SECURED REVOLVING CREDIT AGREEMENT
dated as of November 1, 2001
among
THE TAUBMAN REALTY GROUP LIMITED PARTNERSHIP,
as Borrower,
THE LENDERS SIGNATORY HERETO,
each as a Bank,
and
BANK OF AMERICA, N.A.,
as Administrative Agent
with
BANC OF AMERICA SECURITIES LLC,
as Lead Arranger and Sole Book Manager,
PNC BANK, NATIONAL ASSOCIATION,
as Syndication Agent,
COMERICA BANK, FLEET NATIONAL BANK AND
BAYERISCHE HYPO- UND VEREINSBANK AG, NEW YORK BRANCH,
as Documentation Agents,
and
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES AND
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as Managing Agents
SECURED REVOLVING CREDIT AGREEMENT ("this Agreement") dated as of November
1, 2001 among THE TAUBMAN REALTY GROUP LIMITED PARTNERSHIP, a limited
partnership organized and existing under the laws of the State of Delaware
("Borrower"), BANK OF AMERICA, N.A., as administrative agent for the Banks (in
such capacity, together with its successors in such capacity, "Administrative
Agent"), and BANK OF AMERICA, N.A. (in its individual capacity and not as
Administrative Agent, "BAC") and the other lenders signatory hereto (BAC, the
other lenders signatory hereto and such other lenders who from time to time
become Banks pursuant to Section 2.19, Section 3.07 or 12.05, each a "Bank" and
collectively, the "Banks").
Borrower desires that the Banks extend credit as provided herein, and the
Banks are prepared to extend such credit. 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
have the following meanings:
"Acceptance Letter" has the meaning specified in Section 2.19.
"Accordion Amount" has the meaning specified in Section 2.19.
"Actions" has the meaning specified in Section 5.04.
"Additional Costs" has the meaning specified in Section 3.01.
"Administrative Agent" has the meaning specified in the preamble.
"Administrative Agent's Office" means Administrative Agent's office located
as set forth on its signature page hereof, or such other address in the United
States as Administrative Agent may designate by notice to Borrower and the
Banks.
"Affected Bank" has the meaning specified in Section 3.07.
"Affected Loan" has the meaning specified in Section 3.04.
"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.
"Agreement" means this Secured Revolving Credit Agreement.
"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 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.
"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).
-------------------------- ------------------------------- ---------------------------------
Applicable Margin for Base Rate Applicable Margin for LIBOR Loans
Property Debt Yield Loans (% per annum) (% per annum)
-------------------------- ------------------------------- ---------------------------------
Greater than 15% -0- 0.90
-------------------------- ------------------------------- ---------------------------------
Less than or equal to 15% -0- 1.05
-------------------------- ------------------------------- ---------------------------------
"Assignee" and "Consented Assignee" have the respective meanings 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 the
terms of this Agreement.
"Authorization Letter" means a letter agreement executed by Borrower in the
form of EXHIBIT B.
"BAC" has the meaning specified in the preamble.
"Bank" and "Banks" have the respective meanings specified in the preamble.
"Bank Parties" means Administrative Agent and the Banks.
2
"Banking Day" means (1) any day on which commercial banks are not
authorized or required to close in Chicago, Illinois 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.
"Banks' L/C Fee Rate" has the meaning specified in Section 2.17(g).
"Bank Reply Period" " has the meaning specified in Section 12.02.
"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" has the meaning specified in the preamble.
"Borrower's Accountants" means Deloitte & Touche, or such other accounting
firm(s) selected by Borrower and reasonably acceptable to the Required Banks.
"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.
3
"Code" means the Internal Revenue Code of 1986.
"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 2000.
"Commitment Increase Request" has the meaning specified in Section 2.19.
"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 (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
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.
4
"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.
"Declining Bank" has the meaning specified in Section 2.19.
"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 in respect
of 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.
"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).
"Disapproving Bank" has the meaning specified in Section 2.19.
"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.
"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 ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc. or other firm
designated by Administrative Agent from time to time for any Property.
5
"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,
including any rules and regulations promulgated thereunder.
"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 or any
organization which is required to be treated as a single employer with Borrower
or any Mortgagor under Sections 414(m) or 414(o) of the Code.
"Event of Default" has the meaning specified in Section 9.01.
"Existing Bank" has the meaning specified in Section 2.19.
"Existing Credit Facility" means that certain $200,000,000 credit facility
made pursuant to the Secured Revolving Credit Agreement, dated as of June 24,
1999, among Borrower, the lenders signatory thereto and UBS AG, Stamford Branch,
as Administrative Agent, as modified by letter agreements dated as of May 6,
2000 and as of September 14, 2001, respectively.
"Extension Option" has the meaning specified in Section 2.18.
"Facility Fee" has the meaning specified in Section 2.08.
"Fairlane" means the parcel(s) of real property owned by Fairlane LLC
located in Dearborn, Michigan, together with the Improvements thereon.
6
"Fairlane LLC" means Fairlane Town Center LLC, a Michigan limited liability
company of which Borrower is the sole member 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 2000.
"GAAP" means generally accepted accounting principles in the United States
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) in the case of a
contest of taxes or similar charges regarding any Property or the Improvements
thereon, Borrower has given Administrative Agent prompt notice thereof, (2) the
item is diligently contested in good faith, and, if appropriate, by proceedings
timely instituted, (3) adequate reserves are established with respect to the
contested item, (4) during the period of such contest, the enforcement of any
contested item is effectively stayed and (5) 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.
7
"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.
"Guaranty" means the joint and several Guaranty of Payment, dated the date
hereof, of Borrower's obligations hereunder and under the Notes, from Fairlane
LLC and TOLLC to the Banks, and including any guaranty of said obligations
executed and delivered by a Person who becomes a Mortgagor subsequent to the
date hereof pursuant to the provisions of Section 12.06.
"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.
"Indemnified Party" has the meaning specified in Section 12.04.
"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, and including any such
agreement executed and delivered by Borrower and a Person who becomes a
Mortgagor subsequent to the date hereof pursuant to the provisions of Section
12.06.
"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, third
(or, if available to all of the Banks, the fourth, sixth or twelfth) calendar
month thereafter (it being understood, however, that Interest Periods may have
durations which are several days longer or shorter than the aforesaid monthly
periods, subject to
8
availability to all of the Banks and Administrative Agent's consent), 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.
"Investment" has the meaning specified in Section 7.02.
"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.
"Lead Arranger" means Banc of America Securities LLC.
"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 pertaining to
a LIBOR Loan, the rate per annum that appears on Dow ▇▇▇▇▇ Page 3750 at
approximately 11:00 a.m. (London time) on the date (the "LIBOR Determination
Date") two (2) Banking Days prior to the first day of the applicable Interest
Period, for amounts comparable to the LIBOR Loan in question for the same period
of time as such Interest Period, or, if such rate does not appear on Dow ▇▇▇▇▇
Page 3750 as of approximately 11:00 a.m. (London time) on the LIBOR
Determination Date, the rate for deposits in Dollars for a period comparable to
the applicable Interest Period, as determined by Administrative Agent acting
reasonably. For purposes of the foregoing definition, "Dow ▇▇▇▇▇ Page 3750"
means the display designated as "Page 3750" on the Dow ▇▇▇▇▇ Markets Service (or
such other page as may replace Page 3750 on that service or such other service
as may be nominated by the British Bankers' Association as the information
vendor for the purpose of displaying British Bankers' Association Interest
Settlement Rates for Dollar deposits).
"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 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
9
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, 2.19, 3.07, 12.05 or 12.06:
Bank Loan Commitment
---- ---------------
BAC $ 27,000,000
PNC Bank, National Association 27,000,000
Comerica Bank 27,000,000
Fleet National Bank 27,000,000
Bayerische Hypo- und Vereinsbank AG, New York Branch 27,000,000
Commerzbank AG, New York and Grand Cayman Branches 25,000,000
Dresdner Bank AG, New York and Grand Cayman Branches 25,000,000
Bayerische Landesbank 20,000,000
Bank One, Michigan 20,000,000
LaSalle Bank National Association 20,000,000
KeyBank National Association 20,000,000
Landesbank Hessen-Thuringen Girozentrale 10,000,000
$275,000,000
============
10
"Loan Documents" means this Agreement, the Notes, the Guaranty, the
Mortgage and related Uniform Commercial Code financing statements for each
Property, the Indemnity for each Property, the Authorization Letter and the
Solvency Certificates.
