of the other Banks and (3) each partial termination of
the Loan Commitments as a whole (and corresponding reduction of the Total Loan
Commitment) shall be in an integral multiple of $1,000,000.
(b) The Loan Commitments, to the extent terminated, may not be
reinstated.
SECTION 2.12 Method of Payment. Borrower shall make each payment under
------------------
this Agreement and under the Notes not later than 11:00 a.m. (New York time) on
the date when due in Dollars to Administrative Agent at Administrative Agent's
Office in immediately available funds. Administrative Agent will thereafter, on
the day of its receipt of each such payment, cause to be distributed to each
Bank (1) such Bank's appropriate share (based upon the respective outstanding
principal amounts and rate(s) of interest under the Notes of the Banks) of the
payments of principal and interest in like funds for the account of such Bank's
Applicable Lending Office and (2) fees payable to such Bank in accordance with
the terms of this Agreement. Borrower hereby authorizes Administrative Agent and
the Banks, if and to the extent payment by Borrower is not made when due under
this Agreement or under the Notes, to charge from time to time against any
account Borrower maintains with Administrative Agent or any Bank any amount so
due to Administrative Agent and/or the Banks.
Except to the extent provided in this Agreement, whenever any
payment to be made under this Agreement or under the Notes is due on any day
other than a Banking Day, such payment shall be made on the next succeeding
Banking Day, and such extension of time shall in such case be included in the
computation of the payment of interest and other fees, as the case may be.
19
SECTION 2.13 Elections, Conversions or Continuation of Loans. Subject
--------------------------------------------------
to the provisions of Article III and Sections 2.06 and 2.14, Borrower shall
have the right to Elect to have all or a portion of any advance of the Loans
be LIBOR Loans, to Convert Base Rate Loans into LIBOR Loans, to Convert LIBOR
Loans into Base Rate Loans, or to Continue LIBOR Loans as LIBOR Loans, at any
time or from time to time, provided that (1) Borrower shall give Administrative
Agent notice of each such Election, Conversion or Continuation as provided in
Section 2.15 and (2) a LIBOR Loan may be Converted or Continued only on the last
day of the applicable Interest Period for such LIBOR Loan. Except as otherwise
provided in this Agreement, each Election, Continuation and Conversion shall be
applicable to each Bank's Loan in accordance with its Pro Rata Share.
SECTION 2.14 Minimum Amounts. With respect to the Loans as a whole, each
---------------
Election and each Conversion shall be in an amount at least equal to $2,000,000
and in integral multiples of $100,000.
SECTION 2.15 Certain Notices Regarding Elections, Conversions and
-----------------------------------------------------------
Continuations of Loans. Notices by Borrower to Administrative Agent of
------------------------
Elections, Conversions and Continuations of LIBOR Loans shall be irrevocable and
shall be effective only if received by Administrative Agent not later than 10:00
a.m. (New York time) on the number of Banking Days prior to the date of the
relevant Election, Conversion or Continuation specified below:
Number of
Notice Banking Days Prior
------ ------------------
Conversions into Base Rate Loans two (2)
Election of, Conversions into or Continuations as, LIBOR Loans three (3)
Promptly following its receipt of any such notice, Administrative Agent shall so
advise the Banks either by telephone or by facsimile. Each such notice of
Election shall specify the portion of the amount of the advance that is to be
LIBOR Loans (subject to Section 2.14) and the duration of the Interest Period
applicable thereto (subject to Section 2.06); each such notice of Conversion
shall specify the LIBOR Loans or Base Rate Loans to be Converted; and each such
notice of Conversion or Continuation shall specify the date of Conversion or
Continuation (which shall be a Banking Day), the amount thereof (subject to
Section 2.14) and the duration of the Interest Period applicable thereto
(subject to Section 2.06). In the event that Borrower fails to Elect to have any
portion of an advance be LIBOR Loans, the entire amount of such advance shall
constitute Base Rate Loans. In the event that Borrower fails to Continue LIBOR
Loans within the time period and as otherwise provided in this Section, such
LIBOR Loans will be automatically Converted into Base Rate Loans on the last day
of the then current applicable Interest Period for such LIBOR Loans.
SECTION 2.16 Late Payment Premium. Borrower shall, at Administrative
----------------------
Agent's option, pay to Administrative Agent for the account of the Banks a late
payment premium in the amount of 4% of any payments of interest under the Loans
made more than fifteen (15) days after the due date thereof, which shall be due
with any such late payment.
20
SECTION 2.17 Letters of Credit. (a) Borrower may request, in lieu of
-------------------
advances of proceeds of the Loans, that the Administrative Agent issue
unconditional, irrevocable standby letters of credit (each, a "Letter of
Credit") for the account of Borrower, payable by sight drafts, for such
beneficiaries and with such other terms as Borrower shall specify.
(b) The amount of any such Letter of Credit shall not exceed the
lesser of (1) $50,000,000 less the amount of all other Letters of Credit then
issued and outstanding or (2) the amount available for disbursement to Borrower
hereunder, it being understood that the amount of each Letter of Credit issued
and outstanding shall effect a reduction, by an equal amount, of the amount
available for disbursement hereunder as provided in Section 2.01.
(c) The amount of each Letter of Credit shall be further subject to
the limitations applicable to amounts of advances set forth in Section 2.03 and
the procedures for the issuance of each Letter of Credit shall be the same as
the procedures applicable to the making of advances as set forth in the first
sentence of Section 2.04. Upon the Administrative Agent's receipt of a request
for the issuance of, and upon its issuance of, each Letter of Credit, it shall
promptly notify each of the Banks.
(d) The Administrative Agent's issuance of each Letter of Credit
shall be subject to Borrower's satisfaction of all conditions precedent to its
entitlement to an advance of proceeds of the Loans.
(e) Each Letter of Credit shall expire no later than the earlier of
the Maturity Date or one (1) year after the date of its issuance.
(f) In connection with, and as a further condition to the issuance
of, each Letter of Credit, Borrower shall execute and deliver to the
Administrative Agent an application for the Letter of Credit on the
Administrative Agent's standard form therefor, together with such other
documents, opinions and assurances as the Administrative Agent shall reasonably
require.
(g) In connection with each Letter of Credit, Borrower hereby
covenants to pay to the Administrative Agent the following fees, each payable
quarterly in arrears (on the first Banking Day of each calendar quarter
following the issuance of the Letter of Credit): (i) a fee, payable to the
Administrative Agent for the account of the Banks, computed daily on the amount
of the Letter of Credit issued and outstanding at a rate per annum equal to the
"Banks' L/C Fee Rate" (as hereinafter defined) and (ii) a fee, payable to the
Administrative Agent for its own account, computed daily on the amount of the
Letter of Credit issued and outstanding at a rate per annum of 0.125%. For
purposes of this Agreement, the "Banks' L/C Fee Rate" shall mean, at any time, a
rate per annum equal to the Applicable Margin for LIBOR Loans. It is understood
and agreed that the last installment of the fees provided for in this paragraph
(g) with respect to any particular Letter of Credit shall be due and payable on
the first day of the calendar quarter following the return, undrawn, or
cancellation of such Letter of Credit.
(h) The parties hereto acknowledge and agree that, immediately upon
notice from the Administrative Agent of any drawing under a Letter of Credit,
each Bank shall, notwithstanding the existence of a Default or Event of Default
or the non-satisfaction of any conditions precedent to the making of an advance
of the Loans, advance proceeds of its Loan, in
21
an amount equal to its Pro Rata Share of such drawing, which advance shall be
made to the Administrative Agent to reimburse the Administrative Agent, for its
own account, for such drawing. Each of the Banks further acknowledges that its
obligation to fund its Pro Rata Share of drawings under Letters of Credit as
aforesaid shall survive the Banks' termination of this Agreement or enforcement
of remedies hereunder or under the other Loan Documents.
(i) Borrower agrees, upon the occurrence of an Event of Default and
at the request of the Administrative Agent, (i) to deposit with the
Administrative Agent cash collateral in the amount of all the outstanding
Letters of Credit, which cash collateral shall be held by the Administrative
Agent as security for Borrower's obligations in connection with the Letters of
Credit and (ii) to execute and deliver to the Administrative Agent such
documents as the Administrative Agent requests to confirm and perfect the
assignment of such cash collateral to the Administrative Agent.
ARTICLE III
YIELD PROTECTION; ILLEGALITY; ETC.
SECTION 3.01 Additional Costs. Borrower shall pay directly to each Bank
----------------
from time to time on demand such amounts as such Bank may determine to be
necessary to compensate it for any increased costs which such Bank determines
are attributable to its making or maintaining a LIBOR Loan, or its obligation to
make or maintain a LIBOR Loan, or its obligation to Convert a Base Rate Loan to
a LIBOR Loan hereunder, or any reduction in any amount receivable by such Bank
hereunder in respect of its LIBOR Loan or such obligations (such increases in
costs and reductions in amounts receivable being herein called "Additional
Costs"), in each case resulting from any Regulatory Change which:
(1) changes the basis of taxation of any amounts payable to such
Bank under this Agreement or the Notes in respect of any such LIBOR Loan
(other than changes in the rate of general corporate, franchise, branch
profit, net income or other income tax imposed on such Bank or its
Applicable Lending Office by the jurisdiction in which such Bank has its
principal office or such Applicable Lending Office); or
(2) (other than to the extent the LIBOR Reserve Requirement is
taken into account in determining the LIBOR Rate at the commencement of
the applicable Interest Period) imposes or modifies any reserve, special
deposit, deposit insurance or assessment, minimum capital, capital ratio
or similar requirements relating to any extensions of credit or other
assets of, or any deposits with or other liabilities of, such Bank
(including any LIBOR Loan or any deposits referred to in the definition of
"LIBOR Interest Rate" in Section 1.01), or any commitment of such Bank
(including such Bank's Loan Commitment hereunder); or
(3) imposes any other condition affecting this Agreement or the
Notes (or any of such extensions of credit or liabilities).
Notwithstanding the foregoing, in the event that any Bank determines that it
shall incur Additional Costs in maintaining a LIBOR Loan, such Bank shall
provide written notice thereof
22
to Borrower (with a copy to Administrative Agent), which notice shall include
the dollar amount of the Additional Costs, and Borrower shall have the option,
which option must be exercised within five (5) Banking Days of Borrower's
receipt of such notice, to prepay such LIBOR Loan or to Convert such LIBOR Loan
into a Base Rate Loan, subject, however, to the provisions of Section 3.05.
Without limiting the effect of the provisions of the first paragraph
of this Section, in the event that, by reason of any Regulatory Change, any Bank
either (1) incurs Additional Costs based on or measured by the excess above a
specified level of the amount of a category of deposits of other liabilities of
such Bank which includes deposits by reference to which the LIBOR Interest Rate
is determined as provided in this Agreement or a category of extensions of
credit or other assets of such Bank which includes loans based on the LIBOR
Interest Rate or (2) becomes subject to restrictions on the amount of such a
category of liabilities or assets which it may hold, then, if such Bank so
elects by notice to Borrower (with a copy to Administrative Agent), the
obligation of such Bank to permit Elections of, to Continue, or to Convert Base
Rate Loans into, LIBOR Loans shall be suspended (in which case the provisions of
Section 3.04 shall be applicable) until such Regulatory Change ceases to be in
effect.
Determinations and allocations by a Bank for purposes of this
Section of the effect of any Regulatory Change pursuant to the first or second
paragraph of this Section, on its costs or rate of return of making or
maintaining its Loan or portions thereof or on amounts receivable by it in
respect of its Loan or portions thereof, and the amounts required to compensate
such Bank under this Section, shall be conclusive absent manifest error.
To the extent that changing the jurisdiction of a Bank's Applicable
Lending Office would have the effect of minimizing Additional Costs, each such
Bank shall use reasonable efforts to make such a change, provided that same
would not otherwise be disadvantageous to each such Bank.
No Bank shall be entitled to any compensation pursuant to this
Section relating to any period more than ninety (90) days prior to the date
notice thereof is given to Borrower by such Bank.
SECTION 3.02 Limitation on Types of Loans. Anything herein to the contrary
----------------------------
notwithstanding, if, on or prior to the determination of the LIBOR Interest Rate
for any Interest Period:
(1) Administrative Agent determines (which determination shall be
conclusive) that quotations of interest rates for the relevant deposits
referred to in the definition of "LIBOR Interest Rate" in Section 1.01 are
not being provided in the relevant amounts or for the relevant maturities
for purposes of determining rates of interest for the LIBOR Loans as
provided in this Agreement; or
(2) a Bank determines (which determination shall be conclusive)
and promptly notifies Administrative Agent that the relevant rates of
interest referred to in the definition of "LIBOR Interest Rate" in Section
1.01 upon the basis of which the rate of interest for
23
LIBOR Loans for such Interest Period is to be determined do not adequately
cover the cost to such Bank of making or maintaining such LIBOR Loan
for such Interest Period;
then Administrative Agent shall give Borrower prompt notice thereof, and so long
as such condition remains in effect, the Banks (or, in the case of the
circumstances described in clause (2) above, the affected Bank) shall be under
no obligation to permit Elections of LIBOR Loans, to Convert Base Rate Loans
into LIBOR Loans or to Continue LIBOR Loans and Borrower shall, on the last
day(s) of the then current Interest Period(s) for the affected outstanding LIBOR
Loans, either (x) prepay the affected LIBOR Loans or (y) Convert the affected
LIBOR Loans into Base Rate Loans in accordance with Section 2.13.
SECTION 3.03 Illegality. Notwithstanding any other provision of this
----------
Agreement, in the event that it becomes unlawful for any Bank or its Applicable
Lending Office to honor its obligation to make or maintain a LIBOR Loan
hereunder, to allow Elections of a LIBOR Loan or to Convert a Base Rate Loan
into a LIBOR Loan, then such Bank shall promptly notify Administrative Agent and
Borrower thereof and such Bank's obligation to make or maintain a LIBOR Loan, or
to permit Elections of, to Continue, or to Convert its Base Rate Loan into, a
LIBOR Loan shall be suspended (in which case the provisions of Section 3.04
shall be applicable) until such time as such Bank may again make and maintain a
LIBOR Loan.
SECTION 3.04 Treatment of Affected Loans. If the obligations of any
------------------------------
Bank to permit an Election of a LIBOR Loan, to Continue its LIBOR Loan, or to
Convert its Base Rate Loan into a LIBOR Loan, are suspended pursuant to Sections
3.01 or 3.03 (each LIBOR Loan so affected being herein called an "Affected
Loan"), such Bank's Affected Loan shall be automatically Converted into a Base
Rate Loan on the last day of the then current Interest Period for the Affected
Loan (or, in the case of a Conversion required by Sections 3.01 or 3.03, on such
earlier date as such Bank may specify to Borrower).
