EXHIBIT 10.2
REVOLVING AND TERM CREDIT AGREEMENT
DATED AS OF
APRIL 16, 2003
AMONG
GGP LIMITED PARTNERSHIP
AND
GGPLP L.L.C.,
AS BORROWER,
THE INSTITUTIONS PARTY HERETO,
AS LENDERS,
EUROHYPO AG, NEW YORK BRANCH,
AS ADMINISTRATIVE AGENT, JOINT LEAD ARRANGER AND
JOINT BOOK MANAGER,
AND
BANK OF AMERICA, N.A.,
AS CO-SYNDICATION AGENT
WITH
BANC OF AMERICA SECURITIES LLC,
AS JOINT LEAD ARRANGER AND
JOINT BOOK MANAGER
▇▇▇▇▇▇ COMMERCIAL PAPER INC.,
AS CO-SYNDICATION AGENT
FLEET NATIONAL BANK,
AS CO-DOCUMENTATION AGENT
U.S. BANK NATIONAL ASSOCIATION,
AS CO-DOCUMENTATION AGENT
AND
COMMERZBANK AG NEW YORK BRANCH,
AS CO-DOCUMENTATION AGENT
TABLE OF CONTENTS
Page
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ARTICLE I - DEFINITIONS........................................................................1
1.1 Certain Defined Terms...................................................................1
1.2 Computation of Time Periods............................................................24
1.3 Accounting Terms.......................................................................24
1.4 Other Terms............................................................................24
1.5 Use of Defined Term "Borrower".........................................................24
ARTICLE II - AMOUNTS AND TERMS OF LOANS........................................................25
2.1 Loans..................................................................................25
2.2 Amortization...........................................................................28
2.3 Termination Date.......................................................................28
2.4 Use of Proceeds of Loans...............................................................28
2.5 Maximum Credit Facility................................................................28
2.6 Special Reduction in Commitments.......................................................28
2.7 Authorized Agents......................................................................29
ARTICLE III - INCREASE OF THE FACILITY..........................................................30
3.1 Increase in Maximum Aggregate Commitment Amount........................................30
3.2 Joinder of New Lender..................................................................30
3.3 Increase in Commitment of Existing Lender..............................................31
3.4 Breakage Costs Due to Reallocation of Commitments......................................32
ARTICLE IV - PAYMENTS AND PREPAYMENTS..........................................................32
4.1 Prepayments; Reductions in Commitments.................................................32
4.2 Payments...............................................................................34
4.3 Promise to Repay; Evidence of Indebtedness.............................................36
ARTICLE V - INTEREST AND FEES.................................................................37
5.1 Interest on the Loans and Other Obligations............................................37
5.2 Special Provisions Governing Eurodollar Rate Loans.....................................39
5.3 Fees...................................................................................43
ARTICLE VI - CONDITIONS TO LOANS...............................................................43
6.1 Conditions Precedent to the Loans......................................................43
6.2 Conditions Precedent to All Subsequent Loans...........................................45
ARTICLE VII - REPRESENTATIONS AND WARRANTIES....................................................46
7.1 Representations and Warranties of the Borrower.........................................46
ARTICLE VIII - REPORTING COVENANTS...............................................................55
8.1 Borrower Accounting Practices..........................................................55
8.2 Financial Reports......................................................................55
8.3 Events of Default......................................................................59
8.4 Lawsuits...............................................................................59
8.5 Insurance..............................................................................59
8.6 ERISA Notices..........................................................................59
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8.7 Environmental Notices..................................................................61
8.8 Labor Matters..........................................................................62
8.9 Notices of Asset Sales and/or Acquisitions.............................................62
8.10 [Intentionally Omitted]................................................................62
8.11 Other Reports..........................................................................62
8.12 Other Information......................................................................62
ARTICLE IX - AFFIRMATIVE COVENANTS.............................................................63
9.1 Existence, Etc.........................................................................63
9.2 Powers; Conduct of Business............................................................63
9.3 Compliance with Laws, Etc..............................................................63
9.4 Payment of Taxes and Claims............................................................63
9.5 Insurance..............................................................................63
9.6 Inspection of Property; Books and Records; Discussions.................................64
9.7 ERISA Compliance.......................................................................64
9.8 Maintenance of Property................................................................64
9.9 REIT Status............................................................................64
9.10 Ownership of Property..................................................................64
9.11 Tax Shelter Regulations................................................................64
ARTICLE X - NEGATIVE COVENANTS................................................................65
10.1 Sales of Assets........................................................................65
10.2 Liens..................................................................................65
10.3 Conduct of Business....................................................................65
10.4 Transactions with Partners and Affiliates..............................................66
10.5 Restriction on Fundamental Changes and Changes of Control..............................66
10.6 Margin Regulations; Securities Laws....................................................66
10.7 ERISA..................................................................................66
10.8 Organizational Documents...............................................................67
10.9 Fiscal Year............................................................................67
10.10 Preferred Securities...................................................................67
10.11 Investments............................................................................68
10.12 Other Financial Covenants..............................................................69
ARTICLE XI - EVENTS OF DEFAULT; RIGHTS AND REMEDIES............................................70
11.1 Events of Default......................................................................70
11.2 Rights and Remedies....................................................................74
ARTICLE XII - THE AGENT.........................................................................75
12.1 Appointment............................................................................75
12.2 Powers.................................................................................75
12.3 General Immunity.......................................................................75
12.4 No Responsibility for Loans, Recitals, etc.............................................76
12.5 Action on Instructions of Lenders......................................................76
12.6 Employment of Administrative Agents and Counsel........................................76
12.7 Reliance on Documents..................................................................76
12.8 Administrative Agent's Reimbursement and Indemnification...............................76
12.9 Rights as a Lender.....................................................................77
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12.10 Lender Credit Decision.................................................................77
12.11 Successor Administrative Agent.........................................................78
12.12 Notice of Defaults.....................................................................78
12.13 Requests for Approval..................................................................79
12.14 Copies of Documents....................................................................79
12.15 Withholding Tax........................................................................79
12.16 Borrower's Default; Enforcement........................................................79
12.17 Workout................................................................................80
12.18 Bankruptcy of Borrower.................................................................80
12.19 Relationship of Parties................................................................80
12.20 Counsel................................................................................80
ARTICLE XIII - YIELD PROTECTION..................................................................81
13.1 Taxes..................................................................................81
13.2 Increased Capital......................................................................83
13.3 Changes; Legal Restrictions............................................................83
ARTICLE XIV - [Intentionally Omitted.]..........................................................84
ARTICLE XV - MISCELLANEOUS.....................................................................84
15.1 Assignments and Participations.........................................................84
15.2 Expenses...............................................................................87
15.3 Indemnity..............................................................................88
15.4 Change in Accounting Principles........................................................88
15.5 Setoff.................................................................................88
15.6 Ratable Sharing........................................................................89
15.7 Amendments and Waivers.................................................................89
15.8 Notices................................................................................91
15.9 Survival of Warranties and Agreements..................................................91
15.10 Failure or Indulgence Not Waiver; Remedies Cumulative..................................92
15.11 Marshalling: Payments Set Aside........................................................92
15.12 Severability...........................................................................92
15.13 Headings...............................................................................92
15.14 Governing Law..........................................................................92
15.15 Limitation of Liability................................................................92
15.16 Successors and Assigns.................................................................92
15.17 Certain Consents and Waivers...........................................................93
15.18 Counterparts; Effectiveness; Inconsistencies...........................................94
15.19 Limitation on Agreements...............................................................94
15.20 Confidentiality........................................................................95
15.21 Disclaimers............................................................................95
15.22 No Third Party Beneficiaries...........................................................96
15.23 Entire Agreement.......................................................................96
15.24 Nature of the Borrower's Liability.....................................................96
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REVOLVING AND TERM CREDIT AGREEMENT
THIS
REVOLVING AND TERM CREDIT AGREEMENT dated as of April 16, 2003 (as the
same may be amended, supplemented or modified from time to time, the
"AGREEMENT") is entered into among GGP LIMITED PARTNERSHIP, a Delaware limited
partnership (the "PARTNERSHIP"), GGPLP L.L.C., a Delaware limited liability
company (the "COMPANY"; the Partnership and the Company being referred to
herein, individually or collectively, as the context shall infer, as the
"BORROWER"), the institutions from time to time parties hereto as Lenders,
EUROHYPO AG, NEW YORK BRANCH ("EUROHYPO"), as a Lender and as administrative
agent ("ADMINISTRATIVE AGENT") for the Lenders, and BANK OF AMERICA, N.A., a
national banking association ("BANK OF AMERICA"), as a Lender and as a
co-syndication agent (referred to in such capacity as a "SYNDICATION AGENT") for
the Lenders (the Administrative Agent and the Syndication Agent being referred
to herein collectively as the "LEAD AGENTS").
The parties hereto agree as follows:
ARTICLE I - DEFINITIONS
1.1 CERTAIN DEFINED TERMS. The following terms used in this Agreement
shall have the following meanings, applicable both to the singular and the
plural forms of the terms defined:
"ADDENDUM" is defined in SECTION 3.3.
"ADJUSTED EBITDA" means, with respect to any Property, for the immediately
preceding consecutive four calendar quarters, an amount equal to (i) total
revenues relating to such Property for such period, LESS (ii) the sum of total
operating expenses relating to such Property (including applicable management
fees and costs) for such period determined in accordance with GAAP (excluding
any such expenses funded from the Capital Improvement Reserve) and the Capital
Improvement Reserve for such period, PLUS (iii) to the extent subtracted
pursuant to clause (ii) above, interest, income taxes (but not real estate
taxes), depreciation, amortization and other non-cash charges determined in
accordance with GAAP, which amount shall be adjusted for nonrecurring items such
as sales of Properties or Minority Holdings and to eliminate the straight-lining
of rents; PROVIDED, HOWEVER, that for each Property which has been owned by
Borrower, a Consolidated Business or a Minority Holding or open for business for
a period of less than four calendar quarters, Adjusted EBITDA shall be
calculated on the basis of Adjusted EBITDA determined as of the first day of
each calendar quarter for the immediately preceding consecutive one, two or
three calendar quarters, as applicable with respect to the length of ownership
or since opening, annualized; PROVIDED FURTHER, HOWEVER, that for each Property
which has been owned by Borrower, a Consolidated Business or a Minority Holding
or open for business for a period of less than one quarter, Adjusted EBITDA
shall be calculated on a PRO FORMA basis reasonably acceptable to the
Administrative Agent. Examples of such calculations are set forth in EXHIBIT G
hereto. Adjusted EBITDA shall be determined by reference to the Borrower's
statement of operations for the applicable period. Notwithstanding anything to
the contrary contained herein, (1) Adjusted EBITDA shall not include any
revenues generated by or allocable to any Property to the extent that the
Investment in such Property constitutes an Event of Default or Potential Event
of Default under SECTION 10.11 hereof; (2) Adjusted EBITDA shall not include any
revenues generated by or allocable to any Real Estate
Under Construction with respect to which the Borrower elects to include
Construction Asset Cost in Capitalization Value; PROVIDED, HOWEVER, that such
revenues may be included to the extent that (A) the construction in question
constitutes renovation or expansion of a Property that is otherwise completed,
open for business and operational, (B) the construction in question will not
materially interrupt, limit or impair such ongoing business and operations, and
(C) the inclusion of both such revenues in Adjusted EBITDA and such Construction
Asset Cost in Capitalization Value is not duplicative; and (3) the headquarters
building located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ is not a Property
for purposes of this definition.
"ADMINISTRATIVE AGENT" is defined in the preamble and includes Eurohypo AG,
New York Branch in its capacity as administrative agent for the Lenders and each
successor administrative agent appointed in accordance with the terms of this
Agreement
"AFFILIATE", as applied to any Person, means any other Person that directly
or indirectly controls, is controlled by, or is under common control with, that
Person. For purposes of this definition, "control" (including, with correlative
meanings, the terms "controlling", "controlled by" and "under common control
with"), as applied to any Person, means the possession, directly or indirectly,
of the power to vote fifteen percent (15.0%) or more of the equity Securities
having voting power for the election of directors of such Person or otherwise to
direct or cause the direction of the management and policies of that Person,
whether through the ownership of voting equity Securities or by contract or
otherwise.
"AGENTS" is defined in SECTION 2.6.
"AMORTIZATION PAYMENT AMOUNT" is defined in SECTION 2.2.
"APPLICABLE LENDING OFFICE" means, with respect to a particular Lender, (i)
its Eurodollar Lending Office in respect of provisions relating to Eurodollar
Rate Loans, and (ii) its Domestic Lending Office in respect of provisions
relating to Base Rate Loans.
"APPLICABLE MARGIN" means, with respect to each Loan, the respective
percentages per annum determined, at any time, based on the range into which the
Leverage Ratio then falls, in accordance with the following table. Any change in
the Applicable Margin shall be effective as of the applicable financial
reporting date set forth in SECTION 8.2 hereof (exclusive of SECTION 8.2(b)(iv)
hereof), and as of the date of the consummation and funding of each Capital
Event.
Applicable Margin (% per annum)
------------------------------
Base
Term Eurodollar Revolver Eurodollar Rate Loans
Leverage Ratio Rate Loans Rate Loans (Term and Revolver)
-------------- ---------- ---------- -----------------
less than 50% 1.15% 1.00% 0.00%
50% to less than 60% 1.35% 1.15% 0.00%
60% or greater 1.75% 1.50% 0.25%
"ASSIGNMENT AND ACCEPTANCE" means an Assignment and Acceptance in
substantially the form of EXHIBIT A attached hereto and made a part hereof (with
blanks appropriately completed)
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delivered to the Administrative Agent in connection with an assignment of a
Lender's interest under this Agreement in accordance with the provisions of
SECTION 15.1.
"AUTHORIZED FINANCIAL OFFICER" means a chief executive officer, chief
financial officer, treasurer or other qualified senior officer acceptable to the
Administrative Agent.
"BANK OF AMERICA" is defined in the preamble to this Agreement.
"BASE EURODOLLAR RATE" means, with respect to any Eurodollar Interest
Period applicable to a Borrowing of Eurodollar Rate Loans, an interest rate per
annum displayed on the Rate Page for the purpose of displaying interest rates at
which U.S. Dollar deposits are offered by major banks in the London interbank
market as of 11:00 a.m., London time, on the applicable Eurodollar Interest Rate
Determination Date, for deposits in Dollars, in immediately available funds, in
an amount comparable to the amount of the applicable Eurodollar Rate Loan on
such date, and for a duration comparable to the applicable Eurodollar Interest
Period; PROVIDED, HOWEVER, that if such rate does not appear on the Rate Page,
the "Base Eurodollar Rate" applicable to a particular Eurodollar Interest Period
shall mean a rate per annum equal to the rate at which U.S. Dollar deposits in
an amount approximately equal to the principal balance (or the portion thereof
which will bear interest at a rate determined by reference to the Base
Eurodollar Rate during the Interest Period to which such Base Eurodollar Rate is
applicable in accordance with the provisions hereof), and with maturities
comparable to the last day of the Eurodollar Interest Period with respect to
which such Base Eurodollar Rate is applicable, are offered in immediately
available funds in the London Interbank Market to the London office of Eurohypo
AG by leading banks in the eurodollar market at 11:00 a.m., London time, on the
applicable Eurodollar Interest Rate Determination Date.
"BASE RATE" means, for any period, a fluctuating interest rate per annum as
shall be in effect from time to time, which rate per annum shall at all times be
equal to the higher of:
(i) the rate of interest announced publicly by Bank of
America from time to time, as its prime rate (or such equivalent term as is
then used by Bank of America); and
(ii) the sum of (A) one-half of one percent (0.50%) per
annum PLUS (B) the Federal Funds Rate in effect from time to time during
such period.
"BASE RATE LOAN" means (i) a Loan which bears interest at the Base Rate, or
(ii) an overdue amount which was a Base Rate Loan immediately before it became
due.
"BENEFIT PLAN" means a "defined benefit plan" as defined in Section 3(35)
of ERISA and any other "pension plan" as defined in Section 3(2) of ERISA
subject to Section 302 of ERISA (other than a Multiemployer Plan) in respect of
which the Borrower or any ERISA Affiliate is, or within the immediately
preceding six (6) years was, an "employer" as defined in Section 3(5) of ERISA
or in respect of which the Borrower or any ERISA Affiliate has assumed any
liability.
"BORROWER" is defined in the preamble to this Agreement.
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"BORROWER OPERATING AGREEMENT" means the Second Amended and Restated
Operating Agreement of the Company dated April 17, 2002, as amended by First
Amendment dated April 23, 2002, Second Amendment dated May 13, 2002, Third
Amendment dated October 30, ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ dated April 7, 2003, and
Fifth Amendment dated April 11. 2003 as such agreement may be amended, restated,
modified or supplemented from time to time with the consent of the
Administrative Agent or as permitted under SECTION 10.8.
"BORROWER PARTNERSHIP AGREEMENT" means the Second Amended and Restated
Agreement of Limited Partnership of the Partnership dated April 1, 1998, as
amended by First Amendment dated as of June 10, 1998, Second Amendment dated as
of June 29, 1998, Third Amendment dated February 15, 2002, Amendment dated as of
April 24, 2002, Fourth Amendment dated July 10, 2002, and Amendment dated
November 27, 2002 and as supplemented by joinders of certain third parties as
limited partners in the Partnership, as such agreement may be amended, restated,
modified or supplemented from time to time with the consent of the
Administrative Agent or as permitted under SECTION 10.8.
"BORROWING" means a borrowing by a Borrower consisting of Loans of the same
type made, continued or converted on the same day.
"BUSINESS DAY" means a day, in the applicable local time, which is not a
Saturday or Sunday or a legal holiday and on which banks are not required or
permitted by law or other governmental action to close (i) in New York, New
York, and (ii) in the case of Eurodollar Rate Loans, in London, England.
"CAPITAL EVENT" means any sale or issuance (or series of related sales or
issuances) by GGP, Inc., the Borrower or any of its Subsidiaries, of: (i) equity
Securities representing interests in such entity that generates net proceeds in
excess of $75,000,000; or (ii) debt Securities representing obligations of such
entity (including, without limitation, any secured or unsecured financing or
refinancing) that generates net proceeds in excess of $400,000,000.
"CAPITAL EXPENDITURES" means, for any period, the aggregate of all
expenditures (whether payable in cash or other Property or accrued as a
liability (but without duplication)) during such period that, in conformity with
GAAP, are required to be included in or reflected by the Borrower's or any of
its Subsidiaries' fixed asset accounts as reflected in any of their respective
balance sheets; PROVIDED, HOWEVER, (i) Capital Expenditures shall include,
whether or not such a designation would be in conformity with GAAP, (a) that
portion of Capital Leases which is capitalized on the consolidated balance sheet
of the Borrower and its Subsidiaries and (b) expenditures for Equipment which is
purchased simultaneously with the trade-in of existing Equipment owned by the
Borrower or any of its Subsidiaries, to the extent the gross purchase price of
the purchased Equipment exceeds the book value of the Equipment being traded in
at such time; and (ii) Capital Expenditures shall exclude, whether or not such a
designation would be in conformity with GAAP, expenditures made in connection
with the restoration of Property, to the extent reimbursed or financed from
insurance or condemnation proceeds.
"CAPITAL IMPROVEMENT RESERVE" means $0.25 per annum per square foot of mall
store gross leasable area in Real Property owned by Borrower or its Wholly Owned
Subsidiaries, and
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in that portion of real property owned by Minority Holdings allocable, on a PRO
RATA basis, to the Consolidated Businesses.
"CAPITAL LEASE" means any lease of any property (whether real, personal or
mixed) by a Person as lessee which, in conformity with GAAP, is accounted for as
a capital lease on the balance sheet of that Person.
"CAPITAL STOCK" means, with respect to any Person, any capital stock of
such Person, regardless of class or designation, and all warrants, options,
purchase rights, conversion or exchange rights, voting rights, calls or claims
of any character with respect thereto.
"CAPITALIZATION VALUE" means the sum of (i) the Combined EBITDA for the
applicable period divided by 8.25%, and (ii) Cash and Cash Equivalents, and
(iii) Inactive Assets, other than Construction Assets, at the lesser of cost or
fair market value; and (iv) Construction Asset Cost; PROVIDED, HOWEVER, that
Capitalization Value shall include Inactive Assets and Construction Asset Cost
only to the extent that Inactive Assets and Construction Asset Cost do not
exceed, in the aggregate, eight percent (8%) of Capitalization Value; and
PROVIDED FURTHER that Capitalization Value shall not include any Inactive Asset
or Construction Asset Cost incurred with respect to any Construction Asset to
the extent the incurrence of such Construction Asset Cost or the Investment in
such Inactive Asset or Construction Asset constitutes an Event of Default or
Potential Event of Default under SECTION 10.11 hereof; and PROVIDED FURTHER that
Capitalization Value shall not include Construction Asset Cost as to any Real
Estate Under Construction with respect to which the Borrower elects to include
revenues in Adjusted EBITDA; PROVIDED, HOWEVER, that such Construction Asset
Cost may be included to the extent that (A) the construction in question
constitutes renovation or expansion of a Property that is otherwise completed,
open for business and operational, (B) the construction in question will not
materially interrupt, limit or impair such ongoing business and operations, and
(C) the inclusion of both such revenues in Adjusted EBITDA and such Construction
Asset Cost in Capitalization Value is not duplicative.
"CASH AND CASH EQUIVALENTS" means (i) unrestricted cash, (ii) unrestricted
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; and (iii) unrestricted 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, the District of Columbia, any foreign bank, or its
branches or agencies (fully protected against currency fluctuations) rated A1
(or better) by S&P or P1 (or better) by ▇▇▇▇▇'▇ or F1 by Fitch; PROVIDED,
HOWEVER, that the maturities of such Cash and Cash Equivalents shall not exceed
one year.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. Sections 9601 ET SEQ., any amendments thereto,
any successor statutes, and any regulations or guidance having the force of law
promulgated thereunder.
"CHANGE OF CONTROL" means that (i) more than two of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, or any replacement for any of
the foregoing Persons previously approved by the Requisite Lenders pursuant to
clause (ii) below,
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cease to be senior officers of GGP, Inc., and (ii) if the circumstances
described in clause (i) shall occur, the senior management positions of the
foregoing Persons who cease to be senior officers as aforesaid are not filled
within 180 days after the vacancy in such positions arise with replacements
approved by the Requisite Lenders.
"CLAIM" means any claim or demand, by any Person, of whatsoever kind or
nature for any alleged Liabilities and Costs, whether based in contract, tort,
implied or express warranty, strict liability, criminal or civil statute,
Permit, ordinance or regulation, common law or otherwise.
"CLOSING DATE" means April 16, 2003.
"COMBINED EBITDA" means the sum of (i) 100% of the Adjusted EBITDA of the
Borrower and its Wholly Owned Subsidiaries with respect to Properties owned by
the Borrower or any such Wholly Owned Subsidiary; and (ii) the portion of the
Adjusted EBITDA of the Minority Holdings allocable to the Borrower and the
Management Company in accordance with GAAP; PROVIDED, HOWEVER, that Combined
EBITDA shall include Adjusted EBITDA allocable to the Management Company only to
the extent that Adjusted EBITDA allocable to the Management Company does not
exceed four percent (4%) of Combined EBITDA.
"COMBINED EQUITY VALUE" means Capitalization Value minus Total Adjusted
Outstanding Indebtedness.
"COMBINED INTEREST EXPENSE" means, for any period, the sum of (i) interest
expense of GGP, Inc. and the Consolidated Businesses paid during such period and
(ii) interest expense of GGP, Inc. and the Consolidated Businesses accrued for
such period to the extent not paid during such period, and (iii) the portion of
the interest expense of Minority Holdings allocable to GGP, Inc. or the Borrower
in accordance with GAAP and paid during such period, and (iv) the portion of the
interest expense of Minority Holdings allocable to GGP, Inc. or the Borrower in
accordance with GAAP and accrued for such period, to the extent not paid during
such period, in each case including participating interest expense, but
excluding extraordinary interest expense and prepayment fees, premiums or
penalties and net of amortization of deferred costs associated with new
financings or refinancings of existing Indebtedness; PROVIDED, HOWEVER, that
with respect to Properties that GGP, Inc., the Borrower, a Consolidated Business
or a Minority Holding has owned for less than one year and which is included in
the calculation of Adjusted EBITDA, the interest expense with respect thereto
(incurred in connection with any Loans made in connection with the acquisition
of such Property or in connection with any mortgage loans entered into or
assumed in connection therewith) shall be determined as of the first day of each
fiscal quarter for the immediately preceding consecutive one, two or three
fiscal quarters, as applicable with respect to the period such Property has been
owned by GGP, Inc., Borrower, a Consolidated Business or a Minority Holding,
annualized; PROVIDED, FURTHER, HOWEVER, that for each Property which has been
owned by Borrower, a Consolidated Business or a Minority Holding or open for
business for a period of less than one quarter, the interest expense with
respect thereto shall be calculated on a PRO FORMA basis reasonably acceptable
to the Administrative Agent; and PROVIDED, FURTHER, HOWEVER, that dividends on
preferred Securities shall not be considered part of Combined Interest Expense.
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"COMMISSION" means the Securities and Exchange Commission and any Person
succeeding to the functions thereof.
"COMMITMENT" means, with respect to any Lender, such Lender's Revolving
Loan Commitment and Term Loan Commitment, and "COMMITMENTS" means the aggregate
principal amount of the Commitments of all the Lenders.
"COMPLIANCE CERTIFICATE" is defined in SECTION 8.2(b).
"CONSOLIDATED" means consolidated in accordance with GAAP.
"CONSOLIDATED BUSINESSES" means the Borrower and its Wholly Owned
Subsidiaries.
"CONSTRUCTION ASSET" means any Property which is raw land, vacant
out-parcels or Real Estate Under Construction.
"CONSTRUCTION ASSET COST" means, with respect to all Construction Assets,
the aggregate sums expended on the construction of such improvements (including
land acquisition costs).
"CONTAMINANT" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, radioactive materials, asbestos (in any form or condition),
polychlorinated biphenyls (PCBs), or any constituent of any such substance or
waste, and includes, but is not limited to, these terms as defined in federal,
state or local laws or regulations; provided however that "Contaminant" shall
not include the foregoing items to the extent (i) the same exist on the
applicable Property in negligible or customary amounts and are stored and used
in accordance with all Environmental, Health or Safety Requirements of Law or
(ii) are used in connection with a tire or battery retail store provided the
same are stored, sold and used in accordance with all Environmental, Health or
Safety Requirements of Law.
"CONTINGENT OBLIGATION" as to any Person means, without duplication, (i)
any contingent obligation of such Person required to be shown on such Person's
balance sheet in accordance with GAAP, and (ii) any obligation required to be
disclosed in the footnotes to such Person's financial statements in accordance
with GAAP, guaranteeing partially or in whole any Non-Recourse Indebtedness,
lease, dividend or other obligation, exclusive of (A) contractual indemnities
(including, without limitation, any indemnity or price-adjustment provision
relating to the purchase or sale of Securities or other assets) and (B)
guarantees of non-monetary obligations (other than guarantees of completion)
which have not yet been called on or quantified, of such Person or of any other
Person. The amount of any Contingent Obligation described in clause (ii) shall
be deemed to be (a) with respect to a guaranty of interest or interest and
principal, or operating income guaranty, the sum of all payments required to be
made thereunder (which in the case of an operating income guaranty shall be
deemed to be equal to the debt service for the note secured thereby), calculated
at the interest rate applicable to such Indebtedness, through (i) in the case of
an interest or interest and principal guaranty, the stated date of maturity of
the obligation (and commencing on the date interest could first be payable
thereunder), or (ii) in the case of an operating income guaranty, the date
through which such guaranty will remain in effect, and (b) with respect to all
guarantees not covered by the preceding clause (a) an amount equal to the stated
or determinable amount of the primary
7
obligation in respect of which such guaranty is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as recorded on the
balance sheet and on the footnotes to the most recent financial statements
required to be delivered pursuant to Section 8.2 hereto. Notwithstanding
anything contained herein to the contrary, guarantees of completion or other
performance shall not be deemed to be Contingent Obligations unless and until a
claim for payment has been made thereunder, at which time any such guaranty of
completion or other performance shall be deemed to be a Contingent Obligation in
an amount equal to any such claim. Subject to the preceding sentence, (i) in the
case of a joint and several guaranty given by such Person and another Person
(but only to the extent such guaranty is Recourse Indebtedness, directly or
indirectly to the Borrower), the amount of the guaranty shall be deemed to be
100% thereof unless and only to the extent that (X) such other Person has
delivered Cash or Cash Equivalents to secure all or any part of such Person's
obligations under such joint and several guaranty or (Y) such other Person holds
an Investment Grade Credit Rating from any of Fitch, ▇▇▇▇▇'▇ or S&P or has
creditworthiness otherwise reasonably acceptable to the Administrative Agent,
and (ii) in the case of a guaranty (whether or not joint and several) of an
obligation otherwise constituting Indebtedness of such Person, the amount of
such guaranty shall be deemed to be only that amount in excess of the amount of
the obligation constituting Indebtedness of such Person. Notwithstanding
anything contained herein to the contrary, "Contingent Obligations" shall not be
deemed to include guarantees of loan commitments or of construction loans to the
extent the same have not been drawn.
"CONTRACTUAL OBLIGATION" means, as applied to any Person, any provision of
any Securities issued by that Person or any Organizational Document, indenture,
mortgage, deed of trust, security agreement, pledge agreement, guaranty,
contract, undertaking, agreement or instrument to which that Person is a party
or by which it or any of its properties is bound, or to which it or any of its
properties is subject.
"CREDIT OBLIGATIONS" means, at any particular time, the sum of the
outstanding principal amount of the Loans at such time.
"CREDIT RATING" means the publicly announced rating of the long-term
unsecured debt of a Person given by Fitch, ▇▇▇▇▇'▇ or S&P.
"CUSTOMARY PERMITTED LIENS" means
(a) Liens (other than Environmental Liens and Liens in favor of
the PBGC) with respect to the payment of taxes, assessments or utility or
governmental charges in all cases which are not yet due or which are being
contested in good faith by appropriate proceedings in accordance with SECTION
9.4 and with respect to which adequate reserves or other appropriate provisions
are being maintained in accordance with GAAP;
(b) Statutory Liens of landlords or Equipment lessors against any
Property of the Borrower or any of its Subsidiaries and Liens against any
Property of the Borrower or any of its Subsidiaries in favor of suppliers,
mechanics, carriers, materialmen, warehousemen or workmen and other Liens
against any Property of the Borrower or any of its Subsidiaries imposed by law
created in the ordinary course of business for amounts which, if not resolved in
8
favor of the Borrower or such Subsidiary, would not be likely, in the aggregate
together with all other such Liens, to result in a Material Adverse Effect;
(c) Liens (other than any Lien in favor of the PBGC) incurred or
deposits made in the ordinary course of business in connection with worker's
compensation, unemployment insurance or other types of social security benefits
or to secure the performance of bids, tenders, sales, contracts (other than for
the repayment of borrowed money), surety, appeal and performance bonds; PROVIDED
THAT (A) all such Liens do not in the aggregate materially detract from the
value of the Borrower's (if such Liens are against Property of a Borrower) or a
Subsidiary's assets or Property or materially impair the use thereof in the
operation of their respective businesses, and (B) all Liens of attachment or
judgment and Liens securing bonds to stay judgments or in connection with
appeals do not secure at any time an aggregate amount of Recourse Indebtedness
exceeding $5,000,000 with respect to the Borrower and its Subsidiaries; and
(d) Liens against any Property of the Borrower or any Subsidiary
of the Borrower arising with respect to zoning restrictions, easements,
operating agreements, licenses, reservations, covenants, rights-of-way, utility
easements, building restrictions and other similar charges or encumbrances on
the use of Real Property which do not interfere with the ordinary conduct of the
business of the Borrower or any of its Subsidiaries or materially affect the
value thereof or, taken together, to the extent they would not be likely to
result in a Material Adverse Effect.
"DEFAULTING LENDER" shall mean any Lender which has failed to fund its Pro
Rata Share of any Loan when and as required under the terms of this Agreement,
provided that, if such Lender cures such failure, such Lender shall cease to be
a Defaulting Lender.
"DOL" means the United States Department of Labor and any Person succeeding
to the functions thereof.
"DOLLARS" and "$" mean the lawful money of the United States.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender, such Lender's
office, located in the United States, specified as the "Domestic Lending Office"
under its name on the signature pages hereof or on the Assignment and Acceptance
by which it became a Lender or such other United States office of such Lender as
it may from time to time specify by written notice to the Borrower and the
Administrative Agent.