"Major Lease" means a lease demising 5,000 SFGLA or more 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.
"Material Affiliate" means the material Affiliates of Borrower which own or
lease operating shopping centers or shopping centers under construction,
together with (or excluding) any Affiliates of Borrower which are hereafter from
time to time reasonably determined by Administrative Agent to be material (or no
longer material), upon notice to Borrower and the Banks, based upon the most
recent TRG Consolidated Financial Statements.
"Maturity Date" means November 1, 2004, subject to extension in accordance
with Section 2.18.
"Minority Interest" has the meaning specified in Section 7.02.
"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 from
the applicable Mortgagor for the benefit of Administrative Agent, as agent for
the Banks, to secure the payment and performance of the Obligations.
"Mortgaged Property" means, for each Property, the applicable Mortgagor'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 Twelve Oaks, TOLLC; with respect to
Fairlane, Fairlane LLC; and with respect to any other property that becomes a
Property pursuant to the provisions of Section 12.06, the owner thereof who
executes and delivers a Mortgage encumbering such Property as required by said
Section.
"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.
"Mortgagor Partners" has the meaning specified in Section 11.02(b).
11
"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.
"New Bank" has the meaning specified in Section 2.19.
"New Note" has the meaning specified in Section 2.19.
"Net Worth" means the excess of Capitalization Value over Total Outstanding
Indebtedness.
"Non-Excluded Taxes" has the meaning specified in Section 12.10.
"Note" and "Notes" have the respective meanings specified in Section 2.09.
"Notice to Extend" has the meaning specified in Section 2.18.
"Obligations" means each and every obligation, promise, covenant and
agreement of Borrower and Mortgagors, 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 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 under any instrument now
or hereafter evidencing or securing any of the foregoing.
"Outstanding Percentage" has the meaning specified in Section 2.19.
"Parent" means, with respect to any Bank, any Person controlling such Bank.
"Participant" and "Participation" have the respective meanings specified in
Section 12.05.
"Payor" has the meaning specified in Section 10.12.
"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, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature.
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"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 BAC
at its principal office located in Charlotte, North Carolina as its prime
commercial lending rate.
"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 proscribed by Section 406 of
ERISA or Section 4975 of the Code as to which no statutory or administrative
exemption applies.
"Property" means, respectively, each of Twelve Oaks, Fairlane and any other
property as may be added as a Property pursuant to the provisions of Section
12.06, excluding, however, any Property released pursuant to said Section.
"Property Approval Request" has the meaning specified in Section 2.19.
"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 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.
"Regulation D" and "Regulation U" mean, respectively, Regulations D and U
of the Board of Governors of the Federal Reserve System, or any similar Law from
time to time in effect.
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"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 (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.
"Related Entity" means, as to any Person, (1) any Affiliate of such Person;
(2) any other Person into which, or with which, such Person is merged,
consolidated or reorganized, or that is otherwise a successor to such Person by
operation of law, or which acquires all or substantially all of the assets of
such Person; (3) any other Person that is a successor to the business operations
of such Person and engages in substantially the same activities; or (4) any
Affiliate of the Persons described in clauses (2) and (3) of this definition.
For purposes of this definition, the provisions of clause (2) of the definition
of Affiliate shall be disregarded.
"Relevant Documents" has the meaning specified in Section 11.02.
"Reportable Event" means any of the events set forth in Section 4043(c) 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.
"Required Payment" has the meaning specified in Section 10.12.
"Replacement Bank" and "Replacement Notice" have the respective meanings
specified in Section 3.07.
"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.
"Shortfall" has the meaning specified in Section 2.19.
"Solvency Certificate" means a certificate in substantially the form of
EXHIBIT E.
"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
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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.
"Substitute Bank" and "Substitution Notice" have the respective meanings
specified in Section 2.19.
"Supplemental Fee Letter" means that certain letter agreement, dated August
10, 2001, among BAC, Lead Arranger and Borrower.
"Supplemental Notes" has the meaning specified in Section 2.19.
"TCI" means Taubman Centers, Inc., a Michigan corporation, Borrower's
managing general partner.
"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.
"TOLLC" means Twelve Oaks Mall, LLC, a Michigan limited liability company
of which Borrower is the sole member and the owner, directly or indirectly, of a
100% beneficial interest.
"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 Partners" has the meaning specified in Section 11.02(a).
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"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.
"Twelve Oaks" means the parcel(s) of real property owned by TOLLC located
in Novi, Michigan, together with the Improvements thereon.
"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.
"United States" and "U.S." mean The United States of America.
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, modification or supplement to, or
replacement of, such Law, (3) a reference to a Person includes its permitted
successors and permitted assigns, (4) all references to the singular shall
include the 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
16
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 Existing
Credit Facility and to refinance the existing indebtedness relating to the
Properties. 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 $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, in the form of
EXHIBIT G, stating the amount requested and certifying the purpose for which
such advance is to be used, no later than 12:00 Noon (Chicago time) on the date
(x) in the case of LIBOR Loans, three (3) Banking Days, and (y) in the case of
Base Rate Loans, one (1) Banking Day 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. (Chicago 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
17
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 either, at Borrower's option, crediting an account of
Borrower designated by Borrower and maintained with Administrative Agent at
Administrative Agent's Office or wiring said amount to another account of
Borrower designated by it in its request for advance.
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 (6) 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 definition of "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
(6) 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 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
18
LIBOR Interest Rate plus the Applicable Margin. In addition, from and after the
occurrence of an Event of Default, the outstanding and unpaid principal amount
of the Loans shall bear interest at the Default Rate.
The interest rate on Base Rate Loans shall change, without notice or demand
of any kind, effective as of the day 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 payment or 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 facility fee (the
"Facility Fee") computed on the daily Loan Commitment of such Bank (irrespective
of usage), at a rate per annum equal to 0.15%, calculated on the basis of a year
of three hundred sixty (360) days for the actual number of days elapsed. The
accrued facility fee shall be due and payable quarterly in arrears on the first
Banking Day of February, May, August and November of each year, commencing on
the first such date after the Closing Date, and upon the Maturity Date (as
stated, by acceleration or otherwise) 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(s) pursuant
to Section 2.19, 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.
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, the Notes or otherwise in respect
of the Loans.
In case of any loss, theft, destruction or mutilation of any Bank's Note,
Borrower shall, upon its receipt of an affidavit of an officer of such Bank as
to such loss, theft, destruction
19
or mutilation and an appropriate indemnification (in form and substance
reasonably acceptable to Borrower), execute and deliver a replacement Note to
such Bank in the same principal amount and otherwise of like tenor as the lost,
stolen, destroyed or mutilated Note.
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 any 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. (Chicago time) on the
date which is fifteen (15) days prior to the effectiveness of such termination
(a copy of which notice Administrative Agent shall promptly send to each Bank),
(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. (Chicago 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. In the event payments received by Administrative
Agent from Borrower before 11:00 a.m. (Chicago time) are not distributed by
Administrative Agent to a Bank on the day of its receipt thereof, Administrative
Agent shall pay interest on such Bank's appropriate share thereof at the Federal
Funds Rate until distributed to such Bank. 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 otherwise provided herein, 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.
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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
herein, 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 12:00
Noon (Chicago 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 one (1)
Elections 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.
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SECTION 2.17. Letters of Credit. (a) Borrower may request, in lieu of
advances of proceeds of the Loans, that 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 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 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) 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 have an expiration date of no later than
the earlier of one (1) month prior to 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 Administrative Agent an
application for the Letter of Credit on Administrative Agent's standard form
therefor, together with such other documents, opinions and assurances as
Administrative Agent shall reasonably require.
(g) In connection with each Letter of Credit, Borrower hereby covenants to
pay to 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 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 for Administrative Agent's 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. In addition, Borrower shall pay
Administrative Agent's customary administrative fees and expenses in connection
with the issuance, extension, amendment, drawing and cancellation of all Letters
of Credit.
(h) Immediately upon notice from Administrative Agent of any drawing under
a Letter of Credit, each Bank shall, notwithstanding the existence of a Default
or Event of
22
Default or the non-satisfaction of any conditions precedent to the making of an
advance of the Loans, advance proceeds of its Loan, in an amount equal to its
Pro Rata Share of such drawing, which advance shall be made to Administrative
Agent to reimburse Administrative Agent, for its own account, for such drawing.