To the extent that such Bank's Affected Loan has been so Converted,
all payments and prepayments of principal which would otherwise be applied to
such Bank's Affected Loan shall be applied instead to its Base Rate Loan and
such Bank shall have no obligation to Convert its Base Rate Loan into a LIBOR
Loan.
In the event that the conditions giving rise to the suspension of
any Bank's obligations to permit an Election of a LIBOR Loan, to Continue its
LIBOR Loan, or to Convert its Base Rate Loan into a LIBOR Loan shall cease to
exist, such Bank shall provide Borrower with prompt written notice of same (with
a copy to Administrative Agent), and such Bank shall again be obligated to
permit an Election of a LIBOR Loan, to Continue its LIBOR Loan, or to Convert
its Base Rate Loan into a LIBOR Loan in accordance with this Agreement.
24
SECTION 3.05 Certain Compensation. Borrower shall pay to Administrative
---------------------
Agent for the account of the applicable Bank, upon the request of such Bank
through Administrative Agent, such amount or amounts as shall be sufficient (in
the reasonable opinion of such Bank) to compensate it for any loss, cost or
expense which such Bank determines is attributable to:
(1) any payment, prepayment, Conversion or Continuation of a
LIBOR Loan made by such Bank on a date other than the last day of an
applicable Interest Period, whether by reason of acceleration or
otherwise; or
(2) any failure by Borrower for any reason to Convert or Continue
a LIBOR Loan to be Converted or Continued by such Bank on the date
specified therefor in the relevant notice under Section 2.15; or
(3) any failure by Borrower to borrow (or to qualify for a
borrowing of) a LIBOR Loan which would otherwise be made hereunder on the
date specified in the relevant Election notice under Section 2.15 given or
submitted by Borrower.
Without limiting the foregoing, such compensation shall include an
amount equal to the present value (using as the discount rate an interest rate
equal to the rate determined under (2) below) of the excess, if any, of (1) the
amount of interest which otherwise would have accrued on the principal amount so
paid, prepaid, Converted or Continued (or not Converted, Continued or borrowed)
for the period from the date of such payment, prepayment, Conversion or
Continuation (or failure to Convert, Continue or borrow) to the last day of the
then current applicable Interest Period (or, in the case of a failure to
Convert, Continue or borrow, to the last day of the applicable Interest Period
which would have commenced on the date specified therefor in the relevant
notice) at the applicable rate of interest for the LIBOR Loan provided for
herein, over (2) the amount of interest (as reasonably determined by such Bank)
based upon the interest rate which such Bank would have bid in the London
interbank market for Dollar deposits, for amounts comparable to such principal
amount and maturities comparable to such period. A determination of any Bank as
to the amounts payable pursuant to this Section shall be conclusive absent
manifest error.
SECTION 3.06 Capital Adequacy. 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 by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or not
having the force of law) of any such Governmental Authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on capital of such Bank (or its Parent) as a consequence of such Bank's
obligations hereunder to a level below that which such Bank (or its Parent)
could have achieved but for such adoption, change, request or directive (taking
into consideration its policies with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time, within fifteen (15)
days after demand by such Bank (with a copy to Administrative Agent), Borrower
shall pay to such Bank such additional amount or amounts as will compensate such
Bank (or its Parent) for such reduction. A
25
certificate of any Bank claiming compensation under this Section, setting forth
in reasonable detail the basis therefor, shall be conclusive absent manifest
error.
SECTION 3.07 Substitution of Banks. If any Bank (an "Affected Bank")
-----------------------
(i) makes demand upon Borrower for (or if Borrower is otherwise required to pay)
Additional Costs pursuant to Section 3.01 or (ii) is unable to make or maintain
a LIBOR Loan as a result of a condition described in Section 3.03 or clause (2)
of Section 3.02, Borrower may, within ninety (90) days of receipt of such demand
or notice (or the occurrence of such other event causing Borrower to be required
to pay Additional Costs or causing said Section 3.03 or clause (2) of Section
3.02 to be applicable), as the case may be, give notice (a "Replacement Notice")
to Administrative Agent (which will promptly forward a copy of such notice to
each Bank) of Borrower's intention either (x) to prepay in full the Affected
Bank's Note and to terminate the Affected Bank's entire Loan Commitment or (y)
to replace the Affected Bank with another financial institution (the
"Replacement Bank") designated in such Replacement Notice.
In the event Borrower opts to give the notice provided for in clause
(x) above, and if the Affected Bank shall not agree within thirty (30) days of
its receipt thereof to waive the payment of the Additional Costs in question or
the effect of the circumstances described in Section 3.03 or clause (2) of
Section 3.02, then, so long as no Default or Event of Default shall exist,
Borrower may (notwithstanding the provisions of clause (2) of Section 2.11(a))
terminate the Affected Bank's entire Loan Commitment, provided that in
connection therewith it pays to the Affected Bank all outstanding principal and
accrued and unpaid interest under the Affected Bank's Note, together with all
other amounts, if any, due from Borrower to the Affected Bank, including all
amounts properly demanded and unreimbursed under Sections 3.01 and 3.05.
In the event Borrower opts to give the notice provided for in clause
(y) above, and if (i) Administrative Agent shall, within thirty (30) days of its
receipt of the Replacement Notice, notify Borrower and each Bank in writing that
the Replacement Bank is reasonably satisfactory to Administrative Agent and (ii)
the Affected Bank shall not, prior to the end of such thirty (30)-day period,
agree to waive the payment of the Additional Costs in question or the effect of
the circumstances described in Section 3.03 or clause (2) of Section 3.02, then
the Affected Bank shall, so long as no Default or Event of Default shall exist,
assign its Note and all of its rights and obligations under this Agreement to
the Replacement Bank, and the Replacement Bank shall assume all of the Affected
Bank's rights and obligations, pursuant to an agreement, substantially in the
form of an Assignment and Assumption Agreement, executed by the Affected Bank
and the Replacement Bank. In connection with such assignment and assumption, the
Replacement Bank shall pay to the Affected Bank an amount equal to the
outstanding principal amount under the Affected Bank's Note plus all interest
accrued thereon, plus all other amounts, if any (other than the Additional Costs
in question), then due and payable to the Affected Bank; provided, however, that
-------- -------
prior to or simultaneously with any such assignment and assumption, Borrower
shall have paid to such Affected Bank all amounts properly demanded and
unreimbursed under Sections 3.01 and 3.05. Upon the effective date of such
assignment and assumption, the Replacement Bank shall become a Bank Party to
this Agreement and shall have all the rights and obligations of a Bank as set
forth in such Assignment and Assumption Agreement, and the Affected Bank shall
be released from its obligations hereunder, and no further consent or action by
any party shall be required. Upon the consummation of any assignment pursuant to
this Section, a substitute Note shall be issued to the Replacement Bank by
Borrower, in exchange for
26
the return of the Affected Bank's Note. The obligations evidenced by such
substitute Notes shall constitute "Obligations" for all purposes of this
Agreement and the other Loan Documents and shall be secured by the Mortgages. If
the Replacement Bank is not incorporated under the Laws of the United States of
America or a state thereof, it shall, prior to the first date on which interest
or fees are payable hereunder for its account, deliver to Borrower and
Administrative Agent certification as to exemption from deduction or withholding
of any United States federal income taxes in accordance with Section 10.13.
Borrower, Administrative Agent and the Banks shall execute such
modifications to the Loan Documents as shall be reasonably required in
connection with and to effectuate the foregoing.
ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.01 Conditions Precedent to the Initial Advance. The obligations
-------------------------------------------
of the Banks hereunder and the obligation of each Bank to make Initial Advance
are subject to the condition precedent that Administrative Agent shall have
received on or before the Closing Date each of the following documents (it being
understood that the documents set forth in paragraphs (3) through (16) below are
required for each Property), and each of the following requirements shall have
been fulfilled:
(1) Fees and Expenses. The payment of all fees and expenses
------------------
incurred by Administrative Agent (including, without limitation, the
reasonable fees and expenses of legal counsel);
(2) Notes. The Notes for UBS and the other Banks signatory
-----
hereto, duly executed by Borrower;
(3) Mortgage and UCCs. The Mortgage, duly executed by the
------------------
applicable Mortgagor (and, in the case of Regency Square, the Land Trusts)
and recorded (or delivered for recording) in the appropriate land records,
together with duly executed financing statements filed (or delivered for
filing) under the Uniform Commercial Code of all jurisdictions necessary
or, in the reasonable opinion of Administrative Agent, desirable to
perfect the lien created by each Mortgage;
(4) Land Trust Assignment and UCCs. The Land Trust Assignment,
-------------------------------
duly executed by Regency Square Associates, and duly endorsed by the
trustees under the respective Land Trusts, together with duly executed
financing statements filed (or delivered for filing) under the Uniform
Commercial Code of all jurisdictions necessary or, in the reasonable
opinion of Administrative Agent, desirable to perfect the security
interests created by the Land Trust Assignment;
(5) Indemnity. The Indemnity, duly executed by Borrower and the
---------
applicable Mortgagor;
27
(6) Title Policy. A paid title insurance policy in the amount of
------------
the Mortgage, in form approved by Administrative Agent and issued by the
Title Insurer, which shall insure the Mortgage to be a valid first lien on
the Mortgagor's/Land Trust's interests in the Property and Improvements,
free and clear of all liens, defects, encumbrances and exceptions other
than those previously approved by Administrative Agent, and shall contain
(i) a reference to the survey but no survey exceptions and (ii) such
affirmative insurance and endorsements as Administrative Agent may
require; and shall be accompanied by such reinsurance agreements between
the Title Insurer and title companies approved by Administrative Agent, in
ALTA facultative form approved by Administrative Agent and with direct
access provisions, as Administrative Agent may require;
(7) Survey. A current ALTA/ACSM survey, certified to
------
Administrative Agent and the Title Insurer, showing (i) the location of
the perimeter of the Property by courses and distances, (ii) all
easements, rights-of-way, and utility lines referred to in the title
policy required by this Agreement or which actually service or cross the
Property (with instrument, book and page number indicated), (iii) the
lines of the streets abutting the Property and the width thereof, and any
established building lines (and that such roads have been dedicated for
public use and are completed and have been accepted by all required
Governmental Authorities), (iv) any encroachments and the extent thereof
upon the Property, (v) locations of all portions (with the acreage thereof
also identified) of the Property, if any, which are located in an area
designated as a "flood prone area" as defined by U.S. Department of
Housing and Urban Development pursuant to the Flood Disaster Protection
Act of 1973 and (vi) the Improvements, and the relationship thereof by
distances to the perimeter of the Property, established building lines and
street lines;
(8) Appraisal. An independent M.A.I. appraisal, commissioned by
---------
Administrative Agent, of the value of the Mortgagor's/Land Trust's
interest in the Property, which appraisal shall comply in all respects
with the standards for real estate appraisals established pursuant to the
Financial Institutions Reform, Recovery, and Enforcement Act of 1989;
(9) Insurance Policies. Copies of the policies and the original
------------------
certificates of hazard and other insurance required by the Mortgage,
together with evidence of the payment of the premiums therefor;
(10) Hazardous Materials Report. A detailed report by a properly
--------------------------
qualified engineer with regard to Hazardous Materials affecting the
Property, which shall include, inter alia, a certification that such
engineer has examined a list of prior owners, tenants and other users of
the Property, and has made an on-site physical examination of the Property
and Improvements, and a visual observation of the surrounding areas, and
disclosing the extent of past or present Hazardous Materials activities or
of the presence of Hazardous Materials;
(11) Consultant's Report. A detailed report from the Engineering
-------------------
Consultant to the effect that the Improvements are in satisfactory
condition and enumerating any maintenance or governmental compliance items
necessary or expected to be incurred
28
over the term of the Loans and stating the approximate cost thereof;
notwithstanding the foregoing, it is understood that this condition will
not be satisfied on the date of the Initial Advance, inasmuch as
Administrative Agent has ordered such reports and the same shall not
be available on such date; in consideration of the Banks' making the
Initial Advance without having received such reports, Borrower covenants
and agrees that if such reports disclose the need for repairs or
maintenance regarding any Property, Borrower will (i) within thirty (30)
days of its receipt of a copy of such report from Administrative Agent,
develop and submit to Administrative Agent a plan, reasonably acceptable
to Administrative Agent, to address the recommendations of the Engineering
Consultant with respect thereto and (ii) implement such plan diligently;
(12) Permits and Other Approvals. Copies of any and all
------------------------------
certificates of occupancy and similar authorizations required by all
Governmental Authorities for the use, occupancy and operation of the
Property and/or Improvements in accordance with all applicable building,
environmental, ecological, landmark, subdivision and zoning Laws;
(13) Leases. Copies, certified to be true and complete, of all
------
executed leases of the Improvements, accompanied by notices of assignment
in the form of EXHIBIT F, and, in the case of such leases as are required
by Administrative Agent, (i) estoppel certificates from the tenants
thereunder (to the extent such estoppel certificates are obtainable with
Borrower's commercially reasonable efforts) and (ii) subordination,
non-disturbance and attornment agreements; together with a certified copy
of the standard form of lease being used in connection with the leasing of
space in the Improvements and the first rent roll and leasing report
required by paragraph (13) of Section 6.09;
(14) Premises Documents and Ground Leases. A copy, certified to
------------------------------------
be true and complete, of the REA and other Premises Documents, together
with estoppel certificates with respect thereto (to the extent such
estoppel certificates are obtainable with Borrower's commercially
reasonable efforts) from each of the Anchors and the other parties thereto
and, if in Borrower's possession or otherwise obtainable with reasonable
effort, current financial statements of such parties (to the extent
requested by Administrative Agent); and, in the case of La Cumbre, Paseo
Nuevo and Regency Square, copies, certified by Borrower to be true and
complete, of the ground lease(s) of the Property, together with an
estoppel certificate with respect thereto from each ground lessor (to the
extent such estoppel certificates are obtainable with Borrower's
commercially reasonable efforts);
(15) Management and Leasing Contracts. Copies, certified to be
--------------------------------
true and complete, of all existing contracts providing for the management
or leasing of the Property and Improvements, together with, in each case,
such collateral assignments or "will-serve" letters as Administrative
Agent may require;
(16) UCC Searches. Uniform Commercial Code searches with respect
------------
to Borrower and the applicable Mortgagor (and in the case of Regency
Square, the Land Trusts) and advice from the Title Insurer to the effect
that searches of the proper public records disclose no leases of
personalty or financing statements filed or recorded against Borrower, the
applicable Mortgagor (or the Land Trusts) or the Mortgaged Property;
29
(17) Financial Statements. Audited TRG Consolidated Financial
---------------------
Statements and TCI Financial Statements as of and for the year ended
December 31, 1998; unaudited Mortgagor Financial Statements for each
Mortgagor as of and for the year ended December 31, 1998; unaudited TRG
Consolidated Financial Statements and TCI Financial Statements as of and
for the quarter ended March 31, 1999; and unaudited Mortgagor Financial
Statements for each Mortgagor as of and for the quarter ended March 31,
1999; each of the foregoing acceptable to the Banks;
(18) Evidence of Formation. With respect to Borrower and each
----------------------
Mortgagor, certified (as of the Closing Date) copies of (i) its
certificate (if applicable) and agreement of partnership, with all
amendments thereto, (ii) if applicable, a certificate of the Secretary of
State of its jurisdiction of formation as to its good standing therein and
(iii) if required, foreign qualification certificates from the
jurisdictions where the Properties are located;
(19) Evidence of Partnership Action. With respect to Borrower
--------------------------------
and each Mortgagor, certified (as of the Closing Date) copies of all
documents evidencing partnership action taken by it authorizing the
execution, delivery and performance of the Loan Documents and each other
document to be delivered by it or on its behalf pursuant to this
Agreement;
(20) Incumbency and Signature Certificate. A certificate (dated
------------------------------------
as of the Closing Date) certifying the names and true signatures of each
individual authorized to sign on behalf of Borrower (in its individual
capacity and as managing general partner of each Mortgagor);
(21) Solvency Certificates. A Solvency Certificate, duly
---------------------
executed, from Borrower and each Mortgagor;
(22) Opinion of Counsel for Borrower. A favorable opinion, dated
-------------------------------
the Closing Date, of ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for Borrower and
Mortgagors, as to such matters as Administrative Agent may reasonably
request;
(23) Authorization Letter. The Authorization Letter,
--------------------
duly executed by Borrower;
(24) Agency Note. The original, executed Agency Note and an
------------
original executed counterpart of the related Assignment of Agency's
Interest in Participation Rent and a collateral assignment (the "Agency
Note Assignment") by Paseo Nuevo Associates of all of its right, title and
interest therein (together with related UCC Financing Statements) to
Administrative Agent, for the benefit of the Banks, as security for the
Loans, together with an acknowledgement of such assignment by the Agency
(it being understood that all payments actually made to Paseo Nuevo
Associates under the Agency Note shall be remitted directly to
Administrative Agent and shall be applied by Administrative Agent to the
repayment of outstanding principal and accrued and unpaid interest under
the Notes, or other sums due in respect of the Loans, all in such order
and amounts as Administrative Agent shall elect);
30
(25) Certificate. The following statements shall be true and
-----------
Administrative Agent shall have received a certificate dated the Closing
Date signed by a duly authorized signatory of Borrower stating, to the
best of the certifying party's knowledge, the following:
(a) All representations and warranties contained in this
Agreement and in each of the other Loan Documents are true and
correct on and as of the Closing Date as though made on and as of
such date, and
(b) No Default or Event of Default has occurred and is
continuing, or could result from the transactions contemplated by
this Agreement and the other Loan Documents; and
(c) None of the Improvements on any Property has been
injured or damaged by fire or other casualty;
(26) Covenant Compliance Certificate. A certificate, of the sort
-------------------------------
required by paragraph 3(b) of Section 6.09, containing calculations
demonstrating Borrower's compliance, as of the end of the most recently
ended calendar quarter prior to the Closing Date, with the covenants set
forth in Section 8.01(6) and (7);
(27) Land Trust Documents. A certified (as of the Closing Date)
--------------------
copy of the trust agreement creating each Land Trust, and all amendments
thereto; a "Trustee's Certificate" in customary form from the trustee
under each Land Trust; and a direction letter from Regency Square
Associates to such trustee authorizing such trustee to execute the
Mortgage of Regency Square and related documents;
(28) Repayment of Prior Loan. All sums owing under the Prior
-------------------------
Loan shall have been repaid in full (it being understood that such sums
shall be repaid from the proceeds of the Initial Advance); and
(29) Additional Documentation. Such other approvals, opinions
------------------------
or documents as Administrative Agent or any Bank may reasonably request.