"ELIGIBLE ASSIGNEE" means (i) a Lender or any Affiliate thereof; (ii) a
commercial bank having total assets in excess of $5,000,000,000; (iii) the
central bank of any country which is a member of the Organization for Economic
Cooperation and Development; or (iv) a finance company or other financial
institution reasonably acceptable to the Administrative Agent, which is
regularly engaged in making, purchasing or investing in loans and having total
assets in excess of $500,000,000 or is otherwise acceptable to the
Administrative Agent and, in each case other than (i) above, so long as no Event
of Default shall have occurred and be continuing hereunder, to the Borrower
(which acceptance shall not be unreasonably withheld, conditioned or delayed).
9
"ENVIRONMENTAL, HEALTH OR SAFETY REQUIREMENTS OF LAW" means all
Requirements of Law derived from or relating to any federal, state or local law,
ordinance, rule, regulation, Permit, license or other binding determination of
any Governmental Authority relating to, imposing liability or standards
concerning, or otherwise addressing the environment, health and/or safety,
including, but not limited to the Clean Air Act, the Clean Water Act, CERCLA,
RCRA, any so-called "Superfund" or "Superlien" law, the Toxic Substances Control
Act and OSHA, and public health codes, each as from time to time in effect, in
each case as applicable to the Borrower or its Property.
"ENVIRONMENTAL LIEN" means a Lien in favor of any Governmental Authority
for any (i) liabilities under any Environmental, Health or Safety Requirement of
Law, or (ii) damages arising from, or costs incurred by such Governmental
Authority in response to, a Release or threatened Release of a Contaminant into
the environment.
"ENVIRONMENTAL PROPERTY TRANSFER ACT" means any applicable Requirement of
Law that conditions, restricts, prohibits or requires any notification or
disclosure triggered by the transfer, sale, lease or closure of any Property or
deed or title for any Property for environmental reasons, including, but not
limited to, any so-called "Environmental Cleanup Responsibility Act" or
"Responsible Property Transfer Act".
"EQUIPMENT" means equipment which is personal property used in connection
with the maintenance of any Property.
"ERISA" means the Employee Retirement Income Security Act of 1974, 29
U.S.C. Sections 1000 ET SEQ., any amendments thereto, any successor statutes,
and any regulations or guidance having the force of law promulgated thereunder.
"ERISA AFFILIATE" means (i) any corporation which is a member of the same
controlled group of corporations (within the meaning of Section 414(b) of the
Internal Revenue Code) as the Borrower; (ii) a partnership or other trade or
business (whether or not incorporated) which is under common control (within the
meaning of Section 414(c) of the Internal Revenue Code) with the Borrower; and
(iii) a member of the same affiliated service group (within the meaning of
Section 414(m) of the Internal Revenue Code) as the Borrower, any corporation
described in clause (i) above or any partnership or trade or business described
in clause (ii) above. An entity shall be treated as an ERISA Affiliate only
during the period such entity is an ERISA Affiliate.
"ERISA TERMINATION EVENT" means (i) a Reportable Event with respect to any
Benefit Plan subject to Title IV of ERISA; (ii) the withdrawal of the Borrower
or any ERISA Affiliate from a Benefit Plan during a plan year in which the
Borrower or such ERISA Affiliate was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA which requires notification to the PBGC pursuant to
Section 4063 of ERISA; (iii) the imposition of an obligation on the Borrower or
any ERISA Affiliate under Section 4041 of ERISA to provide affected parties
written notice of intent to terminate a Benefit Plan in a distress termination
described in Section 4041(c) of ERISA; (iv) the institution by the PBGC of
proceedings to terminate a Benefit Plan; (v) any event or condition which
constitutes grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Benefit Plan; or (vi) the partial
10
or complete withdrawal of the Borrower or any ERISA Affiliate from a
Multiemployer Plan which will result in liability in excess of $1,000,000.
"EURODOLLAR AFFILIATE" means, with respect to each Lender, the Affiliate of
such Lender (if any) set forth below such Lender's name under the heading
"Eurodollar Affiliate" on the signature pages hereof or on the Assignment and
Acceptance or Joinder Agreement by which it became a Lender or such Affiliate of
a Lender as it may from time to time specify by written notice to the Borrower
and the Administrative Agent.
"EURODOLLAR INTEREST PERIOD" is defined in SECTION 5.2(b).
"EURODOLLAR INTEREST RATE DETERMINATION DATE" is defined in SECTION 5.2(c).
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender, such
Lender's office (if any) specified as the "Eurodollar Lending Office" under its
name on the signature pages hereof or on the Assignment and Acceptance or
Joinder Agreement by which it became a Lender or such other office or offices of
such Lender as it may from time to time specify by written notice to the
Borrower and the Administrative Agent.
"EURODOLLAR RATE" means, with respect to any Eurodollar Interest Period
applicable to a Eurodollar Rate Loan, an interest rate per annum obtained by
dividing (i) the Base Eurodollar Rate applicable to that Eurodollar Interest
Period by (ii) a percentage, calculated for each Lender in respect of the Loans
made by it, equal to 100% MINUS the Eurodollar Reserve Percentage in effect as
to such Lender, if any, on the relevant Eurodollar Interest Rate Determination
Date.
"EURODOLLAR RATE LOAN" means (i) a Loan which bears interest at a rate
determined by reference to the Eurodollar Rate and the Applicable Margin for
Eurodollar Rate Loans, as provided in SECTION 5.1(a) or (ii) an overdue amount
which was a Eurodollar Rate Loan immediately before it became due.
"EURODOLLAR RESERVE PERCENTAGE" means the total of the maximum reserve
percentages for determining the reserves to be maintained by member banks of the
Federal Reserve System for Eurocurrency Liabilities, as defined in Federal
Reserve Board Regulation D. The Eurodollar Reserve Percentage shall be expressed
in decimal form and rounded upward, if necessary, to the nearest 1/100th of one
percent, and shall include marginal, emergency, supplemental, special and other
reserve percentages.
"EUROHYPO" is defined in the preamble to this Agreement.
"EVENT OF DEFAULT" means any of the occurrences set forth in SECTION 11.1
after the expiration of any applicable grace period and the giving of any
applicable notice, in each case as expressly provided in SECTION 11.1.
"FACILITY" means the Term Facility and Revolving Facility evidenced by the
Loan Documents.
"FACILITY FEE" is defined in SECTION 5.3(a).
11
"FACILITY FEE PERCENTAGE" means the applicable percentage per annum
determined, at any time, based on the range into which the Leverage Ratio then
falls, in accordance with the following table. Any change in the Facility Fee
Percentage shall be effective as of the applicable financial reporting date set
forth in SECTION 8.2 hereof (exclusive of SECTION 8.2(b)(iv) hereof) and as of
the date of the consummation and funding of each Capital Event.
Facility Fee
Percentage
Leverage Ratio (% per annum)
-------------- -------------
less than 50% 0.15%
50% to less than 60% 0.20%
60% or greater 0.25%
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates
on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published for such day (or, if such
day is not a Business Day in New York, New York, for the next preceding Business
Day) in New York, New York by the Federal Reserve Bank of New York, or if such
rate is not so published for any day which is a Business Day in New York, New
York, the average of the quotations for such day on transactions by the
Reference Bank, as reasonably determined by the Administrative Agent.
"FEDERAL RESERVE BOARD" means the Board of Governors of the Federal Reserve
System or any Governmental Authority succeeding to its functions.
"FFO" means net income, excluding gains (or losses) from debt restructuring
and sales of property, plus depreciation and amortization, and after adjustments
for unconsolidated partnerships and joint ventures (which will be calculated to
reflect funds from operations on the same basis), as determined and adjusted in
accordance with the standards established from time to time by the National
Association of Real Estate Investment Trusts.
"FINANCIAL STATEMENTS" means (i) quarterly and annual Consolidated
statements of income and retained earnings, statements of cash flow, and balance
sheets, (ii) such other financial statements as GGP, Inc. and the Borrower shall
routinely and regularly prepare on a quarterly or annual basis, and (iii) such
other regularly prepared financial statements of the Consolidated Businesses or
Minority Holdings, which statements are material to the Loans (including
anything which would reasonably be expected to have a Material Adverse Effect),
as the Administrative Agent or the Requisite Lenders may from time to time
reasonably specify; PROVIDED, HOWEVER, that the Financial Statements referenced
in clauses (i) and (ii) above shall be prepared in form satisfactory to the
Administrative Agent, provided that the requirements of Administrative Agent and
the Requisite Lenders shall not conflict with SEC requirements.
"FISCAL YEAR" means the fiscal year of the Borrower or GGP, Inc., as
applicable, for accounting and tax purposes, which shall be the 12-month period
ending on December 31 of each calendar year.
12
"FITCH" means Fitch ICBA, Inc.
"FIXED CHARGES" means, as of the first day of each fiscal quarter for the
immediately preceding consecutive four fiscal quarters, the sum of (a) Combined
Interest Expense and (b) the aggregate of all scheduled principal payments on
Total Adjusted Outstanding Indebtedness according to GAAP made or required to be
made during such fiscal period for GGP, Inc., the Consolidated Businesses and
Minority Holdings (but excluding balloon payments of principal due upon the
stated maturity of an Indebtedness), and (c) the aggregate of all dividends
payable on the preferred stock or other preferred Securities of GGP, Inc.,
Borrower and its Subsidiaries, and of Minority Holdings allocable, on a PRO RATA
basis to GGP, Inc. or the Borrower, which preferred Securities are not owned by
the Borrower or any of its Subsidiaries (including on any preferred units of the
Company and Price Development Company, Limited Partnership, a Maryland limited
partnership, not owned by the Borrower or any of its Subsidiaries).
"FUNDING DATE" means the Initial Funding Date and each subsequent date on
which Loans are to be funded under this Agreement.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the American Institute of Certified Public
Accountants' Accounting Principles Board and Financial Accounting Standards
Board or in such other statements by such other entity as may be in general use
by significant segments of the accounting profession as in effect on the Closing
Date (unless otherwise specified herein as in effect on another date or dates).
"GGP, INC." means General Growth Properties, Inc., a Delaware corporation.
"GOVERNMENTAL APPROVAL" means any and all existing or future certificates,
licenses, permits, variances, authorizations and approvals issued or required to
be issued by any Governmental Authority having jurisdiction with respect to any
Property.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"GUARANTOR" means GGP, Inc. and the Partnership, individually or
collectively, as the context shall infer.
"GUARANTY" means that certain joint and several Guaranty, dated as of even
date herewith, made by Guarantor in favor of the Administrative Agent, as agent
for the Lenders, guaranteeing the payment and performance of the Obligations of
the Borrower hereunder.
"HOLDER" means any Person entitled to enforce any of the Obligations,
whether or not such Person holds any evidence of Indebtedness, including,
without limitation, the Administrative Agent and each other Lender.
"HOMART PORTFOLIO" means the portfolio of Properties commonly described by
the Partnership as GGP/Homart and GGP/Homart II, and their respective
Subsidiaries and Investments.
13
"IMPROVEMENTS" means, with respect to any Real Property, all buildings,
fixtures, structures, parking areas, landscaping and all other improvements
whether existing now or hereafter constructed, together with all machinery and
mechanical, electrical, HVAC and plumbing systems presently or hereafter located
thereon and used in the operation thereof, excluding (a) any such items owned by
utility service providers, (b) any such items owned by tenants or other
third-parties and (c) any items of personal property.
"INACTIVE ASSETS" means Construction Assets (other than Real Estate Under
Construction), loans receivable (including, without limitation, purchase money
and other mortgage loans), other miscellaneous Property not described in any of
clauses (i) through (iv) of SECTION 10.11(d) hereof, and the headquarters
building located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, provided that the
value of such headquarters building for the purpose of calculating Inactive
Assets shall be as set forth in the most recent appraisal of said building
received from time to time by Borrower which appraisal is prepared by an MAI
appraiser from a nationally recognized appraisal firm in accordance with the
requirements of FIRREA. Borrower shall promptly deliver to Administrative Agent
a copy of each appraisal of said building received by Borrower from time to
time.
"INDEBTEDNESS", as applied to any Person, means, at any time, without
duplication, (a) all indebtedness, obligations or other liabilities of such
Person (whether consolidated or representing the proportionate interest in any
other Person) (i) for borrowed money (including construction loans) or evidenced
by debt securities, debentures, acceptances, notes or other similar instruments,
and any accrued interest, fees and charges relating thereto, (ii) under profit
payment agreements or in respect of obligations to redeem, repurchase or
exchange any Securities issued by such Person or to pay dividends in respect of
any stock, (iii) with respect to letters of credit issued for such Person's
account, (iv) to pay the deferred purchase price of property or services, except
accounts payable and accrued expenses arising in the ordinary course of
business, (v) in respect of Capital Leases, (vi) which are Contingent
Obligations, (vii) under warranties and indemnities or (viii) for the payment of
taxes, levies, or other obligations which are then past due and payable to any
Governmental Authority; (b) all indebtedness, obligations or other liabilities
of such Person or others secured by a Lien on any property of such Person,
whether or not such indebtedness, obligations or liabilities are assumed by such
Person, all as of such time; (c) all indebtedness, obligations or other
liabilities of such Person in respect of interest rate contracts and foreign
exchange contracts, net of liabilities owed to such Person by the counterparties
thereon; (d) all preferred stock and other Securities subject (upon the
occurrence of any contingency or otherwise) to mandatory redemption by such
Person; (e) all indebtedness, obligations or other liabilities of such person in
respect of forward equity sales and similar purchase obligations, and (f) all
contingent Contractual Obligations with respect to any of the foregoing .
"INDEMNIFIED MATTERS" is defined in SECTION 15.3.
"INDEMNITEES" is defined in SECTION 15.3.
"INITIAL FUNDING DATE" means the date on or after the Closing Date, on
which all of the conditions described in SECTION 6.1 have been satisfied (or
waived) in a manner satisfactory to
14
the Administrative Agent and the Lenders and on which the initial Loans under
this Agreement are made by the Lenders to the Borrower.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as amended
to the date hereof and from time to time hereafter, any successor statute and
any regulations or guidance having the force of law promulgated thereunder.
"INVESTMENT" means, with respect to any Person, (i) any purchase or other
acquisition by that Person of any Property, including, without limitation,
Securities, or of a beneficial interest in Securities, issued by any other
Person, (ii) any purchase by that Person of all or substantially all of the
assets of a business conducted by another Person, and (iii) any loan, advance
(other than deposits with financial institutions available for withdrawal on
demand, prepaid expenses, accounts receivable, advances to employees and similar
items made or incurred in the ordinary course of business) or capital
contribution by that Person to any other Person, including all Indebtedness to
such Person arising from a sale of property by such Person other than in the
ordinary course of its business. The amount of any Investment shall be the
original cost of such Investment, plus the cost of all additions thereto less
the amount of any return of capital or principal to the extent such return is in
cash with respect to such Investment without any adjustments for increases or
decreases in value or write-ups, write-downs or write-offs with respect to such
Investment.
"INVESTMENT GRADE" means (i) with respect to Fitch a Credit Rating of BBB-
or higher, (ii) with respect to ▇▇▇▇▇'▇ a Credit Rating of Baa3 or higher and
(iii) with respect to S&P, a Credit Rating of BBB- or higher.
"IRS" means the Internal Revenue Service and any Person succeeding to the
functions thereof.
"IVANHOE PORTFOLIO" means the portfolio of Properties commonly described by
the Partnership as GGP/Ivanhoe, GGP/Ivanhoe II and GGP/Ivanhoe III, and their
respective Subsidiaries and Investments.
"JOINDER AGREEMENT" is defined in SECTION 3.2.
"JOINT SYNDICATION LETTER" is defined in SECTION 2.6.
"KNOWLEDGE" with reference to any Person or any Subsidiary of such Person,
means the actual knowledge of an officer of such Person after reasonable inquiry
(which reasonable inquiry shall include, without limitation, interviewing and
questioning such other Persons as such Person or such Subsidiary, as applicable,
deems reasonably necessary).
"LEAD AGENTS" is defined in the preamble to this Agreement.
"LEASE" means a lease, license, concession agreement or other agreement
providing for the use or occupancy of any portion of any Property, including all
amendments, supplements, modifications and assignments thereof and all side
letters or side agreements relating thereto.
15
"LENDER" means each of the Lead Agents and, at any other given time, each
financial institution which is or hereafter becomes a party hereto as a Lender,
whether as a signatory hereto or pursuant to an Assignment and Acceptance or
pursuant to a Joinder Agreement and regardless of the capacity in which such
entity is acting (i.e. whether as a Lead Agent or Lender).
"LENDER PROCESS AGENT" is defined in SECTION 15.17(a).
"LEVERAGE RATIO" means the ratio, expressed as a percentage, of the Total
Adjusted Outstanding Indebtedness to the Capitalization Value.
"LIABILITIES AND COSTS" means all liabilities, obligations,
responsibilities, losses, damages, personal injury, death, punitive damages,
economic damages, consequential damages, treble damages, intentional, willful or
wanton injury, damage or threat to the environment, natural resources or public
health or welfare, costs and expenses (including, without limitation, attorney,
expert and consulting fees and costs of investigation, feasibility or Remedial
Action studies), fines, penalties and monetary sanctions, interest, direct or
indirect, known or unknown, absolute or contingent, past, present or future.
"LIEN" means any mortgage, deed of trust, pledge, hypothecation,
assignment, conditional sale agreement, deposit arrangement, security interest,
encumbrance, lien (statutory or other and including, without limitation, any
Environmental Lien), preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever in respect of any
property of a Person, whether granted voluntarily or imposed by law, and
includes the interest of a lessor under a Capital Lease or under any financing
lease having substantially the same economic effect as any of the foregoing and
the filing of any financing statement or similar notice (other than a financing
statement filed by a "true" lessor pursuant to Section 9-505 of the Uniform
Commercial Code), naming the owner of such property as debtor, under the Uniform
Commercial Code or other comparable law of any jurisdiction.
"LIMITED MINORITY HOLDINGS" means Minority Holdings in which (i) the
Borrower or GGP, Inc. has a less than fifty percent (50%) ownership interest or
(ii) the Borrower or GGP, Inc. does not control the management of such Minority
Holdings, whether as the general partner or managing member of such Minority
Holding, or otherwise or (iii) the Borrower or GGP, Inc. does not control
decisions with respect to the financing or sale or other disposition of the
assets thereof. As used in this definition only, the term "control" shall mean
the authority to make major management decisions or the management of day-to-day
operations of such entity and shall include instances in which the Management
Company manages the day-to-day leasing, management, control or development of
the Properties of such Minority Holding pursuant to the terms of a management
agreement.
"LOAN" means a loan made by a Lender pursuant to Section 2.1; provided,
that if any such loan or loans (or portions thereof) are combined or subdivided
pursuant to a Notice of Conversion/Continuation under SECTION 5.1, the term
"Loan" shall refer to the combined principal amount resulting from such
combination or to each of the separate principal amounts resulting from such
subdivision, as the case may be.
"LOAN ACCOUNT" is defined in SECTION 4.3(b).
16
"LOAN DOCUMENTS" means this Agreement, the Notes, the Guaranty and all
other instruments, agreements and written Contractual Obligations (including fee
letters) now or hereafter entered into between the Borrower and/or the Guarantor
and the Administrative Agent and/or the Lenders pursuant to or in connection
with the transactions contemplated hereby.
"MAJOR SUBSIDIARY" means any Subsidiary of Borrower or any Minority
Holding, in each case to which more than $300,000,000 of Capitalization Value is
attributable.
"MANAGEMENT COMPANY" means General Growth Management, Inc., a Delaware
corporation and its Subsidiaries, and any of its successors and assigns that are
Subsidiaries of GGP, Inc.
"MARGIN STOCK" means "margin stock" as such term is defined in Regulation
U.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon (i) the
financial condition or assets of GGP, Inc., Borrower and their Subsidiaries
taken as a whole, (ii) the ability of GGP, Inc. or either Borrower to perform
their respective obligations under the applicable Loan Documents, (iii) the
financial condition or assets of any Major Subsidiary, or (iv) the ability of
the Lenders or the Administrative Agent to enforce any of the Loan Documents.
"MAXIMUM AGGREGATE COMMITMENT AMOUNT" means the maximum aggregate amounts
of the Revolving Loan Commitments and Term Loan Commitments from time to time.
"MAXIMUM REVOLVING CREDIT AMOUNT" means, at any particular time, the
Revolving Loan Commitments at such time, which shall initially be $250,000,000,
subject to increase pursuant to ARTICLE III below.
"MINORITY HOLDINGS" means partnerships, joint ventures, trusts, limited
liability companies and corporations held or owned by the Borrower, GGP, Inc. or
the Management Company, which are not wholly-owned by the Borrower, GGP, Inc. or
the Management Company.
"MOODY'S" means ▇▇▇▇▇'▇ Investor Services, Inc.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in Section
3(37) of ERISA which is, or within the immediately preceding six (6) years was,
contributed to by either the Borrower or any ERISA Affiliate or in respect of
which the Borrower or any ERISA Affiliate has assumed any liability.
"NON-RECOURSE INDEBTEDNESS" means Indebtedness which is not Recourse
Indebtedness.
"NOTE" means a promissory note substantially in the form attached hereto as
EXHIBIT B payable to a Lender, in form and substance acceptable to the
Administrative Agent and such Lender, evidencing certain of the Obligations of
and executed by a Borrower as required by SECTION 4.3(a), as well as any such
other promissory note as is necessary to evidence the Loans owing by each
Borrower to each Lender, after giving effect to any Assignment and Acceptance
pursuant to SECTION 15.1, any Joinder Agreement pursuant to SECTION 3.2 and any
Addendum hereto pursuant to SECTION 3.3, which is in form and substance
acceptable to the Administrative
17
Agent and the parties to such Assignment and Acceptance, Joinder Agreement or
Addendum, as applicable. For convenience, each Note shall be valid and
sufficient whether or not a principal amount is specified. All such promissory
notes, as the same may be amended, supplemented, modified or restated from time
to time and all replacements thereof and substitutions therefor are collectively
referred to herein as the "NOTES."
"NOTICE OF BORROWING" means a notice substantially in the form of EXHIBIT C
attached hereto and made a part hereof. (EXHIBIT C consists of four alternative
forms, two for each Borrower, one for Base Rate Loans and one for Eurodollar
Rate Loans.)
"NOTICE OF CONVERSION/CONTINUATION" means a notice substantially in the
form of EXHIBIT D attached hereto and made a part hereof with respect to a
proposed conversion or continuation of a Loan pursuant to SECTION 5.1(c).
(EXHIBIT D consists of two alternative forms, one for each Borrower.)
"OBLIGATIONS" means all Loans, advances, debts, liabilities, obligations,
covenants and duties owing by the Borrower to the Administrative Agent, any
other Lender, any Affiliate of the Administrative Agent, any other Lender, or
any Person entitled to indemnification pursuant to SECTION 15.3 of this
Agreement, of any kind or nature, arising under this Agreement, the Notes or any
other Loan Document. The term includes, without limitation, all interest,
charges, expenses, fees, reasonable attorneys' fees and disbursements and any
other sum chargeable to the Borrower under this Agreement or any other Loan
Document.
"OFFICER'S CERTIFICATE" means, as to a corporation, a certificate executed
on behalf of such corporation by the chairman of its board of directors (if an
officer of such corporation) or its chief executive officer, president, any of
its vice-presidents, its chief financial officer, or its treasurer and, as to a
partnership, a certificate executed on behalf of such partnership by the chief
executive officer, president, any vice-president or treasurer of the general
partner of such partnership.
"ORGANIZATIONAL DOCUMENTS" means, with respect to any corporation, limited
liability company, trust or partnership (i) the articles/certificate of
incorporation, formation or limited partnership (or the equivalent
organizational documents) of such corporation or limited liability company,
trust or limited partnership, (ii) the partnership agreement, operating
agreement or trust agreement executed by the partners in the partnership, the
members in the limited liability company or governing the trust, (iii) the
bylaws (or the equivalent governing documents) of the corporation, limited
liability company, trust or partnership, and (iv) any document setting forth the
designation, amount and/or relative rights, limitations and preferences of any
class or series of such corporation's Capital Stock or such limited liability
company's, partnership's or trust's equity, ownership or beneficial interests.
"OSHA" means the Occupational Safety and Health Act of 1970, 29 U.S.C.
Sections 651 ET SEQ., any amendments thereto, any successor statutes and any
regulations or guidance having the force of law promulgated thereunder.
"PARTNERSHIP" is defined in the preamble to this Agreement.
18
"PBGC" means the Pension Benefit Guaranty Corporation and any Person
succeeding to the functions thereof.
"PERMITS" means any permit, consent, approval, authorization, license,
variance, or permission required from any Person, including any Governmental
Approvals.
"PERSON" means any natural person, corporation, limited liability company,
limited partnership, general partnership, joint stock company, joint venture,
association, company, trust, bank, trust company, land trust, business trust or
other organization, whether or not a legal entity, and any Governmental
Authority.
"PLAN" means an "employee benefit" plan defined in Section 3(3) of ERISA in
respect of which the Borrower is an "employer" as defined in Section 3(5) of
ERISA or the Borrower or any ERISA Affiliate has assumed any liability.
"POTENTIAL EVENT OF DEFAULT" means an event which, with the giving of
notice or the lapse of time, or both, would constitute an Event of Default.
"PREPAYMENT DATE" is defined in SECTION 4.1(d).
"PROCESS AGENT" is defined in SECTION 15.17(a).
"PROPERTY" means any Real Property or personal property, plant, building,
facility, structure, underground storage tank or unit, equipment, general
intangible, receivable, or other asset owned, leased or operated by any
Consolidated Business or any Minority Holding (including any surface water
thereon or adjacent thereto, and soil and groundwater thereunder).
"PRO RATA SHARE" means, with respect to any Lender, the percentage obtained
by dividing (i) the sum of such Lender's Commitments by (ii) the aggregate
amount of all of the Lenders' Commitments; PROVIDED, HOWEVER, that, if the
Commitments have been terminated, each Lender's Pro Rata Share shall be the
percentage held by such Lender of the outstanding Loans. When the term "Pro Rata
Share" is used in reference to any Loans, it shall be deemed to refer to such
Lender's Revolving Loan Pro Rata Share or Term Loan Pro Rata Share, as
applicable.
"RATE PAGE" means the display designated as "Page 3750" on Moneyline
Telerate (or such other page as may replace Page 3750 on Moneyline Telerate 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 U.S. Dollar deposits).
"RCRA" means the Resource Conservation and Recovery Act of 1976, 42 U.S.C.
Sections 6901 ET SEQ., any amendments thereto, any successor statutes, and any
regulations or guidance having the force of law promulgated thereunder.
"REAL ESTATE UNDER CONSTRUCTION" means Real Property on which construction
of material improvements has commenced and is continuing to be performed, but
has not yet been completed (as such completion shall be evidenced by such
Property being opened for business to the general public).
19
"REAL PROPERTY" means all of the Borrower's or any Subsidiary of Borrower's
present and future right, title and interest (including, without limitation, any
leasehold estate) in (i) any plots, pieces or parcels of land, (ii) any
Improvements of every nature whatsoever (the rights and interests described in
clauses (i) and (ii) above being the "Premises"), (iii) all easements, rights of
way, gores of land or any lands occupied by streets, ways, alleys, passages,
sewer rights, water courses, water rights and powers, and public places
adjoining such land, and any other interests in property constituting
appurtenances to the Premises, or which hereafter shall in any way belong,
relate or be appurtenant thereto, (iv) all hereditaments, gas, oil, minerals
(with the right to extract, sever and remove such gas, oil and minerals), and
easements, of every nature whatsoever, located in, on or benefiting the Premises
and (v) all other rights and privileges thereunto belonging or appertaining and
all extensions, additions, improvements, betterments, renewals, substitutions
and replacements to or of any of the rights and interests described in CLAUSES
(iii) and (iv) above.
"RECOURSE INDEBTEDNESS" means any Indebtedness, to the extent that recourse
of the applicable lender for non-payment is not limited to such lender's Liens
on a particular asset or group of assets (except to the extent the property on
which such lender has a Lien and to which its recourse for non-payment is
limited constitutes Cash or Cash Equivalents, to which extent such Indebtedness
shall be deemed to be Recourse Indebtedness).
"REFERENCE BANK" means Eurohypo.
"REGISTER" is defined in SECTION 15.1(c).
"REGULATION A" means Regulation A of the Federal Reserve Board as in effect
from time to time.
""REGULATION T" means Regulation T of the Federal Reserve Board as in
effect from time to time.
"REGULATION U" means Regulation U of the Federal Reserve Board as in effect
from time to time.
"REGULATION X" means Regulation X of the Federal Reserve Board as in effect
from time to time.
"REIT" means a domestic trust or corporation that qualifies as a real
estate investment trust under the provisions of Sections 856, ET SEQ. of the
Internal Revenue Code.
"RELEASE" means any release, spill, emission, leaking, pumping, pouring,
dumping, injection, deposit, disposal, abandonment, or discarding of barrels,
containers or other receptacles, discharge, emptying, escape, dispersal,
leaching or migration into the indoor or outdoor environment or into or out of
any Property, including the movement of Contaminants through or in the air,
soil, surface water, groundwater or Property.
"REMEDIAL ACTION" means actions required to (i) clean up, remove, treat or
in any other way address Contaminants in the indoor or outdoor environment; (ii)
prevent the Release or threat of Release or minimize the further Release of
Contaminants; (iii) investigate and
20
determine if a remedial response is needed and to design such a response and
post-remedial investigation, monitoring, operation and maintenance and care or
(iv) cure or prevent any violation of any Environmental, Health or Safety
Requirements of Law.
"REPORTABLE EVENT" means any of the events described in Section 4043(c) of
ERISA and the regulations having the force of law promulgated thereunder as in
effect from time to time but not including any such event as to which the thirty
(30) day notice requirement has been waived by applicable PBGC regulations.
"REQUIREMENTS OF LAW" means, as to any Person, the charter and bylaws or
other organizational or governing documents of such Person, and any law, rule or
regulation, or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject including,
without limitation, the Securities Act, the Securities Exchange Act, Regulations
T, U and X, ERISA, the Fair Labor Standards Act, the Worker Adjustment and
Retraining Notification Act, Americans with Disabilities Act of 1990, and any
certificate of occupancy, zoning ordinance, building, environmental or land use
requirement or other Permit, Governmental Approval or Environmental, Health or
Safety Requirement of Law.
"REQUISITE LENDERS" means the Lenders (excluding any Defaulting Lenders)
whose Pro Rata Shares, in the aggregate, represent an amount equal to or more
than sixty-six and two-thirds percent (66-2/3%) of the aggregate Pro Rata Shares
of all Lenders which are not then Defaulting Lenders.
"REVOLVING CREDIT AVAILABILITY" means, at any particular time, the amount
by which the Maximum Revolving Credit Amount at such time exceeds the Revolving
Credit Obligations at such time.
"REVOLVING CREDIT OBLIGATIONS" means, at any particular time, the sum of
the outstanding principal amount of the Revolving Loans at such time.
"REVOLVING CREDIT PERIOD" means the period from the Initial Funding Date to
the Business Day next preceding the Termination Date.
"REVOLVING FACILITY" means the credit facility to be made available by the
lending of Revolving Loans.
"REVOLVING LOAN" is defined in SECTION 2.1(a)(iii) hereof.
"REVOLVING LOAN COMMITMENT" means, with respect to any Lender, the
obligation of such Lender to make Revolving Loans pursuant to the terms and
conditions of this Agreement, and which shall not exceed the principal amount
set forth opposite such Lender's name under the heading "Revolving Loan
Commitment" on the signature pages hereof or the signature page of the
Assignment and Acceptance or Joinder Agreement by which it became a Lender, as
modified from time to time pursuant to the terms of this Agreement or to give
effect to any applicable Assignment and Acceptance or Addendum, and "REVOLVING
LOAN COMMITMENTS" means the aggregate principal amount of the Revolving Loan
Commitments of all the Lenders, as the Revolving Loan Commitments may be reduced
from time to time pursuant to SECTION 4.1(b)
21
hereof or increased from time to time in connection with any increase in the
Maximum Revolving Credit Amount pursuant to SECTION 3.1 hereof.
"REVOLVING LOAN PRO RATA SHARE" means, with respect to any Lender, the
percentage obtained by dividing (i) the sum of such Lender's Revolving Loan
Commitments by (ii) the aggregate amount of all of the Revolving Loan
Commitments; PROVIDED, HOWEVER, that, if the Revolving Loan Commitments have
been terminated, each Lender's Revolving Loan Pro Rata Share shall be the
percentage held by such Lender of the outstanding Revolving Loans.