Each Bank 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. In the event that any Loan cannot for any reason be made
on the date otherwise required above (including, without limitation, as a result
of the commencement of a proceeding under any applicable bankruptcy or
insolvency Law with respect to Borrower or any Mortgagor), then each Bank shall
purchase (on or as of the date such Loan would otherwise have been made) from
Administrative Agent a participation interest in any unreimbursed drawing in an
amount equal to its Pro Rata Share of such unreimbursed drawing.
(i) Upon the occurrence of an Event of Default and at the request of
Administrative Agent, Borrower shall (i) deposit with Administrative Agent cash
collateral in the amount of all the outstanding Letters of Credit, which cash
collateral shall be held by Administrative Agent as security for Borrower's
obligations in connection with the Letters of Credit and (ii) execute and
deliver to Administrative Agent such documents as Administrative Agent requests
to confirm and perfect the assignment of such cash collateral to Administrative
Agent.
The parties hereto acknowledge that letter of credit no. 7405743 in the
amount of $3,508,171 issued by Bank of America, N.A., for Borrower's account, to
US Bank Trust National Association on September 14, 2001, as amended by
amendment dated November 2, 2001, constitutes a Letter of Credit for all
purposes under this Agreement.
SECTION 2.18. Extension Of Maturity. Borrower shall have the option (the
"Extension Option") to extend the original Maturity Date for a period of one (1)
year. Subject to the conditions set forth below, Borrower may exercise the
Extension Option by delivering a notice to Administrative Agent between thirty
(30) and ninety (90) days prior to the original Maturity Date (a "Notice to
Extend"), stating that Borrower has elected to extend the original Maturity Date
for one (1) year. Borrower's right to exercise the Extension Option shall be
subject to the following terms and conditions: (i) there shall exist no Event of
Default on both the date Borrower delivers the Notice to Extend to
Administrative Agent and on the original Maturity Date, (ii) Borrower shall have
paid, no later than one (1) Banking Day prior to the original Maturity Date, to
Administrative Agent, for the account of each Bank, a non-refundable extension
fee equal to 0.20% of such Bank's Loan Commitment, (iii) Borrower shall be in
compliance with the covenants contained in Articles VII and VIII, as evidenced
by a certificate from Borrower of the sort required by paragraph (3) of Section
6.09 (based on financial results for the most recent calendar quarter for which
Borrower is required to report financial results) and (iv) the Total Loan
Commitment does not exceed 65% of the "as is" value of the relevant Mortgagor's
interest in the Property or Properties then securing the Loans (as reflected in
an update to the appraisal(s) delivered pursuant to paragraph (7) of Section
4.01 or subparagraph (b)(vi) of Section 12.06, as the case may be, which updated
appraisal(s) shall be commissioned by Administrative Agent at Borrower's expense
and shall be satisfactory to the Required Banks), it being understood that
Borrower may comply with the condition set forth in this clause (iv) by
exercising its right to terminate unused Loan Commitments in accordance with
Section 2.11.
23
SECTION 2.19. Additional Loan Commitments. (a) At any time prior to the
second anniversary of the date of this Agreement, Borrower may request that (i)
the Banks increase their respective Loan Commitments and/or (ii) New Banks be
procured, so as to increase the Total Loan Commitment by an aggregate amount of
up to $25,000,000 (the "Accordion Amount"), all as provided in this Section.
Such increase shall be conditioned on Borrower's addition of a Property as
security for the payment and performance of the Obligations in accordance with
Section 12.06. Borrower shall make such request by giving notice to
Administrative Agent, which notice shall identify the property that Borrower
proposes to add as a Property and shall be accompanied by such documents and
information with respect to such property as Administrative Agent shall
reasonably request. Upon receipt of such notice, documents and information from
Borrower, Administrative Agent shall promptly send copies thereof to each
then-existing Bank (each, an "Existing Bank") and shall request that each Bank
notify Administrative Agent as to whether or not it agrees to accept such
property (the "Property Approval Request") and whether or not it agrees to
increase its Loan Commitment by its Pro Rata Share of the Accordion Amount upon
the addition of such property as a Property in accordance with Section 12.06
(the "Commitment Increase Request"). Each Bank shall have a period of fifteen
(15) business days from its receipt of the Property Approval Request and the
Commitment Increase Request to notify Administrative Agent whether or not such
Bank agrees to (i) accept the proposed property and/or (ii) increase its Loan
Commitment as aforesaid. Any Bank that fails to respond to the Property Approval
Request or the Commitment Increase Request within such fifteen (15)-business day
period will be deemed not to have agreed to accept the proposed property or not
to have agreed to increase its Loan Commitment, as the case may be. Upon its
receipt of such notices from all of the Banks, and in any event upon the
expiration of such fifteen (15)-business day period, Administrative Agent will
notify (the "Bank Response Notice") Borrower and the Banks as to (x) which Banks
have approved and which Banks have not approved (or are deemed not to have
approved) the proposed property and (y) which Banks have agreed to increase
their respective Loan Commitments as aforesaid and which Banks have not agreed
(or are deemed not to have agreed) to increase their respective Loan Commitments
as aforesaid.
(A) If any Bank (each, a "Disapproving Bank") shall not agree or shall
be deemed not to have agreed to accept the proposed property, such property
will not be added as a Property and the proposed increase in the Total Loan
Commitment will not be consummated, subject, however, to Borrower's right
to substitute another financial institution for a Disapproving Bank in
accordance with the provisions of paragraph (d) below.
(B) If all Banks agree to accept the proposed property and all Banks
elect to increase their respective Loan Commitments by amounts equal to
their respective Pro Rata Shares of the Accordion Amount, the Loan
Commitment of each Bank will be so increased, and the parties shall proceed
in accordance with paragraph (b) below.
(C) If all Banks agree to accept the proposed property, but any Bank
(any such Bank, a "Declining Bank") shall not elect or shall be deemed to
have elected not to increase its Loan Commitment as aforesaid, (i) the
amount of such Declining Bank's Loan Commitment shall be unchanged and (ii)
Borrower shall, at its option (to be
24
promptly exercised by notice to Administrative Agent) either (x) withdraw
its request to add a property and increase the Total Loan Commitment, in
which case the increase to the Total Loan Commitment will not be
consummated, (y) accept an increase in the Total Loan Commitment in an
amount equal to the Accordion Amount less the Shortfall (as defined below),
in which case the Banks who agreed to increase their commitments shall do
so and the parties shall proceed in accordance with paragraph (b) below or
(z) request that Administrative Agent (1) solicit from the Banks that
elected to increase their respective Loan Commitments a further increase in
their Loan Commitments in an aggregate amount equal to all or any portion
of the aggregate amount of the Declining Banks' Pro Rata Shares of the
requested increase (the "Shortfall") and/or (2) submit to Borrower a list
of proposed syndicate members that are not then a party to this Agreement
("New Banks") to Borrower for its review and approval (such approval not to
be unreasonably withheld or delayed) in order to obtain additional
commitments in an amount equal to the Shortfall. Administrative Agent will
promptly undertake the action directed by Borrower. Administrative Agent
will consult with Borrower and Borrower will cooperate with Administrative
Agent in the latter's solicitation of Loan Commitments from New Banks. If
any of the Existing Banks agrees to increase its Loan Commitment and/or New
Banks agree to make Loan Commitments, then the parties will proceed in
accordance with paragraph (b) below.
(b) In connection with increases to the Loan Commitments of some or all of
the Existing Banks as provided in paragraph (a) above, Borrower shall execute
supplemental Notes (the "Supplemental Notes") evidencing such increases, and
Borrower, Administrative Agent and the Banks shall execute such other
confirmatory modifications to this Agreement as Administrative Agent shall
reasonably request. In connection with the addition of New Banks as Banks as a
result of solicitations by Administrative Agent as provided in paragraph (a)
above, Borrower, Administrative Agent and each New Bank shall execute an
Acceptance Letter in the form of EXHIBIT H (an "Acceptance Letter"), Borrower
shall execute a Note to each New Bank in the amount of the New Bank's Loan
Commitment (a "New Note") and Borrower, Administrative Agent and the Banks shall
execute such confirmatory modifications to this Agreement as Administrative
Agent shall reasonably request, whereupon the New Bank shall become, and have
the rights and obligations of, a "Bank", with a Loan Commitment in the amount
set forth in such Acceptance Letter. The Banks shall have no right of approval
with respect to a New Bank's becoming a Bank or the amount of its Loan
Commitment. Each Supplemental Note and New Note shall constitute a "Note" for
all purposes of this Agreement.