SECTION 4.02 Conditions Precedent to Advances After the Initial
--------------------------------------------------
Advance. The obligation of each Bank to make advances of the Loans subsequent
-------
to the Initial Advance shall be subject to satisfaction of the following
conditions precedent:
(1) All conditions of Section 4.01 shall have been and remain
satisfied as of the date of the advance;
(2) No Default or Event of Default shall have occurred and be
continuing as of the date of the advance; and
(3) Administrative Agent shall have received a request for an
advance in accordance with Section 2.04.
31
SECTION 4.03 Deemed Representations. Each request by Borrower for, and
----------------------
acceptance by Borrower of, an advance of proceeds of the Loans shall constitute
a representation and warranty by Borrower and each Mortgagor that, as of both
the date of such request and the date of the advance (1) no Default or Event of
Default has occurred and is continuing and (2) if any representation or warranty
contained in this Agreement or the other Loan Documents is untrue or incorrect,
the condition giving rise to such untruthfulness or incorrectness is not likely
to result in a Material Adverse Change.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Administrative Agent and each
Bank as follows:
SECTION 5.01 Due Organization. Borrower and each Mortgagor are duly
-----------------
organized, validly existing and (if applicable) in good standing under the laws
of the respective jurisdictions of their organization, have the partnership
power and authority to own their assets and to transact the business in which
they are now engaged, and are duly qualified as foreign partnerships and in good
standing under the laws of each other jurisdiction in which such qualification
is required (including, if required, the jurisdictions in which the Properties
are located).
SECTION 5.02 Power and Authority; No Conflicts; Compliance With Laws.
---------------------
The execution and delivery of, and the performance of the obligations required
to be performed by Borrower and each Mortgagor under, the Loan Documents do not
and will not, in the case of Borrower or any Mortgagor, (1) require the consent
or approval of its partners or such consent or approval has been obtained, (2)
contravene its partnership agreement, (3) violate any provision of, or require
any filing, registration, consent or approval under, any Law (including, without
limitation, Regulation U), order, writ, judgment, injunction, decree,
determination or award presently in effect having applicability to it, (4)
result in a breach of or constitute a default under or require any consent under
any indenture or loan or credit agreement or any other agreement, lease or
instrument to which it may be a party or by which it or its properties may be
bound or affected except for consents which have been obtained, (5) result in,
or require, the creation or imposition of any Lien (other than the Lien of the
Mortgages), upon or with respect to any of its properties now owned or hereafter
acquired or (6) cause it to be in default under any such Law, order, writ,
judgment, injunction, decree, determination or award or any such indenture,
agreement, lease or instrument; to the best of Borrower's knowledge, Borrower
and each Mortgagor are in compliance with all Laws applicable to them where the
failure to be in compliance would cause a Material Adverse Change to occur.
SECTION 5.03 Legally Enforceable Agreements. Each Loan Document is a
-------------------------------
legal, valid and binding obligation of Borrower and/or the applicable Mortgagor
or Land Trust, as the case may be, enforceable in accordance with its terms,
except to the extent that such enforcement may be limited by applicable
bankruptcy, insolvency and other similar laws affecting creditors' rights
generally.
32
SECTION 5.04 Litigation. There are no actions, suits or proceedings
----------
pending or against Borrower or any of its Affiliates (including any Mortgagor),
the Mortgagor's/Land Trust's interest in any Property or the Improvements
thereon, or challenging the validity and enforceability of the Mortgage or the
priority of the Lien thereof, at law or in equity, before any court or
arbitrator or any Governmental Authority (such actions, suits or proceedings,
collectively, "Actions"), except Actions (1) which, in the case of each Action
where the likely exposure of Borrower or its Affiliate exceeds $100,000, have
been disclosed to Administrative Agent and the Banks in writing and (2) which
(a) are fully covered by insurance or (b) would, if adversely determined, not
substantially impair the ability of Borrower or any Mortgagor to pay when due
any amounts which may become payable under the Notes or other Loan Documents or
to otherwise pay and perform their respective obligations in connection with the
Loans; nor, to Borrower's knowledge, are any Actions threatened which would, if
adversely determined, substantially impair the ability of Borrower or any
Mortgagor to pay when due any amounts which may become payable under the Notes
or other Loan Documents or to otherwise pay and perform their respective
obligations in connection with the Loans.
SECTION 5.05 Good Title to Properties. Borrower and each of its
----------------------------
Affiliates (including each Mortgagor) have good, marketable and legal title to
all of the properties and assets each of them purports to own (including,
without limitation, those reflected in the financial statements referred to in
Section 5.13) and, in the case of all of Borrower's shopping center properties,
only with exceptions which do not materially detract from the value of such
property or assets or the use thereof in Borrower's and such Affiliate's
business, and except to the extent that any such properties and assets (other
than the Properties) have been encumbered or disposed of since the date of such
financial statements without violating any of the covenants contained in Article
VII or VIII or elsewhere in this Agreement. Borrower and its Affiliates enjoy
peaceful and undisturbed possession of all leased property necessary in any
material respect in the conduct of their respective businesses. All such leases
are valid and subsisting and are in full force and effect.
SECTION 5.06 Taxes. Borrower and each Mortgagor have filed all tax
-----
returns (federal, state and local) required to be filed and have paid all taxes,
assessments and governmental charges and levies shown as due and payable thereon
without the imposition of a penalty, including interest and penalties, except to
the extent they are the subject of a Good Faith Contest.
SECTION 5.07 ERISA. Borrower and each Mortgagor are in compliance in all
-----
material respects with all applicable provisions of ERISA. Neither a Reportable
Event nor a Prohibited Transaction has occurred with respect to any Plan; no
notice of intent to terminate a Plan has been filed nor has any Plan been
terminated within the past five (5) years; no circumstance exists which
constitutes grounds under Section 4042 of ERISA entitling the PBGC to institute
proceedings to terminate, or appoint a trustee to administer, a Plan, nor has
the PBGC instituted any such proceedings; Borrower, each Mortgagor and the ERISA
Affiliates have not completely or partially withdrawn under Sections 4201 or
4204 of ERISA from a Multiemployer Plan; Borrower, each Mortgagor and the ERISA
Affiliates have met the minimum funding requirements of each under ERISA with
respect to the Plans of each and there are no unfunded vested liabilities with
respect to any Plan established or maintained by each; and Borrower, each
Mortgagor and the ERISA Affiliates have not incurred any liability to the PBGC
under ERISA.
33
SECTION 5.08 No Default on Outstanding Judgments or Orders. Borrower
-------------------------------------------------
and each Mortgagor have satisfied all judgments which are not being appealed and
are not in default with respect to any judgment, order, writ, injunction,
decree, rule or regulation of any court, arbitrator or federal, state, municipal
or other Governmental Authority, commission, board, bureau, agency or
instrumentality, domestic or foreign.
SECTION 5.09 No Defaults on Other Agreements. Except as disclosed to
-----------------------------------
the Bank Parties in writing, including anything disclosed on financial
statements, to the best of Borrower's knowledge, neither Borrower nor any
Mortgagor is a party to any indenture, loan or credit agreement or any lease or
other agreement or instrument or subject to any partnership, trust or other
restriction which is likely to result in a Material Adverse Change. To the best
of Borrower's knowledge, neither Borrower nor any Mortgagor is in default in any
respect in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any agreement or instrument which is likely
to result in a Material Adverse Change.
SECTION 5.10 Government Regulation. Neither Borrower nor any Mortgagor is
---------------------
subject to regulation under the Investment Company Act of 1940, the Interstate
Commerce Act, the Federal Powers Act or any statute or regulation limiting any
such Person's ability to incur indebtedness for money borrowed as contemplated
hereby.
SECTION 5.11 Environmental Protection. To the best of Borrower's
-------------------------
knowledge, none of Borrower's or its Affiliates' properties contains any
Hazardous Materials that, under any Environmental Law currently in effect, (1)
would impose liability on Borrower or any Mortgagor that is likely to result in
a Material Adverse Change or (2) is likely to result in the imposition of a Lien
on any assets of Borrower or its Affiliates, in each case if not properly
handled in accordance with applicable Law. To the best of Borrower's knowledge,
neither it nor any of its Affiliates nor any portion of any Property or the
Improvements thereon is in violation of, or subject to any existing, pending or
threatened investigation or proceeding by any Governmental Authority under, any
Environmental Law. Except for matters, claims, conditions or circumstances as
may be disclosed in the reports delivered pursuant to paragraph (10) of Section
4.01, Borrower is not aware of any matter, claim, condition or circumstance
which would reasonably cause a Person to make further inquiry with respect to
such matters in order to ascertain whether any Hazardous Materials or their
effects have been disposed of or released on or to any portion of any Property,
the Improvements thereon or any surrounding areas; neither Borrower nor any
Mortgagor is required by any Environmental Law to obtain any permits or license
to construct or use any improvements, fixtures, or equipment with respect to any
Property, or if such permit or license is required it has been obtained; and,
except as may be disclosed in the reports delivered pursuant to paragraph (10)
of Section 4.01, to the best of Borrower's knowledge, the prior use of each
Property has not resulted in the disposal or release of any Hazardous Materials
on or to any portion of the Property or any surrounding areas in violation of
applicable Law.
SECTION 5.12 Solvency. Borrower and each Mortgagor are, and upon
--------
consummation of the transactions contemplated by this Agreement, the other Loan
Documents and any other documents, instruments or agreements relating thereto,
will be, Solvent.
34
SECTION 5.13 Financial Statements. The TRG Consolidated Financial
----------------------
Statements, TCI Financial Statements and Mortgagor Financial Statements most
recently delivered to the Banks pursuant to the terms of this Agreement are in
all material respects complete and correct and fairly present the financial
condition of the subjects thereof as of the dates of and for the periods covered
by such statements, all in accordance with GAAP, and there has been no Material
Adverse Change since the date of such most recently delivered TRG Consolidated
Financial Statements, TCI Financial Statements or Mortgagor Financial
Statements, as the case may be, and no borrowings which might give rise to a
Lien or claim against all or any portion of the Mortgaged Property under any
Mortgage or against the proceeds of the Loans have been made by Borrower or
others since the dates of such most recently delivered financial statements.
SECTION 5.14 Valid Existence of Affiliates. As of the Closing Date, the
------------------------
only material Affiliates of Borrower which own or lease operating shopping
centers or shopping centers under construction are listed on EXHIBIT D. Each
such Affiliate is a partnership, limited liability company or joint venture duly
organized and existing in good standing under the laws of the jurisdiction of
its formation. As to each such Affiliate, its correct name, the jurisdiction of
its formation and Borrower's percentage of beneficial interest therein are set
forth on said EXHIBIT D. Borrower and each of such Affiliates have the power to
own their respective properties and to carry on their respective businesses now
being conducted. Each of Borrower and such Affiliates is duly qualified as a
foreign partnership, company or venture to do business and is in good standing
in every jurisdiction in which the nature of the respective businesses conducted
by it or its respective properties, owned or held under lease, make such
qualification necessary.