"S&P" means Standard & Poor's Ratings Services, a Division of The McGraw
Hill Companies, Inc.
"SECURED INDEBTEDNESS" means any Indebtedness secured by a Lien.
"SECURITIES" means any stock, shares, voting trust certificates,
partnership interests, bonds, debentures, notes or other evidences of
indebtedness, secured or unsecured, convertible, subordinated or otherwise, or
in general any instruments commonly known as "securities", including, without
limitation, any "security" as such term is defined in Section 8-102 of the
Uniform Commercial Code, or any certificates of interest, shares, or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire any of the
foregoing, but shall not include the Notes or any other evidence of the
Obligations.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time to
time, and any successor statute.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"SOLVENT", when used with respect to any Person, means that at the time of
determination:
(a) the fair saleable value of its assets is in excess of the
total amount of its liabilities (including, without limitation, contingent
liabilities); and
(b) the present fair saleable value of its assets is greater than
its probable liability on its existing debts as such debts become absolute and
matured; and
(c) it is then able and expects to be able to pay its debts
(including, without limitation, contingent debts and other commitments) as they
mature; and
(d) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
"SUBSIDIARY" of a Person means (i) any corporation more than 50% of whose
stock of any class or classes having by the terms thereof ordinary voting power
to elect a majority of the directors of such corporation is at the time owned by
such Person directly or indirectly through Subsidiaries, (ii) any partnership,
association, joint venture or other entity in which such Person, directly or
indirectly through Subsidiaries, has an equity interest of more than 50% at the
time,
22
and (iii) as to GGP, Inc. or the Borrower, any Major Subsidiary. For purposes of
this Agreement, Subsidiaries of any one or more of GGP, Inc., the Company or the
Partnership shall be considered Subsidiaries of the Borrower.
"SUCCESSFUL SECONDARY SYNDICATION" is defined in the Joint Syndication
Letter.
"SYNDICATION AGENT" is defined in the preamble and includes Bank of America
in its capacity as co-syndication agent for the Lenders and each other
syndication agent or co-syndication agent appointed in accordance with the terms
of this Agreement.
"TAXES" is defined in SECTION 13.1(a) hereof.
"TERM FACILITY" means the credit facility to be made available by the
lending of the Term Loans.
"TERM LOAN" is defined in SECTION 2.1(a)(ii) hereof.
"TERM LOAN COMMITMENT" means, with respect to any Lender, the obligation of
such Lender to make Term Loans pursuant to the terms and conditions of this
Agreement, and which shall not exceed the principal amount set forth opposite
such Lender's name under the heading "Term Loan Commitment" on the signature
pages hereof or the signature page of the Assignment and Acceptance or Joinder
Agreement by which it became a Lender, as modified from time to time pursuant to
the terms of this Agreement or to give effect to any applicable Assignment and
Acceptance or Addendum, and "TERM LOAN COMMITMENTS" means the aggregate
principal amount of the Term Loan Commitments of all of the Lenders, as the Term
Loan Commitments may be increased pursuant to SECTION 3.1 hereof.
"TERM LOAN PRO RATA SHARE" means, with respect to any Lender, the
percentage obtained by dividing (i) the sum of such Lender's Term Loan
Commitments by (ii) the aggregate amount of all of the Term Loan Commitments;
PROVIDED, HOWEVER, that, if the Term Loan Commitments have been terminated, each
Lender's Term Loan Pro Rata Share shall be the percentage held by such Lender of
the outstanding Term Loans.
"TERMINATION DATE" means the earlier to occur of (i) April 16, 2006 (or, if
not a Business Day, the next preceding Business Day); and (ii) the date on which
the Loans are accelerated pursuant to SECTION 11.2(a) hereof.
"TOTAL ADJUSTED OUTSTANDING INDEBTEDNESS" means, for any period, the sum of
(i) the amount of Indebtedness of GGP, Inc. and the Consolidated Businesses set
forth on the then most recent quarterly financial statements of GGP, Inc., and
(ii) the outstanding amount of Minority Holding Indebtedness pro rata allocable
to the Borrower and GGP, Inc. as of the time of determination and (iii) without
duplication, the Contingent Obligations of GGP, Inc. and the Consolidated
Businesses and, to the extent allocable to GGP, Inc. and the Consolidated
Businesses in accordance with GAAP, of the Minority Holdings, provided however
that for purposes of this calculation only, the term "Indebtedness" shall not
include Indebtedness with respect to letters of credit issued to support
guaranties of interest or interest and principal, or operating income guaranties
or other performance guaranty or completion guaranty obligations;
23
PROVIDED, HOWEVER, that the exclusion for letters of credit issued to support
performance guaranty obligations shall not exceed 1.0% of Capitalization Value.
"TOTAL ADJUSTED OUTSTANDING SECURED INDEBTEDNESS" means that portion of
Total Adjusted Outstanding Indebtedness that is Secured Indebtedness.
"TOTAL ADJUSTED OUTSTANDING UNSECURED INDEBTEDNESS" means that portion of
Total Adjusted Outstanding Indebtedness that is Unsecured Indebtedness.
"UNIFORM COMMERCIAL CODE" means the Uniform Commercial Code as enacted in
the State of
Illinois, as it may be amended from time to time.
"UNSECURED INDEBTEDNESS" means Indebtedness that is not secured by any
Lien.
"WHOLLY OWNED SUBSIDIARY" of any Person means any Subsidiary of such Person
in which all of the equity interests (other than any directors' qualifying
shares) are owned directly or indirectly by such Person.
1.2 COMPUTATION OF TIME PERIODS. 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 the words "to" and "until" each mean "to
but excluding". Periods of days referred to in this Agreement shall be counted
in calendar days unless Business Days are expressly prescribed. Any period
determined hereunder by reference to a month or months or year or years shall
end on the day in the relevant calendar month in the relevant year, if
applicable, immediately preceding the date numerically corresponding to the
first day of such period, PROVIDED, that if such period commences on the last
day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month during which such period is to end),
such period shall, unless otherwise expressly required by the other provisions
of this Agreement, end on the last day of the calendar month.
1.3 ACCOUNTING TERMS. Subject to SECTION 15.4, for purposes of this
Agreement, all accounting terms not otherwise defined herein shall have the
meanings assigned to them in conformity with GAAP.
1.4 OTHER TERMS. All other terms contained in this Agreement shall,
unless the context indicates otherwise, have the meanings assigned to such terms
by the Uniform Commercial Code to the extent the same are defined therein.
1.5 USE OF DEFINED TERM "BORROWER". As set forth in the preamble hereof,
the term Borrower, when used in this Agreement, shall refer to the Partnership
and the Company, individually or collectively, as the context shall infer.
Without limiting the foregoing, except as may be otherwise expressly set forth
in this Agreement (and subject to the provisions of SECTION 15.24 of this
Agreement), (x) each covenant and agreement of Borrower contained in this
Agreement shall be deemed made by, and shall be deemed to refer to, each of the
Company and the Partnership, except that each of the financial covenants of
Borrower contained in SECTION 10.11 and SECTION 10.12 of this Agreement shall be
calculated with respect to the Company and the Partnership in aggregate and (y)
the occurrence of any of the events set forth in
24
ARTICLE XI with respect to either (or both) of the Company and the Partnership
shall constitute an Event of Default.
ARTICLE II - AMOUNTS AND TERMS OF LOANS
2.1 LOANS.
(a) AVAILABILITY.
(i) LOANS. Subject to the terms and conditions set forth in
this Agreement, each Lender hereby severally and not jointly agrees to make
loans, in Dollars (each individually, a "LOAN" and, collectively, the
"LOANS") to each Borrower as set forth below.
(ii) TERM LOANS. Subject to the terms and conditions set
forth in this Agreement, each Lender hereby severally and not jointly
agrees to make loans, in Dollars (each individually, a "TERM LOAN" and,
collectively, the "TERM LOANS") in the amount of their respective Term Loan
Commitments in a single disbursement on the Initial Funding Date (with
subsequent disbursements of Term Loans to be made in accordance with
SECTION 3.1). The Term Loans to be made on the Initial Funding Date shall
be made by the Lenders simultaneously and proportionately to their then
respective Term Loan Pro Rata Shares. Notwithstanding anything to the
contrary contained in this Agreement, either Borrower (or both Borrowers)
may elect to divide the initial disbursement of the Term Loans into two
increments, the first to be funded on the Initial Funding Date and the
second to be funded no later than thirty (30) days thereafter. The
conditions set forth in SECTION 6.1 must remain satisfied as of the date of
the funding of the second such disbursement. No Lender shall be responsible
for any failure by any other Lender to perform its obligation to make a
Term Loan hereunder nor shall the Term Loan Commitment of any Lender be
increased or decreased as a result of any such failure. The amount of the
Term Loan Commitments shall be subject to increase as provided in SECTION
3.1 below.
(iii) REVOLVING LOANS. Subject to the terms and conditions
set forth in this Agreement, each Lender hereby severally and not jointly
agrees to make loans, in Dollars (each individually, a "REVOLVING LOAN"
and, collectively, the "REVOLVING LOANS") from time to time during the
Revolving Credit Period, in an amount not to exceed such Lender's Revolving
Loan Pro Rata Share of the Revolving Credit Availability at such time. The
amount of the Revolving Loan Commitments shall be subject to increase as
provided in SECTION 3.1 below. All Revolving Loans comprising the same
Borrowing under this Agreement shall be made by the Lenders simultaneously
and proportionately to their then respective Revolving Loan Pro Rata
Shares, it being understood that no Lender shall be responsible for any
failure by any other Lender to perform its obligation to make a Revolving
Loan hereunder nor shall the Revolving Loan Commitment of any Lender be
increased or decreased as a result of any such failure. Subject to the
provisions of this Agreement, the Borrower may repay any outstanding
Revolving Loan on any day which is a Business Day and any amounts so repaid
may be reborrowed, up to the amount available under this SECTION 2.1(a) at
the time of such Borrowing, until the Business Day
25
next preceding the Termination Date. Each requested Borrowing of Revolving
Loans funded on any Funding Date shall be in a principal amount of at least
$2,000,000.
(iv) BORROWING BY EACH BORROWER. Each Borrowing shall be
made by either the Company or the Partnership (simultaneous Borrowings may
be made by the Company and the Partnership) and shall be the separate
obligation of the Borrower making such Borrowing and not of the other
Borrower; PROVIDED, HOWEVER, that pursuant to the Guaranty the Guarantor
shall guaranty the obligation of each Borrower (so that the Partnership
shall also, as a Guarantor, be liable for the Obligations of the Company.)
The Term Loan Commitments (excluding any additional Term Loan Commitments
issued pursuant to SECTION 3.1) have been allocated to and shall be
borrowed by each Borrower on the Initial Funding Date in the following
amounts:
Partnership $ 135,000,000
Company $ 315,000,000
The Revolving Loan Commitments (excluding any additional Revolving Loan
Commitments issued pursuant to SECTION 3.1) have been allocated to and
shall be available for borrowing by each Borrower in accordance with this
Agreement in the following maximum amounts:
Partnership $ 75,000,000
Company $ 175,000,000
Revolving Loans need not be borrowed by each Borrower at the same time or
in the same proportions (but the maximum amount that may be borrowed by
each Borrower shall be as set forth above, subject to increase pursuant to
SECTION 3.1). Any increase in the Term Loan Commitments and Revolving Loan
Commitments shall be allocated to each Borrower in accordance with SECTION
3.1 below.
(b) NOTICE OF BORROWING. When a Borrower desires to borrow under
this SECTION 2.1, it shall deliver to the Administrative Agent a Notice of
Borrowing, signed by it (i) no later than noon (New York time) on the Business
Day immediately preceding the proposed Funding Date, in the case of a Borrowing
of Base Rate Loans and (ii) no later than noon (New York time) at least three
(3) Business Days in advance of the proposed Funding Date, in the case of a
Borrowing of Eurodollar Rate Loans. Such Notice of Borrowing shall specify (i)
the proposed Funding Date (which shall be a Business Day), (ii) the amount of
the proposed Borrowing, (iii) whether such Borrowing is of Term Loans or
Revolving Loans, (iv) with respect to a Borrowing of Revolving Loans, the
Revolving Credit Availability as of the date of such Notice of Borrowing, (v)
whether the proposed Borrowing will be of Base Rate Loans or Eurodollar Rate
Loans, (vi) in the case of Eurodollar Rate Loans, the requested Eurodollar
Interest Period and (vii) instructions for the disbursement of the proceeds of
the proposed Borrowing. In lieu of delivering such a Notice of Borrowing (except
with respect to a Borrowing of Loans on the Initial Funding Date), the Borrower
may give the Administrative Agent telephonic notice of any proposed Borrowing by
the time required under this SECTION 2.1(b), if the Borrower confirms such
notice by delivery of the Notice of Borrowing to the Administrative
26
Agent by facsimile transmission promptly, but in no event later than 1:00 p.m.
(New York time) on the same day.
(c) MAKING OF LOANS.
(i) Promptly after receipt of a Notice of Borrowing under
SECTION 2.1(b) (or telephonic notice in lieu thereof), the Administrative
Agent shall notify each Lender by facsimile transmission, or other similar
form of transmission, of the proposed Borrowing (which notice to the
Lenders, in the case of a Borrowing of Eurodollar Rate Loans, shall be at
least three (3) Business Days in advance of the proposed Funding Date for
such Loans). Each Lender shall deposit an amount equal to its Pro Rata
Share of the Borrowing requested by the Borrower with the Administrative
Agent at its office in New York, New York in immediately available funds,
not later than noon (New York time) on the respective Funding Date. Subject
to the fulfillment of the conditions precedent set forth in SECTION 6.1 or
SECTION 6.2, as applicable, the Administrative Agent shall make the
proceeds of such amounts received by it available to the Borrower at the
Administrative Agent's office in New York, New York on such Funding Date
(or on the date received if later than such Funding Date) and shall
disburse such proceeds in accordance with the Borrower's disbursement
instructions set forth in the applicable Notice of Borrowing. The failure
of any Lender to deposit the amount described above with the Administrative
Agent on the applicable Funding Date shall not relieve any other Lender of
its obligations hereunder to make its Loan on such Funding Date. In the
event the conditions precedent set forth in SECTION 6.1 or SECTION 6.2, as
applicable, are not fulfilled as of the proposed Funding Date for any
Borrowing, the Administrative Agent shall promptly return to each Lender,
by wire transfer of immediately available funds, the amount deposited by
such Lender.
(ii) Unless the Administrative Agent shall have been
notified by any Lender on the Business Day immediately preceding the
applicable Funding Date in respect of any Borrowing that such Lender does
not intend to fund its Loan requested to be funded on such Funding Date,
the Administrative Agent may assume that such Lender has funded its Loan
and is depositing the proceeds thereof with the Administrative Agent on
such Funding Date, and the Administrative Agent in its sole discretion may,
but shall not be obligated to, disburse a corresponding amount to the
Borrower on the Funding Date. If the Loan proceeds corresponding to that
amount are advanced to the Borrower by the Administrative Agent but are not
in fact deposited with the Administrative Agent by such Lender on or prior
to such Funding Date, such Lender agrees to pay, and in addition the
Borrower agrees to repay, to the Administrative Agent forthwith on demand
such corresponding amount of such advance by the Administrative Agent,
together with interest thereon, for each day from the date such amount is
disbursed to or for the benefit of the Borrower until the date such amount
is paid or repaid to the Administrative Agent, at the interest rate
applicable to such Borrowing. If such Lender shall pay to the
Administrative Agent the corresponding amount of such advance by the
Administrative Agent, the amount so paid shall constitute such Lender's
Loan, and if both such Lender and the Borrower shall pay and repay such
corresponding amount, the Administrative Agent shall promptly pay to the
Borrower such corresponding amount of such advance
27
by the Administrative Agent. This SECTION 2.1(c)(ii) does not relieve any
Lender of its obligation to make its Loan on the Funding Date.
2.2 AMORTIZATION. Except to the extent application of a prepayment
pursuant to the last sentence of Section 4.2(b)(i) has already resulted in the
payment of such a scheduled amortization payment, the Borrower shall make
principal amortization payments on the Term Loans on or before the first day of
May, 2004 and on or before the first day of each August, November, February and
May thereafter until the Term Loans have been repaid in full, each such payment
to be in the Amortization Payment Amount. Such payments shall be applied seventy
percent (70%) to Term Loans of the Company and thirty percent (30%) to Term
Loans of the Partnership. The "AMORTIZATION PAYMENT AMOUNT" shall mean
$5,625,000 (being 1.25% (5% on a per annum basis) of the amount of the Term
Loans to be funded on the Initial Funding Date), provided that, as additional or
increased Term Loans are funded pursuant to ARTICLE III, the Amortization
Payment Amount shall increase by 1.25% (5% on a per annum basis) of each such
addition or increase.
2.3 TERMINATION DATE. All then outstanding Obligations shall be due and
payable on the Termination Date. Each Lender's obligation to make Loans shall
terminate on the Business Day next preceding the Termination Date.
2.4 USE OF PROCEEDS OF LOANS. The proceeds of the Loans to the Borrower
hereunder may be used to provide working capital to Borrower including, but not
limited to, real estate acquisitions, development costs and debt repayment.
2.5 MAXIMUM CREDIT FACILITY. Notwithstanding anything in this Agreement
to the contrary, in no event shall the aggregate Credit Obligations exceed
$1,000,000,000 without the consent of each Lender.
2.6 SPECIAL REDUCTION IN COMMITMENTS. Pursuant to letter agreement dated
April 3, 2003 ("JOINT SYNDICATION LETTER") between the Lead Agents and the other
Lenders which are original signatories to this Agreement (the Lead Agents and
such other Lenders referred to herein as the "AGENTS"), the terms of which Joint
Syndication Letter have been approved by Borrower, agreement was reached to
effectuate a "Successful Secondary Syndication" by the reduction of each Agent's
Commitment to its respective "Maximum Hold Level" (with each initially
capitalized term used in this SECTION 2.6 and not defined in this Agreement
having the meaning ascribed to that term in the Joint Syndication Letter). If
(i) a Successful Secondary Syndication is not achieved within ninety (90) days
after the Closing Date and (ii) the Borrower withholds consent to changes to the
structure, terms (including pricing), or amount of the Facility which have been
requested by the Lead Agents (following consultation with the Borrower) in order
to achieve a Successful Secondary Syndication, then upon written notice from the
Lead Agents to the Borrower and the Lenders (x) the Commitment of each Agent
shall be reduced (with such reduction first to be applied against Revolving Loan
Commitments) to the extent necessary so that the Commitment of each Agent equals
its respective Maximum Hold Level (as shall be specified in such notice) and (y)
to the extent that the outstanding balance of the Loans held by any Agent
exceeds such Agent's Commitment (as so reduced), the Borrower shall within
thirty (30) days of such notice pay to each such Agent the excess of the
outstanding balance of its Loans over the amount of its reduced Commitment (with
Borrower also being required to pay
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any amounts payable under SECTION 5.2(f), if applicable). Each such reduction in
the Commitments shall be allocated seventy percent (70%) to Loans to the Company
and thirty percent (30%) to Loans to the Partnership. In the event of any such
reduction in the Revolving Loan Commitment of one or more Agents (regardless of
whether any principal payment is required as set forth in the preceding
sentence), the Administrative Agent shall recalculate the Revolving Loan Pro
Rata Share of each Lender and shall calculate each Lender's "TARGET
OUTSTANDINGS" by multiplying each Lender's Revolving Loan Pro Rata Share (as
recalculated) by the aggregate outstanding balance of all Revolving Loans. Those
Lenders ("PURCHASING LENDERS") who then hold outstanding Revolving Loans in an
amount less than their Target Outstandings shall purchase Revolving Loans from
the Lenders ("SELLING LENDERS") who then hold Revolving Loans in an amount
greater than their Target Outstandings so that upon completion of such purchase
each Lender will hold Revolving Loans in the amount of its respective Target
Outstandings. Such purchase shall be effectuated by each Purchasing Lender
paying to the Administrative Agent the amounts by which its outstanding
Revolving Loans are less than its Target Outstandings, from which funds
Administrative Agent shall pay to each Selling Lender the amount by which its
outstanding Revolving Loans exceed its Target Outstandings, so as to achieve the
result that each Lender will hold outstanding Revolving Loans in an amount equal
to its Target Outstandings. The closing date of such purchase shall be a date
determined by Administrative Agent with not less than two (2) Business Days'
prior written notice to the Lenders. Administrative Agent shall select such date
in good faith so as to coincide, to the extent feasible, with the expiration of
Eurodollar Interest Periods in order to avoid (or, to the extent the
Administrative Agent determines in good faith that avoidance is not feasible
because of the expiration of Eurodollar Interest Periods on varying dates,
minimize) the repayment of portions of Eurodollar Rate Loans prior to the end of
the applicable Eurodollar Interest Period, but Borrower shall pay in accordance
with SECTION 5.2(f) losses incurred by any Selling Lender who receives repayment
of a portion of its Eurodollar Rate Loans prior to the end of the applicable
Eurodollar Interest Period. Each such payment is a purchase of an interest in
the Revolving Loans and not a funding to Borrower. If any such reduction reduces
the Term Commitment of one or more Agents, there shall be no such adjustment
between the Lenders of the outstanding Term Loans, but the Term Loan Pro Rata
Share of each Lender shall be recalculated accordingly. Notwithstanding the
provisions of SECTION 15.7, if a Successful Secondary Syndication is achieved
(and Borrower has performed any obligations it may have under this SECTION 2.6),
Administrative Agent is hereby authorized (on behalf of the Lenders) to enter
into a memorandum with Borrower stating that this SECTION 2.6 is no longer of
any force or effect and memorializing any cancellation of Commitments pursuant
hereto.
2.7 AUTHORIZED AGENTS. On the Closing Date and from time to time
thereafter, the Borrower shall deliver to the Administrative Agent an Officer's
Certificate setting forth the names of the employees and agents authorized to
request Loans and to request a conversion/continuation of any Loan and
containing a specimen signature of each such employee or agent. The employees
and agents so authorized shall also be authorized to act for the Borrower in
respect of all other matters relating to the Loan Documents. The Administrative
Agent and the Lenders shall be entitled to rely conclusively on such employee's
or agent's authority to request such Loan or such conversion/continuation until
the Administrative Agent receives written notice to the contrary. The
Administrative Agent shall have no duty to verify the authenticity of the
signature appearing on any written Notice of Borrowing or Notice of
Conversion/Continuation or any other document, and, with respect to an oral
request for any
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Loan or any conversion/continuation, the Administrative Agent shall have no duty
to verify the identity of any person representing himself or herself as one of
the employees or agents authorized to make such request or otherwise to act on
behalf of the Borrower. None of the Administrative Agent or the Lenders shall
incur any liability to the Borrower or any other Person in acting upon any
telephonic or facsimile notice referred to above which the Administrative Agent
or such Lender reasonably believes to have been given by a person duly
authorized to act on behalf of the Borrower and the Borrower hereby indemnifies
and holds harmless the Administrative Agent and each other Lender from any loss
or expense the Administrative Agent or the Lenders incur in acting in good faith
as provided in this SECTION 2.7, provided however that the Borrower shall not
indemnify or hold harmless the Administrative Agent or any other Lender from any
loss or expense incurred as the result of the Administrative Agent's or such
Lender's gross negligence or willful misconduct.
ARTICLE III - INCREASE OF THE FACILITY
3.1 INCREASE IN MAXIMUM AGGREGATE COMMITMENT AMOUNT. The Maximum
Aggregate Commitment Amount as of the date hereof is $700,000,000 ($450,000,000
of Term Loan Commitments and $250,000,000 of Revolving Loan Commitments). So
long as the Borrower is then in compliance with the conditions precedent to
making further Borrowings as set forth in SECTION 6.2 (and a Successful
Secondary Syndication has been achieved as set forth in SECTION 2.6), the
Maximum Aggregate Commitment Amount may be increased at the election of the
Borrower, to an amount not greater than the difference between (i)
$1,000,000,000, LESS (ii) the amount of any Term Loan repayments which have been
made. Increases in the Maximum Aggregate Commitment Amount may be effectuated by
any combination of joinder herein as a Lender by an Eligible Assignee who was
not a Lender immediately before such joinder and the increase in the Commitment
by an existing Lender. (Borrower acknowledges that as of the date hereof, no
Lender has undertaken to provide, or cause to be provided, any additional or
increased Commitment). Such increases must be effectuated, if at all, no later
than two years and six months after the Closing Date. The division of the
increase in the Maximum Aggregate Commitment Amount between Revolving Loan
Commitments and Term Loan Commitments shall be as determined by the Borrower
(with the agreement of the Lenders providing new or increased Commitments). Each
increase in the Revolving Loan Commitments and/or Term Loan Commitments shall be
allocated seventy percent (70%) to the Company and thirty percent (30%) to the
Partnership. Borrower shall pay all reasonable actual out of pocket expenses of
the Administrative Agent in connection with each such increase.
3.2 JOINDER OF NEW LENDER. In the event of any such proposed joinder by
an Eligible Assignee, such joinder shall occur only as to a Commitment by such
Eligible Assignee that will not cause all Commitments to exceed the Maximum
Aggregate Commitment Amount, after giving effect to such joinder and any other
such joinders and any increases under SECTION 3.3 hereof to occur substantially
contemporaneously therewith. The proposed joinder of any Eligible Assignee
satisfying the requirements of the preceding sentence shall be effectuated
through such Eligible Assignee's execution and delivery to the Administrative
Agent, the Borrower and each Lender of a joinder agreement ("JOINDER
AGREEMENT"), in form and content reasonably satisfactory to the Administrative
Agent and the Borrower, pursuant to which such Eligible Assignee agrees to
become a Lender hereunder and under the other Loan Documents and
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assumes all of the obligations of a Lender hereunder and thereunder, whereupon,
effective as of the date of such execution and delivery:
(a) such Eligible Assignee shall become a Lender party to this
Agreement for all purposes hereof, entitled to all of the rights and subject to
all of the obligations of a Lender hereunder,
(b) the Commitment of such Eligible Assignee shall be the amount
committed by such Eligible Assignee as set forth in such Joinder Agreement
(which amount will not cause all Commitments to exceed the Maximum Aggregate
Commitment Amount, after giving effect to such joinder and any other such
joinders and any increases under SECTION 3.3 hereof to occur substantially
contemporaneously therewith),
(c) the Borrower shall immediately pay to such Eligible Assignee
such fees as the Borrower may have agreed to pay in connection with the joinder
of such Eligible Assignee,
(d) subject to the provisions of SECTION 3.4, if such Eligible
Assignee is providing a Revolving Loan Commitment, such Eligible Assignee shall
immediately purchase from each party hereto that was a Lender immediately prior
to such effective date, and pay to each such Lender at par, such Eligible
Assignee's Revolving Loan Pro Rata Share of each such Lender's Revolving Loans
then outstanding hereunder, including, without limitation, interest then accrued
and unpaid thereon,
(e) if such Eligible Assignee is providing a Term Loan Commitment,
such Eligible Assignee shall (provided that Borrower then satisfies the
conditions set forth in SECTION 6.2) disburse a Term Loan to Borrower in the
amount of such Eligible Assignee's Term Loan Commitment, and
(f) each Borrower shall immediately deliver to each such Eligible
Assignee Notes substantially in the form attached hereto as EXHIBIT B.
3.3 INCREASE IN COMMITMENT OF EXISTING LENDER. In the event of any such
proposed increase in the Commitment of any Lender, such increase shall occur
only as to an increase in an amount that will not cause all Commitments to
exceed the Maximum Aggregate Commitment Amount, after giving effect to such
increase and any other such increases and any joinders under SECTION 3.2 hereof
to occur substantially contemporaneously therewith. Any proposed increase
satisfying the requirements of the preceding sentence shall be effectuated
through such Lender's execution and delivery to the Administrative Agent, the
Borrower and each Lender of an addendum to this Agreement ("ADDENDUM"), in form
and content reasonably satisfactory to the Administrative Agent and the
Borrower, evidencing such increase, whereupon, effective as of the date of such
execution and delivery:
(a) the Commitment of such Lender shall be increased by the amount
set forth in such Addendum (which amount shall not cause all Commitments to
exceed the Maximum Aggregate Commitment Amount, after giving effect to such
increase and any other such increases and any joinders under SECTION 3.2 hereof
to occur substantially contemporaneously therewith),
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(b) the Borrower shall immediately pay to such Lender such fees as
the Borrower may have agreed to pay in connection with such increase,
(c) subject to the provisions of SECTION 3.4, if such Lender is
providing a Revolving Loan Commitment, such Lender shall immediately purchase
from each other Lender that was a party hereto immediately prior to such
effective date, and pay to each such other Lender at par, a percentage of each
such other Lender's Revolving Loans then outstanding hereunder (including,
without limitation, interest then accrued and unpaid thereon), which percentage
shall equal the increase in such purchasing Lender's Revolving Pro Rata Share
resulting from the increase in its Revolving Loan Commitment, and
(d) if such Lender is increasing its Term Loan Commitment, such
Lender shall (provided that Borrower then satisfies the conditions set forth in
SECTION 6.2) disburse the increase in its Term Loan Commitment to the Borrower.
3.4 BREAKAGE COSTS DUE TO REALLOCATION OF COMMITMENTS. Borrower and
Administrative Agent shall cooperate in scheduling the effective date of any new
or increased Revolving Loan Commitments so as to coincide, to the extent
feasible, with the expiration of Eurodollar Interest Periods in order to avoid
(or, to the extent the Administrative Agent determines in good faith that
avoidance is not feasible because of the expiration of Eurodollar Interest
Periods on varying dates, minimize) the repayment of portions of Eurodollar Rate
Loans pursuant to SECTION 3.2(d) or SECTION 3.3(c), as applicable, prior to the
end of the applicable Eurodollar Interest Periods, but Borrower shall pay in
accordance with SECTION 5.2(f) losses incurred by any Lender who receives
repayment of any part of its Eurodollar Rate Loans prior to the end of the
applicable Eurodollar Interest Period. In the alternative to the readjustment of
the outstanding balance of each Lender's Revolving Loans provided for in SECTION
3.2(d) and SECTION 3.3(c), on the effective date of the issuance of a new (or
increased) Revolving Loan Commitment, Borrower may (subject to satisfying all
applicable conditions) effectuate a Borrowing of a portion of such new (or
increased) Revolving Loan Commitment in the amount which would result in the
outstanding Revolving Loans held by each Lender being in proportion to their
respective Revolving Loan Pro Rata Shares (as recalculated so as to give effect
to such new or increased Revolving Loan Commitment).
ARTICLE IV - PAYMENTS AND PREPAYMENTS
4.1 PREPAYMENTS; REDUCTIONS IN COMMITMENTS.
(a) VOLUNTARY PREPAYMENTS. The Borrower may, at any time and from
time to time, prepay the Loans, in part or in their entirety, subject to the
following limitations. The Borrower shall give at least two (2) days' prior
written notice to the Administrative Agent (which the Administrative Agent shall
promptly transmit to each Lender) of any prepayment to be made prior to the
occurrence of an Event of Default, which notice of prepayment shall specify the
date (which shall be a Business Day) of prepayment and shall specify the
allocations of such prepayment between the Company and the Partnership and
between the Term Loans and Revolving Loans. When notice of prepayment is
delivered as provided herein, the outstanding principal amount of the Loans to
be prepaid on the prepayment date specified in the notice shall become due and
payable on such prepayment date. Each voluntary partial prepayment of
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Revolving Loans shall be in a minimum amount of $1,000,000. Each voluntary
partial prepayment of Term Loans shall be in the minimum amount of $5,000,000.
Term Loans repaid may not be reborrowed and each repayment of Term Loans shall
reduce the Term Loan Commitments by a like amount. Eurodollar Rate Loans may be
prepaid in part or in their entirety only upon payment of the amounts described
in SECTION 5.2(f).
(b) VOLUNTARY REDUCTIONS IN REVOLVING LOAN COMMITMENTS. The
Borrower may, upon at least two (2) Business Days' prior written notice to the
Administrative Agent (which the Administrative Agent shall promptly transmit to
each Lender), at any time and from time to time, terminate in whole or
permanently reduce in part the Revolving Loan Commitments (with the allocation
of such reduction between the Partnership and the Company to be specified in
such notice); PROVIDED THAT the Borrower shall have made whatever payment may be
required to reduce the Revolving Credit Obligations to an amount less than or
equal to the Revolving Loan Commitments as reduced or terminated, which amount
shall become due and payable on the date specified in such notice. Any partial
reduction of the Revolving Loan Commitments shall be in an aggregate minimum
amount of $1,000,000, and shall reduce the Revolving Loan Commitment of each
Lender proportionately in accordance with its Revolving Loan Pro Rata Share. Any
notice of termination or reduction given to the Administrative Agent under this
SECTION 4.1(b) shall specify the date (which shall be a Business Day) of such
termination or reduction and, with respect to a partial reduction, the aggregate
principal amount thereof.