(c) If at the time a New Bank becomes a Bank (or an Existing Bank increases
its Loan Commitment) pursuant to this Section there is any principal outstanding
under the Notes of the Existing Banks, such New Bank (or Existing Bank
increasing its Loan Commitment) shall remit to Administrative Agent an amount
equal to the Outstanding Percentage (as defined below) multiplied by the Loan
Commitment of the New Bank (or the amount of the increase in the Loan Commitment
of an Existing Bank increasing its Loan Commitment), which amount shall be
deemed advanced under the Loan of the New Bank (or the Existing Bank increasing
its Loan Commitment). Administrative Agent shall pay such amount to the Existing
Banks in accordance with the Existing Banks' respective Pro Rata Shares (as
calculated immediately prior to the admission of the New Bank (or the increase
in an Existing Bank's Loan Commitment)), and such
25
payment shall effect an automatic reduction of the outstanding principal balance
under the respective Notes of the Existing Banks. For purposes of this Section,
the term "Outstanding Percentage" means the ratio of (i) the aggregate
outstanding principal amount under the Notes of the Existing Banks, immediately
prior to the admission of the New Bank (or the increase in the Loan Commitment
of an Existing Bank), to (ii) the aggregate of the Loan Commitments of the
Existing Banks (as increased pursuant to this Section, if applicable) and the
New Bank.
(d) In the event there is only one Disapproving Bank, Borrower may, within
thirty (30) days of its receipt of the Bank Response Notice from Administrative
Agent, give notice (a "Substitution Notice") to Administrative Agent (who will
promptly forward a copy thereof to each Bank) of Borrower's intention to replace
the Disapproving Bank with another financial institution that would accept the
proposed property as a Property (the "Substitute Bank") designated in such
Substitution Notice.
If Administrative Agent shall, within ten (10) days of its receipt of the
Substitution Notice, notify Borrower and each Bank in writing that the proposed
Substitute Bank is reasonably satisfactory to Administrative Agent, then the
Disapproving 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 and
the other Loan Documents to the Substitute Bank, and the Substitute Bank shall
assume all of such rights and obligations, pursuant to an agreement,
substantially in the form of an Assignment and Assumption Agreement, executed by
the Disapproving Bank and the Substitute Bank. In connection with such
assignment and assumption, the Substitute Bank shall pay to the Disapproving
Bank an amount equal to the outstanding principal amount under the Disapproving
Bank's Note and all interest accrued thereon, plus all other amounts, if any,
then due and payable to the Disapproving Bank. Upon the effective date of such
assignment and assumption and the payment by the Substitute Bank to
Administrative Agent of a fee, for Administrative Agent's own account, in the
amount of $3,500, the Substitute 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 Disapproving 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 Substitute Bank by
Borrower in exchange for the return of the Disapproving Bank's Note. The
obligations evidenced by such substitute Note shall constitute "Obligations" for
all purposes of this Agreement and the other Loan Documents and shall be secured
by the Mortgages. In connection with Borrower's execution of such substitute
Note as aforesaid, Borrower shall deliver to Administrative Agent such evidence
of the due authorization, execution and delivery of the substitute Note and any
related documents as Administrative Agent may reasonably request. If the
Substitute Bank is not incorporated under the Laws of the United States 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.
(e) Notwithstanding the foregoing provision of this Section:
26
(i) Borrower shall have a period of thirty (30) days after such time
as some or all of the Existing Banks have agreed to increase their Loan
Commitments or New Banks have agreed to make Loan Commitments, as the case
may be, in which to satisfy the conditions precedent to the addition of a
proposed property as a Property set forth in Section 12.06, and if Borrower
shall fail to satisfy such conditions within such period, Administrative
Agent will so notify Borrower and each of the Banks and such property will
not be added as a Property and the proposed increase in the Total Loan
Commitment will not be consummated; and
(ii) if any proposed increase in the Total Loan Commitment pursuant to
this Section is not consummated (because a property is rejected as a
Property or otherwise), Borrower shall retain the right at any time
thereafter to propose a property as an additional Property and to seek to
increase the Total Loan Commitment as provided in this Section.
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).
27
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 notice thereof 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 or other liabilities of
such Bank which includes deposits by reference to which the LIBOR Interest Rate
is determined as provided herein 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 herein; 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
28
of "LIBOR Interest Rate" in Section 1.01 upon the basis of which the rate
of interest for 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 or Continuations 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 or Continuations 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 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.
29
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 clause (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
30
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. Replacement 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) gives notice to Borrower that
such Bank 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 this Article III.
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 proposed 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 and the other Loan Documents 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 this Article
III. Upon the effective date of such assignment and assumption and the payment
by the Replacement Bank to Administrative Agent of a fee, for Administrative
Agent's own account, in the amount of $3,500, 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,
31
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 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. In connection with Borrower's execution
of substitute Notes as aforesaid, Borrower shall deliver to Administrative Agent
such evidence of the due authorization, execution and delivery of the substitute
Notes and any related documents as Administrative Agent may reasonably request.
If the Replacement Bank is not incorporated under the Laws of the United States
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 (15) 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 each of the Banks signatory hereto, duly
executed by Borrower;
(3) Mortgage and UCCs. The Mortgage, duly executed by the applicable
Mortgagor 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) Guaranty and Indemnity. The Guaranty, duly executed by each
Mortgagor; and the Indemnity, duly executed by Borrower and the applicable
Mortgagor;
(5) 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 interests in the Property
32
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;
(6) 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;
(7) Appraisal. An independent M.A.I. appraisal, commissioned by
Administrative Agent, of the value of the Mortgagor'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;
(8) 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;
(9) Hazardous Materials Report/Reliance Letter; Remediation Plan. 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 thereon, 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, together with a "reliance letter" addressed to Administrative
Agent from the preparer of said report; and, if such report discloses the
presence of Hazardous Materials to an extent acceptable to Administrative
Agent and its environmental consultant, a certified copy of Borrower's or
the applicable Mortgagor's remediation/management plan with respect
thereto, as approved (to the extent required) by all appropriate
Governmental Authorities;
(10) Consultant's Report. A detailed report from the Engineering
Consultant to the effect that the Improvements are in satisfactory
condition and enumerating any
33
maintenance or governmental compliance items necessary or expected to be
incurred over the term of the Loans and stating the approximate cost
thereof;
(11) Permits and Other Approvals. Copies of any and all certificates
of occupancy and similar authorizations required by any 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;
(12) 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 (12) of Section 6.09;
(13) Premises Documents. 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);
(14) 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;
(15) UCC Searches. Uniform Commercial Code searches with respect to
Borrower and the applicable Mortgagor 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 Mortgaged Property;
(16) Financial Statements. Audited TRG Consolidated Financial
Statements and TCI Financial Statements as of and for the year ended
December 31, 2000; unaudited Mortgagor Financial Statements for each
Mortgagor as of and for the year ended December 31, 2000; unaudited TRG
Consolidated Financial Statements and TCI Financial Statements as of and
for the quarters ended March 31, 2001 and June 30, 2001; and unaudited
Mortgagor Financial Statements for each Mortgagor as of and for the
quarters ended March 31, 2001 and June 30, 2001; each of the foregoing
unaudited Financial Statements to be certified by an appropriate financial
officer of Borrower, TCI or each Mortgagor, as the case may be;
(17) 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
34
of partnership or other organizational agreement, 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;
(18) Evidence of Partnership/Company Action. With respect to Borrower
and each Mortgagor, certified (as of the Closing Date) copies of all
documents evidencing partnership or other company (as applicable) 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;
(19) 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 sole member or general partner, as the case may be, of each
Mortgagor);
(20) Solvency Certificates. A Solvency Certificate, duly executed,
from Borrower and each Mortgagor;
(21) Opinions of Counsel. Favorable opinions, dated the Closing Date,
of counsel for Borrower and Mortgagors, as to such matters as
Administrative Agent may reasonably request;
(22) Authorization Letter. The Authorization Letter, duly executed by
Borrower;
(23) 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 and remains
injured or damaged by fire or other casualty;
(24) 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 Sections 7.02, 7.03 and 7.04 and in Article
VIII;
35
(25) Termination and Repayment of Existing Credit Facility.