SECTION 5.15 Insurance. Each Mortgagor has in force paid insurance as
---------
required by the respective Mortgages and, generally, Borrower and each of its
Affiliates has in force paid insurance with financially sound and reputable
insurance companies or associations in such amounts and covering such risks as
are usually carried by companies engaged in the same or a similar business and
similarly situated.
SECTION 5.16 Separate Tax and Zoning Lot. To the best of Borrower's
-------------------------------
knowledge, each Property constitutes a distinct parcel or parcels for purposes
of taxes, assessments and impositions (public or private) and is not otherwise
considered as part of a larger lot not included in the Property for purposes of
taxes, assessments or impositions (public or private).
SECTION 5.17 Zoning and other Laws; Covenants and Restrictions. As
-------------------------------------------------------
to each Property, (i) the Improvements and the uses thereof comply in all
material respects with applicable zoning, environmental, ecological, landmark
and other applicable Laws, and all requirements for such uses have been
satisfied in all material respects and (ii) the applicable Mortgagor and the
Property are in compliance in all material respects with all applicable
restrictions and covenants.
SECTION 5.18 Utilities Available. As to each Property, all utility
--------------------
services necessary for the operation of the Improvements for their intended
purposes are available and servicing the Property, including water supply, storm
and sanitary sewer, gas, electric power and telephone facilities.
35
SECTION 5.19 Creation of Liens. Neither Borrower nor any Mortgagor has
-----------------
entered into any contract or arrangement of any kind the performance of which by
the other party thereto would give rise to a Lien on all or part of the
Mortgaged Property under any Mortgage prior to such Mortgage, other than, (i)
with respect to each Property, Liens pursuant to the documents that are listed
as exceptions in the title policy insuring the applicable Mortgage and (ii) with
respect to Fairlane, the five (5) personal property financings disclosed by the
UCC search by the Michigan Department of State dated May 20, 1999.
SECTION 5.20 Roads. Each Property has access to a publicly dedicated
-----
road or roads sufficient for the full utilization of the Improvements for their
intended purposes.
SECTION 5.21 Premises Documents and Leases. As to each Property, the
--------------------------------
Premises Documents are unmodified and in full force and effect; to the best
of Borrower's knowledge, there are no defaults under any Major Lease or any
Premises Document except as disclosed to Administrative Agent in writing, and
all conditions to the effectiveness and continuing effectiveness of each lease
and Premises Document required to be satisfied as of the date hereof have been
satisfied.
SECTION 5.22 Accuracy of Information; Full Disclosure. To the best of
--------------------------------------------
Borrower's knowledge, neither this Agreement nor any documents, financial
statements, reports, notices, schedules, certificates, statements or other
writings furnished by or on behalf of Borrower or any Mortgagor to
Administrative Agent or any Bank in connection with the negotiation of this
Agreement or the consummation of the transactions contemplated hereby, or
required herein to be furnished by or on behalf of Borrower or any Mortgagor,
contains any untrue or misleading statement of a material fact or omits a
material fact necessary to make the statements herein or therein not misleading.
To the best of Borrower's knowledge, there is no fact which Borrower has not
disclosed to Administrative Agent and the Banks in writing which materially
affects adversely nor, so far as Borrower can now foresee, will materially
affect adversely the business, prospects, profits or financial condition of
Borrower or any Mortgagor or the ability of Borrower or any Mortgagor to perform
this Agreement and the other Loan Documents.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any of the Notes shall remain unpaid or the Loan
Commitments remain in effect, or any other amount is owing by Borrower or any
Mortgagor to Administrative Agent or any Bank hereunder or under any other Loan
Document, Borrower shall (and shall cause each Mortgagor to):
SECTION 6.01 Maintenance of Existence. Preserve and maintain its legal
--------------------------
existence and, if applicable, good standing in the jurisdiction of organization
and, if applicable, qualify and remain qualified as a foreign partnership in
each jurisdiction in which such qualification is required, except to the extent
that failure to so qualify is not likely to result in a Material Adverse Change.
36
SECTION 6.02 Maintenance of Records. Keep adequate records and books of
------------------------
account, in which complete entries will be made in accordance with GAAP,
reflecting all of its financial transactions.
SECTION 6.03 Maintenance of Insurance. At all times, (i) in the case of
--------------------------
Borrower, maintain and keep in force, and cause each of its Affiliates to
maintain and keep in force, insurance with financially sound and reputable
insurance companies or associations in such amounts and covering such risks as
are usually carried by companies engaged in the same or a similar business and
similarly situated, which insurance may provide for reasonable deductibility
from coverage thereof and (ii) in the case of each Mortgagor, maintain and keep
in force the insurance required by the respective Mortgages.
SECTION 6.04 Compliance with Laws; Payment of Taxes. Comply in all
-------------------------------------------
respects with all Laws applicable to it or to any of its properties or any part
thereof, such compliance to include, without limitation, paying before the same
become delinquent all taxes, assessments and governmental charges imposed upon
it or upon its property, except to the extent they are the subject of a Good
Faith Contest.
SECTION 6.05 Right of Inspection. At any reasonable time and from time
--------------------
to time upon reasonable notice, permit Administrative Agent or any Bank or any
agent or representative thereof (provided that a representative of any Bank
must, at Borrower's request, be accompanied by a representative of Borrower) to
examine and make copies and abstracts from its records and books of account,
visit and inspect its properties, and discuss its affairs, finances and accounts
with its independent accountants; and cooperate with the Engineering Consultant
to enable it to perform its functions hereunder.
SECTION 6.06 Compliance With Environmental Laws. Comply in all material
------------------------------------
respects with all applicable Environmental Laws and immediately pay or cause to
be paid all costs and expenses incurred in connection with such compliance,
except to the extent there is a Good Faith Contest; and at its sole cost and
expense, promptly remove, or cause the removal of, any and all Hazardous
Materials or the effects thereof at any time identified as being on, in, under
or affecting any Property or the Improvements thereon in violation of applicable
Environmental Law.
SECTION 6.07 Payment of Costs. Pay all costs and expenses required for
----------------
the satisfaction of the conditions of this Agreement.
SECTION 6.08 Maintenance of Properties. Do all things reasonably necessary
-------------------------
to maintain, preserve, protect and keep its (and, in the case of Borrower, its
Affiliates') properties in good repair, working order and condition.
SECTION 6.09 Reporting and Miscellaneous Document Requirements. Furnish
--------------------------------------------------
directly to each of the Banks:
(1) Annual Financial Statements. As soon as available and in any
---------------------------
event within ninety (90) days after the end of each Fiscal Year, the TRG
Consolidated Financial Statements, the TCI Financial Statements and
Mortgagor Financial Statements for each Mortgagor, in each case as of the
end of and for such Fiscal Year, in reasonable
37
detail and stating in comparative form the respective figures for
the corresponding date and period in the prior Fiscal Year and audited by
Borrower's Accountants;
(2) Quarterly Financial Statements. As soon as available and in
------------------------------
any event within forty-five (45) days after the end of each calendar
quarter (other than, in the case of the TRG Consolidated Financial
Statements and TCI Financial Statements, the last quarter of the Fiscal
Year), the unaudited TRG Consolidated Financial Statements, TCI Financial
Statements and Mortgagor Financial Statements for each Mortgagor, in each
case as of the end of and for such calendar quarter, in reasonable detail,
certified by the entity's chief financial officer or Treasurer and stating
in comparative form the respective figures for the corresponding date and
period in the prior Fiscal Year;
(3) Certificate of No Default and Financial Compliance. Within
---------------------------------------------------
forty five (45) days after the end of each of the first three quarters of
each Fiscal Year and within ninety (90) days after the end of each Fiscal
Year, a certificate of Borrower's chief financial officer or Treasurer (a)
stating that, to the best of his or her knowledge, no Default or Event of
Default has occurred and is continuing, or if a Default or Event of
Default has occurred and is continuing, specifying the nature thereof and
the action which is proposed to be taken with respect thereto, (b) stating
that the covenants contained in Sections 7.02, 7.03 and 7.04 and in
Article VIII have been complied with (or specifying those that have not
been complied with) and including computations demonstrating such
compliance (or non-compliance) and (c) setting forth the details of all
items comprising Total Outstanding Indebtedness (including amount,
maturity, interest rate and amortization requirements) and Unsecured
Indebtedness, each as of the end of such quarter, and Combined EBITDA,
Interest Expense and Fixed Charges, each for the twelve (12)-month period
ending with such quarter;
(4) Certificate of Borrower's Accountants. Simultaneously with
--------------------------------------
the delivery of the annual financial statements required by paragraph (1)
of this Section, a statement of Borrower's Accountants who audited such
financial statements comparing the computations set forth in the financial
compliance certificate required by paragraph (3)(b) of this Section to the
audited financial statements required by paragraph (1) of this Section
(where such information appears in such financial statements);
(5) Notice of Litigation. Promptly after the commencement and
--------------------
knowledge thereof, notice of all actions, suits, and proceedings before
any court or arbitrator, affecting (i) Borrower which, if determined
adversely to Borrower are likely to result in a Material Adverse Change;
or (ii) any Mortgagor or all or any portion of the Mortgaged Property
under any Mortgage which, if determined adversely to the Mortgagor are
likely to result in a Material Adverse Change;
(6) Notices of Defaults and Events of Default. As soon as
----------------------------------------------
possible and in any event within ten (10) days after Borrower becomes
aware of the occurrence of a material Default or any Event of Default a
written notice setting forth the details of such Default or Event of
Default and the action which is proposed to be taken with respect thereto;
38
(7) Dispositions or Acquisitions of Assets. Within thirty (30)
--------------------------------------
days after the occurrence thereof, written notice of any Disposition or
acquisition of assets (other than acquisitions or Dispositions of
investments such as certificates of deposit, Treasury securities and money
market deposits in the ordinary course of Borrower's cash management) in
excess of $25,000,000, together with, in the case of any acquisition of
such an asset, (i) copies of the agreements governing the acquisition,
(ii) historical balance sheets (to the extent available) and statements of
income and cash flows with respect to the property acquired for at least
the preceding three (3) years (to the extent available) and Borrower's
revenue and expense projections for the property acquired for at least the
next five (5) years (all of the foregoing to be in form and detail
satisfactory to Administrative Agent), (iii) a certificate, of the sort
required by paragraph (3)(b) of this Section, containing covenant
compliance calculations that include the pro-forma adjustments set forth
in Section 8.02, which calculations shall demonstrate Borrower's
compliance, on a pro-forma basis, as of the end of the most recently ended
calendar quarter for which financial results are required hereunder to
have been reported by Borrower, with all covenants enumerated in said
paragraph (3)(b) and (iv) such other information relating to the
acquisition as Administrative Agent may reasonably request;
(8) Material Adverse Change. As soon as is practicable and in
-------------------------
any event within five (5) days after knowledge of the occurrence of any
event or circumstance which is likely to result in or has resulted in a
Material Adverse Change, written notice thereof;
(9) Bankruptcy of Tenants. Promptly after becoming aware of the
---------------------
same, written notice of the bankruptcy, insolvency or cessation of
operations of (i) any of the Anchors, (ii) any tenant in the Improvements
on any Property to which 5% or more of the aggregate minimum rent from
such Improvements is attributable or (iii) any tenant in any property of
Borrower or in which Borrower has an interest to which 5% or more of
minimum rent payable to Borrower directly or through its Consolidated
Businesses or UJVs is attributable;
(10) Offices. Thirty (30) days' prior written notice of any
-------
change in the chief executive office or principal place of business of
Borrower;
(11) Environmental and Other Notices. As soon as possible and in
-------------------------------
any event within five (5) days after receipt, copies of (i) all
Environmental Notices received by Borrower or any Mortgagor which are not
received in the ordinary course of business and which relate to any
Property or any situation which is likely to result in a Material Adverse
Change and (ii) all reports of any official searches made by any
Governmental Authority having jurisdiction over any Property or the
Improvements thereon, and of any claims of violations thereof;
(12) Insurance Coverage. Promptly, such information
------------------
concerning Borrower's insurance coverage as Administrative Agent may
reasonably request;
(13) Leasing Reports and Other Property Information. As soon as
----------------------------------------------
available and in any event within thirty (30) days after the end of each
calendar quarter, a rent roll,
39
leasing report and tenant sales report for each Property, in each case
certified by Borrower to be true and complete; and
(14) General Information. Promptly, such other information
--------------------
respecting the condition or operations, financial or otherwise, of
Borrower, any Mortgagor or any properties of Borrower as Administrative
Agent may from time to time reasonably request.
SECTION 6.10 Premises Documents; Leases. As to each Property,
--------------------------
keep the Premises Documents and all leases in full force and effect (except
as may be permitted by this Agreement or by the applicable Mortgage) and at
all times use commercially reasonable efforts to compel performance by the
parties to the Premises Documents or the tenants under such leases, as the case
may be, of all obligations, covenants and agreements by such parties or tenants,
as the case may be, to be performed thereunder; deliver to Administrative Agent,
(i) promptly following the execution thereof, certified copies of all amendments
or supplements to the Premises Documents and (ii) promptly following
Administrative Agent's request therefor, certified copies of any or all leases
of portions of the Improvements (together with abstracts of such leases), any or
all amendments or supplements to any such leases, estoppel certificates (on a
best efforts basis) from any or all of the tenants thereunder and notices of
assignment in the form of EXHIBIT F to said tenants; not enter into any lease or
modification thereof (x) without Administrative Agent's prior written consent
during the existence of any Event of Default or (y) that is not commercially
reasonable; and not modify (other than de minimus modifications) the Premises
-- -------
Documents without the prior written consent of Administrative Agent, such
consent not to be unreasonably withheld or delayed; to the extent Borrower is
unable, with commercially reasonable efforts, to obtain, prior to the date of
the Initial Advance, estoppel certificates from ground lessors, tenants or
parties to the Premises Documents as required by paragraphs (13) and (14) of
Section 4.01, Borrower shall continue to use such efforts to obtain such
estoppel certificates after the date of the Initial Advance.
SECTION 6.11 Compliance with Covenants, Restrictions and Easements.
------------------------------------------------------
Comply with all restrictions, covenants and easements affecting any Property or
the Improvements thereon.
SECTION 6.12 Management, Leasing and Service Contracts.