(c) NO PENALTY. The prepayments and payments in respect of
reductions and terminations described in clauses (a), (b) and (d) of this
SECTION 4.1 may be made without premium or penalty (except as provided in
SECTION 5.2(f)).
(d) MANDATORY PREPAYMENT. If at any time from and after the
Closing Date: (i) the Company, the Partnership or GGP, Inc. merges or
consolidates with another Person and the Company, the Partnership or GGP, Inc.,
as applicable, is not the surviving entity (provided that nothing herein or in
any other Loan Document shall prohibit a merger between the Company and the
Partnership, regardless of which entity is the surviving entity, so long as
contemporaneously with such merger the surviving Borrower shall assume the
non-surviving Borrower's obligations under the Loan Documents pursuant to
documentation in form and substance reasonably satisfactory to the Requisite
Lenders), or (ii) the Borrower or any Consolidated Subsidiary or any Minority
Holding sells, transfers, assigns, conveys or suffers foreclosure as to assets,
the book value of which (computed in accordance with GAAP but without deduction
for depreciation), in the aggregate of all such sales, transfers, assignments,
foreclosures or conveyances exceeds twenty percent (20%) of the then
Capitalization Value, or (iii) the portion of Capitalization Value attributable
to the aggregate Limited Minority Holdings of the Borrower and its Consolidated
Subsidiaries exceeds twenty-five percent (25%) of the then Capitalization Value,
or (iv) the Management Company ceases to provide property management and leasing
services to at least seventy-five percent (75%) of the total number of Real
Properties in which the Borrower has an ownership interest, excluding any such
Real Properties that are Limited Minority Holdings (the date any such event
shall occur being the "PREPAYMENT DATE"), the Commitments shall be terminated
and the Borrower shall be required to prepay the Loans in their entirety as if
the Prepayment Date were the Termination Date. The Borrower shall immediately
make such prepayment together with interest accrued to the date of the
prepayment on the principal amount
33
prepaid. In connection with the prepayment of any Loan prior to the maturity
thereof, the Borrower shall also pay any applicable expenses pursuant to SECTION
5.2(f). Each such prepayment shall be applied to prepay ratably the Loans of the
Lenders. Amounts prepaid pursuant to this SECTION 4.1(d) may not be reborrowed.
As used in this SECTION 4.1(d) only, the phrase "sells, transfers, assigns or
conveys" shall not include (i) sales or conveyances among Borrower and any
Consolidated Subsidiaries, or (ii) mortgages secured by Real Property, or (iii)
sales or conveyances of Securities representing interests in or obligations of
the Borrower or Subsidiaries or Minority Holdings in connection with the
acquisition of interests in Real Property, or (iv) sales or conveyances of
non-mall assets of Price Development Company, Limited Partnership and its
Subsidiaries.
4.2 PAYMENTS.
(a) MANNER AND TIME OF PAYMENT. All payments of principal and
interest on the Loans and other Obligations (including, without limitation, fees
and expenses) which are payable to the Administrative Agent or any other Lender
shall be made without offset, condition or reservation of right, in immediately
available funds, transmitted to the Administrative Agent not later than noon
(New York time) on the date and at the place due, to such account of the
Administrative Agent as it may designate, for the account of the Administrative
Agent or such other Lender, as the case may be; and funds received by the
Administrative Agent, including, without limitation, funds in respect of any
Loans to be made on that date, not later than noon (New York time) on any given
Business Day shall be credited against payment to be made that day and funds
received by the Administrative Agent after that time shall be deemed to have
been paid on the next succeeding Business Day. Payments actually received by the
Administrative Agent for the account of the Lenders, or any of them, shall be
paid to them in immediately available funds by the Administrative Agent promptly
after receipt thereof.
(b) APPORTIONMENT OF PAYMENTS.
(i) Subject to the provisions of SECTION 4.2(b)(v), all
payments of principal and interest in respect of outstanding Loans, all
payments of fees and all other payments in respect of any other
Obligations, shall be allocated among such of the Lenders as are entitled
thereto, in proportion to their respective Pro Rata Share or otherwise as
provided herein. Subject to the provisions of SECTION 4.2(b)(ii), all such
payments and any other amounts received by the Administrative Agent from or
for the benefit of a Borrower shall be applied in the following order:
(1) first, to pay principal and interest on any
portion of the Loans to such Borrower which the Administrative Agent
may have advanced on behalf of any Lender (other than the
Administrative Agent) for which the Administrative Agent has not
then been reimbursed by such Lender or the Borrower (or either of
them),
(2) second, to pay all other Obligations of such
Borrower then due and payable, and
(3) third, as the Borrower (or either of them) so
designates.
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Unless otherwise designated by the Borrower (or either of them), all principal
payments in respect of Loans shall be applied first, to repay outstanding Base
Rate Loans, and then to repay outstanding Eurodollar Rate Loans, with those
Eurodollar Rate Loans which have earlier expiring Eurodollar Interest Periods
being repaid prior to those which have later expiring Eurodollar Interest
Periods. If Borrower (or either of them) fails to designate the allocation of
any principal payments between Term Loans and Revolving Loans, such payment
shall first be applied to Revolving Loans. If Borrower (or either of them) fails
to designate the allocation of any principal payments between the Company and
the Partnership, such principal payments shall be applied PRO RATA to amounts
owed by the Partnership and the Company. Prepayments of the Term Loans, whether
voluntary or involuntary, shall be applied to installments of principal of the
Term Loans in the order in which such installments are due.
(ii) After the occurrence of an Event of Default and while
the same is continuing, the Administrative Agent shall apply all payments
in respect of any Obligations in the following order:
(1) first, to pay principal and interest on any
portion of the Loans which the Administrative Agent may have
advanced on behalf of any Lender (other than the Administrative
Agent) for which the Administrative Agent has not then been
reimbursed by such Lender or the Borrower;
(2) second, to pay Obligations in respect of any
fees, expense reimbursements or indemnities then due to the Lead
Agents, or any of them, in their respective capacities as such and
not as Lenders;
(3) third, to pay Obligations in respect of any
fees, expense reimbursements or indemnities then due to the Lenders;
(4) fourth, to pay interest due in respect of Loans;
(5) fifth, to the ratable payment or prepayment of
the outstanding principal amounts of Loans (without preference
between the Revolving Loans and the Term Loans); and
(6) sixth to the ratable payment of all other
Obligations.
The order of priority set forth in this SECTION 4.2(b)(ii) and the related
provisions of this Agreement are set forth solely to determine the rights and
priorities of the Administrative Agent, the other Lenders and other Holders as
among themselves. The order of priority set forth in clauses (3) through (6) of
this SECTION 4.2(b)(ii) may at any time and from time to time be changed by the
Requisite Lenders without necessity of notice to or consent of or approval by
the Borrower, any Holder which is not a Lender, or any other Person; PROVIDED,
HOWEVER, that no such change shall favor any Lender over any other Lender. The
order of priority set forth in clauses (1) and (2) of this SECTION 4.2(b)(ii)
may be changed only with the prior written consent of the Administrative Agent.
(iii) Intentionally deleted.
35
(iv) The Administrative Agent shall promptly distribute to
each other Lender at its primary address set forth on the appropriate
signature page hereof or the signature page to the Assignment and
Acceptance or the Joinder Agreement by which it became a Lender, or at such
other address as a Lender or other Holder may request in writing, such
funds as such Person may be entitled to receive, subject to the provisions
of ARTICLE XII; PROVIDED, HOWEVER, that the Administrative Agent shall
under no circumstances be bound to inquire into or determine the validity,
scope or priority of any interest or entitlement of any Holder and may
suspend all payments or seek appropriate relief (including, without
limitation, instructions from the Requisite Lenders or an action in the
nature of interpleader) in the event of any doubt or dispute as to any
apportionment or distribution contemplated hereby.
(v) In the event that any Lender fails to fund its Pro Rata
Share of any Borrowing requested by the Borrower which such Lender is
obligated to fund under the terms of this Agreement (the Loans funded by
the other Lenders as part of such Borrowing being hereinafter referred to
as "NON PRO RATA LOANS"), then until such Lender's cure of such failure the
proceeds of all amounts thereafter paid to or collected by Administrative
Agent which would otherwise be paid to such Lender pursuant to the terms of
this Agreement shall instead be applied ratably to repayment of amounts due
in respect of the Non Pro Rata Loans until all Non Pro Rata Loans have been
repaid. The foregoing shall govern notwithstanding any contrary requirement
of this Agreement or any instructions received in connection with any
payment upon the Obligations.
(c) PAYMENTS ON NON-BUSINESS DAYS. Whenever any payment to be made
by the Borrower hereunder or under the Notes is stated to be due on a day which
is not a Business Day, the payment shall instead be due on the next succeeding
Business Day (or, if required pursuant to SECTION 5.2(b)(iii), the next
preceding Business Day).
4.3 PROMISE TO REPAY; EVIDENCE OF INDEBTEDNESS.
(a) PROMISE TO REPAY. Each Borrower hereby agrees to pay when due
the principal amount of each Loan which is made to it, and further agrees to pay
all unpaid interest accrued thereon, in accordance with the terms of this
Agreement and the Notes. Each Borrower shall execute and deliver to each Lender
on the Closing Date, a Note evidencing the Loans owing or which may become owing
to such Lender, and thereafter shall execute and deliver such other Notes as are
necessary to evidence the Loans owing to the Lenders after giving effect to any
Assignment and Acceptance pursuant to SECTION 15.1, any Joinder Agreement
pursuant to SECTION 3.2 and any Addendum pursuant to SECTION 3.3 hereof, all in
form and substance acceptable to the Administrative Agent and the parties to
such Assignment and Acceptance, Joinder Agreement or Addendum, as applicable.
(b) LOAN ACCOUNT. Each Lender shall maintain in accordance with
its usual practice an account or accounts (a "LOAN ACCOUNT") evidencing the
Indebtedness of each Borrower to such Lender resulting from each Loan owing to
such Lender from time to time, including, without limitation, the amount of
principal and interest payable and paid to such Lender from time to time
hereunder and under the Notes.
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(c) CONTROL ACCOUNT. The Register maintained by the Administrative
Agent pursuant to SECTION 15.1(c) shall include a control account, and a
subsidiary account for each Lender, in which accounts (taken together) shall be
recorded (i) the date and amount of each Borrowing made hereunder, the type of
Loans comprising such Borrowing and any Eurodollar Interest Period applicable
thereto, (ii) the effective date and amount of each Assignment and Acceptance,
Joinder Agreement and Addendum delivered to and accepted by it and the parties
thereto, (iii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder or under the
Notes and (iv) the amount of any sum received by the Administrative Agent from
the Borrower hereunder and each Lender's share thereof.
(d) ENTRIES BINDING. The entries made in the Register and each
Loan Account shall be conclusive and binding for all purposes, absent manifest
error.
ARTICLE V - INTEREST AND FEES
5.1 INTEREST ON THE LOANS AND OTHER OBLIGATIONS.
(a) RATE OF INTEREST. All Loans and the outstanding principal
balance of all other Obligations shall bear interest on the unpaid principal
amount thereof from the date such Loans are made and such other Obligations are
due and payable until paid in full, except as otherwise provided in SECTION
5.1(d), as follows:
(i) If a Base Rate Loan or an Obligation other than a
Eurodollar Rate Loan, at a rate per annum equal to the sum of (A) the Base
Rate, as in effect from time to time as interest accrues, PLUS (B) the then
Applicable Margin for Base Rate Loans; and
(ii) If a Eurodollar Rate Loan, at a rate per annum equal to
the sum of (A) the Eurodollar Rate determined for the applicable Eurodollar
Interest Period, PLUS (B) the then Applicable Margin for Eurodollar Rate
Loans.
The applicable basis for determining the rate of interest on the Loans shall be
selected by the Borrower at the time a Notice of Borrowing or a Notice of
Conversion/Continuation is delivered by the Borrower to the Administrative
Agent; PROVIDED, HOWEVER, that the Borrower may not select the Eurodollar Rate
as the applicable basis for determining the rate of interest on such a Loan if
at the time of such selection an Event of Default has occurred and is continuing
or an Event of Default would occur as a result of such selection; and PROVIDED
FURTHER that the Borrower may not select the Eurodollar Rate for a Eurodollar
Interest Period of more than thirty (30) days if at the time of such selection a
Potential Event of Default has occurred and is continuing or a Potential Event
of Default would occur as a result of such selection; and PROVIDED FURTHER that
from and after the occurrence of an Event of Default, each Eurodollar Rate Loan
then outstanding shall, at the Administrative Agent's option, convert to a Base
Rate Loan. If on any day any Loan is outstanding with respect to which notice
has not been timely delivered to the Administrative Agent in accordance with the
terms of this Agreement specifying the basis for determining the rate of
interest on that day, then, except as set forth in the last sentence of SECTION
5.1(c)(ii), for that day interest on that Loan shall be determined by reference
to the Base Rate.
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(b) INTEREST PAYMENTS.
(i) Interest accrued on each Loan, whether a Base Rate Loan
or a Eurodollar Rate Loan, shall be calculated on the last day of each
calendar month and shall be payable in arrears (A) on the first day of each
calendar month with respect to a Base Rate Loan or Eurodollar Rate Loan,
commencing on the first such day following the making of such Loan, (B)
upon the payment or prepayment thereof in full or in part, and (C) if not
previously paid in full, at maturity (whether by acceleration or otherwise)
of such Loan.
(ii) Interest accrued on the principal balance of all other
Obligations shall be calculated on the last day of each calendar month and
shall be payable in arrears (A) on the first day of each calendar month,
commencing on the first such day following the accrual of such Obligation,
(B) upon repayment thereof in full or in part, and (C) if not previously
paid in full, at the time such other Obligation becomes due and payable
(whether by acceleration or otherwise).
(c) CONVERSION OR CONTINUATION.
(i) The Borrower shall have the option (A) to convert at
any time all or any part of outstanding Base Rate Loans to Eurodollar Rate
Loans; (B) to convert all or any part of outstanding Eurodollar Rate Loans
having Eurodollar Interest Periods which expire on the same date to Base
Rate Loans on such expiration date; or (C) to continue all or any part of
outstanding Eurodollar Rate Loans having Eurodollar Interest Periods which
expire on the same date as Eurodollar Rate Loans, and the succeeding
Eurodollar Interest Period of such continued Loans shall commence on such
expiration date; PROVIDED, HOWEVER, no such outstanding Loan may be
continued as, or be converted into, a Eurodollar Rate Loan (i) if such
continuation or conversion would violate any of the provisions of SECTION
5.2 or (ii) if an Event of Default has occurred and is continuing or an
Event of Default would occur as a result of such continuation or
conversion; and PROVIDED FURTHER no such outstanding Loan may be continued
as, or be converted into, a Eurodollar Rate Loan having a Eurodollar
Interest Period of more than thirty (30) days, if a Potential Event of
Default has occurred and is continuing or a Potential Event of Default
would occur as a result of such continuation or conversion. Any conversion
into or continuation of Eurodollar Rate Loans under this SECTION 5.1(c)
shall be in a minimum amount of $1,000,000 and in integral multiples of
$250,000 in excess of that amount.
(ii) To convert or continue a Loan under SECTION 5.1(c)(i),
the Borrower shall deliver a Notice of Conversion/Continuation to the
Administrative Agent no later than noon (New York time) at least three (3)
Business Days in advance of the proposed conversion/continuation date. A
Notice of Conversion/Continuation shall specify (A) the proposed
conversion/continuation date (which shall be a Business Day), (B) the
principal amount of the Loan to be converted/continued, (C) whether such
Loan shall be converted and/or continued, and (D) in the case of a
conversion to, or continuation of, a Eurodollar Rate Loan, the requested
Eurodollar Interest Period. In lieu of delivering a Notice of
Conversion/Continuation, the Borrower may give the Administrative Agent
telephonic notice of any proposed conversion/continuation by the
38
time required under this SECTION 5.1(c)(ii), if the Borrower confirms such
notice by delivery of the Notice of Conversion/Continuation to the
Administrative Agent by facsimile transmission promptly, but in no event
later than 1:00 p.m. (New York time) on the same day. Promptly after
receipt of a Notice of Conversion/Continuation under this SECTION
5.1(c)(ii) (or telephonic notice in lieu thereof), the Administrative Agent
shall notify each Lender by facsimile transmission, or other similar form
of transmission, of the proposed conversion/continuation. Any Notice of
Conversion/Continuation for conversion to, or continuation of, a Loan (or
telephonic notice in lieu thereof) given pursuant to this SECTION
5.1(c)(ii) shall be irrevocable, and the Borrower shall be bound to convert
or continue in accordance therewith. In the event no Notice of
Conversion/Continuation is delivered as and when specified in this SECTION
5.1(c)(ii) with respect to outstanding Eurodollar Rate Loans, upon the
expiration of the Eurodollar Interest Period applicable thereto, such Loans
shall automatically be continued as Eurodollar Rate Loans with a Eurodollar
Interest Period of thirty (30) days.
(d) DEFAULT INTEREST. Notwithstanding the rates of interest
specified in SECTION 5.1(a) or elsewhere in this Agreement, effective
immediately upon the occurrence of an Event of Default, and for as long
thereafter as such Event of Default shall be continuing, the principal balance
of all Loans and other Obligations shall bear interest at a rate equal to the
sum of (A) the Base Rate, as in effect from time to time as interest accrues,
PLUS (B) three percent (3.0%) per annum.
(e) COMPUTATION OF INTEREST. Interest on all Obligations shall be
computed on the basis of the actual number of days elapsed in the period during
which interest accrues and a year of 360 days. In computing interest on any
Loan, the date of the making of the Loan or the first day of a Eurodollar
Interest Period, as the case may be, shall be included and the date of payment
or the expiration date of a Eurodollar Interest Period, as the case may be,
shall be excluded; PROVIDED, HOWEVER, if a Loan is repaid on the same day on
which it is made, one (1) day's interest shall be paid on such Loan.
(f) EURODOLLAR RATE INFORMATION. Upon the reasonable request of
the Borrower from time to time, the Administrative Agent shall promptly provide
to the Borrower such information with respect to the applicable Eurodollar Rate
as may be so requested.
5.2 SPECIAL PROVISIONS GOVERNING EURODOLLAR RATE LOANS.
(a) AMOUNT OF EURODOLLAR RATE LOANS. Each Eurodollar Rate Loan
shall be in a minimum principal amount of $1,000,000 and in integral multiples
of $250,000 in excess of that amount.
(b) DETERMINATION OF EURODOLLAR INTEREST PERIOD. By giving notice
as set forth in SECTION 2.1(b) (with respect to a Borrowing of Eurodollar Rate
Loans) or SECTION 5.1(c) (with respect to a conversion into or continuation of
Eurodollar Rate Loans), the Borrower shall have the option, subject to the other
provisions of this SECTION 5.2, to select an interest period (each, a
"EURODOLLAR INTEREST PERIOD") to apply to the Loans described in such notice,
subject to the following provisions:
39
(i) The Borrower may only select, as to a particular
Borrowing of Eurodollar Rate Loans, a Eurodollar Interest Period of one,
two, three or six months in duration or, with the prior written consent of
the Administrative Agent, a shorter or a longer duration; PROVIDED,
HOWEVER, that the Borrower may not elect a Eurodollar Interest Period
longer than one month until achievement of a "Successful Secondary
Syndication" as described in SECTION 2.6.
(ii) In the case of immediately successive Eurodollar
Interest Periods applicable to a Borrowing of Eurodollar Rate Loans, each
successive Eurodollar Interest Period shall commence on the day on which
the next preceding Eurodollar Interest Period expires;
(iii) If any Eurodollar Interest Period would otherwise
expire on a day which is not a Business Day, such Eurodollar Interest
Period shall be extended to expire on the next succeeding Business Day, if
the next succeeding Business Day occurs in the same calendar month, and, if
there will be no succeeding Business Day in such calendar month, the
Eurodollar Interest Period shall expire on the immediately preceding
Business Day;
(iv) The Borrower may not select a Eurodollar Interest
Period as to any Loan if such Eurodollar Interest Period terminates later
than the Termination Date;
(v) The Borrower may not select a Eurodollar Interest
Period as to a Loan (or applicable portion thereof) if, after giving effect
to such selection, the aggregate principal amount of Eurodollar Rate Loans
having Eurodollar Interest Periods ending after the next succeeding date on
which an installment of the Loans is scheduled to be repaid would exceed
the aggregate principal amount of the Loans scheduled to be outstanding
after giving effect to such repayment; and
(vi) There shall be no more than ten (10) Eurodollar Rate
Loans outstanding under this Agreement at any one time in the aggregate.
(c) DETERMINATION OF EURODOLLAR INTEREST RATE. As soon as
practicable on the second Business Day prior to the first day of each Eurodollar
Interest Period (the "EURODOLLAR INTEREST RATE DETERMINATION DATE"), the
Administrative Agent shall determine (pursuant to the procedures set forth in
the definition of Eurodollar Rate) the interest rate which shall apply to the
Eurodollar Rate Loans for which an interest rate is then being determined for
the applicable Eurodollar Interest Period and shall promptly give notice thereof
(in writing or by telephone confirmed in writing) to the Borrower and to each
Lender. The Administrative Agent's determination shall be presumed to be
correct, absent manifest error, and shall be binding upon the Borrower.
(d) INTEREST RATE UNASCERTAINABLE, INADEQUATE OR UNFAIR. In the
event that at least one (1) Business Day before the Eurodollar Interest Rate
Determination Date:
(i) the Administrative Agent determines that deposits in
Dollars are not generally being offered in the London interbank market for
such Eurodollar Interest Period; or
40
(ii) the Administrative Agent determines that adequate and
fair means do not exist for ascertaining the applicable interest rates by
reference to which the Eurodollar Rate then being determined is to be
fixed; or
(iii) the Requisite Lenders advise the Administrative Agent
that the Eurodollar Rate for Eurodollar Rate Loans comprising such
Borrowing will not adequately reflect the cost to such Requisite Lenders of
obtaining funds in Dollars in the London interbank market in the amount
substantially equal to such Lenders' Eurodollar Rate Loans in Dollars and
for a period equal to such Eurodollar Interest Period;
then the Administrative Agent shall forthwith give notice thereof to the
Borrower, whereupon (until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist) the right of
the Borrower to elect to have Loans bear interest based upon the Eurodollar Rate
shall be suspended and each outstanding Eurodollar Rate Loan shall be converted
into a Base Rate Loan on the last day of the then current Eurodollar Interest
Period therefor, notwithstanding any prior election by the Borrower to the
contrary.
(e) ILLEGALITY.
(i) If at any time any Lender determines (which
determination shall, absent manifest error, be final and conclusive and
binding upon all parties) that the making or continuation of any Eurodollar
Rate Loan has become unlawful or impermissible by compliance by that Lender
with any law, governmental rule, regulation or order of any Governmental
Authority (whether or not having the force of law and whether or not
failure to comply therewith would be unlawful or would result in costs or
penalties), then, and in any such event, such Lender may give notice of
that determination, in writing, to the Borrower and the Administrative
Agent, and the Administrative Agent shall promptly transmit the notice to
each other Lender.
(ii) When notice is given by a Lender under SECTION
5.2(e)(i), (A) the Borrower's right to request from such Lender and such
Lender's obligation, if any, to make Eurodollar Rate Loans shall be
immediately suspended, and such Lender shall make a Base Rate Loan as part
of any requested Borrowing of Eurodollar Rate Loans and (B) if the affected
Eurodollar Rate Loan or Loans are then outstanding, the Borrower shall
immediately, or if permitted by applicable law, no later than the date
permitted thereby, upon at least one (1) Business Day's prior written
notice to the Administrative Agent and the affected Lender, convert each
such Loan into a Base Rate Loan.
(iii) If at any time after a Lender gives notice under
SECTION 5.2(e)(i) such Lender determines that it may lawfully make
Eurodollar Rate Loans, such Lender shall promptly give notice of that
determination, in writing, to the Borrower and the Administrative Agent,
and the Administrative Agent shall promptly transmit the notice to each
other Lender. The Borrower's right to request, and such Lender's
obligation, if any, to make Eurodollar Rate Loans shall thereupon be
restored.
(iv) Notwithstanding the foregoing, in the event that any
Lender gives such a notice, at Borrower's sole election, Borrower may
identify an Eligible Assignee to
41
whom the Lender which has given such a notice shall assign its interest in
the Loans pursuant to the terms of an Assignment and Acceptance
substantially in the form attached as EXHIBIT A.
(f) COMPENSATION. In addition to all amounts required to be paid
by the Borrower pursuant to SECTION 5.1 and ARTICLE XIII, the Borrower shall
compensate each Lender, upon demand, for all losses, expenses and liabilities
(including, without limitation, any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to fund or maintain such Lender's Eurodollar Rate Loans to the Borrower but
excluding any loss of Applicable Margin on the relevant Loans and losses or
expenses incurred as the result of such Lender's gross negligence or willful
misconduct) which that Lender may sustain (i) if for any reason a Borrowing,
conversion into or continuation of Eurodollar Rate Loans does not occur on a
date specified therefor in a Notice of Borrowing or a Notice of
Conversion/Continuation given by the Borrower or in a telephonic request by it
for borrowing or conversion/continuation or a successive Eurodollar Interest
Period does not commence after notice therefor is given pursuant to SECTION
5.1(c), other than such a failure resulting from the circumstances described in
SECTION 5.2(d) or SECTION 5.2(e), (ii) if for any reason any Eurodollar Rate
Loan is prepaid (including, without limitation, on a mandatory basis pursuant to
SECTION 4.1(d)) on a date which is not the last day of the applicable Eurodollar
Interest Period, or (iii) as a consequence of any failure by the Borrower to
repay a Eurodollar Rate Loan when required by the terms of this Agreement. The
Lender making demand for such compensation shall deliver to the Administrative
Agent concurrently with such demand, and the Administrative Agent shall promptly
forward to the Borrower, a written statement setting forth in reasonable detail
such losses, expenses and liabilities, and such statement shall be conclusive as
to the amount of compensation due to that Lender, absent manifest error.
(g) BOOKING OF EURODOLLAR RATE LOANS. Any Lender may make, carry
or transfer Eurodollar Rate Loans at, to, or for the account of, its Eurodollar
Lending Office or Eurodollar Affiliate or its other offices or Affiliates. No
Lender shall be entitled, however, to receive any greater amount under SECTIONS
4.2 or 5.2(f) or ARTICLE XIII as a result of the transfer of any such Eurodollar
Rate Loan to any office (other than such Eurodollar Lending Office) or any
Affiliate (other than such Eurodollar Affiliate) than such Lender would have
been entitled to receive immediately prior thereto, unless (i) the transfer
occurred at a time when circumstances giving rise to the claim for such greater
amount did not exist and (ii) such claim would have arisen even if such transfer
had not occurred.
(h) AFFILIATES NOT OBLIGATED. No Eurodollar Affiliate or other
Affiliate of any Lender shall be deemed a party to this Agreement or shall have
any liability or obligation under this Agreement unless such Eurodollar
Affiliate, itself, is a Lender.
(i) ADJUSTED EURODOLLAR RATE. Any failure by any Lender to take
into account the Eurodollar Reserve Percentage when calculating interest due on
Eurodollar Rate Loans shall not constitute, whether by course of dealing or
otherwise, a waiver by such Lender of its right to collect such amount for any
future period.
42
5.3 FEES.
(a) FACILITY FEE. The Borrower shall pay to the Administrative
Agent, for the account of the Lenders (other than Defaulting Lenders as provided
herein) based on their respective Revolving Loan Pro Rata Shares, a fee (the
"FACILITY FEE"), accruing at a per annum rate equal to the then applicable
Facility Fee Percentage on the Revolving Loan Commitments of all Lenders (other
than Defaulting Lenders only with respect to their unfunded Revolving Loan
Commitments), such fee being payable quarterly, in arrears, commencing on August
1, 2003 and on the first day of each November, February, May and August
thereafter, a prorated payment being payable upon any partial termination of the
Revolving Loan Commitments, and with a final prorated payment being payable on
the first to occur of termination of the Revolving Loan Commitments and the
Termination Date. Each such payment shall be in the amount of the accrued and
unpaid Facility Fee. Notwithstanding the foregoing, in the event that any Lender
fails to fund its Revolving Loan Pro Rata Share of any Revolving Loan requested
by the Borrower which such Lender is obligated to fund under the terms of this
Agreement, (A) such Lender shall not be entitled to any portion of the Facility
Fee with respect to its unfunded Revolving Loan Commitment until such failure
has been cured and (B) until such time, the Facility Fee shall accrue only in
favor of the Lenders which have funded their respective Revolving Loan Pro Rata
Shares of such requested Loan and shall be allocated among such performing
Lenders ratably based upon their relative Revolving Loan Commitments.
(b) CALCULATION AND PAYMENT OF FEES. All fees shall be calculated
on the basis of the actual number of days elapsed during the relevant period in
a 360-day year. All fees shall be payable in addition to, and not in lieu of,
interest, compensation, expense reimbursements, indemnification and other
Obligations. Fees shall be payable to the Administrative Agent in immediately
available funds. All fees shall be fully earned and nonrefundable when paid. All
fees due to any Lender, including, without limitation, those referred to in this
SECTION 5.3, shall bear interest, if not paid when due, at the interest rate
specified in SECTION 5.1(d) and shall constitute Obligations.
ARTICLE VI - CONDITIONS TO LOANS
6.1 CONDITIONS PRECEDENT TO THE LOANS. The obligation of each Lender on
the Initial Funding Date to make any Loan requested to be made by it shall be
subject to the satisfaction or waiver of all of the following conditions
precedent:
(a) COMMITMENTS. Commitments shall have been received from Lenders
aggregating not less than $700,000,000.
(b) DOCUMENTS. The Administrative Agent shall have received, on or
before the Funding Date, this Agreement, the Notes, the Guaranty, all other Loan
Documents and agreements, documents and instruments described in the List of
Closing Documents attached hereto as EXHIBIT E and made a part hereof, and such
additional documentation material to the Loans as the Administrative Agent may
reasonably request, each duly executed, if applicable, by the Borrower or GGP,
Inc., as appropriate, and in form and substance satisfactory to the
Administrative Agent. Without limiting the foregoing, the Borrower hereby
directs its counsel,
43
▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, to prepare and deliver to the Administrative Agent and
the Lenders, the legal opinion(s) referred to in such List of Closing Documents;
and
(c) NO LEGAL IMPEDIMENTS OR LITIGATION. No law, regulation, order,
judgment or decree of any Governmental Authority shall, and the Administrative
Agent shall not have received any notice that any litigation, arbitration
proceeding or other Claim is pending or threatened which is likely to (i)
enjoin, prohibit or restrain the making of the Loans on the Funding Date or (ii)
impose or result in the imposition of a Material Adverse Effect.
(d) NO CHANGE IN CONDITION. No change in (i) the business, assets,
management, operations, financial condition or prospects of the Borrower, GGP,
Inc. or any Major Subsidiary or any of their respective Properties shall have
occurred since December 31, 2002, which change, in the judgment of the
Administrative Agent, has had, will have or is reasonably likely to have a
Material Adverse Effect, or (ii) conditions in the financial, banking, or
capital markets has occurred which the Lead Agents, in their sole discretion,
deem materially adverse to the Successful Secondary Syndication of the Facility.
(e) INTERIM LIABILITIES AND EQUITY. Except as disclosed in writing
to the Administrative Agent and the Lenders, since December 31, 2002, neither
GGP, Inc. nor the Borrower shall have (i) entered into any material (as
determined in good faith by the Administrative Agent) commitment or transaction,
including, without limitation, transactions for borrowings and Capital
Expenditures, which are not in the ordinary course of GGP, Inc.'s or the
Borrower's business, (ii) declared or paid any dividends or other distributions
(other than the dividends anticipated to be paid on April 15 and April 30,
2003), (iii) established compensation or employee benefit plans, or (iv)
redeemed any equity Securities.
(f) DEFAULTS. Neither Borrower, nor GGP, Inc. nor any Major
Subsidiary is in default under documents pertaining to any Indebtedness or
otherwise pertaining to any material financial obligations if such default would
reasonably be expected to result in a Material Adverse Effect.
(g) NO LOSS OF MATERIAL AGREEMENTS AND LICENSES. Since December
31, 2002, no agreement or license relating to the business, operations or
employee relations of the Borrower or any of its Properties shall have been
terminated, modified, revoked, breached or declared to be in default, the
termination, modification, revocation, breach or default under which, in the
reasonable judgment of the Administrative Agent, would result in a Material
Adverse Effect.