Administrative Agent shall have received written evidence of the
termination of the Existing Credit Facility and all sums owing
thereunder shall have been repaid in full (it being understood that
such sums may be repaid by Borrower from the proceeds of the Initial
Advance); and
(26) 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, or would result from the making
thereof; and
(3) Administrative Agent shall have received a request for an advance
in accordance with Section 2.04.
SECTION 4.03. Deemed Representations. Each request by Borrower for, and
acceptance by Borrower of, an advance of proceeds of the Loans or the issuance
of a Letter of Credit 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 or issuance, as the case may be, (1) no Default or Event of Default has
occurred and is continuing or would result from the making of the advance or
issuance of the Letter of Credit 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 or
limited liability company, as the case may be, 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 or limited liability companies, as the case
may be, 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).
36
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 members 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,
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.
SECTION 5.04. Litigation. There are no actions, suits or proceedings
pending or, to Borrower's knowledge, threatened, against Borrower or any of its
Affiliates (including any Mortgagor), the Mortgagor'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
37
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 Section 412
of the Code and Section 302 of ERISA with respect to the Plans of each and there
is no "unfunded current liability" (as such quoted term is defined in ERISA)
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. No part of the funds to be used by Borrower in satisfaction of its
obligations under this Agreement constitute "plan assets" of any "employee
benefit plan" within the meaning of ERISA or of any "plan" within the meaning of
Section 4975(e)(1) of the Code, as interpreted by the Internal Revenue Service
and the U.S. Department of Labor in rules, regulations, releases or bulletins or
as interpreted under applicable case law. Neither the extension of credit
evidenced by the Notes nor any other transaction contemplated under the Loan
Documents constitutes a Prohibited Transaction.
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
38
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 Law limiting its 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 (9) 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 (9) 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.
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.
39
SECTION 5.14. Valid Existence of Material Affiliates. As of the Closing
Date, the only Material Affiliates are those listed on EXHIBIT D. As to each
Material Affiliate so listed, its correct name, the jurisdiction of its
formation and Borrower's percentage of beneficial interest therein are set forth
on said EXHIBIT D. Each Material Affiliate is a partnership, corporation,
limited liability company or joint venture duly organized and existing in good
standing under the Laws of the jurisdiction of its formation. Borrower and each
of its Material Affiliates have the power to own their respective properties and
to carry on their respective businesses now being conducted. Each of Borrower
and its Material 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.
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 with
respect to each Property, Liens pursuant to the documents that are listed as
exceptions in the title policy insuring the applicable Mortgage.
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 REA
and any other Premises Documents which Administrative Agent has notified
Borrower that it considers material are unmodified and in full force and effect;
to the best of Borrower's
40
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 other Loan Documents or the consummation of the transactions
contemplated hereby, or required herein or in any other Loan Document 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 or, 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.
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.
41
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 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;
42
(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) 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;
(5) 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 notice setting
forth the details of such Default or Event of Default and the action which
is proposed to be taken with respect thereto;
(6) Dispositions or Acquisitions of Assets. Within thirty (30) days
after the occurrence thereof, 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 asset acquired for at least the
preceding three (3) years (to the extent available) and Borrower's revenue
and expense projections for the asset acquired for at least the next five
(5) years (all of the foregoing to be in form and detail reasonably
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;
43
(7) 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, notice thereof;
(8) Bankruptcy of Tenants. Promptly after becoming aware of the same,
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;
(9) Offices. Thirty (30) days' prior notice of any change in the chief
executive office, principal place of business or location of Borrower or
any Mortgagor;
(10) 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;
(11) Insurance Coverage. Promptly, such information concerning
Borrower's insurance coverage as Administrative Agent may reasonably
request;
(12) Leasing 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, leasing report and tenant sales report for each
Property, together with abstracts of all leases entered into during such
quarter, in each case (other than with respect to tenant sales reports)
certified by Borrower to be true and complete; and
(13) 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, any or all amendments or supplements to any such lease; and
notices of assignment in the form of EXHIBIT F to the
44
tenants thereunder; 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) any of 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 tenants or parties to the Premises Documents as
required by paragraphs (12) and (13) 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 (14) of Section 4.01 without
Administrative Agent's prior written consent, such consent not to be
unreasonably withheld.
SECTION 6.13. Correction of Defects; Remediation. Upon demand of
Administrative Agent or the Engineering Consultant, correct any material defects
(including structural) in the Improvements on any Property; and diligently cause
the completion of and payment for the Hazardous Materials removal/remediation
described in the remediation/management plan referred to in paragraph (9) of
Section 4.01.
SECTION 6.14. Estoppel Certificates. Within three (3) days upon request in
person or within five (5) days upon request by mail, furnish to Administrative
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.
45
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. (Borrower shall deliver to Administrative Agent, at least fifteen
(15) business days prior to the closing of any transaction described in this
Section, a compliance certificate of the sort required by clause (b) of
paragraph (3) of Section 6.09, prepared on a pro-forma basis after giving effect
to such transaction.)
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.
SECTION 7.04. Interest Rate Hedging. 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)
46
months (unless less than twelve (12) months remains until the maturity of the
debt which is hedged, in which case the required term shall be such period less
than 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. Financial Covenants. 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 $1,250,000,000;
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 1.50 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 12%; 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 (i) as may be
necessary under Section 857(a) of the Code to maintain TCI's tax status as
a real estate investment trust, (ii) pursuant to Section 5.2 (a) (i) or
Section 5.3 of Borrower's agreement of limited partnership, or any other
provision of Borrower's agreement of limited partnership, as the same may
hereafter be amended, that requires preferential distributions to be made
or (iii) pursuant to Section 5.2 (a) (iii) of Borrower's agreement of
limited partnership, to the extent that such distributions pursuant to said
Section 5.2 (a) (iii) derive from the disposition of any property owned by
Borrower at any time prior to May 6, 2000. For purposes of this Article,
"Restricted Payment" means any
47
distribution or other payment made out of Funds From Operations by Borrower
to its partners; or
(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.
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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 interest; or fail to pay any fee 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 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 deemed 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 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 and
delivered to Administrative Agent and/or the Banks in connection with the
transactions contemplated hereby and such failure under this clause (b)
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 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,
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, 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
49
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, 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, all or any portion of any Property
or the Improvements thereon or all or a substantial part of its other
assets; or (c) commence any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution or
liquidation Law 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 or all or any portion of any Property
or the Improvements thereon, 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 any
portion of any Property or the Improvements thereon or all or a substantial
part of its other 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 portion of any Property or the Improvements thereon or all
or a substantial part of its other property; or (g) suffer any such
custodianship, receivership or trusteeship for all or any portion of any
Property or the Improvements thereon or all or a substantial part of its
other 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 or any Mortgagor, 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 at any time any portion of Borrower's or any Mortgagor's assets
constitute plan assets for ERISA purposes (within the meaning of ▇.▇.▇.▇▇.
2510.3-101); or 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
50
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, Multiemployer Plan, the PBGC or otherwise (or any combination
thereof) which in the aggregate exceeds or may exceed $500,000; 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 (as
such quoted term is defined in such Mortgage).
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 principal balance of the Notes,
all interest thereon, and all other amounts payable under this Agreement and the
other Loan Documents to be forthwith due and payable, whereupon such balance,
all such interest, and all such amounts due under this Agreement and under the
other Loan Documents 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
51
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 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 (other than those
relating to the payment of principal or interest) 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,
52
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 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, however, 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
53
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 each Mortgagor, and its own decision to enter into this Agreement
and that it will, independently and without reliance upon Administrative Agent
or any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement or any other Loan Document.
Administrative Agent shall not be required to keep itself informed as to the
performance or observance by Borrower or any Mortgagor 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. If any indemnity furnished to
Administrative Agent for any purpose shall, in the opinion of Administrative
Agent, be insufficient or become impaired, Administrative Agent may call for an
additional indemnity and cease, or not commence, the action indemnified against
until such additional indemnity is furnished.
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 resignation or 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
54
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 any other Loan Document which affects its duties, rights, and/or
functions 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 Adjustments.
(a) 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 Federal Funds
Rate for three (3) Banking Days and thereafter at the Base Rate.