----------------------------------------------
Deliver to Administrative Agent, with respect to each Property, (i) as and
when executed, certified copies of all management and leasing contracts, each of
which shall be entered into with a party, and on terms and conditions,
reasonably acceptable to Administrative Agent, and (ii) as and when requested by
Administrative Agent, copies of all service contracts; contemporaneously with
entering into each such management or leasing contract, at Administrative
Agent's option, cause the same to be collaterally assigned to Administrative
Agent for the benefit of the Banks as additional security for the Loans and/or
cause the manager or leasing agent under each such management or leasing
contract to undertake, inter alia, to continue performance on the Banks' behalf
----- ----
without additional cost in the event of a Default; cause each service contract
to contain a provision allowing for the as-of-right cancellation thereof on
thirty (30) days' notice from the applicable Mortgagor or its successors as
owners of the Property; and keep in full force and effect and not materially
modify the management and leasing agreement(s) approved pursuant to paragraph
(15) of Section 4.01 without Administrative Agent's prior written consent, such
consent not to be unreasonably withheld.
40
SECTION 6.13 Correction of Defects. Upon demand of Administrative Agent
---------------------
or the Engineering Consultant, correct any material defects (including
structural) in the Improvements on any Property.
SECTION 6.14 Estoppel Certificates. Within three (3) days upon request in
---------------------
person or within five (5) days upon request by mail, furnish to Administration
Agent or such other Persons as Administrative Agent may designate, a statement,
duly acknowledged, of the amount due, whether for principal or interest, under
the Notes, and whether any offsets, counterclaims or defenses exist against the
Obligations.
ARTICLE VII
NEGATIVE COVENANTS
So long as any of the Notes shall remain unpaid, or the Loan Commitments
remain in effect, or any other amount is owing by Borrower or any Mortgagor to
Administrative Agent or any Bank hereunder or under any other Loan Document,
Borrower shall not do any or all of the following:
SECTION 7.01 Mergers Etc. Merge or consolidate with any Person (except
------------
where Borrower or a Person wholly-owned by Borrower is the surviving entity), or
sell, assign, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) (or enter into any agreement to do any of the
foregoing).
SECTION 7.02 Investments. Make any loan or advance to any Person or
-----------
purchase or otherwise acquire any capital stock, assets, obligations or other
securities of, make any capital contribution to, or otherwise invest in, or
acquire any interest in, any Person (any such transaction, an "Investment")
if (1) the Investment is in connection with something other than a retail
shopping center and the amount of any single such Investment (or the aggregate
amount of any single such Investment together with all related Investments),
would exceed 20% of Net Worth, (2) except to the extent permitted by clause
(3) below, such Investment constitutes the acquisition of a minority interest in
a Person (a "Minority Interest") and the amount of such Investment, together
with the value of all other Minority Interests acquired after the Closing Date
contributing to Capitalization Value, would exceed 10% of Net Worth or (3) such
Investment constitutes the acquisition of a Minority Interest in a regional
shopping center or portfolio of regional shopping centers and the amount of such
Investment, together with the value of all other such Minority Interests, would
exceed 20% of Net Worth. A 50% beneficial interest in a Person, in connection
with which the holder thereof exercises joint control over such Person with the
holder(s) of the other 50% beneficial interest, shall not constitute a "Minority
Interest" for purposes of this Section.
SECTION 7.03 Sale of Assets. Effect a Disposition of any of its now owned
--------------
or hereafter acquired assets, including assets in which Borrower owns a
beneficial interest through its ownership of interests in joint ventures,
aggregating more than 20% of Capitalization Value.
41
SECTION 7.04 Interest Rate Hedging. At any time following the date ninety
---------------------
(90) days after the date hereof, permit or suffer more than 25% of Total
Outstanding Indebtedness not to be "hedged"; for purposes of this Section,
"hedged" shall mean bearing interest at an effective fixed rate, either pursuant
to the debt instrument itself or through the operation of a "cap", "collar",
"swap" or comparable interest rate protection contract, such debt instrument, or
instrument creating the "cap", "collar", "swap" or comparable interest rate
protection contract, as the case may be, having an original term of at least
twelve (12) months.
SECTION 7.05 Control of Borrower. At any time permit or suffer the failure
-------------------
or inability of TCI to be the managing general partner of Borrower.
SECTION 7.06 Certain Restrictions on Activities of TCI. At any time,
----------------------------------------------
suffer or permit TCI to incur any Debt in its own name or to own any material
assets other than its interests in Borrower and incidental assets and assets
which, for legitimate business purposes, must be owned by TCI on a temporary
basis prior to being transferred to Borrower, or engage in any business other
than the ownership of such interests.
ARTICLE VIII
FINANCIAL COVENANTS AND ADJUSTMENTS
SECTION 8.01 Covenants Subsequent to Certain Events. So long as any of
---------------------------------------
the Notes shall remain unpaid, or the Loan Commitments shall remain in effect,
or any other amount is owing to Administrative Agent or any Bank under this
Agreement or under any other Loan Document, Borrower shall not permit or suffer:
(1) Net Worth. At any time, Net Worth to be less than $1,000,000,000; or
---------
(2) Leverage Ratio. At any time, Leverage Ratio to exceed 65%; or
--------------
(3) Relationship of Combined EBITDA to Fixed Charges. As of the end of
------------------------------------------------
any calendar quarter, the ratio of (i) Combined EBITDA to (ii) Fixed
Charges, each for the twelve (12)-month period then ended and taken as a
whole, to be less than 1.40 to 1.00; or
(4) Relationship of Combined EBITDA to Total Outstanding Indebtedness.
-----------------------------------------------------------------
As of the end of any calendar quarter, the ratio (expressed as a
percentage) of (i) Combined EBITDA for the twelve (12)-month period then
ended and taken as a whole to (ii) Total Outstanding Indebtedness as of
the end of such calendar quarter, to be less than 11.5%; or
(5) Payout Ratio. Any Restricted Payment to be made during any of its
------------
fiscal quarters, which, when added to all Restricted Payments made during
the three (3) immediately preceding fiscal quarters, exceeds 95% of
Distributable Cash Flow; provided, however, that Borrower shall be
-------- -------
permitted, provided there exists no Event of Default, to make Restricted
Payments in excess of 95% of Distributable Cash Flow as may be necessary
under Section 857(a) of the Code to maintain TCI's tax status as a real
estate investment trust. For purposes of this Article, "Restricted
Payment" means any distribution or other payment made by Borrower to its
partners, other than distributions pursuant to Section 5.3 of Borrower's
agreement of limited partnership; or
42
(6) Property Debt Yield. As of the end of any calendar quarter, Property
-------------------
Debt Yield for such calendar quarter to be less than 13%; or
(7) Relationship of Property EBITDA to Interest Expense on Loans. As of
the end of any calendar quarter, the ratio of (i) Property EBITDA to (ii)
that portion of Interest Expense attributable to the Loans, each for the
prior twelve (12)-month period then ended and taken as a whole, to be less
than 1.75 to 1.00.
SECTION 8.02 Certain Pro-Forma Adjustments. For purposes of the
-----------------------------
calculation of the financial covenants set forth in Section 8.01, the following
adjustments shall be made in the case of each property acquired, or each
"property put into service", or each property disposed of, by Borrower during
the applicable test period:
(1) In the case of each property acquired or put into service, the
contribution of said property to Capitalization Value shall be the lesser
of (a) such property's contribution to Combined EBITDA, annualized based
on Borrower's period of ownership or operation, divided by 8.00% or (b)
the acquisition cost or cost of the property. In the case of each
property disposed of by Borrower during the applicable test period, such
property shall be deemed to have made no contribution to Capitalization
Value for the applicable twelve (12)-month period.
(2) In the case of each property acquired or put into service, the
contribution of said property to Combined EBITDA shall be an annualized
amount based upon the period of Borrower's ownership or operation. In the
case of each property disposed of by Borrower during the applicable test
period, such property shall be deemed to have made no contribution to
Combined EBITDA for the applicable twelve (12)-month period.
(3) In the case of each property acquired or put into service, the
contribution of said property to Interest Expense for the applicable
twelve (12)-month period shall be equal to actual interest expense with
respect to the Debt incurred or assumed in connection with the
acquisition, from the date of the acquisition or the date the asset is
put into service until the end of such twelve (12)-month period,
annualized. In the case of each property disposed of during the applicable
test period, such property shall be deemed to have made no contribution to
Interest Expense for such period.
In addition, if any Debt of Borrower is refinanced during an applicable test
period, the calculation of Interest Expense shall be adjusted as follows. The
contribution of the Debt that was refinanced to Interest Expense for the
applicable twelve (12)-month period shall be equal to actual interest expense on
the refinanced Debt from the date of the refinancing to the end of such twelve
(12)-month period, annualized.
As used in this Section 8.02, the term "property put into service" means any
property that has been opened to the public for business and which has generated
revenues for a period of at least thirty (30) days.
43
ARTICLE IX
EVENTS OF DEFAULT
SECTION 9.01 Events of Default. Any of the following events shall
-----------------
be an "Event of Default":
(1) If Borrower shall: fail to pay the principal of any Notes as
and when due; or fail to pay interest accruing on any Notes as and when
due and such failure to pay shall continue unremedied for five (5) days
after the due date of such amount; or fail to pay any fee or interest or
any other amount due under this Agreement or any other Loan Document or
the Supplemental Fee Letter as and when due and such failure to pay shall
continue unremedied for two (2) days after notice by Administrative Agent
of such failure to pay; or
(2) If any representation or warranty made by Borrower or any
Mortgagor or Land Trust in any Loan Document or which is contained in any
certificate, document, opinion, financial or other statement furnished at
any time under or in connection with a Loan Document shall prove to have
been incorrect in any material respect on or as of the date made; or
(3) If (a) Borrower shall fail to perform or observe any term,
covenant or agreement contained in Article VII or Article VIII or (b)
Borrower or any Mortgagor or Land Trust shall fail to perform or observe
any term, covenant or agreement contained in Article VI or otherwise
contained in this Agreement (other than obligations specifically referred
to elsewhere in this Section) or in any other Loan Document, or in the
Supplemental Fee Letter or in any other document executed by Borrower or
any Mortgagor or Land Trust and delivered to Administrative Agent and/or
the Banks in connection with the transactions contemplated hereby and such
failure shall remain unremedied for thirty (30) consecutive calendar days
after notice by Administrative Agent to Borrower thereof (or such shorter
cure period as may be expressly prescribed in the applicable Loan
Document); provided, however, that if any such default under clause (b)
-------- -------
above cannot by its nature be cured within such thirty (30) day, or
shorter, as the case may be, grace period and so long as Borrower or the
applicable Mortgagor or Land Trust, as the case may be, shall have
commenced cure within such thirty (30) day, or shorter, as the case may
be, grace period and shall, at all times thereafter, diligently prosecute
the same to completion, Borrower or the applicable Mortgagor or Land
Trust, as the case may be, shall have an additional period, not to exceed
sixty (60) days, to cure such default; in no event, however, is the
foregoing intended to effect an extension of the Maturity Date; or
(4) If either Borrower or TCI shall fail (a) to pay any Debt
(other than the payment obligations described in paragraph (1) of this
Section) in an amount equal to or greater than $10,000,000 when due
(whether by scheduled maturity, required prepayment, acceleration, demand,
or otherwise) or (b) to perform or observe any material term, covenant, or
condition under any agreement or instrument relating to any such Debt,
when required to be performed or observed, if the effect of such failure
to perform or observe is to accelerate, or to permit the acceleration of,
after the giving of
44
notice or the lapse of time, or both (other than in cases where, in the
judgment of the Required Banks, meaningful discussions likely to result in
(i)a waiver or cure of the failure to perform or observe or (ii) otherwise
averting such acceleration are in progress between Borrower and the obligee
of such Debt), the maturity of such Debt, or any such Debt shall be
declared to be due and payable, or required to be prepaid (other than by a
regularly scheduled or otherwise required prepayment), prior to the stated
maturity thereof; or
(5) If any Mortgagor, the trustee under any Land Trust, TCI,
Borrower, or any Affiliate(s) (other than any Mortgagor) of Borrower to
which $100,000,000 or more in the aggregate of Capitalization Value is
attributable, shall: (a) generally not, or be unable to, or shall admit in
writing its inability to, pay its debts as such debts become due; or (b)
make an assignment for the benefit of creditors, petition or apply to any
tribunal for the appointment of a custodian, receiver or trustee for it or
a substantial part of its assets; or (c) commence any proceeding under any
bankruptcy, reorganization, arrangement, readjustment of debt, dissolution
or liquidation law or statute of any jurisdiction, whether now or
hereafter in effect; or (d) have had any such petition or application
filed or any such proceeding shall have been commenced, against it, in
which an adjudication or appointment is made or order for relief is
entered, or which petition, application or proceeding remains undismissed
or unstayed for a period of sixty (60) days or more; or (e) be the subject
of any proceeding under which all or a substantial part of its assets may
be subject to seizure, forfeiture or divestiture; or (f) by any act or
omission indicate its consent to, approval of or acquiescence in any such
petition, application or proceeding or order for relief or the appointment
of a custodian, receiver or trustee for all or any substantial part of its
property; or (g) suffer any such custodianship, receivership or
trusteeship for all or any substantial part of its property, to continue
undischarged for a period of sixty (60) days or more; or
(6) If one or more judgments, decrees or orders for the payment
of money in excess of $10,000,000 in the aggregate shall be rendered
against Borrower, TCI, any Mortgagor or any Land Trust, and any such
judgments, decrees or orders shall continue unsatisfied and in effect for
a period of thirty (30) consecutive days without being vacated,
discharged, satisfied or stayed or bonded pending appeal; or
(7) If any of the following events shall occur or exist with
respect to Borrower, any Mortgagor or any ERISA Affiliate: (a) any
Prohibited Transaction involving any Plan; (b) any Reportable Event with
respect to any Plan; (c) the filing under Section 4041 of ERISA of a
notice of intent to terminate any Plan or the termination of any Plan; (d)
any event or circumstance which might constitute grounds entitling the
PBGC to institute proceedings under Section 4042 of ERISA for the
termination of, or for the appointment of a trustee to administer, any
Plan, or the institution by the PBGC of any such proceedings; or (e)
complete or partial withdrawal under Section 4201 or 4204 of ERISA from a
Multiemployer Plan or the reorganization, insolvency, or termination of
any Multiemployer Plan; and in each case above, if such event or
conditions, if any, could in the opinion of any Bank subject Borrower, any
Mortgagor or any ERISA Affiliate to any tax, penalty, or other liability
to a Plan,
45
Multiemployer Plan, the PBGC or otherwise (or any combination thereof)
which in the aggregate exceeds or may exceed $50,000; or
(8) If at any time TCI is not a qualified real estate investment
trust under Sections 856 through 860 of the Code or is not listed on the
New York Stock Exchange or the American Stock Exchange; or
(9) If at any time Borrower or any Mortgagor fails to operate as
a real estate operating company for ERISA purposes (within the meaning of
C.F.R. ss.2510.3-101); or
(10) If The Taubman Company Limited Partnership, the entity
presently providing property management and leasing services for all the
regional shopping center properties in which Borrower has an ownership
interest (other than the "value center" property known as Arizona ▇▇▇▇▇
located in Tempe, Arizona), shall discontinue providing such services for
25% or more of the regional shopping center properties then owned in whole
or in part by Borrower; or
(11) If any Mortgage shall at any time and for any reason cease
to create a valid and perfected first priority Lien on the Mortgaged
Property purported to be subject thereto or to be in full force and
effect; or shall be declared null and void; or any party thereto shall
deny any further liability or obligation thereunder; or
(12) If there shall occur an "Event of Default" under any
Mortgage or under the Agency Note Assignment (as such quoted term is
defined in such Mortgage or the Agency Assignment, as the case may be).