(h) DUE DILIGENCE. The Lenders shall have completed and are
satisfied with the results of, all legal, business, financial and other due
diligences relating to Borrower and GGP, Inc., including with respect to the
legal structure of Borrower and Guarantor.
(i) NO DEFAULT. No Event of Default or Potential Event of Default
shall have occurred and be continuing or would result from the making of the
Loans.
(j) REPRESENTATIONS AND WARRANTIES. All of the representations and
warranties contained in SECTION 7.1 and in any of the other Loan Documents shall
be true and correct in all material respects on and as of the Initial Funding
Date (other than representations and warranties
44
which expressly speak as to a different specific date, which shall be true and
correct as of such date).
(k) FEES AND EXPENSES PAID. There shall have been paid to the
Administrative Agent, for the accounts of the Administrative Agent and the other
Lenders, as applicable, all fees due and payable on or before the Initial
Funding Date and all expenses due and payable on or before the Initial Funding
Date, including, without limitation, reasonable attorneys' fees and expenses,
and other costs and expenses incurred in connection with the Loan Documents.
(l) APPROVALS. The Borrower shall have provided evidence
reasonably satisfactory to the Administrative Agent that all third party
approvals necessary (including under any documentation evidencing Indebtedness
of a Borrower), if any, in connection with the Borrower's execution of the Loan
Documents have been obtained or shall have provided a certification from the
Borrower that no such approvals are required.
(m) REPAYMENT OF OTHER FACILITIES. All commitments of the lenders
shall have terminated under that certain Credit Agreement dated as of July 10,
2002 among the Company, Eurohypo, as successor "Administrative Agent" and as a
lender thereunder, and the other lenders identified therein and under that
certain unsecured Term Loan Agreement dated as of July 31, 2000 among Bankers
Trust Company, as "Administrative Agent", the Partnership, the Company and the
lending institutions party thereto, and Borrower shall repay in full all of its
obligations under each of said facilities immediately upon the initial funding
of the Loans hereunder.
(n) COVENANT CALCULATIONS. The Borrower shall have delivered to
the Administrative Agent pro forma calculations of the financial covenants and
ratios described in ARTICLE X hereof as of the end of calendar years 2002 (if
actual calculations have not been previously delivered), 2003 and 2004 in form
as provided in SECTION 8.2(a)(iii)(B) AND 8.2(b)(iii)(B) hereof for such
calculations and otherwise in form and substance satisfactory to the
Administrative Agent.
(o) PRO FORMA SOURCES AND USES. The Borrower shall have delivered
to the Administrative Agent PRO FORMA sources and uses of funds for calendar
years 2003, 2004 and 2005 in form and substance satisfactory to Administrative
Agent.
6.2 CONDITIONS PRECEDENT TO ALL SUBSEQUENT LOANS. The obligation of each
Lender to make any Loan requested to be made by it on any Funding Date after the
Initial Funding Date is subject to the following conditions precedent as of each
such date:
(a) REPRESENTATIONS AND WARRANTIES. As of such Funding Date, both
before and after giving effect to the Loans to be made on such date, all of the
representations and warranties of the Borrower contained in SECTION 7.1 and of
the Guarantor as contained in the Guaranty shall be true and correct in all
material respects (other than representations and warranties which expressly
speak as of a different date, which shall be true and correct as of such date,
and other than representations and warranties with respect to which the Borrower
or Guarantor, as applicable, has disclosed to the Administrative Agent in
writing that the facts are not as represented therein and the Administrative
Agent has approved or consented to, conditionally or otherwise, the facts as so
disclosed).
45
(b) NO DEFAULTS. No Event of Default or Potential Event of Default
shall have occurred and be continuing or would result from the making of the
requested Loan.
(c) NO LEGAL IMPEDIMENTS. No law, regulation, order, judgment or
decree of any Governmental Authority shall, and the Administrative Agent shall
not have received from any Lender notice that, in the judgment of such Lender,
litigation is pending or threatened which is likely to, enjoin, prohibit or
restrain, or impose or result in the imposition of any material adverse
condition upon such Lender's making the requested Loan.
(d) NO MATERIAL ADVERSE EFFECT. The Borrower shall not have
received written notice from the Requisite Lenders that an event has occurred
since the date of this Agreement which has had and continues to have, will have
or is reasonably likely to have, a Material Adverse Effect.
Each submission by the Borrower to the Administrative Agent of a Notice of
Borrowing with respect to a Borrowing or a Notice of Conversion/Continuation
with respect to any Loan and each acceptance by the Borrower of the proceeds of
each Loan made, converted or continued hereunder, shall constitute a
representation and warranty by the Borrower as of the Funding Date in respect of
such Borrowing or Loan and the date of conversion or continuation, that all the
conditions contained in this SECTION 6.2 have been satisfied or waived in
accordance with SECTION 15.7.
ARTICLE VII - REPRESENTATIONS AND WARRANTIES
7.1 REPRESENTATIONS AND WARRANTIES OF THE BORROWER. In order to induce
the Lenders to enter into this Agreement and to make the Loans and the other
financial accommodations to the Borrower described herein, each Borrower hereby
represents and warrants as to itself (and, where applicable, its Subsidiaries)
and only to the extent applicable to it (provided that each Borrower shall be
deemed to have made the representations and warranties set forth in this Article
VII with respect to the Consolidated Businesses) to each Lender that the
following statements are true, correct and complete:
(a) ORGANIZATION; POWERS.
(i) The Partnership (A) is a limited partnership duly
formed, validly existing and in good standing under the laws of the State
of Delaware, (B) is duly qualified to do business and is in good standing
under the laws of each jurisdiction in which failure to be so qualified and
in good standing will have or is reasonably likely to have a Material
Adverse Effect, (C) has all requisite partnership power and authority to
own, operate and encumber its Property and to conduct its business as
presently conducted and as proposed to be conducted in connection with and
following the consummation of the transactions contemplated by this
Agreement and (D) is a partnership for federal income tax purposes.
(ii) The Company (A) is a Delaware limited liability company
duly formed, validly existing and in good standing under the laws of the
State of Delaware, (B) is duly qualified to do business and is in good
standing under the laws of each
46
jurisdiction in which failure to be so qualified and in good standing will
have or is reasonably likely to have a Material Adverse Effect, (C) has all
requisite limited liability company power and authority to own, operate and
encumber its Property and to conduct its business as presently conducted
and as proposed to be conducted in connection with and following the
consummation of the transactions contemplated by this Agreement and (D) is
a partnership for federal income tax purposes. The Partnership is a member
of the Company, having an interest in the Company as set forth in SCHEDULE
7.1-A-1 attached hereto. The only other members of the Company are GSEP
2000 Realty Corp. (an Affiliate of ▇▇▇▇▇▇▇, ▇▇▇▇▇), GSEP 2002 Realty Corp.
(an Affiliate of ▇▇▇▇▇▇▇, Sachs), DA Retail Investments, LLC (a private
investor), Caledonian Holding Company, Inc. (a corporation which is an
Affiliate of the Partnership), and GGP American Properties Inc. (a
corporation which is an Affiliate of the Partnership), each having an
interest in the Company as set forth in SCHEDULE 7.1-A-1 attached hereto.
(iii) [Intentionally Omitted].
(iv) True, correct and complete copies of the Borrower's
Organizational Documents identified on SCHEDULE 7.1-A have been delivered
to the Administrative Agent, each of which is in full force and effect, has
not been modified or amended except to the extent indicated therein and, to
the best of the Borrower's knowledge, there are no defaults under such
Organizational Documents and no events which, with the passage of time or
giving of notice or both, would constitute a default under such
Organizational Documents.
(v) Neither the Borrower nor any of its Affiliates is a
"foreign person" within the meaning of Section 1445 of the Internal Revenue
Code.
(b) AUTHORITY.
(i) The Partnership is the sole managing member of the
Company, and no other member of the Company has any decision-making
authority in connection with the business, assets, liabilities, operations
or other affairs of the Company. GGP, Inc. is the sole general partner of
the Partnership.
(ii) GGP, Inc., (A) in its capacity as the sole general
partner of the Partnership, in respect of the Partnership and (B) in its
capacity as the sole general partner of the Partnership, in the
Partnership's capacity as the sole managing member of the Company, in
respect of the Company, has the requisite power and authority to execute,
deliver and perform this Agreement on behalf of the Borrower and each of
the other Loan Documents which are required to be executed on behalf of the
Borrower as required by this Agreement. GGP, Inc. is the Person who has
executed this Agreement and such other Loan Documents on behalf of the
Borrower.
(iii) The execution, delivery and performance of each of the
Loan Documents which must be executed in connection with this Agreement by
the Borrower and to which the Borrower is a party and the consummation of
the transactions contemplated thereby are within the Partnership's
partnership powers and the Company's
47
limited liability company powers, have been duly authorized by all
necessary partnership action or limited liability company action, as
applicable, and such authorization has not been rescinded. No other
partnership or limited liability company action or proceedings on the part
of the Borrower are necessary to consummate such transactions.
(iv) Each of the Loan Documents to which the Borrower is a
party has been duly executed and delivered on behalf of the Borrower and
constitutes the Borrower's legal, valid and binding obligation, enforceable
against the Borrower in accordance with its terms (except to the extent
that the enforcement thereof or the availability of equitable remedies may
be limited by applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent transfer, fraudulent conveyance or similar laws now
or hereafter in effect relating to or affecting creditors' rights generally
or by general principles of equity, or by the discretion of any court in
awarding equitable remedies, regardless of whether such enforcement is
considered in a preceding in equity or at law), is in full force and effect
and all the terms, provisions, agreements and conditions set forth therein
and required to be performed or complied with by the Borrower on or before
the Funding Date have been performed or complied with, and no Potential
Event of Default, Event of Default or breach of any covenant by the
Borrower exists thereunder.
(c) SUBSIDIARIES; OWNERSHIP OF CAPITAL STOCK AND PARTNERSHIP
INTERESTS.
(i) SCHEDULE 7.1-C (A) contains a diagram indicating the
structure of the Borrower, and any other Person in which the Borrower holds
a direct or indirect partnership, membership, joint venture or other equity
interest, indicating the nature of such interest with respect to each
Person included in such diagram; and (B) accurately sets forth (1) the
correct legal name of such Person, the jurisdiction of its incorporation or
organization and the jurisdictions in which it is qualified to transact
business as a foreign corporation, or otherwise, and (2) the authorized,
issued and outstanding shares or interests of each class of Securities
representing equity interests of the Borrower and the owners of such shares
or interests (as of the date(s) indicated on such SCHEDULE 7.1-C). None of
such issued and outstanding Securities is subject to any vesting,
redemption, or repurchase agreement, and there are no warrants or options
outstanding with respect to such Securities, except as noted on SCHEDULE
7.1-C.
(ii) The outstanding Securities issued by the Borrower and,
to the extent owned by the Borrower, its Subsidiaries are duly authorized
and validly issued. The Borrower has previously caused to be delivered to
the Administrative Agent a true, accurate and complete copy of the Borrower
Partnership Agreement and the Borrower Operating Agreement, each as amended
through and as in effect on the Closing Date, and neither the Borrower
Partnership Agreement nor the Borrower Operating Agreement has been
amended, supplemented, replaced, restated or otherwise modified in any
respect since the Closing Date.
(iii) Except where failure may not have a Material Adverse
Effect, each Subsidiary: (A) is a corporation, limited liability company,
trust or partnership, as indicated on SCHEDULE 7.1-C, duly organized or
formed, validly existing and, if
48
applicable, in good standing under the laws of the jurisdiction of its
organization; (B) is duly qualified to do business and, if applicable, is
in good standing under the laws of each jurisdiction in which failure to be
so qualified and in good standing would limit its ability to use the courts
of such jurisdiction to enforce Contractual Obligations to which it is a
party; and (C) has all requisite power and authority to own, operate and
encumber its Property and to conduct its business as presently conducted
and as proposed to be conducted hereafter.
(d) NO CONFLICT. The execution, delivery and performance of each
of the Loan Documents to which the Borrower is a party do not and will not (i)
conflict with the Organizational Documents of the Borrower, (ii) constitute a
tortious interference with any Contractual Obligation of any Person or conflict
with, result in a breach of or constitute (with or without notice or lapse of
time or both) a default under any Requirement of Law or Contractual Obligation
of the Borrower, or require termination of any such Contractual Obligation which
may subject the Administrative Agent or any of the other Lenders to any
liability or which is reasonably likely to have a Material Adverse Effect, (iii)
result in or require the creation or imposition of any Lien whatsoever upon any
of the Property or assets of the Borrower or any Subsidiary of the Borrower, or
(iv) require any approval of shareholders of GGP, Inc.
(e) GOVERNMENTAL CONSENTS. The execution, delivery and performance
of each of the Loan Documents to which the Borrower is a party do not and will
not require any registration with, consent or approval of, or notice to, or
other action to, with or by any Governmental Authority, except filings, consents
or notices which have been made, obtained or given.
(f) GOVERNMENTAL REGULATION. The Borrower is not is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act, or the Investment Company Act of 1940,
or any other federal or state statute or regulation which limits its ability to
incur indebtedness or its ability to consummate the transactions contemplated by
this Agreement.
(g) FINANCIAL POSITION. Complete and accurate copies of the
following financial statements and materials have been delivered to the
Administrative Agent: (i) annual audited financial statements of GGP, Inc. and
its Consolidated Subsidiaries for the fiscal year ended December 31, 2002, and
(ii) quarterly financial statements for the Partnership, and, if requested, the
Company, and their Consolidated Subsidiaries for the fiscal quarter ending
December 31, 2002. All financial statements included in such materials were
prepared in all material respects in conformity with GAAP, except as otherwise
noted therein, and fairly present in all material respects the respective
Consolidated financial positions, and the Consolidated results of operations and
cash flows for each of the periods covered thereby of GGP, Inc. or the Borrower,
as applicable, and its Consolidated Subsidiaries as at the respective dates
thereof. Neither the Borrower nor any of its Consolidated Subsidiaries has any
Contingent Obligation, contingent liability or liability for any taxes,
long-term leases or commitments, not reflected in its audited financial
statements delivered to the Administrative Agent on or prior to the Closing Date
or otherwise disclosed to the Administrative Agent and the Lenders in writing,
which will have or is reasonably likely to have a Material Adverse Effect.
49
(h) INDEBTEDNESS. SCHEDULE 7.1-H sets forth, as of March 31, 2003,
all Indebtedness for borrowed money of Borrower and its Subsidiaries and, except
as set forth on SCHEDULE 7.1-H, there are no defaults in the payment of
principal or interest on any such Indebtedness and no payments thereunder have
been deferred or extended beyond their stated maturity and there has been no
material change in the type or amount of such Indebtedness (except for the
repayment or refinance of certain Indebtedness) since March 31, 2003.
(i) LITIGATION: ADVERSE EFFECTS. Except as set forth in SCHEDULE
7.1-I, as of the Closing Date, there is no action, suit, proceeding, Claim,
investigation or arbitration before or by any Governmental Authority or private
arbitrator pending or, to the knowledge of the Borrower, threatened against the
Borrower, or any of its Subsidiaries, or any Property of any of them (i)
challenging the validity or the enforceability of any of the Loan Documents,
(ii) which will or is reasonably likely to result in any Material Adverse
Effect, or (iii) under the Racketeering Influenced and Corrupt Organizations Act
or any similar federal or state statute where such Person is a defendant in a
criminal indictment that provides for the forfeiture of assets to any
Governmental Authority as a potential criminal penalty. There is no material
loss contingency within the meaning of GAAP which has not been reflected in the
Consolidated financial statements of GGP, Inc. Neither the Borrower nor any
Subsidiary of the Borrower is (A) in violation of any applicable Requirements of
Law, which violation has had, will have or is reasonably likely to have a
Material Adverse Effect, or (B) subject to or in default with respect to any
final judgment, writ, injunction, restraining order or order of any nature,
decree, rule or regulation of any court or Governmental Authority which has had,
will have or is reasonably likely to have a Material Adverse Effect.
(j) NO MATERIAL ADVERSE EFFECT. Since December 31, 2002, there has
occurred no event which has had, will have or is reasonably likely to have a
Material Adverse Effect.
(k) TAX EXAMINATIONS. All deficiencies which have been asserted
against the Borrower as a result of any federal, state, local or foreign tax
examination for each taxable year in respect of which an examination has been
conducted have been fully paid or finally settled or are being contested in good
faith, and no issue has been raised in any such examination which, by
application of similar principles, reasonably can be expected to result in
assertion of a material deficiency for any other year not so examined which has
not been reserved for in the financial statements of GGP, Inc. to the extent, if
any, required by GAAP. The Borrower has not taken any reporting positions for
which it does not have a reasonable basis nor does the Borrower anticipate any
further material tax liability with respect to the years which have not been
closed pursuant to applicable law.
(l) PAYMENT OF TAXES. All tax returns, reports and similar
statements or filings of the Borrower and its Subsidiaries required to be filed
have been timely filed, and, except for Customary Permitted Liens, all taxes,
assessments, fees and other charges of Governmental Authorities thereupon and
upon or relating to their respective Properties, assets, receipts, sales, use,
payroll, employment, income, licenses and franchises which are shown in such
returns or reports to be due and payable have been paid, except to the extent
(i) such taxes, assessments, fees and other charges of Governmental Authorities
are being contested in good faith by an appropriate proceeding diligently
pursued as permitted by the terms of SECTION 9.4
50
and (ii) such taxes, assessments, fees and other charges of Governmental
Authorities pertain to Property of the Borrower or any of its Subsidiaries and
the nonpayment of the amounts thereof would not, individually or in the
aggregate, result in a Material Adverse Effect. All other taxes (including,
without limitation, real estate taxes), assessments, fees and other governmental
charges upon or relating to the respective Properties of the Borrower and its
Subsidiaries which are due and payable have been paid, except for Customary
Permitted Liens and except to the extent described in clauses (i) and (ii)
above. The Borrower has no knowledge of any proposed tax assessment against the
Borrower, any of its Subsidiaries, or any of their respective Properties that,
if not paid, will have or is reasonably likely to have a Material Adverse
Effect.
(m) PERFORMANCE. Neither the Borrower nor any of its Subsidiaries
has received any notice, citation or allegation, nor has actual knowledge, that
(i) it is in default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any Contractual Obligation
applicable to it, (ii) any of its Properties is in violation of any Requirements
of Law or (iii) any condition exists which, with the giving of notice or the
lapse of time or both, would constitute a default with respect to any such
Contractual Obligation, in each case, except where such default or defaults, if
any, has not had, will not have and is not reasonably likely to have a Material
Adverse Effect.
(n) DISCLOSURE. The representations and warranties of the Borrower
contained in the Loan Documents, and all certificates and other documents
delivered to the Administrative Agent pursuant to the terms thereof, do not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained herein or therein, in light
of the circumstances under which they were made, not misleading. The Borrower
has not intentionally withheld any fact from the Administrative Agent or the
other Lenders in regard to any matter which will have or is reasonably likely to
have a Material Adverse Effect. Notwithstanding the foregoing, the Lenders
acknowledge that neither the Borrower nor the Guarantor has liability under this
clause (n) with respect to its projections of future events.
(o) REQUIREMENTS OF LAW. The Borrower and each of its Subsidiaries
are in compliance in all material respects with all Requirements of Law
applicable to it and its respective businesses and Properties, in each case
where the failure to so comply individually or in the aggregate will have or is
reasonably likely to have a Material Adverse Effect.
(p) ENVIRONMENTAL MATTERS.
(i) Except as disclosed on SCHEDULE 7.1-P and except where
failure is not reasonably likely to have a Material Adverse Effect:
(A) the operations of the Borrower, each of its
Subsidiaries, and their respective Properties comply in all material
respects with all applicable Environmental, Health or Safety
Requirements of Law;
(B) the Borrower and each of its Subsidiaries have
obtained all material environmental, health and safety Permits
necessary for their respective operations, and all such Permits are
in good standing and the holder of each such
51
Permit is currently in compliance in all material respects with all
material terms and conditions of such Permits;
(C) none of the Borrower or any of its Subsidiaries
or any of their respective present or, to the Borrower's knowledge,
past Property or operations is subject to or is the subject of any
investigation, judicial or administrative proceeding, order,
judgment, decree, dispute, negotiations, agreement or settlement
respecting (1) any Environmental, Health or Safety Requirements of
Law, (2) any Remedial Action, (3) any Claims or Liabilities and
Costs arising from the Release or threatened Release of a
Contaminant into the environment, or (4) any violation of or
liability under any Environmental, Health or Safety Requirement of
Law;
(D) none of Borrower or any of its Subsidiaries has
filed any notice under any applicable Requirement of Law (1)
reporting a Release of a Contaminant; (2) indicating past or present
treatment, storage or disposal of a hazardous waste, as that term is
defined under 40 C.F.R. Part 261 or any state equivalent; or (3)
reporting a violation of any applicable Environmental, Health or
Safety Requirement of Law;
(E) none of the Borrower's or any of its
Subsidiaries' present or, to Borrower's knowledge, past Property
presently is listed or proposed for listing on the National
Priorities List ("NPL") pursuant to CERCLA or on the Comprehensive
Environmental Response Compensation Liability Information System
List ("CERCLIS") or any similar state list of sites requiring
Remedial Action;
(F) neither the Borrower nor any of its Subsidiaries
has sent or directly arranged for the transport of any waste to any
site listed or proposed for listing on the NPL, CERCLIS or any
similar state list;
(G) to the best of the Borrower's knowledge, there
is not now, and to the Borrower's knowledge there has never been on
or in any Real Property of the Borrower or any of its Subsidiaries
(1) any treatment, recycling, storage or disposal of any hazardous
waste, as that term is defined under 40 C.F.R. Part 261 or any state
equivalent; (2) any landfill, waste pile, or surface impoundment;
(3) any underground storage tanks the presence or use of which is
or, to the Borrower's knowledge, has been in violation of applicable
Environmental, Health or Safety Requirements of Law, (4) any
asbestos-containing material which the Borrower has any reason to
believe could subject the Borrower, any of its Subsidiaries or any
of their respective Properties to Liabilities and Costs arising out
of or relating to environmental, health or safety matters that would
result in a Material Adverse Effect; or (5) any polychlorinated
biphenyls (PCB) used in hydraulic oils, electrical transformers or
other Equipment which the Borrower has any reason to believe could
subject the Borrower, any of its Subsidiaries or any of their
respective Properties to Liabilities and Costs arising out of or
relating to
52
environmental, health or safety matters that would result in a
Material Adverse Effect;
(H) neither the Borrower nor any of its Subsidiaries
has received any notice or Claim to the effect that any of the
Borrower or its Subsidiaries is or may be liable to any Person as a
result of the Release or threatened Release of a Contaminant into
the environment;
(I) to the Borrower's knowledge, neither the
Borrower nor any of its Subsidiaries has any contingent liability in
connection with any Release or threatened Release of any
Contaminants into the environment;
(J) no Environmental Lien is presently recorded with
respect to any Property of the Borrower or any Subsidiary of the
Borrower.
(K) no Property of the Borrower or any Subsidiary of
the Borrower is subject to any Environmental Property Transfer Act,
or to the extent such acts are applicable to any such Property, the
Borrower and/or such Subsidiary whose Property is subject thereto
has fully complied with the requirements of such acts; and
(L) neither the Borrower nor any of its Subsidiaries
owns or operates, or, to the Borrower's knowledge, has ever owned or
operated, any underground storage tank, the presence or use of which
is or has been in violation of applicable Environmental, Health or
Safety Requirements of Law, at any Real Property.
(ii) the Borrower and each of its Subsidiaries are
conducting and will continue to conduct their respective businesses and
operations and maintain each Real Property in compliance in all material
respects with applicable Environmental, Health or Safety Requirements of
Law and neither the Borrower nor any of its Subsidiaries has been or has
any reason to believe that it or any of its Property will be, subject to
Liabilities and Costs arising out of or relating to environmental, health
or safety matters that would result in a Material Adverse Effect.
(q) ERISA. Neither the Borrower nor any ERISA Affiliate maintains
or contributes to any Benefit Plan or Multiemployer Plan with respect to which
the Borrower or any ERISA Affiliate would have a material withdrawal liability
if a partial or complete withdrawal occurred on the Funding Date, other than
those listed on SCHEDULE 7.1-Q hereto. Except as disclosed on SCHEDULE 7.1-Q,
each Plan maintained or contributed to by the Borrower or any of its
Subsidiaries which is intended to be qualified under Section 401(a) of the
Internal Revenue Code as currently in effect has been determined by the IRS to
be so qualified, has filed for such determination or is within the remedial
amendment period. Except as disclosed on SCHEDULE 7.1-Q, neither the Borrower
nor any of its Subsidiaries maintains or contributes to any "employee welfare
benefit plan" within the meaning of Section 3(1) of ERISA which provides
benefits to employees after termination of employment other than as required by
Section 601 of ERISA. The Borrower and each of its Subsidiaries is in compliance
in all material respects with the
53
responsibilities, obligations and duties imposed on it by ERISA, the Internal
Revenue Code and regulations promulgated thereunder with respect to all Plans.
No Benefit Plan has any accumulated funding deficiency (as defined in Sections
302(a)(2) of ERISA and 412(a) of the Internal Revenue Code) whether or not
waived. Neither the Borrower nor any ERISA Affiliate nor any fiduciary of any
Plan which is not a Multiemployer Plan (i) has engaged in a nonexempt prohibited
transaction described in Sections 406 of ERISA or 4975 of the Internal Revenue
Code with respect to which the Borrower can be subject to any material liability
or (ii) has taken or failed to take any action which would constitute or result
in an ERISA Termination Event. Neither the Borrower nor any ERISA Affiliate is
subject to any liability under Sections 4063, 4064, 4069, 4204 or 4212(c) of
ERISA. Neither the Borrower nor any ERISA Affiliate has incurred any liability
to the PBGC which remains outstanding other than the payment of premiums, and
there are no premium payments which have become due which are unpaid. Schedule B
to the most recent annual report filed with the IRS (i.e. IRS Form 5500) with
respect to each Benefit Plan and furnished to the Administrative Agent is
complete and accurate in all material respects. Except as disclosed on SCHEDULE
7.1-Q, since the date of each such Schedule B, there has been no material
adverse change in the funding status or financial condition of the Benefit Plan
relating to such Schedule B. Neither the Borrower nor any ERISA Affiliate has
(i) failed to make a required contribution or payment to a Multiemployer Plan or
(ii) made a complete or partial withdrawal under Sections 4203 or 4205 of ERISA
from a Multiemployer Plan for which there is any material unsatisfied liability.
Neither the Borrower nor any ERISA Affiliate has failed to make a required
installment or any other required payment under Section 412 of the Internal
Revenue Code on or before the due date for such installment or other payment for
which there is an outstanding liability. Neither the Borrower nor any ERISA
Affiliate is required to provide security to a Benefit Plan under Section
401(a)(29) of the Internal Revenue Code due to a Benefit Plan amendment that
results in an increase in current liability for the plan year. Except as
disclosed on SCHEDULE 7.1-Q, neither the Borrower nor any of its Subsidiaries
has, by reason of the transactions contemplated hereby, any obligation to make
any payment to any employee pursuant to any Plan or existing contract or
arrangement.
(r) SECURITIES ACTIVITIES. Neither the Borrower nor any of its
Subsidiaries is engaged in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
(s) SOLVENCY. After giving effect to the Loans to be made on the
Initial Funding Date or such other date as Loans requested hereunder are made,
and the disbursement of the proceeds of such Loans pursuant to the Borrower's
instructions, each of the Partnership and Company is Solvent.
(t) INSURANCE. SCHEDULE 7.1-T accurately sets forth as of the
Closing Date all insurance policies and programs currently in effect with
respect to the respective Property and assets and business of the Borrower and
its Subsidiaries, specifying for each such policy and program, (i) the amount
thereof, (ii) the risks insured against thereby, (iii) the name of the insurer
and each insured party thereunder, (iv) the policy or other identification
number thereof, and (v) the expiration date thereof. Such insurance policies and
programs are currently in full force and effect, in compliance with the
requirements of SECTION 9.5 hereof and, together with payment by the insured of
scheduled deductible payments, are in amounts sufficient to cover the
replacement value of the respective Property and assets of the Borrower and/or
its Subsidiaries.
54
(u) PATRIOT ACT. The Borrower is not (nor will it be) a person
with whom Lenders are restricted from doing business under regulations of the
Office of Foreign Asset Control ("OFAC") of the Department of Treasury of the
United States of America (including, those persons named on OFAC's Specially
Designated and Blocked Persons list) or under any similar statute, executive
order (including the September 24, 2001 Executive Order Blocking Property and
Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support
Terrorism), or other governmental action; Borrower is not knowingly engaging in
(and shall not knowingly engage in) any dealings or transactions or otherwise
associated with such persons. In addition, Borrower hereby agrees to provide the
Administrative Agent with any additional information that the Administrative
Agent deems reasonable and necessary from time to time in connection with the
Loans in order to ensure compliance with all applicable laws, rules and
regulations concerning money laundering and similar activities.
(v) OWNERSHIP OF PROPERTY. Ownership of substantially all Property
of the Consolidated Businesses is held by the Borrower and its Subsidiaries.
ARTICLE VIII - REPORTING COVENANTS
The Borrower covenants and agrees that so long as any Revolving Loan Commitments
are outstanding and thereafter until payment in full of all of the Obligations
(other than indemnities pursuant to SECTION 15.3 not yet due), unless the
Requisite Lenders shall otherwise give prior written consent thereto:
8.1 BORROWER ACCOUNTING PRACTICES. The Borrower shall maintain, and
cause each of its Subsidiaries to maintain, a system of accounting established
and administered in accordance with sound business practices to permit
preparation of Consolidated and Consolidating financial statements in conformity
with GAAP, and each of the financial statements and reports described below
shall be prepared from such system and records and in form satisfactory to the
Administrative Agent.
8.2 FINANCIAL REPORTS. The Borrower shall deliver or cause to be
delivered to the Administrative Agent and the Lenders:
(a) QUARTERLY REPORTS.
(i) BORROWER QUARTERLY FINANCIAL REPORTS. As soon as
practicable, and in any event within sixty (60) days after the end of each
fiscal quarter in each Fiscal Year (other than the last fiscal quarter in
each Fiscal Year), an unaudited Consolidated balance sheet of the
Partnership and, if requested, the Company and the related Consolidated
statements of income and cash flow (to be prepared and delivered quarterly
in conjunction with the other reports delivered hereunder at the end of
each fiscal quarter) for each such fiscal quarter, in each case in form and
substance satisfactory to the Administrative Agent and, in comparative
form, the corresponding figures for the corresponding periods of the
previous Fiscal Year, certified by an Authorized Financial Officer of GGP,
Inc. as fairly presenting the Consolidated and Consolidating financial
position of the Borrower and its Consolidated Subsidiaries as of the dates
indicated and
55
the results of its operations and cash flow for the months indicated in
accordance with GAAP, subject to normal quarterly adjustments.
(ii) GGP, INC. QUARTERLY FINANCIAL REPORTS. As soon as
practicable, and in any event within sixty (60) days after the end of each
fiscal quarter in each Fiscal Year (other than the last fiscal quarter in
each Fiscal Year), the Financial Statements of GGP, Inc. and its
Subsidiaries on Form 10Q as at the end of such period and a report setting
forth in comparative form the corresponding figures for the corresponding
period of the previous Fiscal Year, certified by an Authorized Financial
Officer of GGP, Inc. as fairly presenting the Consolidated and
Consolidating financial position of GGP, Inc. and its Subsidiaries as of
the date indicated and the results of its operations and cash flow for the
period indicated in accordance with GAAP, subject to normal adjustments.