(b) If, after Administrative Agent has paid each Bank's share of any
payment received or applied by Administrative Agent in respect of the Loans,
that payment is rescinded or must otherwise be returned or paid over by
Administrative Agent, whether pursuant to any bankruptcy or insolvency Law,
sharing of payments clause of any loan agreement or otherwise, such Bank shall,
at Administrative Agent's request, promptly return its share of such payment or
application to Administrative Agent, together with such Bank's proportionate
share of any interest or other amount required to be paid by Administrative
Agent with respect to such payment or application. In addition, if a court of
competent jurisdiction shall adjudge that any
55
amount received and distributed by Administrative Agent is to be repaid, each
Person to whom any such distribution shall have been made shall either repay to
Administrative Agent its share of the amount so adjudged to be repaid or shall
pay over the same in such manner and to such Persons as shall be determined by
such court.
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 relating thereto. Without limiting the effect of the
foregoing, if any Bank is not created or organized under the Laws of the United
States or any state thereof, such Bank will furnish to Administrative Agent a
U.S. Internal Revenue Service Form W-8ECI in respect of all payments to be made
to such Bank by Borrower or Administrative Agent under this Agreement or any
other Loan Document or a U.S. Internal Revenue Service Form W-8BEN establishing
such Bank's complete exemption from United States withholding tax in respect of
payments to be made to such Bank by Borrower or Administrative Agent under this
Agreement or any other Loan Document, 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.
SECTION 10.14. 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 10.15. 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 10.16. Possession of Documents. Each Bank shall keep possession of
its own Note(s). Administrative Agent shall hold all the other Loan Documents
56
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.
SECTION 10.17. Minimum Commitment by Administrative Agent. Notwithstanding
the provisions of Section 12.05, Administrative Agent agrees, so long as there
exists no Event of Default, 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 Administrative Agent.
ARTICLE XI
NATURE OF OBLIGATIONS
SECTION 11.01. Absolute and Unconditional Obligations. Borrower and each
Mortgagor acknowledge and agree that their 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.
The Obligations 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
57
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 or members (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 or members (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
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.
58
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Binding Effect of Request for Advance. By its acceptance of
any advance of proceeds of the Loans under this Agreement, Borrower 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 other 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 other Loan Document, or waive any default in the payment of principal,
interest or any other amount due hereunder or under any other Loan Document; (3)
change the definition of Required Banks; (4) amend this Section, Section 2.19 or
any other provision requiring the consent or agreement of all the Banks; (5)
waive any default under paragraph (5) of Section 9.01; (6) release any Mortgagor
from its obligations under the Guaranty, 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 any
such case, in accordance with the provisions of Loan Documents; or (7) increase
the Total Loan Commitment, other than in accordance with Section 2.19. 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.
Except to the extent otherwise provided in Section 2.19, (1) all
communications from Administrative Agent to the Banks requesting the Banks'
determination, consent, approval or disapproval (x) shall be given in the form
of a written notice to each Bank, (y) shall be accompanied by or include a
description or copy of the matter or thing as to which such determination,
approval, consent or disapproval is requested and (z) shall include
Administrative Agent's recommended course of action or determination in respect
thereof; (2) each Bank shall reply promptly, but in any event within ten (10)
business days (or five (5) business days with respect to any decision to
accelerate or stop acceleration of the Loans) after receipt of the request
therefor by Administrative Agent (the "Bank Reply Period"); and (3) unless a
Bank shall give written notice to Administrative Agent that it objects to the
recommendation or determination of
59
Administrative Agent (together with a written explanation of the reasons behind
such objection) within the Bank Reply Period, such Bank shall be deemed to have
approved or consented to such recommendation or determination.
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
BAC (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.
In any such action or proceeding Borrower shall have the right to assume
the defense thereof and select counsel reasonably acceptable to BAC; provided,
however, that in no event will such counsel, without the prior written consent
of BAC, not to be unreasonably withheld, be counsel to Borrower or to any of its
Affiliates.
60
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 BAC (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 BAC'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 BAC 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 and under Article III shall
survive the repayment of all amounts due under or in connection with any of the
Loan Documents and the termination of the Loans.
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 (each, a
"Participation") subject, provided there exists no Event of Default, to
Borrower's consent, which consent shall not be unreasonably withheld or delayed.
In the event of any such grant by a Bank of a Participation, whether or not
61
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 a Participation 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, however, that
such participation agreement may provide that such Bank will not agree to any
modification, amendment or waiver described in clauses (1) through (6) in the
first paragraph of Section 12.02 without the consent of the Participant.
Any Bank may at any time assign to any bank or other institution with the
consent, provided there exists no Event of Default, of Administrative Agent and
of Borrower, which consents 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 or to
a Related Entity (each Consented Assignee, subsidiary bank or institution or
Related Entity, an "Assignee") all, or a proportionate part of all, of its
rights and obligations under this Agreement and its Note(s), 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 $3,500, 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 Note(s). 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. In connection with Borrower's execution of substitute Notes as
aforesaid, Borrower shall deliver to Administrative Agent such evidence of the
due authorization, execution and delivery of the substitute Notes and any
related documents as Administrative Agent may reasonably request. If the
Assignee is not incorporated under the Laws of the United States 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.
Any Bank may at any time freely 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.
62
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. Addition and Release of Properties. (a) (a) Subject to the
conditions set forth below in this Section, Borrower shall have the right to (1)
cause a shopping center property that is wholly owned by a Person in which
Borrower owns, directly or indirectly, a 100% beneficial and controlling
interest and that is approved by all of the Banks, in their sole and absolute
discretion, to be encumbered by a Mortgage and thereby become a Property and (2)
obtain the release of a Property (other than Twelve Oaks) from the Mortgage
encumbering such Property, each such addition or release of a Property to effect
an immediate change in the computations of compliance with the covenants set
forth in Section 8.01 (based on the financial results of the most recently ended
calendar quarter for which financial results are required hereunder to have been
reported by Borrower, as adjusted (if applicable) by all acquisitions or
Dispositions of assets subsequent to the end of such quarter as required by this
Agreement and taking into account the effects of the addition or release of the
Property).
(b) The addition of a property as a Property shall only be in connection
with an increase in the Total Loan Commitment as provided in Section 2.19 and
shall be subject to the satisfaction of the following conditions:
(i) There shall exist no Event of Default;
(ii) Administrative Agent shall have received (x) a mortgage/deed of
trust of the Property to secure the payment and performance of the
Obligations, duly executed by the owner thereof and recorded in the
appropriate land records, together with executed financing statements under
the Uniform Commercial Code of all jurisdictions necessary or, in the
opinion of Administrative Agent, desirable to perfect the lien on the
personal property created by said mortgage/deed of trust, (y) an indemnity
agreement regarding Hazardous Materials, duly executed by Borrower and said
owner and (z) a guaranty of payment of Borrower's obligations hereunder and
under the Notes, duly executed by said owner (each such mortgage/deed of
trust, indemnity and guaranty to be substantially in the form of the
Mortgages, Indemnities and Guaranty with respect to the Properties
initially given as security for the Loans but with such changes as
Administrative Agent reasonably deems necessary or advantageous under local
law or in connection with the particular Property);
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(iii) Each of the Property-related and Mortgagor-related
representations and warranties set forth in this Agreement shall be true
and correct in all material respects with respect to the Property and the
owner thereof;
(iv) The proposed Property shall not be suffering any material
casualty and no eminent domain proceedings material to the proposed
Property shall have been commenced (or threatened) with respect to all or
any part thereof;
(v) Administrative Agent shall have received an operating statement
with respect to the proposed Property for the most recent Fiscal Year and
for the most recently ended calendar quarter, and such other financial
information regarding the proposed Property and the owner thereof as
Administrative Agent may reasonably request;
(vi) Administrative Agent shall have received (x) each of the items
listed in paragraphs (5) through (15) of Section 4.01 with respect to the
proposed Property, (y) documents with respect to the owner of the proposed
Property of the sort required by paragraphs (15), (16), (17), (18), (19)
and (20) of Section 4.01 and (z) such endorsements to the title insurance
policies insuring the Mortgages as Administrative Agent shall reasonably
require;
(vii) Administrative Agent shall have received a certificate of the
sort required by clause (b) of paragraph (3) of Section 6.09, which shall
demonstrate Borrower's compliance, as of the date of the addition of the
proposed Property as a Property (based on the financial results of the most
recently ended calendar quarter for which financial results are required
hereunder to have been reported by Borrower, as adjusted (if applicable) by
all acquisitions or Dispositions of assets subsequent to the end of such
quarter as required by this Agreement and taking into account the addition
of the proposed Property) with the covenants of Borrower enumerated in said
clause (b);
(viii) Administrative Agent shall have received such other documents,
opinions (including opinions of counsel) and assurances as it may
reasonably request; and
(ix) Administrative Agent shall have received payment of its
reasonable out-of-pocket expenses in connection with the addition of the
proposed Property, including reasonable fees and expenses of counsel.