SECTION 9.02 Remedies. If any Event of Default shall
--------
occur and be continuing, Administrative Agent shall, upon request of the
Required Banks, by notice to Borrower, (1) declare the outstanding Notes,
all interest thereon, and all other amounts payable under this Agreement,
and any other Loan Documents to be forthwith due and payable, whereupon the
Notes, all such interest, and all such amounts due under this Agreement and
under any other Loan Document shall become and be forthwith due and
payable, without presentment, demand, protest, or further notice of any
kind, all of which are hereby expressly waived by Borrower; and/or (2)
exercise any remedies provided in any of the Loan Documents or by law.
ARTICLE X
ADMINISTRATIVE AGENT; RELATIONS AMONG BANKS
SECTION 10.01 Appointment, Powers and Immunities of
---------------------------------------------
Administrative Agent. Each Bank hereby irrevocably appoints and authorizes
---------------------
Administrative Agent to act as its agent hereunder and under any other Loan
Document with such powers as are specifically delegated to Administrative
Agent by the terms of this Agreement and any other Loan Document, together
with such other powers as are reasonably incidental thereto. Administrative
Agent shall have no duties or responsibilities except those expressly set
forth in this Agreement and any other Loan Document or required by law, and
shall not by reason of this Agreement be a fiduciary or trustee for any
Bank except to the extent that Administrative Agent acts as an agent with
respect to the receipt or payment of funds (nor shall Administrative Agent
have any
46
fiduciary duty to Borrower nor shall any Bank have any fiduciary duty to
Borrower or to any other Bank). Administrative Agent shall not be
responsible to the Banks for any recitals, statements, representations or
warranties made by Borrower or any officer, partner or official of Borrower or
any other Person contained in this Agreement or any other Loan Document, or in
any certificate or other document or instrument referred to or provided for in,
or received by any of them under, this Agreement or any other Loan Document, or
for the value, legality, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document or any other document
or instrument referred to or provided for herein or therein, for the perfection
or priority of any Lien securing the Obligations or for any failure by Borrower
or any other obligor to perform any of its obligations hereunder or thereunder.
Administrative Agent may employ agents and attorneys-in-fact and shall not be
responsible, except as to money or securities received by it or its authorized
agents, for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. Neither Administrative Agent nor any of its
directors, officers, employees or agents shall be liable or responsible for any
action taken or omitted to be taken by it or them hereunder or under any other
Loan Document or in connection herewith or therewith, except for its or their
own gross negligence or willful misconduct. Borrower shall pay any fee agreed to
by Borrower and Administrative Agent with respect to Administrative Agent's
services hereunder.
SECTION 10.02. Reliance by Administrative Agent. Administrative Agent
----------------------------------
shall be entitled to rely upon any certification, notice or other
communication (including any thereof by telephone, telex, 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 and other experts selected by
Administrative Agent. Administrative Agent may deem and treat each Bank as the
holder of the Loan made by it for all purposes hereof and shall not be required
to deal with any Person who has acquired a participation in any Loan or
participation from a Bank. As to any matters not expressly provided for by this
Agreement or any other Loan Document, Administrative Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder in accordance
with instructions signed by the Required Banks, and such instructions of the
Required Banks and any action taken or failure to act pursuant thereto shall be
binding on all of the Banks and any other holder of all or any portion of any
Loan or participation.
SECTION 10.03. Defaults. Administrative Agent shall not be deemed to have
--------
knowledge of the occurrence of a Default or Event of Default unless
Administrative Agent has received notice from a Bank or Borrower specifying such
Default or Event of Default and stating that such notice is a "Notice of
Default." In the event that Administrative Agent receives such a notice of the
occurrence of a Default or Event of Default, Administrative Agent shall give
prompt notice thereof to the Banks. Administrative Agent, following consultation
with the Banks, shall (subject to Section 10.07) take such action with respect
to such Default or Event of Default which is continuing, or with respect to the
exercise of remedies, including with respect to realization on, or operation or
disposition of, any Collateral, as shall be directed by the Required Banks;
provided that, unless and until Administrative Agent shall have received such
directions, Administrative Agent may 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 interest of the Banks; and provided further that
Administrative Agent shall not send a notice of Default or acceleration to
47
Borrower without the approval of the Required Banks. In no event shall
Administrative Agent be required to take any such action which it determines to
be contrary to law.
SECTION 10.04 Rights of Administrative Agent as a Bank. With respect to its
----------------------------------------
Loan Commitment and the Loan provided by it, Administrative Agent 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 it were not acting as
Administrative Agent, and the term "Bank" or "Banks" shall, unless the context
otherwise indicates, include Administrative Agent in its capacity as a Bank.
Administrative Agent and its Affiliates may (without having to account therefor
to any Bank) accept deposits from, lend money to (on a secured or unsecured
basis), and generally engage in any kind of banking, trust or other business
with Borrower (and any Affiliates of Borrower) as if it were not acting as
Administrative Agent.
SECTION 10.05 Sharing of Costs by Banks; Indemnification of Administrative
------------------------------------------------------------
Agent. Each Bank agrees to pay its ratable share, based on the respective
-----
outstanding principal balances under its Note and the other Notes, of any
expenses incurred (and not paid or reimbursed by Borrower after demand for
payment is made by Administrative Agent) by or on behalf of the Banks in
connection with any Default or Event of Default, including, without limitation,
costs of enforcement of the Loan Documents and any advances to pay taxes or
insurance premiums or otherwise to preserve the Lien of any Mortgage or to
preserve or protect any Mortgaged Property. In the event a Bank fails to pay its
share of expenses as aforesaid, and all or a portion of such unpaid amount is
paid by Administrative Agent and/or one or more of the other Banks, then the
defaulting Bank shall reimburse Administrative Agent and/or the other Bank(s)
for the portion of such unpaid amount paid by it or them, as the case may be,
together with interest thereon at the Base Rate from the date of payment by
Administrative Agent and/or the other Bank(s). In addition, each Bank agrees to
indemnify Administrative Agent (to the extent not reimbursed under Section 12.04
or under the other applicable provisions of any Loan Document, but without
limiting the obligations of Borrower under Section 12.04 or such other
provisions), for its Pro Rata Share of any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against Administrative Agent in any way relating to or
arising out of this Agreement, any other Loan Document or any other documents
contemplated by or referred to herein or the transactions contemplated hereby or
thereby (including, without limitation, the costs and expenses which Borrower is
obligated to pay under Section 12.04 or under any other applicable provisions of
any Loan Document) or the enforcement of any of the terms hereof or thereof or
of any such other documents or instruments; provided that no Bank shall be
liable for (1) any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the party to be indemnified, (2) any loss of
principal or interest with respect to Administrative Agent's Loan or (3) any
loss suffered by Administrative Agent in connection with a swap or other
interest rate hedging arrangement entered into with Borrower.
SECTION 10.06. Non-Reliance on Administrative Agent and Other Banks.
-------------------------------------------------------
Each Bank agrees that it has, independently and without reliance on
Administrative Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own analysis of the
Collateral and of the credit of Borrower, and its own decision to enter into
this Agreement and that it will, independently and without reliance upon
Administrative Agent or any
48
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 other Loan Document.
Administrative Agent shall not be required to keep itself informed as to the
performance or observance by Borrower of this Agreement or any other Loan
Document or any other document referred to or provided for herein or therein or
to inspect the properties (including, without limitation, any Property) or books
of Borrower or any Mortgagor. Except for notices, reports and other documents
and information expressly required to be furnished to the Banks by
Administrative Agent hereunder, Administrative 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 Borrower, any
Mortgagor or any other Affiliate of Borrower which may come into the possession
of Administrative Agent or any of its Affiliates. Administrative Agent shall not
be required to file this Agreement, any other Loan Document or any document or
instrument referred to herein or therein, for record or give notice of this
Agreement, any other Loan Document or any document or instrument referred to
herein or therein, to anyone.
SECTION 10.07. Failure of Administrative Agent to Act. Except for action
-----------------------------------------
expressly required of Administrative Agent hereunder, Administrative Agent
shall in all cases be fully justified in failing or refusing to act hereunder
unless it shall have received further assurances (which may include cash
collateral) of the indemnification obligations of the Banks under Section 10.05
in respect of any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action.
SECTION 10.08 Resignation or Removal of Administrative Agent.
--------------------------------------------------------
Administrative Agent hereby agrees not to unilaterally resign except in the
event it becomes an Affected Bank and is removed or replaced as a Bank
pursuant to Section 3.07, in which event it shall have the right to resign.
Administrative Agent may be removed at any time with or without cause by the
Required Banks, provided that Borrower and the other Banks shall be promptly
notified thereof. Upon any such removal, the Required Banks shall have the right
to appoint a successor Administrative Agent which successor Administrative
Agent, so long as it is reasonably acceptable to the Required Banks, shall be
that Bank then having the greatest Loan Commitment. If no successor
Administrative Agent shall have been so appointed by the Required Banks and
shall have accepted such appointment within thirty (30) days after the Required
Banks' removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Banks, appoint a successor
Administrative Agent, which shall be one of the Banks. The Required Banks or the
retiring Administrative Agent, as the case may be, shall upon the appointment of
a successor Administrative Agent promptly so notify Borrower and the other
Banks. Upon the acceptance of any appointment as Administrative Agent hereunder
by a successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Administrative Agent's removal hereunder as Administrative Agent, the
provisions of this Article X 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
Administrative Agent.
SECTION 10.09. Amendments Concerning Agency Function. Notwithstanding
----------------------------------------
anything to the contrary contained in this Agreement, Administrative Agent shall
not be bound by any waiver, amendment, supplement or modification of this
Agreement or
49
any other Loan Document which affects its duties, rights, and/or function
hereunder or thereunder unless it shall have given its prior written consent
thereto.
SECTION 10.10 Liability of Administrative Agent. Administrative Agent shall
---------------------------------
not have any liabilities or responsibilities to Borrower on account of the
failure of any Bank to perform its obligations hereunder or to any Bank on
account of the failure of Borrower to perform its obligations hereunder or under
any other Loan Document.
SECTION 10.11. Transfer of Agency Function. Without the consent of Borrower
---------------------------
or any Bank, Administrative Agent may at any time or from time to time transfer
its functions as Administrative Agent hereunder to any of its offices wherever
located in the United States, provided that Administrative Agent shall promptly
notify Borrower and the Banks thereof.
SECTION 10.12 Non-Receipt of Funds by Administrative Agent. Unless
--------------------------------------------------
Administrative Agent shall have received notice from a Bank or Borrower (either
one as appropriate being the "Payor") prior to the date on which such Bank is to
make payment hereunder to Administrative Agent of the proceeds of a Loan or
Borrower is to make payment to Administrative Agent, as the case may be (either
such payment being a "Required Payment"), which notice shall be effective upon
receipt, that the Payor will not make the Required Payment in full to
Administrative Agent, Administrative Agent may assume that the Required Payment
has been made in full to Administrative Agent on such date, and Administrative
Agent in its sole discretion may, but shall not be obligated to, in reliance
upon such assumption, make the amount thereof available to the intended
recipient on such date. If and to the extent the Payor shall not have in fact so
made the Required Payment in full to Administrative Agent, the recipient of such
payment shall repay to Administrative Agent forthwith on demand such amount made
available to it together with interest thereon, for each day from the date such
amount was so made available by Administrative Agent until the date
Administrative Agent recovers such amount, at the customary rate set by
Administrative Agent for the correction of errors among Banks for three (3)
Banking Days and thereafter at the Base Rate.
SECTION 10.13. Withholding Taxes. Each Bank represents that it is entitled
-----------------
to receive any payments to be made to it hereunder without the withholding of
any tax and will furnish to Administrative Agent such forms, certifications,
statements and other documents as Administrative Agent or Borrower may request
from time to time to evidence such Bank's exemption from the withholding of any
tax imposed by any jurisdiction or to enable Administrative Agent to comply with
any applicable Laws or regulations relating thereto. Without limiting the effect
of the foregoing, if any Bank is not created or organized under the laws of the
United States of America or any state thereof, such Bank will furnish to
Administrative Agent Form 4224 or Form 1001 of the Internal Revenue Service, or
such other forms, certifications, statements or documents, duly executed and
completed by such Bank as evidence of such Bank's exemption from the withholding
of U.S. tax with respect thereto. Administrative Agent shall not be obligated to
make any payments hereunder to such Bank in respect of any Loan or participation
or such Bank's Loan Commitment or obligation to purchase participations until
such Bank shall have furnished to Administrative Agent the requested form,
certification, statement or document.
50
SECTION 10.14 Minimum Commitment by UBS. Notwithstanding the provisions
-------------------------
of Section 12.05, subsequent to the Closing Date, UBS hereby agrees to
maintain a Loan Commitment in an amount no less than $15,000,000, and further
agrees to hold and not to participate or assign any of such amount other than an
assignment to a Federal Reserve Bank or to the Parent or a majority-owned
subsidiary of UBS.
SECTION 10.15. Pro Rata Treatment. Except to the extent otherwise provided,
------------------
each advance of proceeds of the Loans shall be made by the Banks ratably
according to the amounts of their respective Loan Commitments.
SECTION 10.16 Sharing of Payments Among Banks. If a Bank shall obtain
----------------------------------
payment of any principal of or interest on any Loan made by it through the
exercise of any right of setoff, banker's lien, counterclaim, or by any other
means (including direct payment), and such payment results in such Bank
receiving a greater payment than it would have been entitled to had such payment
been paid directly to Administrative Agent for disbursement to the Banks, then
such Bank shall promptly purchase for cash from the other Banks participations
in the Loans made by the other Banks in such amounts, and make such other
adjustments from time to time as shall be equitable to the end that all the
Banks shall share ratably the benefit of such payment. To such end the Banks
shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or must otherwise
be restored. Borrower agrees that any Bank so purchasing a participation in the
Loans made by other Banks may exercise all rights of setoff, banker's lien,
counterclaim or similar rights with respect to such participation. Nothing
contained herein shall require any Bank to exercise any such right or shall
affect the right of any Bank to exercise, and retain the benefits of exercising,
any such right with respect to any other indebtedness of Borrower.