(iii) QUARTERLY COMPLIANCE CERTIFICATES. Together with each
delivery of any quarterly report pursuant to paragraph (a)(i) of this
SECTION 8.2, the Borrower shall deliver an Officer's Certificate of the
Borrower (the "QUARTERLY COMPLIANCE CERTIFICATE"), signed by the Borrower's
Authorized Financial Officer setting forth, representing and certifying (A)
that the Authorized Financial Officer signatory thereto has reviewed the
terms of the Loan Documents, and has made, or caused to be made under
his/her supervision, a review in reasonable detail of the transactions and
Consolidated and Consolidating financial condition of the Borrower and its
Subsidiaries, during the fiscal quarter covered by such reports, that such
review has not disclosed the existence during or at the end of such fiscal
quarter, and that such officer does not have knowledge of the existence as
of the date of such Officer's Certificate, of any condition or event which
constitutes an Event of Default or Potential Event of Default or mandatory
prepayment event as described in SECTION 4.1(d) of this Agreement, or, if
any such condition or event existed or exists, and specifying the nature
and period of existence thereof and what action the Borrower or any of its
Subsidiaries has taken, is taking and proposes to take with respect
thereto; (B) the calculations (in the form of EXHIBIT G hereto and
otherwise with such specificity as the Administrative Agent may reasonably
request) for the period then ended which demonstrate compliance with the
covenants and financial ratios set forth in ARTICLES IX AND X and, when
applicable, that no Event of Default described in SECTION 11.1 exists, (C)
a schedule of changes, if any, in the Borrower's outstanding Indebtedness
for borrowed money, including the amount, maturity, interest rate and
amortization requirements, as well as such other information regarding such
Indebtedness, which information is material to the Loan, as may be
reasonably requested by the Administrative Agent, since the last date on
which such a schedule was submitted, (D) a schedule of Combined EBITDA, (E)
a schedule of each bankruptcy or cessation of operations of any tenant to
which greater than 5% of the Borrower's share of consolidated minimum rent
is attributable, of which bankruptcy or cessation of operations the
Borrower obtained knowledge since the last date on which such a schedule
was submitted, and (F) such other information and reports which are
material to the Loan (including with respect to matters which would
reasonably be expected to have a Material Adverse Effect) as the
Administrative Agent may reasonably request.
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(b) ANNUAL REPORTS.
(i) FINANCIAL STATEMENTS. As soon as practicable, and in
any event within ninety (90) days after the end of each Fiscal Year, (A)
the unaudited Consolidated balance sheet of GGP, Inc. and the Partnership
and, if requested, the Company, and the related Consolidated statements of
income and cash flow for such Fiscal Year, in each case in form and
substance satisfactory to the Administrative Agent and, in comparative
form, the corresponding figures for the previous Fiscal Year, certified by
an Authorized Financial Officer of GGP, Inc. as fairly presenting the
Consolidated and Consolidating financial position of each of the GGP, Inc.,
the Partnership and, if applicable, the Company, and their Consolidated
Subsidiaries as at the dates indicated and the results of their operations
and cash flow for the periods indicated in conformity with GAAP applied on
a basis consistent with prior years, and (B) a copy of any management
letter or any similar written report delivered to the Borrower or GGP, Inc.
or to any Authorized Financial Officer thereof by any independent certified
public accountants or other independent consultant in connection with or
relating to such financial statements (which letter or report shall be
subject to the confidentiality limitations set forth herein). The
Administrative Agent and each Lender (through the Administrative Agent)
may, with the consent of the Borrower (which consent shall not be
unreasonably withheld), communicate directly with such accountants or
consultant, with any such communication to occur together with a
representative of the Borrower, at the expense of the Administrative Agent
(or the Lender requesting such communication), upon reasonable notice and
at reasonable times during normal business hours.
(ii) GGP, INC. ANNUAL FINANCIAL REPORTS. As soon as
practicable, and in any event within ninety (90) days after the end of each
Fiscal Year, an audit report with respect to the financial statements of
GGP, Inc. delivered pursuant to SECTION 8.2(b)(i) above, by any independent
certified public accountants reasonably acceptable to the Administrative
Agent, which report shall be unqualified and shall state that such
financial statements fairly present the Consolidated and Consolidating
financial position of GGP, Inc. and its Consolidated Subsidiaries as of the
date indicated and the results of its operations and cash flow for the
period indicated in conformity with GAAP applied on a basis consistent with
prior years (except for changes with which any such independent certified
public accountants shall concur and which shall have been disclosed in the
notes to the financial statements).
(iii) ANNUAL COMPLIANCE CERTIFICATES. Together with each
delivery of any annual report pursuant to clause (i) of this SECTION
8.2(b), the Borrower shall deliver an Officer's Certificate of the Borrower
(the "ANNUAL COMPLIANCE CERTIFICATE" and, collectively with the Quarterly
Compliance Certificates, the "COMPLIANCE CERTIFICATES"), signed by the
Borrower's Authorized Financial Officer, setting forth, representing and
certifying (A) that the officer signatory thereto has reviewed the terms of
the Loan Documents, and has made, or caused to be made under his/her
supervision, a review in reasonable detail of the transactions and
Consolidated and Consolidating financial condition of the Borrower and its
Subsidiaries, during the accounting period covered by such reports, that
such review has not disclosed the existence during or at the end of such
accounting period, and that such officer does not have knowledge of the
existence as at
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the date of such Officer's Certificate, of any condition or event which
constitutes an Event of Default or Potential Event of Default or mandatory
prepayment event as described in SECTION 4.1(d) of this Agreement, or, if
any such condition or event existed or exists, and specifying the nature
and period of existence thereof and what action the Borrower or any of its
Subsidiaries has taken, is taking and proposes to take with respect
thereto; (B) the calculations (in the form of EXHIBIT G and otherwise with
such specificity as the Administrative Agent may reasonably request) for
the period then ended which demonstrate compliance with the covenants and
financial ratios set forth in ARTICLES IX AND X and, when applicable, that
no Event of Default described in SECTION 11.1 exists, (C) a schedule of the
Borrower's outstanding Indebtedness for borrowed money, including the
amount, maturity, interest rate and amortization requirements, as well as
such other information regarding such Indebtedness, which information is
material to the Loan, as may be reasonably requested by the Administrative
Agent, (D) a schedule of Combined EBITDA, (E) a schedule of the estimated
taxable income of the Borrower for such fiscal year, (F) if requested by
the Administrative Agent or the Requisite Lenders, a statement of net
operating income and schedule of tenant sales and occupancy with respect to
each Real Property, (G) if requested by Administrative Agent, pro forma
statements of operations (including, without limitation, projections of net
operating income and interest expense for each Real Property) and sources
and uses of capital for the next 24 months of the operations of GGP, Inc.
and the Borrower, together with a capital plan for such 24 month period,
all in form, content and detail reasonably acceptable to the Administrative
Agent, and (H) such other information and reports which are material to the
Loan as the Administrative Agent may reasonably request.
(iv) TENANT BANKRUPTCY REPORTS. As soon as practicable, and
in any event within ninety (90) days after the end of each Fiscal Year, the
Borrower shall deliver a written report (which shall be incorporated into
the Annual Compliance Certificate), in form reasonably satisfactory to the
Administrative Agent, of all bankruptcy proceedings filed by or against, or
the cessation of business or operations of, any tenant of any of the Real
Properties of the Borrower or any of its Subsidiaries, the base rent
payments of which tenant account for more than 5% of the Borrower's share
of consolidated minimum rent in the Real Properties in the aggregate.
(c) REPORTS OF CAPITAL EVENTS. On the date of the consummation and
funding of each Capital Event, the Borrower shall, if requested by the
Administrative Agent, submit to the Administrative Agent a reasonably detailed
report thereof, which shall include a computation of the Leverage Ratio after
giving effect thereto, which shall be otherwise reasonably acceptable in form
and substance to the Administrative Agent.
(d) INFORMATION REGARDING THE BORROWER. From time to time upon
request by the Administrative Agent, the Borrower shall deliver or cause to be
delivered to the Administrative Agent such information, reports and documents
concerning the Borrower or GGP, Inc., which are material to the Loan (including
with respect to matters which would reasonably be expected to have a Material
Adverse Effect), as the Administrative Agent may reasonably request.
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8.3 EVENTS OF DEFAULT. Promptly upon the Borrower obtaining knowledge
(a) of any condition or event which constitutes an Event of Default or Potential
Event of Default, (b) that any Lender or the Administrative Agent has given any
notice with respect to a claimed Event of Default or Potential Event of Default,
(c) that any Person has given any notice to the Borrower or taken any other
action with respect to a claimed default or event or condition of the type
referred to in SECTION 11.1(e), or (d) of any condition or event which has or is
reasonably likely to have a Material Adverse Effect, the Borrower shall deliver
to the Administrative Agent and the Lenders an Officer's Certificate specifying
(i) the nature and period of existence of any such claimed default, Event of
Default, Potential Event of Default, condition or event, (ii) the notice given
or action taken by such Person in connection therewith, and (iii) what action
the Borrower or, to its knowledge, its applicable Subsidiary has taken, is
taking and proposes to take with respect thereto.
8.4 LAWSUITS. (i) Promptly upon the Borrower's obtaining knowledge of
the institution of, or written threat of, any action, suit, proceeding,
governmental investigation or arbitration against or affecting the Borrower or
any of its Subsidiaries of the type described in SECTION 7.1(i) of this
Agreement not previously disclosed pursuant to SECTION 7.1(i), the Borrower
shall give written notice thereof to the Administrative Agent and the Lenders
and provide such other information and which is material to the Loan as may be
reasonably available to enable each Lender and the Administrative Agent and its
counsel to evaluate such matters; (ii) as soon as practicable and in any event
within sixty (60) days after the end of each fiscal quarter of the Borrower, the
Borrower shall provide a written quarterly report to the Administrative Agent
and the Lenders (which may be incorporated into the Quarterly Compliance
Certificate) covering the institution of, or written threat of, any action,
suit, proceeding, governmental investigation or arbitration of the type
described in SECTION 7.1(i) of this Agreement (not previously reported) and
involving a Claim which is uninsured against or affecting the Borrower or any of
its Subsidiaries or any Property of the Borrower or any of its Subsidiaries not
previously disclosed by the Borrower to the Administrative Agent and the
Lenders, and shall provide such other information which is material to the Loan
at such time as may be reasonably available to enable each Lender and the
Administrative Agent and its counsel to evaluate such matters; and (iii) in
addition to the requirements set forth in clauses (i) and (ii) of this SECTION
8.4, the Borrower upon request of the Administrative Agent or the Requisite
Lenders shall promptly give written notice of the status of any action, suit,
proceeding, governmental investigation or arbitration covered by a report
delivered pursuant to clause (i) or (ii) above and provide such other
information as may be reasonably available to it and which is material to the
Loan to enable each Lender and the Administrative Agent and its counsel to
evaluate such matters.
8.5 INSURANCE. If requested by the Administrative Agent, the Borrower
shall promptly deliver to the Administrative Agent and the Lenders (i) a report
in form and substance reasonably satisfactory to the Administrative Agent and
the Lenders outlining all insurance coverage maintained as of the date of such
report by the Borrower and its Subsidiaries and the duration of such coverage
and (ii) the certificate of an Authorized Financial Officer that all premiums
with respect to such coverage have been paid when due.
8.6 ERISA NOTICES. If requested by the Administrative Agent, or in the
case of an event, action, or failure which is reasonably likely to have a
Material Adverse Effect, the
59
Borrower shall deliver or cause to be delivered to the Administrative Agent and
the Lenders, at the Borrower's expense, the following information and notices as
soon as reasonably possible, and in any event:
(a) within fifteen (15) Business Days after the Borrower or any
ERISA Affiliate knows or has reason to know that an ERISA Termination Event has
occurred, a written statement of the chief financial officer of the Borrower
describing such ERISA Termination Event and the action, if any, which the
Borrower or any ERISA Affiliate has taken, is taking or proposes to take with
respect thereto, and when known, any action taken or threatened by the IRS, DOL
or PBGC with respect thereto;
(b) within fifteen (15) Business Days after the Borrower knows or
has reason to know that a prohibited transaction (defined in Sections 406 of
ERISA and 4975 of the Internal Revenue Code) has occurred, a statement of the
chief financial officer of the Borrower describing such transaction and the
action which the Borrower or any ERISA Affiliate has taken, is taking or
proposes to take with respect thereto;
(c) within fifteen (15) Business Days after the filing of the same
with the DOL or IRS, copies of each annual report (IRS Form 5500 series),
including Schedule B thereto, filed with respect to each Benefit Plan;
(d) within fifteen (15) Business Days after receipt by the
Borrower or any ERISA Affiliate of each actuarial report for any Benefit Plan or
Multiemployer Plan and each annual report for any Multiemployer Plan (IRS Form
5500), copies of each such report;
(e) within fifteen (15) Business Days after the filing of the same
with the IRS, a copy of each funding waiver request filed with respect to any
Benefit Plan and all written communications received by the Borrower or any
ERISA Affiliate with respect to such request;
(f) within fifteen (15) Business Days after the occurrence of any
material increase in the benefits of any existing Benefit Plan or Multiemployer
Plan or the establishment of any new Benefit Plan or the commencement of
contributions to any Benefit Plan or Multiemployer Plan to which the Borrower or
any ERISA Affiliate was not previously contributing, notification of such
increase, establishment or commencement;
(g) within fifteen (15) Business Days after the Borrower or any
ERISA Affiliate receives notice of the PBGC's intention to terminate a Benefit
Plan or to have a trustee appointed to administer a Benefit Plan, copies of each
such notice;
(h) within fifteen (15) Business Days after the Borrower or any
ERISA Affiliate receives notice of any unfavorable determination letter from the
IRS regarding the qualification of a Plan under Section 401(a) of the Internal
Revenue Code, copies of each such letter;
(i) within fifteen (15) Business Days after the Borrower or any
ERISA Affiliate receives notice from a Multiemployer Plan regarding the
imposition of withdrawal liability, copies of each such notice;
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(j) within fifteen (15) Business Days after the Borrower or any
ERISA Affiliate fails to make a required installment or any other required
payment under Section 412 of the Internal Revenue Code on or before the due date
for such installment or payment, a notification of such failure; and
(k) within fifteen (15) Business Days after the Borrower or any
ERISA Affiliate knows or has reason to know (i) a Multiemployer Plan has been
terminated, (ii) the administrator or plan sponsor of a Multiemployer Plan
intends to terminate a Multiemployer Plan, or (iii) the PBGC has instituted or
will institute proceedings under Section 4042 of ERISA to terminate a
Multiemployer Plan, notification of such termination, intention to terminate, or
institution of proceedings.
For purposes of this SECTION 8.6, the Borrower and any ERISA Affiliate shall be
deemed to know all facts known by the "Administrator" of any Plan of which the
Borrower or any ERISA Affiliate is the plan sponsor.
8.7 ENVIRONMENTAL NOTICES. The Borrower shall notify the Administrative
Agent and the Lenders in writing, promptly upon any senior employee of the
Borrower responsible for environmental matters at the applicable Property of the
Borrower or any of its Subsidiaries learning thereof with respect to a Property,
of any of the following (together with any material documents and correspondence
received or sent in connection therewith):
(a) notice or claim to the effect that the Borrower or any of its
Subsidiaries is or may be liable to any Person as a result of the Release or
threatened Release of any Contaminant into the environment, if such liability
would result in a Material Adverse Effect;
(b) notice that the Borrower or any of its Subsidiaries is subject
to investigation by any Governmental Authority evaluating whether any Remedial
Action is needed to respond to the Release or threatened Release of any
Contaminant into the environment which is reasonably likely to result in a
Material Adverse Effect;
(c) notice that any Property of the Borrower or any of its
Subsidiaries is subject to an Environmental Lien if the claim to which such
Environmental Lien relates would result in a Material Adverse Effect;
(d) notice of a material violation by the Borrower or any of its
Subsidiaries of any Environmental, Health or Safety Requirement of Law which is
reasonably likely to result in a Material Adverse Effect;
(e) any condition which might reasonably result in a violation by
the Borrower or any Subsidiary of the Borrower of any Environmental, Health or
Safety Requirement of Law, which violation would result in a Material Adverse
Effect;
(f) commencement or threat of any judicial or administrative
proceeding alleging a violation by the Borrower or any of its Subsidiaries of
any Environmental, Health or Safety Requirement of Law, which would result in a
Material Adverse Effect;
61
(g) new or proposed changes to any existing Environmental, Health
or Safety Requirement of Law that is reasonably likely to result in a Material
Adverse Effect; or
(h) any proposed acquisition of stock, assets, real estate, or
leasing of Property, or any other action by the Borrower or any of its
Subsidiaries that could subject the Borrower or any of its Subsidiaries to
environmental, health or safety Liabilities and Costs which are reasonably
likely to result in a Material Adverse Effect.
8.8 LABOR MATTERS. The Borrower shall notify the Administrative Agent in
writing, promptly upon the Borrower's learning thereof, of any labor dispute to
which the Borrower or any of its Subsidiaries may become a party (including,
without limitation, any strikes, lockouts or other disputes relating to any
Property of such Persons and other facilities) which could result in a Material
Adverse Effect.
8.9 NOTICES OF ASSET SALES AND/OR ACQUISITIONS. The Borrower shall
deliver to the Administrative Agent and the Lenders written notice of each of
the following upon the occurrence thereof: (a) a sale, transfer or other
disposition of assets, in a single transaction or series of related
transactions, by the Borrower or their Subsidiaries for consideration in excess
of $200,000,000 (exclusive of any sale, transfer or other disposition of any
non-mall assets of Price Development Company, Limited Partnership and its
Subsidiaries), (b) an acquisition of assets, in a single transaction or series
of related transactions, by the Borrower or their Subsidiaries for consideration
in excess of $400,000,000, and (c) the grant of a Lien with respect to assets,
in a single transaction or series of related transactions, by the Borrower in
connection with Indebtedness aggregating an amount in excess of $400,000,000.
8.10 [INTENTIONALLY OMITTED].
8.11 OTHER REPORTS. The Borrower shall deliver or cause to be delivered
to the Administrative Agent copies of all financial statements, reports,
material notices and other materials, if any, sent or made available generally
by GGP, Inc. or the Borrower to their respective Securities holders or filed
with the Commission, all press releases made available generally by GGP, Inc.,
the Borrower or any of its Subsidiaries to the public concerning material
developments in the business of GGP, Inc., the Borrower or any such Subsidiary
and all notifications received by GGP, Inc., the Borrower or its Subsidiaries
pursuant to the Securities Exchange Act and the rules promulgated thereunder.
8.12 OTHER INFORMATION. Promptly upon receiving a request therefor from
the Administrative Agent, the Borrower shall prepare and deliver or cause to be
delivered to the Administrative Agent such other information with respect to the
Borrower and its Subsidiaries, on a Consolidated basis, which is material to the
Loan (including with respect to matters which would reasonably be expected to
have a Material Adverse Effect) as from time to time may be reasonably requested
by the Administrative Agent.
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ARTICLE IX - AFFIRMATIVE COVENANTS
Borrower covenants and agrees that so long as any Commitments are outstanding
and thereafter until payment in full of all of the Obligations (other than
indemnities pursuant to SECTION 15.3 not yet due), unless the Requisite Lenders
shall otherwise give prior written consent:
9.1 EXISTENCE, ETC. The Borrower shall, and shall cause each of its
Subsidiaries to, at all times maintain its corporate existence or existence as a
limited liability company, limited partnership, general partnership, trust or
joint venture, as applicable, and preserve and keep, or cause to be preserved
and kept, in full force and effect, its rights and franchises material to its
businesses, except where the loss or termination of such rights and franchises
is not likely to have a Material Adverse Effect.
9.2 POWERS; CONDUCT OF BUSINESS. The Borrower shall remain qualified,
and shall cause each of its Subsidiaries to qualify and remain qualified, to do
business and maintain its good standing in each jurisdiction in which the nature
of its business and the ownership of its respective Properties requires it to be
so qualified and in good standing.
9.3 COMPLIANCE WITH LAWS, ETC. The Borrower shall, and shall cause each
of its Subsidiaries to, (a) comply in all material respects with all
Requirements of Law and all restrictive covenants affecting such Person or the
business, Property, assets or operations of such Person, and (b) obtain and
maintain as needed all Permits necessary for its operations (including, without
limitation, the operation of the Real Properties) and maintain such Permits in
good standing, except where noncompliance with either CLAUSE (a) or (b) above is
not reasonably likely to have a Material Adverse Effect.
9.4 PAYMENT OF TAXES AND CLAIMS. (a) The Borrower shall pay, and cause
each of its Subsidiaries to pay, (i) all taxes, assessments and other
governmental charges imposed upon it or on any of its Property or assets or in
respect of any of its franchises, licenses, receipts, sales, use, payroll,
employment, business, income or Property before any penalty or interest accrues
thereon, and (ii) all Claims (including, without limitation, claims for labor,
services, materials and supplies) for sums which have become due and payable and
which by law have or may become a Lien (other than a Lien permitted by SECTION
10.2 or a Customary Permitted Lien for property taxes and assessments not yet
due) upon any of the Borrower's or any of the Borrower's Subsidiaries' Property
or assets, prior to the time when any penalty or fine shall be incurred with
respect thereto; PROVIDED, HOWEVER, that no such taxes, assessments, fees and
governmental charges referred to in clause (i) above or Claims referred to in
clause (ii) above need be paid if being contested in good faith by appropriate
proceedings diligently instituted and conducted and if such reserve or other
appropriate provision, if any, as shall be required in conformity with GAAP
shall have been made therefor.
9.5 INSURANCE. The Borrower shall maintain for itself and its
Subsidiaries, or shall cause each of such Subsidiaries to maintain in full force
and effect the insurance policies and programs listed on SCHEDULE 7.1-T or
substantially similar policies and programs or other policies and programs as
are reasonably acceptable to the Administrative Agent. All such policies and
programs shall be maintained with insurers reasonably acceptable to the
Administrative Agent.
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9.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS. The Borrower
shall permit, and cause each of its Subsidiaries to permit, any authorized
representative(s) designated by either the Administrative Agent or other Lender
to visit and inspect any of their respective Real Properties, to examine, audit,
check and make copies of their respective financial and accounting records,
books, journals, orders, receipts and any correspondence and other data relating
to their respective businesses or the transactions contemplated hereby
(including, without limitation, in connection with environmental compliance,
hazard or liability), and to discuss their affairs, finances and accounts with
their Authorized Financial Officers and independent certified public
accountants, all with a representative of the Borrower present, upon reasonable
notice and at such reasonable times during normal business hours, as often as
may be reasonably requested. Each such visitation and inspection shall be at
such visitor's expense. The Borrower shall keep and maintain, and cause its
Subsidiaries to keep and maintain, in all material respects proper books of
record and account in which entries in conformity with GAAP shall be made of all
dealings and transactions in relation to their respective businesses and
activities.
9.7 ERISA COMPLIANCE. The Borrower shall, and shall cause each of its
ERISA Affiliates to, establish, maintain and operate all Plans to comply in all
material respects with the provisions of ERISA, the Internal Revenue Code, all
other applicable laws, and the regulations and interpretations having the force
of law thereunder and the respective requirements of the governing documents for
such Plans.
9.8 MAINTENANCE OF PROPERTY. The Borrower shall, and shall cause each of
its Subsidiaries to, maintain in all material respects all of their respective
owned and leased Property in good, safe and insurable condition and repair, and
not permit, commit or suffer any waste or abandonment of any such Property and
from time to time shall make or cause to be made all material repairs, renewal
and replacements thereof, including, without limitation, any capital
improvements which may be required to maintain the same in good condition and
repair; PROVIDED, HOWEVER, that such Property may be altered or renovated in the
ordinary course of business of the Borrower or such applicable Subsidiary.
Without any limitation on the foregoing, the Borrower shall maintain the Real
Property in a manner such that each Real Property can be used in the manner and
substantially for the purposes such Real Property is used on the Closing Date,
including, without limitation, maintaining all utilities, access rights, zoning
and necessary Permits for such Real Property.
9.9 REIT STATUS. GGP, Inc. shall at all times (1) remain a publicly
traded company listed on the New York Stock Exchange or other national stock
exchange; (2) maintain its status as a REIT under the Internal Revenue Code, and
(3) retain direct or indirect management and control of the Borrower. The
Partnership shall at all times retain direct or indirect control of the Company.
9.10 OWNERSHIP OF PROPERTY. The ownership of substantially all Property
of the Consolidated Businesses shall be held by the Borrower and its
Subsidiaries. =
9.11 TAX SHELTER REGULATIONS. The Borrower does not intend to treat the
Loans as being a "reportable transaction" (within the meaning of the Treasury
Regulation Section 1.6011-4) participated in by the Borrower. In the event the
Borrower determines to take any action inconsistent with such intention, it will
promptly notify the Administrative Agent thereof.
64
Promptly after the Borrower has notified the Administrative Agent of any
intention by the Borrower to treat the Loans as being a reportable transaction
(within the meaning of Treasury Section 1.6011-4) participated in by the
Borrower, Borrower shall deliver to the Lenders a duly completed copy of IRS
Form 8866 or any successor form.
ARTICLE X - NEGATIVE COVENANTS
Borrower covenants and agrees that it shall comply, or cause compliance, with
the following covenants so long as any Commitments are outstanding and
thereafter until payment in full of all of the Obligations (other than
indemnities pursuant to SECTION 15.3 not yet due), unless the Requisite Lenders
shall otherwise give prior written consent:
10.1 SALES OF ASSETS. Neither Borrower nor any of its Subsidiaries shall
sell, assign, transfer, lease, convey or otherwise dispose of any Property,
whether now owned or hereafter acquired, or any income or profits therefrom, or
enter into any agreement to do so which would result in a Material Adverse
Effect.
10.2 LIENS. Neither GGP, Inc., nor the Borrower, nor any of their
Subsidiaries shall directly or indirectly create, incur, assume or permit to
exist any Lien on or with respect to any Property, or (to the extent the same
constitutes a pledge or other encumbrance of equity interests in GGP, Inc., the
Borrower, or the Consolidated Businesses) on or with respect to any such
Securities held by GGP, Inc. or the Borrower, except:
(a) Liens with respect to Capital Leases of Equipment entered into
in the ordinary course of business of the Borrower or any of its Subsidiaries
pursuant to which the aggregate Indebtedness under such Capital Leases does not
exceed $5,000,000 for any Real Property;
(b) Customary Permitted Liens; and
(c) Liens to secure capital contributions arising in favor of the
holders of equity interests in entities which are Minority Holdings of the
Borrower pursuant to the terms of the applicable partnership, joint venture,
operating, shareholders or similar agreement between such holders and the
Borrower or one of its Subsidiaries;
PROVIDED, HOWEVER, that none of the foregoing shall limit or prohibit the
Borrower or any of its Subsidiaries from (i) granting Liens for the purposes of
securing Secured Indebtedness or (ii) incurring additional Unsecured
Indebtedness otherwise permitted hereunder.
10.3 CONDUCT OF BUSINESS. Neither the Borrower nor any of its
Subsidiaries shall engage in any business, enterprise or activity other than (a)
the businesses of acquiring, developing, redeveloping and managing predominately
retail Real Properties and portfolios of like Real Properties and (b) any
business or activities which are substantially similar, related or incidental
thereto.
10.4 TRANSACTIONS WITH PARTNERS AND AFFILIATES. Neither the Borrower nor
any of its Subsidiaries shall directly or indirectly enter into or permit to
exist any transaction (including,
65
without limitation, the purchase, sale, lease or exchange of any Property or the
rendering of any service) with any Affiliate of Borrower which is not a
Subsidiary of the Borrower, on terms that are determined by the Board of
Directors of GGP, Inc. to be less favorable to the Borrower or any of its
Subsidiaries, as applicable, than those that might be obtained in an arm's
length transaction at the time from Persons who are not such an Affiliate.
Without limiting the foregoing, exclusive of (i) dividends and other
distributions to equity holders permitted by the terms of this Agreement and
(ii) transfers on account of inter-company loans permitted by the terms of this
Agreement, Borrower and its Subsidiaries shall not sell or otherwise transfer,
except on arm's length terms, Property to GGP, Inc. (or to Subsidiaries of GGP,
Inc., but excluding from "Subsidiaries of GGP, Inc." for the purposes of this
parenthetical clause Borrower and Subsidiaries of Borrower). Nothing contained
in this SECTION 10.4 shall prohibit (a) increases in compensation and benefits
for officers and employees of the Borrower or any of its Subsidiaries which are
customary in the industry or consistent with the past business practice of GGP,
Inc., the Borrower or such Subsidiary; (b) payment of customary partners'
indemnities; or (c) performance of any obligations arising under the Loan
Documents.
10.5 RESTRICTION ON FUNDAMENTAL CHANGES AND CHANGES OF CONTROL. Neither
GGP, Inc., nor the Borrower, nor any of their Subsidiaries shall enter into any
merger or consolidation, or liquidate, windup or dissolve (or suffer any
liquidation or dissolution), or convey, lease, sell, transfer or otherwise
dispose of, in one transaction or series of related transactions, all or
substantially all of GGP, Inc.'s, the Borrower's, or any such Subsidiary's
business or Property, whether now or hereafter acquired, except in connection
with (a) issuance, transfer, conversion or repurchase of limited partnership
interests in the Partnership, or (b) conversion or repurchase of membership
interests in the Company to the extent required pursuant to any existing
Contractual Obligation under the Borrower Operating Agreement or Borrower
Partnership Agreement. Notwithstanding the foregoing, (i) Borrower shall be
permitted to merge with another Person so long as it is the surviving Person
following such merger, provided that nothing herein or in any other Loan
Document shall prohibit a merger between the Company and the Partnership,
regardless of which entity is the surviving entity, so long as contemporaneously
with such merger the surviving Borrower shall assume the non-surviving
Borrower's obligations under the Loan Documents pursuant to documentation in
form and substance reasonably satisfactory to the Requisite Lenders, and (ii)
subject to compliance with SECTION 4.1(d), Subsidiaries of the Borrower shall be
permitted to sell, transfer, assign or convey their assets. No Change of Control
shall occur.
10.6 MARGIN REGULATIONS; SECURITIES LAWS. Neither the Borrower nor any of
its Subsidiaries, shall use all or any portion of the proceeds of any credit
extended under this Agreement to purchase or carry Margin Stock.
10.7 ERISA. Except where such action or failure is not reasonably likely
to have a Material Adverse Effect, the Borrower shall not and shall not permit
any of its ERISA Affiliates to:
(a) engage in any prohibited transaction described in Sections 406
of ERISA or 4975 of the Internal Revenue Code for which a statutory or class
exemption is not available or a private exemption has not been previously
obtained from the DOL;
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(b) permit to exist any accumulated funding deficiency (as defined
in Sections 302 of ERISA and 412 of the Internal Revenue Code), with respect to
any Benefit Plan, whether or not waived;
(c) fail to pay timely required contributions or annual
installments due with respect to any waived funding deficiency to any Benefit
Plan;
(d) terminate any Benefit Plan which would result in any liability
of Borrower or any ERISA Affiliate under Title IV of ERISA;
(e) fail to make any contribution or payment to any Multiemployer
Plan which Borrower or any ERISA Affiliate may be required to make under any
agreement relating to such Multiemployer Plan, or any law pertaining thereto;
(f) fail to pay any required installment or any other payment
required under Section 412 of the Internal Revenue Code on or before the due
date for such installment or other payment; or
(g) amend a Benefit Plan resulting in an increase in current
liability for the plan year such that the Borrower or any ERISA Affiliate is
required to provide security to such Plan under Section 401(a)(29) of the
Internal Revenue Code.
10.8 ORGANIZATIONAL DOCUMENTS. Neither the Borrower nor any of its
Subsidiaries shall amend, modify or otherwise change any of the terms or
provisions in any of their respective Organizational Documents as in effect on
the Closing Date, except amendments to effect (a) a change of name of the
Borrower or any such Subsidiary (PROVIDED, HOWEVER, that the Borrower shall have
provided the Administrative Agent with at least ten (10) Business Days' prior
written notice of any such name change), (b) changes to the Borrower Partnership
Agreement relating to the acquisition of Real Property or interests in an owner
of Real Property with respect to which the consideration paid to the seller
thereof includes limited partnership interests in the Partnership, or (c)
changes that would not affect such Organizational Documents or the interests of
the Lenders in any material manner not otherwise permitted under this Agreement.
10.9 FISCAL YEAR. Neither Borrower nor any of its Consolidated
Subsidiaries shall change its Fiscal Year for accounting or tax purposes from a
period consisting of the 12-month period ending on December 31 of each calendar
year.
10.10 PREFERRED SECURITIES. Neither the Company nor any of the Borrower's
Subsidiaries shall after the date hereof issue or sell any preferred stock or
other preferred Securities issued by it which would, after giving effect to such
issuance or sale, result in the aggregate amount of all such preferred stock or
other preferred Securities issued or sold after the date hereof exceeding
$150,000,000. The foregoing limitation shall not apply to preferred stock or
other preferred Securities in the Company or any of the Borrower's Subsidiaries
held by third parties as of the date hereof. This SECTION 10.10 shall not limit
the issuance of preferred stock or other preferred Securities by GGP, Inc. or
the Partnership.