(c) The release of any Property shall only be in connection with Borrower's
sale, exchange or other disposition or refinancing thereof and shall be subject
to the satisfaction of the following conditions:
(i) There shall exist no Default or Event of Default;
(ii) Administrative Agent shall have received at least forty-five (45)
days' prior notice of the date of the proposed release;
(iii) Administrative Agent shall have received and approved a
certificate of the sort required by clause (b) of paragraph (3) of Section
6.09, which shall demonstrate Borrower's compliance, as of the end of the
most recently ended calendar quarter for
64
which financial results are required hereunder to have been reported by
Borrower (and taking into account the release of the Property), with the
covenants of Borrower enumerated in said clause (b) (if necessary, Borrower
may make a payment in reduction of the outstanding principal balance of the
Notes in an amount such that said covenants are complied with);
(iv) The Total Loan Commitment does not exceed 65% of the "as is"
value of the relevant Mortgagor's respective interests in the Property or
Properties which will remain as security for the Loans, as evidenced, at
the option of the Required Banks, by an update to the appraisal(s)
delivered pursuant to paragraph (7) of Section 4.01 or subparagraph (b)(vi)
of this Section, as the case may be, which updated appraisal(s) shall be
commissioned by Administrative Agent at Borrower's expense and shall be
satisfactory to the Required Banks; and
(v) Administrative Agent shall have received payment of its
out-of-pocket expenses in connection with such release, including
reasonable fees and expenses of counsel.
Upon the release of a Property as aforesaid, the relevant Mortgagor shall
be released and discharged automatically from its obligations under the Guaranty
and under the Indemnity executed by it, and Administrative Agent shall deliver a
letter to such Mortgagor confirming said release and discharge.
SECTION 12.07. 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 12.08. Notices, Etc. Except as expressly provided otherwise, all
notices, demands, consents, approvals and statements required or permitted
hereunder shall be in writing and shall be deemed to have been sufficiently
given or served for all purposes when presented personally, three (3) days after
mailing by registered or certified mail, postage prepaid, or one (1) day after
delivery to a nationally recognized overnight courier service providing evidence
of the date of delivery, addressed to a party at its address on the signature
page hereof or of the applicable Assignment and Assumption Agreement, or at such
other address of which a party shall have notified the party giving such notice
in writing in accordance with the foregoing requirements.
SECTION 12.09. Setoff. 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
65
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.
SECTION 12.10.Gross-Up for Taxes. All payments made by Borrower under this
Agreement and the Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding income taxes and franchise or other taxes
(imposed in lieu of income taxes) imposed on a Bank as a result of a present or
former connection between such Bank and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from such
Bank's having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement or its Note). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts
payable to such Bank hereunder or under its Note, the amounts so payable to such
Bank shall be increased to the extent necessary to yield to such Bank (after
payment of all Non-Excluded Taxes) interest or any such other amounts payable
with respect to its Loan at the rates or in the amounts specified in this
Agreement and its Note; provided, however, that Borrower shall not be required
to increase any such amounts payable to such Bank if such Bank is not organized
under the Laws of the United States or a state thereof and such Bank fails to
comply with the requirements of Section 10.13. Whenever any Non-Excluded Taxes
are payable by Borrower, as promptly as possible thereafter Borrower shall send
to Administrative Agent for the account of such Bank a certified copy of an
original official receipt received by Borrower showing payment thereof. If
Borrower fails to pay any Non-Excluded Taxes when due to the appropriate taxing
authority or fails to remit to Administrative Agent the required receipts or
other required documentary evidence, Borrower shall indemnify such Bank for any
incremental taxes, interest or penalties that may become payable by such Bank as
a result of any such failure. The agreements in this Section shall survive the
termination of this Agreement and the payment of the Notes and all other amounts
payable hereunder.
SECTION 12.11. Twelve Oaks Partial Releases. Provided there exists no Event
of Default, Administrative Agent shall release the lien of the Mortgage
encumbering Twelve Oaks from portions of the unimproved parcel described as
Parcel D (the "Lake Parcel") in Schedule A to such Mortgage, such parcel being
the only portion of the Twelve Oaks premises located outside of the shopping
center's "ring road" (each such portion, a "Release Parcel") in connection with
TOLLC's simultaneous conveyance thereof; provided, however, that no portion of
the lake located on the Lake Parcel shall be released. All such releases shall
be subject, in each case, to Administrative Agent's receipt of (A) evidence that
the balance of the Twelve Oaks premises constitutes one or more separate tax and
zoning lots and an endorsement to the title insurance policy for said Mortgage
insuring that the lien thereof will not be impaired by virtue of the release of
the Release Parcel, (B) a current survey of the Twelve Oaks premises,
specifically delineating (by metes and bounds) the Release Parcel, certified to
Administrative Agent and the Title Insurer, (C) evidence that the Release Parcel
is not necessary for the operation, maintenance (including, but not limited to,
drainage from and water supply to the Twelve Oaks premises) of
66
and access to the Twelve Oaks Premises, (D) such other documents, opinions and
assurances as Administrative Agent may reasonably request (all of the foregoing
items (A) through (D) to be received by Administrative Agent at least seven (7)
business days prior to the proposed release and be in form and substance
reasonably satisfactory to Administrative Agent) and (E) payment of
Administrative Agent's out-of-pocket expenses, including the fees and expenses
of counsel, in connection with the foregoing transactions.
SECTION 12.12. 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 12.13. 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 12.14. 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 12.15. 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 12.16. Governing Law. This Agreement shall be governed by, and
interpreted, construed and enforced in accordance with, the Laws of the State of
New York (without giving effect to New York's principles of conflicts of law).
SECTION 12.17. 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 hereto or 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 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
or any Mortgagor; 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
any other Loan Document.
67
SECTION 12.18. 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.
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
68
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.
[Remainder of page intentionally left blank.]
69
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered 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:
▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
70
BANK OF AMERICA, N.A.
(as Administrative Agent)
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Principal
Address for notices:
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Mail Code: IL1-231-12-18
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Mail Code: TX4-213-05-06
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Mail Code: IL1-231-12-18
Attention: Real Estate Loan Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Administrative Agent's Office:
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Mail Code: IL1-231-12-18
Attention: Real Estate Loan Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
71
BANK OF AMERICA, N.A.