SECTION 10.17. Possession of Documents. Each Bank shall keep possession
-----------------------
of its own Notes. Administrative Agent shall hold all the other Loan Documents
and related documents in its possession and maintain separate records and
accounts with respect thereto, and shall permit the Banks and their
representatives access at all reasonable times to inspect such Loan Documents,
related documents, records and accounts.
ARTICLE XI
NATURE OF OBLIGATIONS
SECTION 11.01. Absolute and Unconditional Obligations. Borrower
--------------------------------------------
acknowledges and agrees that its obligations and liabilities under this
Agreement and under the other Loan Documents shall be absolute and unconditional
irrespective of (1) any lack of validity or enforceability of any of the
Obligations, any Loan Documents, or any agreement or instrument relating
thereto, (2) any change in the time, manner or place of payment of, or in any
other term in respect of, all or any of the Obligations, or any other amendment
or waiver of or consent to any departure from any Loan Documents or any other
documents or instruments executed in connection with or related to the
Obligations, (3) any exchange or release of any Collateral, or any release of
any other Person from all or any of the Obligations or (4) any other
circumstances which might otherwise constitute a defense available to, or a
discharge of, Borrower or any other Person in respect of the Obligations.
51
The obligations and liabilities of Borrower under this Agreement and
other Loan Documents shall not be conditioned or contingent upon the pursuit by
any Bank or any other Person at any time of any right or remedy against Borrower
or any other Person which may be or become liable in respect of all or any part
of the Obligations or against any Collateral or guarantee therefor or right of
setoff with respect thereto.
SECTION 11.02. Non-Recourse. (a) Notwithstanding anything to the
------------
contrary contained in this Agreement, in any of the other Loan Documents,
or in any other instruments, certificates, documents or agreements executed
in connection with the Loans (all of the foregoing, for purposes of this
Section, hereinafter referred to, individually and collectively, as the
"Relevant Documents"), no recourse under or upon any Obligation, representation,
warranty, promise or other matter whatsoever shall be had against any of the
constituent partners of Borrower or their successors or assigns (said
constituent partners and their successors and assigns, for purposes of this
Section, hereinafter referred to, individually and collectively, as the "TRG
Partners"), and each Bank expressly waives and releases, on behalf of itself and
its successors and assigns, all right to assert any liability whatsoever under
or with respect to the Relevant Documents against, or to satisfy any claim or
obligation arising thereunder against, any of the TRG Partners or out of any
assets of the TRG Partners, provided, however, that nothing in this Section
-------- -------
shall be deemed to (1) release Borrower from any personal liability
pursuant to, or from any of its respective obligations under, the Relevant
Documents, or from personal liability for its fraudulent actions or fraudulent
omissions, (2) release any TRG Partner from personal liability for its or his
own fraudulent actions or fraudulent omissions, (3) constitute a waiver of any
obligation evidenced or secured by, or contained in, the Relevant Documents or
affect in any way the validity or enforceability of the Relevant Documents or
(4) limit the right of Administrative Agent and/or the Banks to proceed against
or realize upon all or any part of the Collateral or any and all of the assets
of Borrower (notwithstanding the fact that the TRG Partners have an ownership
interest in Borrower and, thereby, an interest in the assets of Borrower) or to
name Borrower (or, to the extent that the same are required by applicable law or
are determined by a court to be necessary parties in connection with an action
or suit against Borrower or all or any part of the Collateral, any of the TRG
Partners) as a party defendant in, and to enforce against all or any part of the
Collateral and/or assets of Borrower any judgment obtained by Administrative
Agent and/or the Banks with respect to, any action or suit under the Relevant
Documents so long as no judgment shall be taken (except to the extent taking a
judgment is required by applicable law or determined by a court to be necessary
to preserve Administrative Agent's and/or Banks' rights against Borrower or all
or any part of the Collateral, but not otherwise) or shall be enforced against
the TRG Partners, their successors and assigns, or their assets.
(b) Notwithstanding anything to the contrary contained in the
Relevant Documents, no recourse under or upon any Obligation, representation,
warranty, promise or other matter whatsoever shall be had against any of the
constituent partners (other than Borrower and, in such case, only to the extent
provided in paragraph (a) above) of any Mortgagor or their respective successors
or assigns (said constituent partners (other than Borrower) and their respective
successors and assigns, for purposes of this Section, hereinafter referred to,
individually and collectively, as the "Mortgagor Partners") and each Bank
expressly waives and releases, on behalf of itself and its successors and
assigns, all right to assert any liability whatsoever under or with respect to
the Relevant Documents against, or to satisfy any claim or obligation arising
thereunder against, any of the Mortgagor Partners or out of any assets of the
52
Mortgagor Partners, provided, however, that nothing in this Section shall be
-------- -------
deemed to (1) release any Mortgagor from any personal liability pursuant to, or
from any of its respective obligations under, the Relevant Documents, or from
personal liability for its fraudulent actions or fraudulent omissions, (2)
release any Mortgagor Partner from personal liability for its or his own
fraudulent actions or fraudulent omissions, (3) constitute a waiver of any
obligation evidenced or secured by, or contained in, the Relevant Documents or
affect in any way the validity or enforceability of the Relevant Documents or
(4) limit the right of Administrative Agent and/or the Banks to proceed against
or realize upon all or any part of the Collateral or any and all of the assets
of any Mortgagor (notwithstanding the fact that the Mortgagor Partners have an
ownership interest in such Mortgagor and, thereby, an interest in the assets of
such Mortgagor) or to name any Mortgagor (or, to the extent that the same are
required by applicable law or are determined by a court to be necessary parties
in connection with an action or suit against Borrower, Mortgagor or all or any
part of the Collateral, any of the Mortgagor Partners) as a party defendant in,
and to enforce against all or any part of the Collateral and/or assets of any
Mortgagor any judgment obtained by Administrative Agent and/or the Banks with
respect to, any action or suit under the Relevant Documents so long as no
judgment shall be taken (except to the extent taking a judgment is required by
applicable law or determined by a court to be necessary to preserve
Administrative Agent's and/or Banks' rights against Borrower, any Mortgagor or
all or any part of the Collateral, but not otherwise) or shall be enforced
against the Mortgagor Partners, their successors and assigns, or their assets.
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Binding Effect of Request for Advance. Borrower agrees that,
-------------------------------------
by its acceptance of any advance of proceeds of the Loans under this Agreement,
it shall be bound in all respects by the request for advance submitted on its
behalf in connection therewith with the same force and effect as if Borrower had
itself executed and submitted the request for advance and whether or not the
request for advance is executed and/or submitted by an authorized person.
SECTION 12.02. Amendments and Waivers. No amendment or material waiver
----------------------
of any provision of this Agreement or any other Loan Document nor consent
to any material departure by Borrower, any Mortgagor or any other obligor
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Required Banks and, solely for purposes of its acknowledgment
thereof, Administrative Agent, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given, provided, however, that no amendment, waiver or consent shall, unless in
-------- -------
writing and signed by all the Banks do any of the following: (1) reduce the
principal of, or interest on, the Notes or any fees due hereunder or any other
amount due hereunder or under any Loan Document; (2) postpone any date fixed for
any payment of principal of, or interest on, the Notes or any fees due hereunder
or under any Loan Document, or waive any default in the payment of principal,
interest or any other amount due hereunder or under any Loan Documents; (3)
change the definition of Required Banks; (4) amend this Section or any other
provision requiring the consent of all the Banks; (5) waive any default under
paragraph (5) of Section 9.01; or (6) release any material portion of the
Collateral, or subordinate the Banks' Lien on any material portion of the
Collateral to a Lien to secure any Debt other than the Loans, other than, in
either case, in
53
accordance with the provisions of Loan Documents. Any advance of proceeds
of the Loans made prior to or without the fulfillment by Borrower of all of the
conditions precedent thereto, whether or not known to Administrative Agent and
the Banks, shall not constitute a waiver of the requirement that all conditions,
including the non-performed conditions, shall be required with respect to all
future advances. No failure on the part of Administrative Agent or any Bank to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof or preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 12.03. Usury. Anything herein to the contrary notwithstanding,
-----
the obligations of Borrower under this Agreement and the Notes shall be subject
to the limitation that payments of interest shall not be required to the
extent that receipt thereof would be contrary to provisions of law applicable to
a Bank limiting rates of interest which may be charged or collected by such
Bank.
SECTION 12.04. Expenses; Indemnification. Borrower agrees to reimburse
--------------------------
Administrative Agent on demand for all reasonable costs, expenses, and charges
including, without limitation, all reasonable fees and charges of engineers,
appraisers and other consultants (provided such other consultants have been
engaged with Borrower's consent, not to be unreasonably withheld or delayed; it
being understood, however, that Borrower shall have no such right of consent
during the existence of an Event of Default) and external legal counsel incurred
by Administrative Agent in connection with the Loans and to reimburse each of
the Banks for reasonable legal costs, expenses and charges incurred by each of
the Banks in connection with the performance or enforcement of this Agreement,
the Notes, or any other Loan Documents; provided, however, that Borrower is not
-------- -------
responsible for costs, expenses and charges incurred by the Bank Parties in
connection with the day-to-day administration or the syndication of the Loans
(except as otherwise provided in the Supplemental Fee Letter). Borrower agrees
to indemnify Administrative Agent and each Bank and their respective Affiliates,
controlling Persons, directors, officers, employees and agents (each, an
"Indemnified Party) from, and hold each of them harmless against, any and all
losses, liabilities, claims, damages or expenses, joint or several, incurred by
any of them arising out of or by reason of (x) any claims by brokers due to acts
or omissions by Borrower or (y) any third-party claims relating to this
Agreement, the Loans, the use of proceeds of the Loans, and the performance by
UBS (including as Administrative Agent) or any of its Affiliates of the services
contemplated by this Agreement or the Supplemental Fee Letter, and Borrower will
reimburse any Indemnified Party for any and all reasonable expenses (including
reasonable counsel fees and expenses) as they are incurred in connection with
the investigation of or preparation for or defense of any pending or threatened
claim or any action or proceeding arising therefrom, whether or not such
Indemnified Party is a party and whether or not such claim, action or proceeding
is initiated or brought to be by or on behalf of Borrower or any of its
Affiliates and whether or not any of the transactions contemplated hereby or by
the Supplemental Fee Letter are consummated or this Agreement or the Loan
Commitments are terminated. Borrower will not be liable under the foregoing
indemnification provision to an Indemnified Party to the extent that any loss,
claim, damage, liability or expense is found in a final non-appealable judgment
by a court of competent jurisdiction to have resulted from such Indemnified
Party's bad faith or gross negligence or breach of this Agreement.
54
In any such action or proceeding Borrower shall have the right to
assume the defense thereof and select counsel reasonably acceptable to UBS;
however, in no event will such counsel, without the prior written consent of
UBS, not to be unreasonably withheld, be counsel to Borrower or to any of its
Affiliates.
Borrower also agrees that no Indemnified Party shall have any
liability (whether direct or indirect, in contract or tort or otherwise) to
Borrower or its creditors related to or arising out of or in connection with
this Agreement, the Supplemental Fee Letter, the Loans, the use of proceeds of
the Loans, any of the transactions contemplated hereby or by the Supplemental
Fee Letter or any related transaction or the performance by UBS (including as
Administrative Agent) or any of its Affiliates of the services contemplated by
this Agreement or the Supplemental Fee Letter, except to the extent that any
loss, claim, damage or liability is found in a final non-appealable judgment by
a court of competent jurisdiction to have resulted from such Indemnified Party's
bad faith or gross negligence or breach of this Agreement.
Borrower agrees that, without UBS's prior written consent, which
shall not be unreasonably withheld, Borrower will not settle, compromise or
consent to the entry of any judgment in any pending or threatened claim, action
or proceeding in respect of which indemnification has been or could be sought
under the indemnification provisions of this Agreement (whether or not UBS or
any other Indemnified Party is an actual or potential party to such claim,
action or proceeding), unless such settlement, compromise or consent (i)
includes an unconditional written release, in form and substance reasonably
satisfactory to the Indemnified Parties, of each Indemnified Party from all
liability arising out of such claim, action or proceeding and (ii) does not
include any statement as to an admission of fault, culpability or failure to act
by or on behalf of any Indemnified Party.
No Indemnified Party shall, without the prior consent of Borrower
(not to be unreasonably withheld or delayed) settle or compromise any action or
claim for which indemnity has been or could be sought hereunder.
If (a) an Indemnified Party is requested to appear as a witness in
any action brought by or on behalf of Borrower or any of its Affiliates or (b)
an Indemnified Party is required to appear as a witness in any action brought
against Borrower or any of Affiliates, in either case, in which such Indemnified
Party is not named as a defendant, Borrower agrees to reimburse such Indemnified
Party for all reasonable expenses incurred by it in connection with such
Indemnified Party's appearing and preparing to appear as such a witness,
including, without limitation, the reasonable fees and disbursements of its
legal counsel, and to compensate such Indemnified Party in an amount to be
reasonable and mutually agreed upon.
The obligations of Borrower under this Section shall survive the
repayment of all amounts due under or in connection with any of the Loan
Documents and the termination of the Loans.
55
SECTION 12.05. Assignment; Participation. This Agreement shall be
-------------------------
binding upon, and shall inure to the benefit of, Borrower, Administrative
Agent, the Banks and their respective successors and permitted assigns. Borrower
may not assign or transfer its rights or obligations hereunder.
Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Loan (the
"Participations") subject to Borrower's consent, provided there exists no Event
of Default, which consent shall not be unreasonably withheld or delayed. In the
event of any such grant by a Bank of a participating interest to a Participant,
whether or not Borrower or Administrative Agent was given notice, such Bank
shall remain responsible for the performance of its obligations hereunder, and
Borrower and Administrative Agent shall continue to deal solely and directly
with such Bank in connection with such Bank's rights and obligations hereunder.
Any agreement pursuant to which any Bank may grant such a participating interest
shall provide that such Bank shall retain the sole right and responsibility to
enforce the obligations of Borrower hereunder and under any other Loan Document
including, without limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement or any other Loan Document;
provided that such participation agreement may provide that such Bank will not
agree to any modification, amendment or waiver of this Agreement described in
Section 12.02 without the consent of the Participant.