10.11 INVESTMENTS. Neither GGP, Inc., nor the Borrower nor any of their
Subsidiaries shall directly or indirectly make or own any Investment, except:
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(a) Investments in Cash and Cash Equivalents;
(b) Subject to the limitations set forth in this SECTION 10.11,
Investments in the Borrower's Subsidiaries, Borrower's Affiliates and the
Management Company;
(c) Investments received in connection with the bankruptcy or
reorganization of suppliers and lessees and in settlement of delinquent
obligations of, and other disputes with, lessees and suppliers arising in the
ordinary course of business;
(d) Investments in:
(i) any individual Real Property (other than the Ala Moana
Center and Property related thereto) which do not exceed ten percent (10%)
of the Capitalization Value after giving effect to such Investments of GGP,
Inc., Borrower, and their Subsidiaries;
(ii) any single Person owning Property or any portfolio of
Properties (other than Borrower's investments in GGP-TRS L.L.C., Price
Development Company, Limited Partnership, the Homart Portfolio and the
Ivanhoe Portfolio) which do not exceed thirty-five percent (35%) of the
Capitalization Value after giving effect to such Investments of GGP, Inc.,
Borrower, and their Subsidiaries, it being understood that no Investment in
any individual Person will be permitted if GGP, Inc.'s and the Borrower's
allocable share of the Investment of such Person in any individual Property
would exceed the limitation described in clause (i) above;
(iii) Minority Holdings, provided that aggregate Investments
in Limited Minority Holdings shall not exceed twenty-five percent (25%) of
the then Capitalization Value after giving effect to such Investments of
GGP, Inc., Borrower, and their Subsidiaries;
(iv) Real Estate Under Construction which, in the aggregate,
does not exceed twenty percent (20%) of the Capitalization Value after
giving effect to such Investments of GGP, Inc., the Borrower, and their
Subsidiaries (PROVIDED, HOWEVER, that, for purposes of this clause (iv)
only, the term Real Estate Under Construction shall not include any
Construction Asset which is at least eighty percent (80%) leased, and
PROVIDED FURTHER that, for purposes of this clause (iv), any portion of a
Construction Asset which is under a binding contract of sale to an "anchor
tenant" shall be deemed to be leased); and
(e) Investments held as of the Closing Date.
10.12 OTHER FINANCIAL COVENANTS.
(a) MINIMUM COMBINED EQUITY VALUE. The Combined Equity Value shall
at no time be less than the sum of (i) $3,000,000,000 plus (ii) an amount equal
to seventy-five percent (75%) of the aggregate net proceeds received by the
Borrower or GGP, Inc. in connection with any offering or issuance after the date
of this Agreement of equity Securities (including, without limitation, common
stock, preferred stock partnership interests and
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membership interests) representing interests in the Borrower, or GGP, Inc. or
any of their respective Subsidiaries.
(b) CONSOLIDATED INTEREST COVERAGE RATIO. As of the first day of
each fiscal quarter for the immediately preceding consecutive four fiscal
quarters, the ratio of (i) Combined EBITDA to (ii) Combined Interest Expense,
shall not be less than 1.8 to 1.0.
(c) MINIMUM DEBT YIELD. As of the first day of each fiscal quarter
for the immediately preceding consecutive four fiscal quarters, the ratio
(expressed as a percentage) of (i) the sum of (A) Combined EBITDA plus (B)
interest paid from reserves established under construction loans to (ii) Total
Adjusted Outstanding Indebtedness shall not be less than 12.50%.
(d) DIVIDENDS AND REDEMPTIONS.
(i) GGP, Inc. shall not, as determined on an aggregate
annual basis, pay any cash dividends (excluding special capital gain
distributions and any dividends payable solely in equity securities of the
entity paying such dividend) in excess of 60% of GGP, Inc.'s FFO for such
year.
(ii) Neither the Borrower nor GGP, Inc. will, as determined
on a combined, aggregate annual basis for both the Borrower and GGP, Inc.,
voluntarily redeem, repurchase or otherwise acquire for value more than
$125,000,000 of the common stock, preferred stock, partnership interests
and/or membership interests issued by GGP, Inc. and/or the Borrower,
respectively, excluding any such redemption, repurchase or acquisition
required pursuant to any Contractual Obligation to honor any conversion,
exchange or put right heretofore or hereafter granted to any Person as
consideration for capital contributions to GGP, Inc. or the Borrower, as
the case may be, or in furtherance of any other bona fide business purpose
of GGP, Inc. or the Borrower, as the case may; PROVIDED, HOWEVER, that no
such redemption, repurchase or acquisition shall have, or be reasonably
likely to have, a Material Adverse Effect.
(e) MINIMUM FIXED CHARGE COVERAGE RATIO. As of the first day of
each fiscal quarter for the immediately preceding consecutive four fiscal
quarters, the ratio of (i) Combined EBITDA to (ii) Fixed Charges shall not be
less than 1.5 to 1.0.
(f) [Intentionally deleted].
(g) LEVERAGE. Neither GGP, Inc., nor the Borrower nor any of their
Subsidiaries shall directly or indirectly create, incur, assume or be or remain
directly or indirectly liable with respect to: (i) any Indebtedness, except
Indebtedness which, in any case, when aggregated with Indebtedness of GGP, Inc.,
the Borrower and, without duplication, their Subsidiaries and Minority Holdings
Indebtedness allocable in accordance with GAAP to GGP, Inc. and the Borrower as
of the time of determination, would not cause Total Adjusted Outstanding
Indebtedness to exceed sixty-five percent (65%) of Capitalization Value; (ii)
any Secured Indebtedness, except Secured Indebtedness which, when aggregated
with Total Adjusted Outstanding Secured Indebtedness, would not cause Total
Adjusted Outstanding Secured Indebtedness to exceed sixty percent (60%) of
Capitalization Value; (iii) any Recourse Indebtedness, except Recourse
Indebtedness which, when aggregated with Recourse
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Indebtedness of GGP, Inc., the Borrower and, without duplication, their
respective Subsidiaries and Minority Holdings Recourse Indebtedness allocable in
accordance with GAAP to GGP, Inc. and the Borrower as of the time of
determination, would not cause the portion of Total Adjusted Outstanding
Indebtedness consisting of Recourse Indebtedness to exceed twenty percent (20%)
of Capitalization Value; (iv) any Unsecured Indebtedness with priority of
payment to the Loans, including without limitation any Unsecured Indebtedness of
any Subsidiary of the Borrower, provided that existing Unsecured Indebtedness of
a Subsidiary of Borrower may continue to be outstanding and may be refinanced in
an amount not to exceed its original amount (and Unsecured Indebtedness of Price
Development Company, Limited Partnership may be refinanced either as Unsecured
Indebtedness of said partnership or as Unsecured Indebtedness of the Company);
or (v) any Unsecured Indebtedness, except Unsecured Indebtedness which, when
aggregated with Total Adjusted Outstanding Unsecured Indebtedness, would not
cause Total Adjusted Outstanding Unsecured Indebtedness to exceed seventeen
percent (17%) of Capitalization Value.
(h) MOST FAVORED LOAN. The Borrower will not enter into any credit
agreement or execute any note, deed of trust, mortgage, security agreement,
pledge or any other loan agreement, document or instrument governing, evidencing
or securing any Indebtedness of the Borrower which is either (A) Unsecured
Indebtedness or (B) secured and Recourse Indebtedness, the terms of which
require compliance by the Borrower with covenants that, taken as a whole, are
more restrictive than the covenants of the Borrower herein contained, including,
without limitation, those covenants set forth in this SECTION 10.12.
ARTICLE XI - EVENTS OF DEFAULT; RIGHTS AND REMEDIES
11.1 EVENTS OF DEFAULT. Each of the following occurrences shall
constitute an Event of Default under this Agreement:
(a) FAILURE TO MAKE PAYMENTS WHEN DUE. The Borrower shall fail to
pay when due any principal payment or interest payment on the Obligations or any
Facility Fee.
(b) BREACH OF CERTAIN COVENANTS.
(i) The Borrower shall fail duly and punctually to perform
or observe any agreement, covenant or obligation binding on the Borrower
under SECTIONS 8.3, 9.1, 9.2, 9.3, 9.9, 9.10 or ARTICLE X.
(ii) The Borrower shall fail duly and punctually to perform
or observe any agreement, covenant or obligation binding on the Borrower
under SECTIONS 9.4, 9.5 or 9.6, and such failure shall continue for fifteen
(15) days after receipt of written notice from the Administrative Agent
thereof.
(c) BREACH OF REPRESENTATION OR WARRANTY. Any representation or
warranty made by the Borrower to the Administrative Agent or any other Lender
herein or by the Borrower or any of its Subsidiaries in any of the other Loan
Documents or in any statement or certificate at any time given by any such
Person pursuant to any of the Loan Documents shall be false or misleading in any
material respect on the date as of which made.
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(d) OTHER DEFAULTS. Except as set forth in the next sentence, the
Borrower shall default in the performance of or compliance with any term
contained in this Agreement (other than as identified in paragraphs (a), (b) or
(c) of this Section 11.1), or any default (other than as identified in
paragraphs (a), (b) (c) or (j) of this SECTION 11.1) shall occur under any of
the other Loan Documents, and such default shall continue for thirty (30) days
after receipt of written notice from the Administrative Agent thereof.
Notwithstanding the foregoing sentence, such failure or noncompliance shall not
constitute an Event of Default so long as the Borrower commences the cure within
such thirty (30) day period after the receipt of written notice, thereafter
diligently pursues the same until completion and completes the cure of such
failure or noncompliance within ninety (90) days after the receipt of such
notice.
(e) DEFAULT UNDER OTHER INDEBTEDNESS. Any breach, default or event
of default shall occur, or any other condition shall exist, subject to the
receipt of any applicable notice and the expiration of any applicable cure
period or grace period, under any instrument, agreement or indenture pertaining
to (x) any Recourse Indebtedness (other than the Obligations) of the Borrower
and/or its Subsidiaries aggregating $20,000,000 or more or (y) any Non-Recourse
Indebtedness of Borrower and/or its Subsidiaries aggregating $250,000,000 or
more; or (i) any such Recourse Indebtedness aggregating $20,000,000 or more or
(ii) any such Non-Recourse Indebtedness aggregating $250,000,000 or more shall
be otherwise declared to be due and payable (by acceleration or otherwise) or
required to be prepaid, redeemed or otherwise repurchased by the Borrower or any
of its Subsidiaries (other than by a regularly scheduled required prepayment)
prior to the stated maturity thereof.
(f) INVOLUNTARY BANKRUPTCY: APPOINTMENT OF RECEIVER, ETC.
(i) An involuntary case shall be commenced against the
Borrower, or any of its Subsidiaries to which more than $50,000,000 of the
Capitalization Value is attributable, and the petition shall not be
dismissed, stayed or discharged within sixty (60) days after commencement
of the case; or a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Borrower or any of such
Subsidiaries in an involuntary case, under any applicable bankruptcy,
insolvency or other similar law now or hereinafter in effect; or any other
similar relief shall be granted under any applicable federal, state, local
or foreign law; or the board of directors of GGP, Inc. or the partners or
members, as the case may be, of the Borrower or the board of directors,
partners or members of any of the Borrower's Subsidiaries to which more
than $50,000,000 of the Capitalization Value is attributable (or any
committee thereof) adopts any resolution or otherwise authorizes any action
to approve any of the foregoing.
(ii) A decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over the
Borrower, or any of its Subsidiaries to which more than $50,000,000 of the
Capitalization Value is attributable, or over all or a substantial part of
the Property of the Borrower or any of such Subsidiaries shall be entered;
or an interim receiver, trustee or other custodian of the Borrower or any
of such Subsidiaries or of all or a substantial part of the Property of the
Borrower or any of such Subsidiaries shall be appointed or a warrant of
attachment, execution or similar process against any substantial part of
the Property of the Borrower or any of such Subsidiaries shall be issued
and any
71
such event shall not be stayed, dismissed, bonded or discharged within
sixty (60) days after entry, appointment or issuance; or the respective
board of directors of the Borrower or members or partners of the Borrower
or the board of directors, members or partners of any of Borrower's
Subsidiaries to which more than $50,000,000 of the Capitalization Value is
attributable (or any committee thereof) adopts any resolution or otherwise
authorizes any action to approve any of the foregoing.
(g) VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC. The
Borrower, or any of its Subsidiaries to which more than $50,000,000 of the
Capitalization Value is attributable, shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall consent to the entry of an order for relief in an involuntary
case, or to the conversion of an involuntary case to a voluntary case, under any
such law, or shall consent to the appointment of or taking possession by a
receiver, trustee or other custodian for all or a substantial part of its
Property; or Borrower or any of such Subsidiaries to which more than $50,000,000
of the Capitalization Value is attributable shall make any assignment for the
benefit of creditors or shall be unable or fail, or admit in writing its
inability, generally to pay its debts as such debts become due.
(h) JUDGMENTS AND UNPERMITTED LIENS.
(i) Any money judgment (other than a money judgment covered
by insurance as to which the insurance company has acknowledged coverage),
writ or warrant of attachment, or similar process against the Borrower or
any of its Subsidiaries or any of their respective assets involving in any
event an amount in excess of $25,000,000 (other than with respect to Claims
arising out of nonrecourse Indebtedness) is entered and shall remain
undischarged, unvacated, unbonded or unstayed for a period of sixty (60)
days or in any event later than five (5) days prior to the date of any
proposed sale thereunder.
(ii) A federal, state, local or foreign tax Lien (other than
a Lien permitted by SECTION 10.2 of this Agreement or a Lien relating to
taxes being contested pursuant to SECTION 9.4 of this Agreement) is filed
against the Borrower which is not discharged of record, bonded over or
otherwise secured to the satisfaction of the Administrative Agent within
thirty (30) days after the filing thereof or the date upon which the
Administrative Agent receives actual knowledge of the filing thereof for an
amount which, either separately or when aggregated with the amount of any
judgments described in clause (i) above and/or the amount of the
Environmental Lien Claims described in clause (iii) below, equals or
exceeds $25,000,000.
(iii) An Environmental Lien is filed against any Real
Property with respect to Claims in an amount which, either separately or
when aggregated with the amount of any judgments described in clause (i)
above and/or the amount of the tax Liens described in clause (ii) above,
equals or exceeds $25,000,000.
(i) DISSOLUTION. Any order, judgment or decree shall be entered
against the Borrower decreeing its involuntary dissolution or split up; or the
Borrower shall otherwise dissolve or cease to exist except as specifically
permitted by this Agreement.
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(j) LOAN DOCUMENTS. At any time, for any reason, any Loan Document
ceases to be in full force and effect or the Borrower seeks to repudiate its
obligations thereunder or an "event of default" exists under the Guaranty
following expiration of any applicable grace or cure period provided for in the
Guaranty.
(k) ERISA TERMINATION EVENT. Any ERISA Termination Event occurs
which the Administrative Agent reasonably believes could subject either the
Borrower or any ERISA Affiliate to liability in excess of $2,000,000.
(l) WAIVER APPLICATION. The plan administrator of any Benefit Plan
applies under Section 412(d) of the Internal Revenue Code for a waiver of the
minimum funding standards of Section 412(a) of the Internal Revenue Code and the
Administrative Agent reasonably believes that the substantial business hardship
upon which the application for the waiver is based could subject either the
Borrower or any ERISA Affiliate to liability in excess of $2,000,000.
(m) CERTAIN DEFAULTS PERTAINING TO GGP, INC. AND/OR THE
PARTNERSHIP. GGP, Inc. shall fail to (i) maintain its status as a REIT for
federal income tax purposes, (ii) continue as a general partner of the
Partnership, and (iii) remain listed on the New York Stock Exchange or other
national stock exchange, or the Partnership shall fail to continue as the
managing member of the Company, or either GGP, Inc. or the Borrower shall fail
to (A) comply in all material respects with all Requirements of Law applicable
to it and its businesses and Properties, in each case where the failure to so
comply individually or in the aggregate will have or is reasonably likely to
have a Material Adverse Effect, or (B) file all tax returns and reports required
to be filed by it with any Governmental Authority as and when required to be
filed or to pay any taxes, assessments, fees or other governmental charges upon
it or its Property, assets, receipts, sales, use, payroll, employment, licenses,
income, or franchises which are shown in such returns, reports or similar
statements to be due and payable as and when due and payable, except for taxes,
assessments, fees and other governmental charges (1) that are being contested by
it in good faith by an appropriate proceeding diligently pursued, (2) for which
adequate reserves have been made on its books and records, and (3) the amounts
the nonpayment of which would not, individually or in the aggregate, result in a
Material Adverse Effect.
(n) MERGER OR LIQUIDATION OF THE BORROWER. The Borrower shall
merge or liquidate with or into any other Person and, as a result thereof and
after giving effect thereto, (i) the Borrower is not the surviving Person or
(ii) such merger or liquidation would effect an acquisition of or Investment in
any Person not otherwise permitted under the terms of this Agreement, provided
that nothing herein or in any other Loan Document shall prohibit a merger
between the Company and the Partnership, regardless of which entity is the
surviving entity, so long as the surviving Borrower assumes the non-surviving
Borrower's obligations under the Loan Documents pursuant to documentation in
form and substance reasonably satisfactory to the Requisite Lenders.
An Event of Default shall be deemed "continuing" until cured or waived in
writing in accordance with SECTION 15.7.
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11.2 RIGHTS AND REMEDIES.
(a) ACCELERATION AND TERMINATION. Upon the occurrence of any Event
of Default described in SECTIONS 11.1(f) or 11.1(g) with respect to the Company
and/or the Partnership, the Commitments shall automatically and immediately
terminate and the unpaid principal amount of, and any and all accrued interest
on, the Obligations and all accrued fees shall automatically become immediately
due and payable, without presentment, demand, or protest or other requirements
of any kind (including, without limitation, valuation and appraisement,
diligence, presentment, notice of intent to demand or accelerate and of
acceleration), all of which are hereby expressly waived by the Borrower; and
upon the occurrence and during the continuance of any other Event of Default,
the Administrative Agent shall at the request, or may with the consent, of the
Requisite Lenders, by written notice to the Borrower, (i) declare that the
Commitments are terminated, whereupon the Commitments and the obligation of each
Lender to make any Loan hereunder shall immediately terminate, and/or (ii)
declare the unpaid principal amount of and any and all accrued and unpaid
interest on the Obligations to be, and the same shall thereupon be, immediately
due and payable, without any other presentment, demand, or protest or other
requirements of any kind (including, without limitation, valuation and
appraisement, diligence, presentment, notice of intent to demand or accelerate
and of acceleration), all of which are hereby expressly waived by the Borrower.
(b) RESCISSION. If at any time after termination of the
Commitments and/or acceleration of the maturity of the Loans, the Borrower shall
pay all arrears of interest and all payments on account of principal of the
Loans which shall have become due otherwise than by acceleration (with interest
on principal and, to the extent permitted by law, on overdue interest, at the
rates specified in this Agreement) and all Events of Default and Potential
Events of Default (other than nonpayment of principal of and accrued interest on
the Loans due and payable solely by virtue of acceleration) shall be remedied or
waived pursuant to SECTION 15.7, then upon the written consent of the Requisite
Lenders and written notice to the Borrower, the termination of the Commitments
and/or the acceleration and the consequences thereof may be rescinded and
annulled; but such action shall not affect any subsequent Event of Default or
Potential Event of Default or impair any right or remedy consequent thereon. The
provisions of the preceding sentence are intended merely to bind the Lenders to
a decision which may be made at the election of the Requisite Lenders; they are
not intended to benefit the Borrower and do not give the Borrower the right to
require the Lenders to rescind or annul any acceleration hereunder, even if the
conditions set forth herein are met.
(c) ENFORCEMENT. The Borrower acknowledges that in the event the
Borrower fails to perform, observe or discharge any of its obligations or
liabilities under this Agreement or any other Loan Document, any remedy of law
may prove to be inadequate relief to the Administrative Agent and the other
Lenders; therefore, the Borrower agrees that the Administrative Agent and the
other Lenders shall be entitled to temporary and permanent injunctive relief in
any such case without the necessity of proving actual damages.
ARTICLE XII - THE AGENT
12.1 APPOINTMENT. Eurohypo is hereby irrevocably appointed Administrative
Agent hereunder and under each other Loan Document, and each of the Lenders
irrevocably authorizes
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the Administrative Agent to act as the agent of such Lender. The Administrative
Agent agrees to act as such upon the express conditions contained in this
ARTICLE XII. The Administrative Agent shall not have any duties or
responsibilities to the Lenders except those expressly set forth herein and
shall not have a fiduciary relationship in respect of any Lender by reason of
this Agreement. Bank of America is hereby irrevocably appointed as the
Syndication Agent for the Lenders. Neither the Syndication Agent nor any
documentation agent shall have any fiduciary relationship in respect of any
Lender by reason of this Agreement, or any duties or responsibilities to the
Lenders in that capacity, in connection with the administration of the Facility
or otherwise.
12.2 POWERS. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto (but subject to SECTION 15.7 below). The
Administrative Agent shall have no implied duties, obligations or liabilities to
the Lenders, or any obligation to the Lenders to take any action thereunder
except any action specifically provided by the Loan Documents to be taken by the
Administrative Agent. Only the Administrative Agent may perform the duties
reserved to it under the Loan Documents and no Lender shall act or purport to
act on behalf of the other Lenders or Administrative Agent on any such matters.
Without limiting the generality of the foregoing:
(a) The Administrative Agent shall have the exclusive right to
collect from Borrower, any Guarantor or third parties, on account of the
Facility, including, principal, interest, fees and protective advances, whether
such sums are received directly from Borrower, any guarantor (including, without
limitation, GGP, Inc. or the Partnership, as the guarantors under the Guaranty)
or any other Persons, or are obtained by right of offset by the Administrative
Agent of any kind, or by enforcement of the Loan Documents. The Administrative
Agent will receive and hold all collections with respect to the Loan for the
benefit of the Lenders in accordance with their respective Pro Rata Shares or as
otherwise provided herein.
(b) If any Lender shall receive any payments or property in
connection with the Facility (whether or not voluntary), from any Person other
than the Administrative Agent, such Lender shall transfer to the Administrative
Agent all such payments or property within one (1) Business Day of receipt.
(c) No Lender shall independently initiate any judicial action or
other proceeding against Borrower or any Guarantor with respect to the Facility.
12.3 GENERAL IMMUNITY. None of the Lead Agents nor any of their
respective directors, officers, agents or employees shall be liable to the
Borrower or the Lenders 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.
12.4 NO RESPONSIBILITY FOR LOANS, RECITALS, ETC. None of the Lead Agents
nor any of their respective directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire into, or verify (i) any
statement, warranty or representation made in connection with any Loan Document
or any Borrowing hereunder; (ii) the performance or observance of any of the
covenants or agreements of any obligor under any Loan Document; (iii)
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the satisfaction of any condition specified in ARTICLE VI, except receipt of
items required to be delivered to the Administrative Agent; or (iv) the
validity, effectiveness or genuineness of any Loan Document or any other
instrument or writing furnished in connection therewith.
12.5 ACTION ON INSTRUCTIONS OF LENDERS. The Administrative Agent shall in
all cases be fully protected by the Lenders, as against any claim or other
action of any kind or nature whatsoever by any Lender, in acting, or in
refraining from acting, hereunder and under any other Loan Document in
accordance with written instructions signed by the Requisite Lenders (or, in the
case of any waiver or amendment listed in SECTION 15.7(b) hereof, all of the
Lenders) and such instructions and any action taken or failure to act pursuant
thereto shall be binding on all of the Lenders and on all Holders. As between
the Administrative Agent and the Lenders, the Administrative Agent shall be
fully justified in failing or refusing to take any action hereunder and under
any other Loan Document unless it shall first receive such advice or
concurrence, if it so requests, of the Requisite Lenders and shall first be
indemnified to its satisfaction by the Lenders in accordance with their
respective Pro Rata Shares against any and all liability, cost and expense that
it may incur by reason of taking or continuing to take any such action.
12.6 EMPLOYMENT OF ADMINISTRATIVE AGENTS AND COUNSEL. Each of the Lead
Agents may execute any of its duties as Administrative Agent or Syndication
Agent (as the case may be) hereunder and under any other Loan Document by or
through employees, agents and attorneys-in-fact and shall not be answerable to
the Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. As between each of the Lead Agents, on the
one hand, and the Lenders, on the other hand, such Lead Agent shall be entitled
to engage and rely upon advice of legal counsel (including the Borrower's
counsel), independent accountants and other professionals and experts selected
by such Lead Agent concerning all matters pertaining to its agency hereby
created and its duties hereunder and under any other Loan Document.
12.7 RELIANCE ON DOCUMENTS. The Administrative Agent shall be entitled to
rely upon any Note or other Loan Document, writing, notice, consent,
certificate, facsimile, affidavit, letter, telegram, statement, paper, document
or other communication believed by it to be genuine and correct and to have been
signed, sent or otherwise communicated by the proper person or persons.
12.8 ADMINISTRATIVE AGENT'S REIMBURSEMENT AND INDEMNIFICATION. The
Lenders, ratably in accordance with their respective Pro Rata Shares, agree to
reimburse and indemnify upon demand each of the Lead Agents (i) for any amounts
not reimbursed by the Borrower for which such Lead Agent is entitled to
reimbursement by the Borrower under the Loan Documents, (ii) for any other
expenses (including reasonable attorneys' fees) incurred by such Lead Agent on
behalf of the Lenders, in connection with the preparation, execution, delivery,
administration, modification and enforcement of the Loan Documents, if not paid
by the Borrower, and (iii) for any 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 such Lead Agent in any way relating to or arising out of the Loan
Documents or any other document delivered in connection therewith or the
transactions contemplated thereby, or the enforcement of any of the terms
thereof or of any such
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other documents, provided that no Lender shall be liable for any of the
foregoing to the extent they arise from the gross negligence or willful
misconduct of such Lead Agent. Each Lender shall indemnify each of the Lead
Agents and each of the other Lenders with respect to claims, liabilities,
damages, costs, losses and expenses (including, without limitation, attorneys'
fees) arising from or relating to the failure of such indemnifying Lender to
satisfy its obligations under this Agreement and the other Loan Documents. No
Lead Agent shall have any liability or obligation hereunder with respect to any
negligence or misconduct of any other Lead Agent.
12.9 RIGHTS AS A LENDER. With respect to the Loans made by it, the Note
issued to it and otherwise, each of the Lead Agents shall have the same rights
and powers hereunder and under any other Loan Document as any Lender and may
exercise the same as though it were not one of the Lead Agents, and the term
"LENDER" or "LENDERS" shall, unless the context otherwise indicates, include
each of the Lead Agents in its capacity as a Lender. Each of the Lead Agents, in
its capacity as a Lender, may accept deposits from, lend money to, and generally
engage in any kind of trust, debt, equity or other transaction, in addition to
those contemplated by this Agreement or any other Loan Document, with the
Borrower in which the Borrower is not restricted hereby from engaging with any
other Person. The Lenders acknowledge that each of the Lead Agents and their
respective Affiliates now or in the future may have banking or other financial
relationships, including being an agent on other loans, with the Borrower and
its Affiliates, as though it were not one of the Lead Agents hereunder and
without notice to or consent of the Lenders. Each Lender hereby expressly waives
any objection to such actual or potential conflict of interest. The Lenders
acknowledge that in the course of such activities, any of the Lead Agents or
their respective Affiliates may receive information regarding the Borrower or
its Affiliates and acknowledge that none of the Lead Agents shall be under any
obligation to provide such information to them, whether or not confidential.
12.10 LENDER CREDIT DECISION. Each Lender acknowledges that none of the
Lead Agents nor any of their respective agents has made any representation or
warranty to such Lender and that no action or statement hereafter made or taken
by any of the Lead Agents or any of their respective agents shall be deemed to
be representation or warranty by any other of the Lead Agents to such Lenders.
Each Lender further acknowledges that it has, independently and without reliance
upon any of the Lead Agents or any other Lender and based on the financial
statements prepared by Borrower and such other documents and information as such
Lender has deemed appropriate, made its own credit analysis and decision to
enter into this Agreement and the other Loan Documents. Each Lender also
acknowledges that it will, independently and without reliance upon any of the
Lead Agents or any other Lender and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit analysis
and decisions in taking or not taking action under this Agreement and the other
Loan Documents.
12.11 SUCCESSOR ADMINISTRATIVE AGENT. Each Lender agrees that Eurohypo
shall serve as the Administrative Agent at all times during the term of this
Facility, except that Eurohypo may appoint one of its Affiliates to serve in
such capacity or may resign from its agency at any time, in its sole discretion,
upon thirty (30) days' prior written notice to the Lenders and the Borrower. If
the Administrative Agent is permitted to (in accordance with the terms of this
Agreement) and does participate or assign its total interests in the Facility,
other than to a successor entity to the Administrative Agent or any Affiliate of
the Administrative Agent, then the Administrative Agent agrees to resign upon
the request of any Lender or the Borrower.
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Upon the gross negligence or willful misconduct of the Administrative Agent in
respect of its responsibilities as administrative agent for the Lenders under
this Agreement, the Administrative Agent agrees to resign at the request of the
Requisite Lenders. Upon any such resignation, the Requisite Lenders shall have
the right to appoint, on behalf of the Borrower and the Lenders, a successor
Administrative Agent, which successor Administrative Agent, other than a
successor entity to the Administrative Agent, shall, so long as no Event of
Default exists hereunder, be subject to the approval of the Borrower (such
approval not to be unreasonably withheld or delayed). If no successor
Administrative Agent shall have been so appointed by the Requisite Lenders (and,
if applicable, approved by Borrower) and shall have accepted such appointment
within thirty (30) days after the retiring Administrative Agent's giving notice
of resignation, then the retiring Administrative Agent may appoint, on behalf of
the Borrower and the Lenders, a successor Administrative Agent, which successor
Administrative Agent, other than a successor entity to the Administrative Agent,
shall, so long as no Event of Default exists hereunder, be subject to the
approval of Borrower (such approval not to be unreasonably withheld or delayed).
Such successor Administrative Agent shall be a commercial bank having capital
and retained earnings of at least $1,000,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, including the right to receive any fees for performing
such duties which accrue thereafter, and the retiring Administrative Agent shall
be discharged from its duties and obligations subsequently arising hereunder and
under the other Loan Documents. After any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the provisions of this ARTICLE
XII shall continue in effect for its benefit and that of the other Lenders in
respect of any actions taken or omitted to be taken by it while it was acting as
the Administrative Agent hereunder and under the other Loan Documents.
12.12 NOTICE OF DEFAULTS. If a Lender becomes aware of a Potential Event
of Default or Event of Default, such Lender shall notify the Administrative
Agent of such fact. Upon receipt of such notice that a Potential Event of
Default or Event of Default has occurred, the Administrative Agent shall notify
each of the Lenders of such fact. Except for defaults in the payment of
principal, interest and fees payable to Administrative Agent for the account of
the Lenders and such other Obligations for which Administrative Agent is
expressly responsible for determining the Borrower's compliance, Administrative
Agent shall not be deemed to have knowledge or notice of the occurrence of any
Potential Event of Default or Event of Default, unless Administrative Agent
shall have received written notice from a Lender or the Borrower referring to
the Loan, describing such Potential Event of Default or Event of Default and
stating that such notice is a "notice of default". Administrative Agent will
notify the Lenders of its receipt of any such notice. Administrative Agent shall
take action with respect to such Potential Event of Default or Event of Default
in accordance with the provisions of this Agreement and the Loan Documents.
12.13 REQUESTS FOR APPROVAL. If the Administrative Agent requests in
writing the consent or approval of a Lender, whether or not such consent or
approval is required hereunder (and no such requirement shall be inferred from
any such request), such Lender shall respond and either approve or disapprove
definitively in writing to the Administrative Agent within ten (10) Business
Days (or sooner if such notice specifies a shorter period based on
Administrative Agent's good faith determination that circumstances warrant an
earlier response) after such
78
written request from the Administrative Agent. If any Lender does not so
respond, that Lender shall be deemed to have approved the request. Upon request,
the Administrative Agent shall notify the Lenders which Lenders, if any, failed
to respond to a request for approval.
12.14 COPIES OF DOCUMENTS. Administrative Agent shall promptly deliver to
each of the Lenders copies of all notices of default and other formal notices
sent to or received by the Administrative Agent pursuant to SECTION 15.1 of this
Agreement. Within fifteen (15) Business Days after a request by a Lender to the
Administrative Agent for other documents furnished to the Administrative Agent
by the Borrower, the Administrative Agent shall provide copies of such documents
to such Lender except where this Agreement obligates Administrative Agent to
provide copies in a shorter period of time.