(as a Bank)
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Principal
Address for notices:
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Street, 12th Floor
Mail Code IL1-231-12-18
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Mail Code: TX4-213-05-06
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
1301 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Applicable Lending Office:
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Street, 12th Floor
Mail Code IL1-231-12-18
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72
PNC BANK, NATIONAL ASSOCIATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
Address for notices and Applicable Lending Office:
PNC Bank, National Association
1 PNC Plaza
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Attention: Real Estate Finance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
COMERICA BANK
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
Address for notices and Applicable Lending Office:
Comerica Bank
Comerica Tower at Detroit Center
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
Mail Code: 3270
Detroit, Michigan 48226-3270
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
73
FLEET NATIONAL BANK
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
Address for notices and Applicable Lending Office:
Fleet National Bank
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Mail Stop: MA-DE-10009A
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Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
BAYERISCHE HYPO- UND
VEREINSBANK AG, NEW YORK BRANCH
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Associate Director
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
Address for notices and Applicable Lending Office:
Bayerische Hypo- und Vereinsbank AG,
New York Branch
Real Estate Lending
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Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ AND
GRAND CAYMAN BRANCHES
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
By /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
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Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
Address for notices and Applicable Lending Office:
Commerzbank AG, New York Branch
2 World Financial Center
New York, New York 10281
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇
AND GRAND CAYMAN BRANCHES
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Associate
Address for notices:
Dresdner Bank AG
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Applicable Lending Office for Base Rate Loan
and LIBOR Loan:
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
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76
BAYERISCHE LANDESBANK
By /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: First Vice President
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Address for notices and Applicable Lending Office:
Bayerische Landesbank
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
BANK ONE, MICHIGAN
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Address for notices and Applicable Lending Office:
Bank One, Michigan
Commercial Real Estate
Mail Code M11-8029
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
77
LASALLE BANK NATIONAL ASSOCIATION
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Relationship Manager
Address for notices and Applicable Lending Office:
LaSalle Bank National Association
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
KEYBANK NATIONAL ASSOCIATION
By /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
Address for notices and Applicable Lending Office:
KeyBank National Association
Commercial Real Estate
Mail Code OH-01-27-0839
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Address for notices and Applicable Lending Office:
Landesbank Hessen-Thuringen Girozentrale
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
79
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS; ETC.....................................................1
SECTION 1.01. Definitions..........................................................1
SECTION 1.02. Accounting Terms....................................................16
SECTION 1.03. Computation of Time Periods.........................................16
SECTION 1.04. Rules of Construction...............................................16
ARTICLE II THE LOANS...........................................................16
SECTION 2.01. The Loans...........................................................16
SECTION 2.02. Purpose.............................................................17
SECTION 2.03. Advances, Generally.................................................17
SECTION 2.04. Procedures for Advances.............................................17
SECTION 2.05. Additional Conditions to Advances...................................18
SECTION 2.06. Interest Periods; Renewals..........................................18
SECTION 2.07. Interest............................................................18
SECTION 2.08. Fees................................................................19
SECTION 2.09. Notes...............................................................19
SECTION 2.10. Prepayments.........................................................20
SECTION 2.11. Termination of Commitments..........................................20
SECTION 2.12. Method of Payment...................................................20
SECTION 2.13. Elections, Conversions or Continuation of Loans.....................21
SECTION 2.14. Minimum Amounts.....................................................21
SECTION 2.15. Certain Notices Regarding Elections, Conversions and Continuations
of Loans............................................................21
SECTION 2.16. Late Payment Premium................................................21
SECTION 2.17. Letters of Credit...................................................22
SECTION 2.18. Extension Of Maturity...............................................23
SECTION 2.19. Additional Loan Commitments.........................................24
ARTICLE III YIELD PROTECTION; ILLEGALITY; ETC...................................27
SECTION 3.01. Additional Costs....................................................27
SECTION 3.02. Limitation on Types of Loans........................................28
SECTION 3.03. Illegality..........................................................29
SECTION 3.04. Treatment of Affected Loans.........................................29
SECTION 3.05. Certain Compensation................................................30
SECTION 3.06. Capital Adequacy....................................................30
SECTION 3.07. Replacement of Banks................................................31
ARTICLE IV CONDITIONS PRECEDENT................................................32
SECTION 4.01. Conditions Precedent to the Initial Advance.........................32
SECTION 4.02. Conditions Precedent to Advances After the Initial Advance..........36
(i)
SECTION 4.03. Deemed Representations..............................................36
ARTICLE V REPRESENTATIONS AND WARRANTIES......................................36
SECTION 5.01. Due Organization....................................................36
SECTION 5.02. Power and Authority; No Conflicts; Compliance With Laws.............37
SECTION 5.03. Legally Enforceable Agreements......................................37
SECTION 5.04. Litigation..........................................................37
SECTION 5.05. Good Title to Properties............................................37
SECTION 5.06. Taxes...............................................................38
SECTION 5.07. ERISA...............................................................38
SECTION 5.08. No Default on Outstanding Judgments or Orders.......................38
SECTION 5.09. No Defaults on Other Agreements.....................................38
SECTION 5.10. Government Regulation...............................................39
SECTION 5.11. Environmental Protection............................................39
SECTION 5.12. Solvency............................................................39
SECTION 5.13. Financial Statements................................................39
SECTION 5.14. Valid Existence of Material Affiliates..............................40
SECTION 5.15. Insurance...........................................................40
SECTION 5.16. Separate Tax and Zoning Lot.........................................40
SECTION 5.17. Zoning and other Laws; Covenants and Restrictions...................40
SECTION 5.18. Utilities Available.................................................40
SECTION 5.19. Creation of Liens...................................................40
SECTION 5.20. Roads...............................................................40
SECTION 5.21. Premises Documents and Leases.......................................40
SECTION 5.22. Accuracy of Information; Full Disclosure............................41
ARTICLE VI AFFIRMATIVE COVENANTS...............................................41
SECTION 6.01. Maintenance of Existence............................................41
SECTION 6.02. Maintenance of Records..............................................41
SECTION 6.03. Maintenance of Insurance............................................41
SECTION 6.04. Compliance with Laws; Payment of Taxes..............................42
SECTION 6.05. Right of Inspection.................................................42
SECTION 6.06. Compliance With Environmental Laws..................................42
SECTION 6.07. Payment of Costs....................................................42
SECTION 6.08. Maintenance of Properties...........................................42
SECTION 6.09. Reporting and Miscellaneous Document Requirements...................42
SECTION 6.10. Premises Documents; Leases..........................................44
SECTION 6.11. Compliance with Covenants, Restrictions and Easements...............45
SECTION 6.12. Management, Leasing and Service Contracts...........................45
SECTION 6.13. Correction of Defects; Remediation..................................45
SECTION 6.14. Estoppel Certificates...............................................45
ARTICLE VII NEGATIVE COVENANTS..................................................46
SECTION 7.01. Mergers Etc.........................................................46
SECTION 7.02. Investments.........................................................46
(ii)
SECTION 7.03. Sale of Assets......................................................46
SECTION 7.04. Interest Rate Hedging...............................................46
SECTION 7.05. Control of Borrower.................................................47
SECTION 7.06. Certain Restrictions on Activities of TCI...........................47
ARTICLE VIII FINANCIAL COVENANTS AND ADJUSTMENTS.................................47
SECTION 8.01. Financial Covenants.................................................47
SECTION 8.02. Certain Pro-Forma Adjustments.......................................48
ARTICLE IX EVENTS OF DEFAULT...................................................49
SECTION 9.01. Events of Default...................................................49
SECTION 9.02. Remedies............................................................51
ARTICLE X ADMINISTRATIVE AGENT; RELATIONS AMONG BANKS.........................51
SECTION 10.01. Appointment, Powers and Immunities of Administrative Agent..........51
SECTION 10.02. Reliance by Administrative Agent....................................52
SECTION 10.03. Defaults............................................................52
SECTION 10.04. Rights of Administrative Agent as a Bank............................53
SECTION 10.05. Sharing of Costs by Banks; Indemnification of Administrative Agent..53
SECTION 10.06. Non-Reliance on Administrative Agent and Other Banks................53
SECTION 10.07. Failure of Administrative Agent to Act..............................54
SECTION 10.08. Resignation or Removal of Administrative Agent......................54
SECTION 10.09. Amendments Concerning Agency Function...............................55
SECTION 10.10. Liability of Administrative Agent...................................55
SECTION 10.11. Transfer of Agency Function.........................................55
SECTION 10.12. Non-Receipt of Funds by Administrative Agent Adjustments............55
SECTION 10.13. Withholding Taxes...................................................56
SECTION 10.14. Pro Rata Treatment..................................................56
SECTION 10.15. Sharing of Payments Among Banks.....................................56
SECTION 10.16. Possession of Documents.............................................56
SECTION 10.17. Minimum Commitment by Administrative Agent..........................57
ARTICLE XI NATURE OF OBLIGATIONS...............................................57
SECTION 11.01. Absolute and Unconditional Obligations..............................57
SECTION 11.02. Non-Recourse........................................................57
ARTICLE XII MISCELLANEOUS.......................................................59
SECTION 12.01. Binding Effect of Request for Advance...............................59
SECTION 12.02. Amendments and Waivers..............................................59
SECTION 12.03. Usury...............................................................60
SECTION 12.04. Expenses; Indemnification...........................................60
(iii)
SECTION 12.05. Assignment; Participation...........................................61
SECTION 12.06. Addition and Release of Properties..................................63
SECTION 12.07. Documentation Satisfactory..........................................65
SECTION 12.08. Notices, Etc........................................................65
SECTION 12.09. Setoff..............................................................65
SECTION 12.10. Gross-Up for Taxes..................................................66
SECTION 12.11. Twelve Oaks Partial Releases........................................66
SECTION 12.12. Table of Contents; Headings.........................................67
SECTION 12.13. Severability........................................................67
SECTION 12.14. Counterparts........................................................67
SECTION 12.15. Integration.........................................................67
SECTION 12.16. Governing Law.......................................................67
SECTION 12.17. Waivers.............................................................67
SECTION 12.18. JURISDICTION; IMMUNITIES............................................68
(iv)