Any Bank may at any time assign to any bank or other institution
with the acknowledgment of Administrative Agent and, provided there exists no
Event of Default, the consent of Borrower, which consent shall not be
unreasonably withheld or delayed (such assignee, a "Consented Assignee"), or to
one or more banks or other institutions which are majority owned subsidiaries of
a Bank or to the Parent of a Bank (each Consented Assignee or subsidiary bank or
institution, an "Assignee") all, or a proportionate part of all, of its rights
and obligations under this Agreement and its Notes, and such Assignee shall
assume rights and obligations, pursuant to an Assignment and Assumption
Agreement executed by such Assignee and the assigning Bank, provided that, in
each case, after giving effect to such assignment, the Assignee's Loan
Commitment, and, in the case of a partial assignment, the assigning Bank's Loan
Commitment, each will be equal to or greater than $5,000,000. Upon (i) execution
and delivery of such instrument, (ii) payment by such Assignee to the Bank of an
amount equal to the purchase price agreed between the Bank and such Assignee and
(iii) at Administrative Agent's option, payment by such Assignee to
Administrative Agent of a fee, for Administrative Agent's own account, in the
amount of $2,500, on account of Administrative Agent's fees and expenses in
connection with such assignment, such Assignee shall be a Bank Party to this
Agreement and shall have all the rights and obligations of a Bank as set forth
in such Assignment and Assumption Agreement, and the assigning Bank shall be
released from its obligations hereunder to a corresponding extent, and no
further consent or action by any party shall be required. Upon the consummation
of any assignment pursuant to this paragraph, substitute Notes shall be issued
to the assigning Bank (in the case of a partial assignment) and Assignee by
Borrower, in exchange for the return of the original Notes. The obligations
evidenced by such substitute notes shall constitute "Obligations" for all
purposes of this Agreement and the other Loan Documents and shall be secured by
the Mortgages. If the Assignee is not incorporated under the laws of the United
States of America or a state thereof, it shall, prior to the first date on which
interest or fees are payable hereunder for its account, deliver to Borrower and
Administrative Agent
56
certification as to exemption from deduction or withholding of any United
States federal income taxes in accordance with Section 10.13.
Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Notes to a Federal Reserve Bank. No such assignment
shall release the transferor Bank from its obligations hereunder.
Borrower recognizes that in connection with a Bank's selling of
Participations or making of assignments, any or all documentation, financial
statements, appraisals and other data, or copies thereof, relevant to Borrower
or the Loans may be exhibited to and retained by any such Participant or
assignee or prospective Participant or assignee. In addition, such documentation
etc. may be exhibited to and retained by Affiliates of a Bank. In connection
with a Bank's delivery of any financial statements and appraisals to any such
Participant or assignee or prospective Participant or assignee, such Bank shall
also deliver its standard confidentiality statement indicating that the same are
delivered on a confidential basis. Borrower agrees to provide all assistance
reasonably requested by a Bank to enable such Bank to sell Participations or
make assignments of its Loan as permitted by this Section. Each Bank agrees to
provide Borrower with notice of all Participations sold by such Bank.
SECTION 12.06. Documentation Satisfactory. All documentation
---------------------------
required from or to be submitted on behalf of Borrower in connection with
this Agreement and the documents relating hereto shall be subject to the prior
approval of, and be satisfactory in form and substance to, Administrative Agent,
its counsel and, where specifically provided herein, the Banks. In addition, the
persons or parties responsible for the execution and delivery of, and
signatories to, all of such documentation, shall be acceptable to, and subject
to the approval of, Administrative Agent and its counsel and the Banks.
SECTION 12.07. Notices. Unless the party to be notified otherwise
-------
notifies the other party in writing as provided in this Section, and except as
otherwise provided in this Agreement, notices shall be given to
Administrative Agent by telephone, confirmed by writing, and to the Banks and to
Borrower by ordinary mail or overnight courier addressed to such party at its
address on the signature page of this Agreement. Notices shall be effective (1)
if by telephone, at the time of such telephone conversation, (2) if given by
mail, three (3) days after mailing and (3) if given by overnight courier, upon
receipt.
SECTION 12.08. Setoff. Borrower agrees that, in addition to (and
------
without limitation of) any right of setoff, bankers' lien or counterclaim a
Bank may otherwise have, each Bank shall be entitled, but only with the prior
consent of the Required Banks, to offset balances (general or special, time or
demand, provisional or final) held by it for the account of Borrower at any of
such Bank's offices, in Dollars or in any other currency, against any amount
payable by Borrower to such Bank under this Agreement or such Bank's Notes, or
any other Loan Document which is not paid when due (regardless of whether such
balances are then due to Borrower), in which case it shall promptly notify
Borrower and Administrative Agent thereof; provided that such Bank's failure to
give such notice shall not affect the validity thereof. Payments by Borrower
hereunder or under the other Loan Documents shall be made without setoff or
counterclaim.
57
SECTION 12.09. Year 2000. Borrower represents, warrants and covenants that
---------
Borrower and each Mortgagor have taken and shall take all action reasonably
necessary to assure that its data processing and information technology and
building systems are capable of effectively processing data and information,
including dates on and after January 1, 2000, and shall not cease to perform, or
provide, or cause any software and/or system which is material to its operations
or any interface therewith to provide, invalid or incorrect results as a result
of date functionality and/or data, or otherwise experience any material
degradation of performance or functionality arising from, relating to or
including date functionality and/or data which represents or references
different centuries or more than one century or leap years, and that all such
systems shall be reasonably effective and accurate in managing and manipulating
data derived from, involving or relating in any way to dates (including single
century formulas and multi-century or leap year formulas), and will not cause a
material abnormally ending scenario within such systems or in any software
and/or system with which such systems interface, or generate materially
incorrect values or invalid results involving such dates. At the request of
Administrative Agent, Borrower shall provide, and cause each Mortgagor to
provide, Administrative Agent with reasonably acceptable assurance of Borrower's
and each Mortgagor's year 2000 capability.
SECTION 12.10. Table of Contents; Headings. Any table of contents and the
----------------------------
headings and captions hereunder are for convenience only and shall not affect
the interpretation or construction of this Agreement.
SECTION 12.11. Severability. The provisions of this Agreement are intended
------------
to be severable. If for any reason any provision of this Agreement shall be
held invalid or unenforceable in whole or in part in any jurisdiction, such
provision shall, as to such jurisdiction, be ineffective to the extent of such
invalidity or unenforceability without in any manner affecting the validity or
enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
SECTION 12.12. Counterparts. This Agreement may be executed in any
------------
number of counterparts, all of which taken together shall constitute one and
the same instrument, and any party hereto may execute this Agreement by signing
any such counterpart.
SECTION 12.13. Integration. The Loan Documents and Supplemental Fee
-----------
Letter set forth the entire agreement among the parties hereto relating to the
transactions contemplated thereby and supersede any prior oral or written
statements or agreements with respect to such transactions.
SECTION 12.14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
-------------
INTERPRETED AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 12.15. Waivers. In connection with the obligations and liabilities
-------
as aforesaid, Borrower hereby waives: (1) promptness and diligence; (2) notice
of any actions taken by any Bank Party under this Agreement, any other Loan
Document or any other agreement or instrument relating thereto except to the
extent otherwise provided herein; (3) all other notices, demands and protests,
and all other formalities of every kind in connection with
58
the enforcement of the Obligations, the omission of or delay in which, but
for the provisions of this Section, might constitute grounds for relieving
Borrower of its obligations hereunder; (4) any requirement that any Bank Party
protect, secure, perfect or insure any Lien on any Collateral or exhaust any
right or take any action against Borrower or any other Person or against any
Collateral; (5) any right or claim of right to cause a marshalling of the assets
of Borrower; and (6) all rights of subrogation or contribution, whether arising
by contract or operation of law (including, without limitation, any such right
arising under the Federal Bankruptcy Code) or otherwise by reason of payment by
Borrower, either jointly or severally, pursuant to this Agreement or other Loan
Documents.
SECTION 12.16. JURISDICTION; IMMUNITIES. BORROWER, ADMINISTRATIVE AGENT
-------------------------
AND EACH BANK HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY NEW YORK
STATE OR UNITED STATES FEDERAL COURT SITTING IN NEW YORK CITY OVER ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR ANY OTHER
LOAN DOCUMENT. BORROWER, ADMINISTRATIVE AGENT, AND EACH BANK IRREVOCABLY AGREE
THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH NEW YORK STATE OR UNITED STATES FEDERAL COURT. BORROWER,
ADMINISTRATIVE AGENT, AND EACH BANK IRREVOCABLY CONSENT TO THE SERVICE OF ANY
AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES OF
SUCH PROCESS TO BORROWER, ADMINISTRATIVE AGENT OR EACH BANK, AS THE CASE MAY BE,
AT THE ADDRESSES SPECIFIED HEREIN. BORROWER, ADMINISTRATIVE AGENT AND EACH BANK
AGREE THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE
AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY
OTHER MANNER PROVIDED BY LAW. BORROWER, ADMINISTRATIVE AGENT AND EACH BANK
FURTHER WAIVE ANY OBJECTION TO VENUE IN THE STATE OF NEW YORK AND ANY OBJECTION
TO AN ACTION OR PROCEEDING IN THE STATE OF NEW YORK ON THE BASIS OF FORUM NON
CONVENIENS. BORROWER, ADMINISTRATIVE AGENT AND EACH BANK AGREE THAT ANY ACTION
OR PROCEEDING BROUGHT AGAINST BORROWER, ADMINISTRATIVE AGENT OR ANY BANK, AS THE
CASE MAY BE, SHALL BE BROUGHT ONLY IN A NEW YORK STATE COURT SITTING IN NEW YORK
CITY OR A UNITED STATES FEDERAL COURT SITTING IN NEW YORK CITY.
Nothing in this Section shall affect the right of Borrower,
Administrative Agent or any Bank to serve legal process in any other manner
permitted by law.
To the extent that Borrower, Administrative Agent or any Bank have
or hereafter may acquire any immunity from jurisdiction of any court or from any
legal process (whether from service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, Borrower, Administrative Agent and each Bank hereby irrevocably
waive such immunity in respect of its obligations under this Agreement, the
Notes and any other Loan Document.
59
BORROWER, ADMINISTRATIVE AGENT AND EACH BANK WAIVE ANY RIGHT EACH
SUCH PARTY MAY HAVE TO JURY TRIAL IN CONNECTION WITH ANY SUIT, ACTION OR
PROCEEDING BROUGHT WITH RESPECT TO THIS AGREEMENT, THE NOTES OR THE LOANS. IN
ADDITION, BORROWER HEREBY WAIVES, IN CONNECTION WITH ANY SUIT, ACTION OR
PROCEEDING BROUGHT BY ADMINISTRATIVE AGENT OR THE BANKS WITH RESPECT TO THE
NOTES, ANY RIGHT BORROWER MAY HAVE TO (1) INTERPOSE ANY COUNTERCLAIM THEREIN
(OTHER THAN A COUNTERCLAIM THAT IF NOT BROUGHT IN THE SUIT, ACTION OR PROCEEDING
BROUGHT BY ADMINISTRATIVE AGENT OR THE BANKS COULD NOT BE BROUGHT IN A SEPARATE
SUIT, ACTION OR PROCEEDING OR WOULD BE SUBJECT TO DISMISSAL OR SIMILAR
DISPOSITION FOR FAILURE TO HAVE BEEN ASSERTED IN SUCH SUIT, ACTION OR PROCEEDING
BROUGHT BY ADMINISTRATIVE AGENT OR THE BANKS) OR (2) HAVE THE SAME CONSOLIDATED
WITH ANY OTHER OR SEPARATE SUIT, ACTION OR PROCEEDING. NOTHING HEREIN CONTAINED
SHALL PREVENT OR PROHIBIT BORROWER FROM INSTITUTING OR MAINTAINING A SEPARATE
ACTION AGAINST ADMINISTRATIVE AGENT OR THE BANKS WITH RESPECT TO ANY ASSERTED
CLAIM.
SECTION 12.17. Termination of Prior Loan Agreement. The parties hereto
------------------------------------
acknowledge and agree that the Prior Loan Agreement, and the "Loan Documents"
and "Supplemental Fee Letter" thereunder, are terminated and of no further force
or effect, and that the "Loan Commitment" of each of the Banks thereunder is
terminated.
60
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
THE TAUBMAN REALTY GROUP LIMITED
PARTNERSHIP, a Delaware limited partnership
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇,
its authorized signatory
Address for notices:
c/o The Taubman Company Limited Partnership
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ - ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇
with copy to:
▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
P.O. Box 908
Bloomfield Hills, Michigan 48303-0908
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
61
UBS AG, STAMFORD BRANCH
(as Bank and Administrative Agent)
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
Address for notices and Applicable Lending
Office:
UBS AG, Stamford Branch
c/o UBS AG
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copy to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
COMERICA BANK
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
Address for notices and Applicable Lending
Office:
Comerica Bank
Comerica Tower at Detroit Center
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
62
PNC BANK, NATIONAL ASSOCIATION
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Address for notices and Applicable
Lending Office:
PNC Bank, National Association
1 PNC Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇▇▇-▇▇-▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
FLEET NATIONAL BANK
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Address for notices and Applicable
Lending Office:
Fleet National Bank
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Mail Stop: MABOF11C
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇- ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ BRANCH
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Director
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
Address for notices and Applicable
Lending Office:
Bayerische Hypo- und Vereinsbank AG,
New York Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
THE CHASE MANHATTAN BANK
By /s/ ▇▇▇▇ ▇. Mix
---------------------------
Name: ▇▇▇▇ ▇. Mix
Title: Vice President
Address for notices and Applicable
Lending Office:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Mr. John Mix
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
64
COMMERZBANK AKTIENGESELLCHAFT,
CHICAGO BRANCH
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Treasurer
Address for notices:
Commerzbank Aktiengesellschaft
2 World Financial Center - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Applicable Lending Office for Base Rate Loans:
Commerzbank Aktiengesellschaft,
Chicago Branch
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Applicable Lending Office for LIBOR Loans:
Commerzbank Aktiengesellschaft,
Grand Cayman Branch
c/o Commerzbank Aktiengesellschaft,
Chicago Branch
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇
AND GRAND CAYMAN BRANCHES
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Address for notices:
Dresdner Bank AG
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Applicable Lending Office for Base Rate
Loan and LIBOR Loan:
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
66
BAYERISCHE LANDESBANK
By /s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: First Vice President
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: First Vice President
Address for notices and Applicable Lending
Office:
Bayerische Landesbank
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
LANDESBANK HESSEN-THURINGEN
GIROZENTRALE
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Real Estate Finance
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Address for notices and Applicable Lending
Office:
Landesbank Hessen-Thuringen Girozentrale
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
67