12.15 WITHHOLDING TAX. All taxes due and payable on any payments to be
made to a Lender under this Agreement shall be such Lender's sole
responsibility, except to the extent such taxes are actually reimbursed by the
Borrower under the Loan Documents. All payments to be made to each Lender under
this Agreement shall be made after deduction for any taxes, charges, levies or
withholdings which are imposed by the country of organization of the Borrower,
the United States of America or any other applicable taxing authority. Each
Lender agrees to provide to Administrative Agent completed and signed copies of
any forms that may be required by the IRS (and any applicable state authority),
or as requested by the Administrative Agent, in order to certify such Lender's
exemption from or reduction of United States (or applicable state) withholding
taxes with respect to payments to be made to such Lender under this Agreement or
the Loan Documents. Each Lender agrees to promptly notify Administrative Agent
of any change which would modify or render invalid any claimed exemption or
reduction. If any governmental authority of the United States or other
jurisdiction asserts a claim that Administrative Agent did not properly withhold
tax from amounts paid to or for the account of any Lender, such Lender shall
indemnify Administrative Agent fully for all amounts paid by Administrative
Agent as tax or otherwise, including penalties and interest, and including any
taxes imposed by any jurisdiction on the amount payable to Administrative Agent
under this section, together with all costs and expenses (including legal
expenses). The obligation of the Lenders under this subsection shall survive the
payment of all Obligations and the resignation or replacement of Administrative
Agent.
12.16 BORROWER'S DEFAULT; ENFORCEMENT. Upon the occurrence of an Event of
Default under any Loan Document, the Requisite Lenders shall have the right,
upon written notice to Administrative Agent, to require that Administrative
Agent exercise the rights of the Lenders as directed by the Requisite Lenders;
provided, however, that the Lenders shall indemnify, exonerate and hold
Administrative Agent harmless from and against any and all claims, losses,
liabilities, damages and costs (including reasonable legal fees) incurred by
Administrative Agent as a result of any such exercise of rights at the direction
of the Lenders and not resulting from the gross negligence or willful misconduct
of Administrative Agent.
12.17 WORKOUT. If an Event of Default has occurred, Administrative Agent
may declare by written notice to the Lenders (with a copy to the Borrower) that
the Loan is "in workout" (the "NOTICE OF WORKOUT"). The Lenders acknowledge that
workouts of defaulted loans usually are resolved by either a borrower cure of
the default; or a restructure of or other modification to the loan; or by
exercising remedies; and that it is in the interest of the Lenders to attain a
resolution
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within a reasonable period of time. Notwithstanding any action by Administrative
Agent under this SECTION 12.17, Administrative Agent shall follow the direction
of the Requisite Lenders under SECTION 12.16 above at any time. Nevertheless,
unless and until the Requisite Lenders shall direct Administrative Agent to the
contrary, Administrative Agent shall have the right but not the obligation to
take such action as it may deem appropriate to preserve the rights of the
Lenders to recover any amounts owing under the Loan Documents, without the
consent of the Requisite Lenders.
12.18 BANKRUPTCY OF BORROWER. In the event of a bankruptcy by the
Borrower, the Lenders shall act through Administrative Agent to petition the
court, make any motion for relief from the automatic stay, participate in any
appropriate creditors' committee, vote on a plan of reorganization or pursue
other remedies or actions in accordance with the approval of the Requisite
Lenders.
12.19 RELATIONSHIP OF PARTIES. This Agreement is not intended to establish
a partnership or joint venture between any of the Lead Agents, on the one hand,
and the Lenders, on the other hand. The provisions of the Loan Documents
regarding the relationships among each of the Lead Agents and the Lenders and
this ARTICLE XII are intended solely to facilitate co-lending relationships
among the Lenders for the Facility. No security or investment contract under any
federal or state law is intended to be created among the Lenders or between any
of the Lead Agents and the Lenders. The execution of this Agreement, the
performance of the terms thereof, and the Lenders' purchase of and ownership
interest in the Facility and the Loan Documents shall not constitute any Lender
as owner, purchaser or seller of any security (as that term is defined in the
Securities Act of 1933 or the Securities Exchange Act of 1934) issued, owned,
purchased or sold by Eurohypo or Bank of America or any of their Subsidiaries or
Affiliates, either as principal or as agent for the Borrower. Each Lender is
purchasing and acquiring legal and equitable ownership of its Pro Rata Share and
is not making a loan to Eurohypo or Bank of America, and no debtor-creditor
relationship exists between them as a result of this Agreement.
12.20 COUNSEL. The Lenders acknowledge that the Lead Agents' counsel has
represented and shall represent only the Lead Agents, respectively, in their
respective capacities as such, in connection with the Loan Documents and this
Agreement. Each other Lender shall have the right (at their own expense) to
retain independent legal counsel regarding all such matters, documents and
agreements. After an Event of Default, the Lenders shall enter into a joint
privilege agreement regarding the exchange of information that is or may be
subject to attorney-client privilege or related privileges. The Administrative
Agent's counsel shall prepare such joint privilege agreement, subject to the
approval of the Requisite Lenders which approval shall not be unreasonably
withheld by any Lender.
ARTICLE XIII - YIELD PROTECTION
13.1 TAXES.
(a) PAYMENT OF TAXES. Any and all payments by the Borrower
hereunder or under any Note or other document evidencing any Obligations shall
be made, in accordance with SECTION 4.2, free and clear of and without reduction
for any and all present or future taxes, levies, imposts, deductions, charges,
withholdings, and all stamp or documentary taxes, excise taxes, ad
80
valorem taxes and other taxes imposed on the value of the Property, charges or
levies which arise from the execution, delivery or registration, or from payment
or performance under, or otherwise with respect to, any of the Loan Documents or
the Commitments and all other liabilities with respect thereto excluding, in the
case of each Lender, taxes imposed on or measured by net income or overall gross
receipts and capital and franchise taxes imposed on it by (i) the United States,
(ii) the Governmental Authority of the jurisdiction in which such Lender's
Applicable Lending Office is located or any political subdivision thereof or
(iii) the Governmental Authority of the jurisdiction in which such Person is
organized, managed and controlled or any political subdivision thereof (all such
nonexcluded taxes, levies, imposts, deductions, charges and withholdings being
hereinafter referred to as "TAXES"). If the Borrower shall be required by law to
withhold or deduct any Taxes from or in respect of any sum payable hereunder or
under any such Note or document to any Lender, (x) the sum payable to such
Lender shall be increased as may be necessary so that after making all required
withholding or deductions (including withholding or deductions applicable to
additional sums payable under this SECTION 13.1) such Lender receives an amount
equal to the sum it would have received had no such withholding or deductions
been made, (y) the Borrower shall make such withholding or deductions, and (z)
the Borrower shall pay the full amount withheld or deducted to the relevant
taxation authority or other authority in accordance with applicable law.
Notwithstanding the foregoing, in the event that any Lender is or becomes so
subject to such Taxes, at Borrower's sole election, Borrower may identify an
Eligible Assignee not so subject to such Taxes to whom the Lender which is so
subject shall assign its interest in the Loans pursuant to the terms of an
Assignment and Acceptance substantially in the form attached as EXHIBIT A.
(b) INDEMNIFICATION. The Borrower will indemnify each Lender
against, and reimburse each on demand for, the full amount of all Taxes
(including, without limitation, any Taxes imposed by any Governmental Authority
on amounts payable under this SECTION 13.1 resulting therefrom) incurred or paid
by such Lender or any of its respective Affiliates and any liability (including
penalties, interest, and out-of-pocket expenses paid to third parties) arising
therefrom or with respect thereto, whether or not such Taxes were lawfully
payable. A certificate as to any additional amount payable to any Person under
this SECTION 13.1 submitted by a Lender to the Borrower shall, absent manifest
error, be final, conclusive and binding upon all parties hereto. Each Lender
agrees, within a reasonable time after receiving a written request from the
Borrower, to provide the Borrower and the Administrative Agent with such
certificates as are reasonably required, and take such other actions as are
reasonably necessary to claim such exemptions as such Lender may be entitled to
claim in respect of all or a portion of any Taxes which are otherwise required
to be paid or deducted or withheld pursuant to this SECTION 13.1 in respect of
any payments under this Agreement or under the Notes.
(c) RECEIPTS. Within thirty (30) days after the date of any
payment of Taxes by the Borrower, it will furnish to the Administrative Agent,
at its address referred to in SECTION 15.8, the original or a certified copy of
a receipt evidencing payment thereof.
(d) FOREIGN BANK CERTIFICATIONS.
(i) Each Lender that is not created or organized under the
laws of the United States or a political subdivision thereof shall deliver
to the Borrower and the Administrative Agent on the Closing Date or the
date on which such Lender becomes a
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Lender pursuant to SECTION 15.1 hereof a true and accurate certificate
executed in duplicate by a duly authorized officer of such Lender to the
effect that such Lender is eligible to receive payments hereunder and under
the Notes without deduction or withholding of United States federal income
tax (I) under the provisions of an applicable tax treaty concluded by the
United States (in which case the certificate shall be accompanied by two
duly completed copies of IRS Form W-8BEN (or any successor or substitute
form or forms)) or (II) under Sections 1442(c)(1) and 1442(a) of the
Internal Revenue Code (in which case the certificate shall be accompanied
by two duly completed copies of IRS Form W-8ECI (or any successor or
substitute form or forms)).
(ii) Each Lender further agrees to deliver to the Borrower
and the Administrative Agent from time to time, a true and accurate
certificate executed in duplicate by a duly authorized officer of such
Lender before or promptly upon the occurrence of any event requiring a
change in the most recent certificate previously delivered by it to the
Borrower and the Administrative Agent pursuant to this SECTION 13.1(d).
Each certificate required to be delivered pursuant to this SECTION
13.1(d)(ii) shall certify as to one of the following:
(A) that such Lender can continue to receive
payments hereunder and under the Notes without deduction or
withholding of United States federal income tax;
(B) that such Lender cannot continue to receive
payments hereunder and under the Notes without deduction or
withholding of United States federal income tax as specified therein
but does not require additional payments pursuant to SECTION 13.1(a)
because it is entitled to recover the full amount of any such
deduction or withholding from a source other than the Borrower; or
(C) that such Lender is no longer capable of
receiving payments hereunder and under the Notes without deduction
or withholding of United States federal income tax as specified
therein and that it is not capable of recovering the full amount of
the same from a source other than the Borrower.
Each Lender agrees to deliver to the Borrower and the Administrative Agent
further duly completed copies of the above-mentioned IRS forms on or before the
earlier of (x) the date that any such form expires or becomes obsolete or
otherwise is required to be resubmitted as a condition to obtaining an exemption
from withholding from United States federal income tax and (y) fifteen (15) days
after the occurrence of any event requiring a change in the most recent form
previously delivered by such Lender to the Borrower and Administrative Agent,
unless any change in treaty, law, regulation, or official interpretation thereof
which would render such form inapplicable or which would prevent the Lender from
duly completing and delivering such form has occurred prior to the date on which
any such delivery would otherwise be required and the Lender promptly advises
the Borrower that it is not capable of receiving payments hereunder and under
the Notes without any deduction or withholding of United States federal income
tax.
13.2 INCREASED CAPITAL. If after the date hereof any Lender determines
that (i) the adoption or implementation of or any change in or in the
interpretation or administration of any
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law or regulation or any guideline or request from any central bank or other
Governmental Authority or quasi-governmental authority exercising jurisdiction,
power or control over any Lender or banks or financial institutions generally
(whether or not having the force of law), compliance with which affects or would
affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and (ii) the amount of such
capital is increased by or based upon the making or maintenance by any Lender of
its Loans, any Lender's participation in or obligation to participate in the
Loans or other advances made hereunder or the existence of any Lender's
obligation to make Loans, then, in any such case, within thirty (30) days after
written demand by such Lender (with a copy of such demand to the Administrative
Agent), the Borrower shall pay to the Administrative Agent for the account of
such Lender, from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender or such corporation therefor. Such demand
shall be accompanied by a statement as to the amount of such compensation and
include a brief summary of the basis for such demand. Such statement shall be
conclusive and binding for all purposes, absent manifest error. Notwithstanding
the foregoing, in the event of any such demand, at Borrower's sole election,
Borrower may identify an Eligible Assignee not making such a demand to whom the
demanding Lender shall assign its interest in the Loans pursuant to the terms of
an Assignment and Acceptance substantially in the form attached as EXHIBIT A.
13.3 CHANGES; LEGAL RESTRICTIONS. If after the date hereof any Lender
determines that the adoption or implementation of or any change in or in the
interpretation or administration of any law or regulation or any guideline or
request from any central bank or other Governmental Authority or
quasi-governmental authority exercising jurisdiction, power or control over any
Lender, or over banks or financial institutions generally (whether or not having
the force of law), compliance with which:
(a) does or will subject a Lender (or its Applicable Lending
Office or Eurodollar Affiliate) to charges (other than taxes) of any kind which
such Lender reasonably determines to be applicable to the Commitments of the
Lenders to make Eurodollar Rate Loans or change the basis of taxation of
payments to that Lender of principal, fees, interest, or any other amount
payable hereunder with respect to Eurodollar Rate Loans; or
(b) does or will impose, modify, or hold applicable, in the reasonable
determination of a Lender, any reserve (other than reserves taken into account
in calculating the Eurodollar Rate), special deposit, compulsory loan, FDIC
insurance or similar requirement against assets held by, or deposits or other
liabilities in or for the account of, advances or loans by, commitments made, or
other credit extended by, or any other acquisition of funds by, a Lender or any
Applicable Lending Office or Eurodollar Affiliate of that Lender;
and the result of any of the foregoing is to increase the cost to that Lender of
making, renewing or maintaining the Loans or its Commitment or to reduce any
amount receivable thereunder; then, in any such case, within thirty (30) days
after written demand by such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to the Administrative Agent for
the account of such Lender, from time to time as specified by such Lender, such
amount or amounts as may be necessary to compensate such Lender or its
Eurodollar Affiliate for any such additional cost incurred or reduced amount
received. Such demand shall be accompanied by a statement as to the amount of
such compensation and include a brief summary
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of the basis for such demand. Such statement shall be conclusive and binding for
all purposes, absent manifest error. Notwithstanding the foregoing, in the event
of any such demand, at Borrower's sole election, Borrower may identify an
Eligible Assignee not making such a demand to whom the demanding Lender shall
assign its interest in the Loans pursuant to the terms of an Assignment and
Acceptance substantially in the form attached as EXHIBIT A.
ARTICLE XIV - [INTENTIONALLY OMITTED.]
ARTICLE XV - MISCELLANEOUS
15.1 ASSIGNMENTS AND PARTICIPATIONS.
(a) ASSIGNMENTS. No assignments or participations of any Lender's
rights or obligations under this Agreement shall be made except in accordance
with this SECTION 15.1. Each Lender may assign to one or more Eligible Assignees
all or, except as otherwise provided in subsection (b) below, a portion of its
rights and obligations under this Agreement in accordance with the provisions of
this SECTION 15.1.
(b) LIMITATIONS ON ASSIGNMENTS. For so long as no Event of Default
has occurred and is continuing, each assignment shall be subject to the
following conditions: (i) unless otherwise agreed to by each of the Lead Agents,
each assignment shall be of a constant, and not a varying, ratable percentage of
the assigning Lender's rights and obligations under this Agreement, provided,
that after a Successful Secondary Syndication has been achieved as set forth in
Section 2.6, separate assignments of (x) Term Loans and (y) Revolving Loan
Commitments and Revolving Loans (which must be assigned on a constant ratable
percentage), is permitted so long as they are done on a constant ratable
percentage with regard to the amount of Term Loans, Revolving Loans and
Revolving Loan Commitments allocated between the Borrowers), (ii) each such
assignment, in the case of a partial assignment, shall be in a minimum principal
amount of at least $5,000,000, (iii) each such assignment shall be to an
Eligible Assignee approved by the Administrative Agent and, so long as no Event
of Default shall have occurred and be continuing hereunder, by the Borrower
(which approval shall not be unreasonably withheld, conditioned or delayed by
the Administrative Agent or the Borrower), (iv) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, and (v)
each Lender shall, unless assigning all of its Loans, maintain minimum
Commitments of at least $5,000,000 and PROVIDED HOWEVER that, following the
occurrence and during the continuation of an Event of Default hereunder, none of
the foregoing restrictions on assignments shall apply, and, notwithstanding any
subsequent cure or elimination of such Event of Default, neither the assignee
nor the assignor in any assignment made during the continuance of such Event of
Default shall thereafter be required to cause such assignment or any condition
or state of affairs resulting therefrom to satisfy the foregoing requirements.
Upon such execution, delivery, acceptance and recording in the Register, from
and after the effective date specified in each Assignment and Acceptance and
agreed to by the Administrative Agent, (A) the assignee thereunder shall, in
addition to any rights and obligations hereunder held by it immediately prior to
such effective date, if any, have the rights and obligations hereunder that have
been assigned to it pursuant to such Assignment and Acceptance and shall, to the
fullest extent permitted by
84
law, have the same rights and benefits hereunder as if it were an original
Lender hereunder, (B) the assigning Lender shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations under
this Agreement (and, in the case of an Assignment and Acceptance covering all or
the remaining portion of such assigning Lender's rights and obligations under
this Agreement, the assigning Lender shall cease to be a party hereto) and (C)
the Borrower shall execute and deliver to the assignee thereunder a Note
evidencing its obligations to such assignee with respect to the Loans upon the
cancellation or amendment of the original thereby being replaced.
(c) THE REGISTER. The Administrative Agent shall maintain at its
address referred to in SECTION 15.8 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register (the "REGISTER") for the
recordation of the names and addresses of the Lenders, the Commitment of, and
the principal amount of the Loans owing to, each Lender from time to time and
whether such Lender is an original Lender, a Lender pursuant to a Joinder
Agreement or the assignee of another Lender pursuant to an Assignment and
Acceptance or a Lender's Commitment is increased pursuant to an Addendum. The
entries in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower and each of its Subsidiaries, the Guarantor,
the Administrative Agent and the other Lenders may treat each Person whose name
is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(d) FEE. Upon its receipt of an Assignment and Acceptance executed
by the assigning Lender and an Eligible Assignee and a processing and
recordation fee of $3,500 (payable by the assignee to the Administrative Agent),
the Administrative Agent shall, if such Assignment and Acceptance has been
completed and is in compliance with this Agreement and in substantially the form
of EXHIBIT A hereto, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower and the other Lenders; provided, however that no such
processing and recordation fee shall be payable in connection with an assignment
to an Affiliate of a Lender.
(e) PARTICIPATIONS. Each Lender may sell participations to one or
more other financial institutions in or to all or a portion of its rights and
obligations under and in respect of any and all facilities under this Agreement
(including, without limitation, all or a portion of any or all of its
Commitments hereunder and the Loans owing to it); PROVIDED, HOWEVER, that (i)
such Lender's obligations under this Agreement (including, without limitation,
its Commitments hereunder) shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) the Borrower, the Administrative Agent and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement, (iv) each
participation shall be in a minimum amount of $5,000,000, and (v) such
participant's rights to agree or to restrict such Lender's ability to agree to
the modification, waiver or release of any of the terms of the Loan Documents,
to consent to any action or failure to act by any party to any of the Loan
Documents or any of their respective Affiliates, or to exercise or refrain from
exercising any powers or rights which any Lender may have under or in respect of
the Loan Documents, shall be limited to the right to consent to (A) increase in
the Commitments of the Lender from whom such participant purchased a
participation, (B) reduction of the principal of,
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or rate or amount of interest on the Loans subject to such participation (other
than by the payment or prepayment thereof), (C) postponement of any date fixed
for any payment of principal of, or interest on, the Loan(s) subject to such
participation and (D) release of any guarantor of the Obligations. Commensurate
with the sale of any participation, the selling Lender shall provide the
Administrative Agent and the Borrower with the amount of such participation, the
name of the participant and the participant's contact information.
(f) CERTAIN TRANSFERS. Notwithstanding the foregoing or anything
to the contrary contained herein (other than SECTION 15.1(b)(i) and SECTION
15.1(b)(iv), to which any transaction described in this SECTION 15.1(f) shall be
subject) any of the Lenders may, from time to time in its sole discretion,
without the consent of the Borrower or the Administrative Agent and without the
payment of any fee, assign, pledge, convey, sell participations or otherwise
sell or transfer, in one or more transactions and in whole or in part, any of
its Loans, Commitment, rights to payment of principal, interest or fee and other
rights or interests created or existing under this Agreement (including any
rights to any related collateral), to any Affiliate or branch of such Lender, or
to any trust or special purpose funding vehicle, whether or not such Lender
maintains any interest in such trust or special funding vehicle; PROVIDED,
HOWEVER, that no such assignment, pledge, conveyance, sale of participations or
other sale or transfer shall cause the Borrower or any other party hereto to
incur any greater expense or liability than the Borrower or such other party
hereto would have incurred had no such assignment, pledge, conveyance, sale of
participations or other sale or transfer occurred. The Administrative Agent and
the Borrower shall be provided a copy of the applicable Assignment and
Assumption agreement evidencing such assignment together with the relevant
contact information for the assignee.
(g) INFORMATION REGARDING THE BORROWER. Any Lender may, in
connection with any assignment or participation or proposed assignment or
participation pursuant to this SECTION 15.1, disclose to the assignee or
participant or proposed assignee or participant, any information relating to the
Borrower or its Subsidiaries furnished to such Lender by the Administrative
Agent or by or on behalf of the Borrower; PROVIDED, that, prior to any such
disclosure, such assignee or participant, or proposed assignee or participant,
shall agree, in writing, to preserve in accordance with SECTION 15.20 the
confidentiality of any confidential information described therein.
(h) PAYMENT TO PARTICIPANTS. Anything in this Agreement to the
contrary notwithstanding, in the case of any participation, all amounts payable
by the Borrower under the Loan Documents shall be calculated and made in the
manner and to the parties required hereby as if no such participation had been
sold.
(i) LENDERS' CREATION OF SECURITY INTERESTS. Notwithstanding any
other provision set forth in this Agreement, any Lender may at any time create a
security interest in all or any portion of its rights under this Agreement
(including, without limitation, Obligations owing to it and any Note held by it)
in favor of any Federal Reserve bank in accordance with Regulation A of the
Federal Reserve Board.
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15.2 EXPENSES.
(a) GENERALLY. The Borrower agrees upon demand to pay, or
reimburse the each of the Lead Agents for all of their respective reasonable
external audit and investigation expenses and for the reasonable fees, expenses
and disbursements of their legal counsel and for all other reasonable
out-of-pocket costs and expenses of every type and nature incurred by the Lead
Agents, or any of them, in connection with (i) the audit and investigation of
the Consolidated Businesses, the Real Properties and other Properties of the
Consolidated Businesses in connection with the preparation, negotiation, and
execution of the Loan Documents; (ii) the preparation, negotiation, execution,
syndication and interpretation of this Agreement (including, without limitation,
the satisfaction or attempted satisfaction of any of the conditions set forth in
Article VI), the Loan Documents, and the making of the Loans hereunder; (iii)
the ongoing administration of this Agreement and the Loans, including, without
limitation, consultation with attorneys in connection therewith and with respect
to the Administrative Agent's rights and responsibilities under this Agreement
and the other Loan Documents, but excluding any allocation of overhead; (iv) the
protection, collection or enforcement of any of the Obligations or the
enforcement of any of the Loan Documents; (v) the commencement, defense or
intervention in any court proceeding relating in any way to the Obligations, the
Borrower, this Agreement or any of the other Loan Documents; (vi) the response
to, and preparation for, any subpoena or request for document production with
which any of the Lead Agents or any other Lender is served or deposition or
other proceeding in which any Lender is called to testify, in each case,
relating in any way to the Obligations, a Real Property, the Borrower, any of
the Consolidated Businesses, this Agreement or any of the other Loan Documents;
and (vii) any amendments, consents, waivers, assignments, restatements, or
supplements to any of the Loan Documents and the preparation, negotiation, and
execution of the same. Notwithstanding anything to the contrary contained
herein, the Borrower shall not be required to pay the fees, expenses or
disbursements of more than one law firm acting as counsel for the Lead Agents or
any of them.
(b) AFTER DEFAULT. The Borrower further agrees to pay or reimburse
each of the Lead Agents and each of the Lenders upon demand for all
out-of-pocket costs and expenses, including, without limitation, reasonable
attorneys' fees (including allocated costs of internal counsel and costs of
settlement) incurred by such entity after the occurrence of an Event of Default
(i) in enforcing any Loan Document or Obligation or any security therefor or
exercising or enforcing any other right or remedy available by reason of such
Event of Default; (ii) in connection with any refinancing or restructuring of
the credit arrangements provided under this Agreement in the nature of a
"workout" or in any insolvency or bankruptcy proceeding; (iii) in commencing,
defending or intervening in any litigation or in filing a petition, complaint,
answer, motion or other pleadings in any legal proceeding relating to the
Obligations, a Real Property, any of the Consolidated Businesses and related to
or arising out of the transactions contemplated hereby or by any of the other
Loan Documents; and (iv) in taking any other action in or with respect to any
suit or proceeding (bankruptcy or otherwise) described in clauses (i) through
(iii) above.
15.3 INDEMNITY. The Borrower further agrees (a) to defend, protect,
indemnify, and hold harmless each of the Lead Agents and each and all of the
other Lenders and each of their respective officers, directors, employees,
attorneys and agents (including, without limitation,
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those retained in connection with the satisfaction or attempted satisfaction of
any of the conditions set forth in ARTICLE VI) (collectively, the "INDEMNITEES")
from and against any and all liabilities, obligations, losses (other than loss
of profits), damages, penalties, actions, judgments, suits, claims and
reasonable expenses, costs and disbursements of any kind or nature whatsoever
(excluding any taxes and including, without limitation, the reasonable fees and
disbursements of counsel for such Indemnitees in connection with any
investigative, administrative or judicial proceeding, whether or not such
Indemnitees shall be designated a party thereto), imposed on, incurred by, or
asserted against such Indemnitees in any manner relating to or arising out of
this Agreement or the other Loan Documents, or any act, event or transaction
related or attendant thereto, the making of the Loans hereunder, the management
of such Loans, the use or intended use of the proceeds of the Loans hereunder,
or any of the other transactions contemplated by the Loan Documents
(collectively, the "INDEMNIFIED MATTERS"); PROVIDED, HOWEVER, the Borrower shall
have no obligation to an Indemnitee hereunder with respect to Indemnified
Matters caused by or resulting from the willful misconduct or gross negligence
of such Indemnitee, as determined by a court of competent jurisdiction in a
nonappealable final judgment; and (b) not to assert any claim against any of the
Indemnitees, on any theory of liability, for consequential or punitive damages
arising out of, or in any way in connection with, the Commitments, the
Obligations, or the other matters governed by this Agreement and the other Loan
Documents. To the extent that the undertaking to indemnify, pay and hold
harmless set forth in the preceding sentence may be unenforceable because it is
violative of any law or public policy, the Borrower shall contribute the maximum
portion which it is permitted to pay and satisfy under applicable law, to the
payment and satisfaction of all Indemnified Matters incurred by the Indemnitees.
15.4 CHANGE IN ACCOUNTING PRINCIPLES. If any change in the accounting
principles used in the preparation of the most recent financial statements
referred to in SECTIONS 8.1 or 8.2 are hereafter required or permitted by the
rules, regulations, pronouncements and opinions of the Financial Accounting
Standards Board or the American Institute of Certified Public Accountants (or
successors thereto or agencies with similar functions) and are adopted by the
Borrower, as applicable, with the agreement of its independent certified public
accountants and such changes result in a change in the method of calculation of
any of the covenants, standards or terms found in ARTICLE X, the parties hereto
agree to enter into negotiations in order to amend such provisions so as to
equitably reflect such changes with the desired result that the criteria for
evaluating compliance with such covenants, standards and terms by the Borrower
shall be the same after such changes as if such changes had not been made;
PROVIDED, HOWEVER, that no change in GAAP that would affect the method of
calculation of any of the covenants, standards or terms shall be given effect in
such calculations until such provisions are amended, in a manner satisfactory to
the Administrative Agent and the Borrower, to so reflect such change in
accounting principles.
15.5 SETOFF. In addition to any rights now or hereafter granted under
applicable law, upon the occurrence and during the continuance of any Event of
Default, each Lender is hereby authorized by the Borrower at any time or from
time to time, without notice to any Person (any such notice being hereby
expressly waived) to set off and to appropriate and to apply any and all
deposits (general or special, including, but not limited to, indebtedness
evidenced by certificates of deposit, whether matured or unmatured (but not
including trust accounts)) and any other Indebtedness at any time held or owing
by such Lender to or for the credit or the account of the Borrower against and
on account of the Obligations of the Borrower then due to such Lender,
including, but not limited to, all Loans and all claims of any nature or
description arising out of
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or in connection with this Agreement, irrespective of whether or not (i) such
Lender shall have made any demand hereunder or (ii) the Administrative Agent, at
the request or with the consent of the Requisite Lenders, shall have declared
the principal of and interest on the Loans and other amounts due hereunder to be
due and payable as permitted by ARTICLE XI and even though such Obligations may
be contingent or unmatured. Each Lender agrees that it shall not, without the
express consent of the Requisite Lenders, and that it shall, to the extent it is
lawfully entitled to do so, upon the request of the Requisite Lenders, exercise
its setoff rights hereunder against any accounts of the Borrower now or
hereafter maintained with such Lender.
15.6 RATABLE SHARING. The Lenders agree among themselves that (i) with
respect to all amounts received by them which are applicable to the payment of
the Obligations (excluding the fees described in Section 5.2(f) and ARTICLE
XIII) equitable adjustment will be made so that, in effect, all such amounts
will be shared among them ratably in accordance with their Pro Rata Shares,
whether received by voluntary payment, by the exercise of the right of setoff or
banker's lien, by counterclaim or crossaction or by the enforcement of any or
all of the Obligations (excluding the amounts described in SECTION 5.2(f) and
ARTICLE XIII), (ii) if any of them shall by voluntary payment or by the exercise
of any right of counterclaim, setoff, banker's lien or otherwise, receive
payment of a proportion of the aggregate amount of the Obligations held by it,
which is greater than the amount which such Lender is entitled to receive
hereunder, the Lender receiving such excess payment shall purchase, without
recourse or warranty, an undivided interest and participation (which it shall be
deemed to have done simultaneously upon the receipt of such payment) in such
Obligations owed to the others so that all such recoveries with respect to such
Obligations shall be applied ratably in accordance with their Pro Rata Shares;
PROVIDED, HOWEVER, that if all or part of such excess payment received by the
purchasing party is thereafter recovered from it, those purchases shall be
rescinded and the purchase prices paid for such participations shall be returned
to such party to the extent necessary to adjust for such recovery, but without
interest except to the extent the purchasing party is required to pay interest
in connection with such recovery. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this SECTION 15.6
may, to the fullest extent permitted by law, exercise all its rights of payment
(including, subject to SECTION 15.5, the right of setoff) with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
15.7 AMENDMENTS AND WAIVERS.
(a) GENERAL PROVISIONS. Unless otherwise provided for or required
in this Agreement, no amendment or modification of any provision of this
Agreement or any of the other Loan Documents shall be effective without the
written agreement of the Requisite Lenders (which the Requisite Lenders shall
have the right to grant or withhold in their sole discretion) and the Borrower;
PROVIDED, HOWEVER, that the Borrower's agreement shall not be required for any
amendment or modification of ARTICLE XII (other than any portions thereof on
which the Borrower is entitled to rely or which the Borrower is entitled to
enforce). No termination or waiver of any provision of this Agreement or any of
the other Loan Documents, or consent to any departure by the Borrower therefrom,
other than those specifically reserved to the Administrative Agent or the other
Lenders, shall be effective without the written concurrence of the Requisite
Lenders, which the Requisite Lenders shall have the right to grant or withhold
in their sole discretion. All amendments, waivers and consents not specifically
reserved to the
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Administrative Agent or the other Lenders in SECTION 15.7(b), 15.7(c), and in
other provisions of this Agreement shall require only the approval of the
Requisite Lenders. Any waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given. No notice to or
demand on the Borrower in any case shall entitle the Borrower to any other or
further notice or demand in similar or other circumstances.
(b) AMENDMENTS, CONSENTS AND WAIVERS BY AFFECTED LENDERS. Any
amendment, modification, termination, waiver or consent with respect to any of
the following provisions of this Agreement shall be effective only by a written
agreement, signed by each Lender affected thereby as described below:
(i) increase in the amount of such Lender's Commitment,
(ii) reduction of the principal of, rate or amount of
interest on the Loans or any fees or other amounts payable to such Lender
(other than by the payment or prepayment thereof), and
(iii) postponement or extension of any date (other than the
Termination Date postponement or extension of which is governed by SECTION
15.7(c)(i)) fixed for any payment of principal of, or interest on, the
Loans or any fees or other amounts payable to such Lender (except with
respect to any modifications of the applicable provisions relating to
prepayments of Loans and other Obligations which are governed by SECTION
4.2(b)).
(c) AMENDMENTS, CONSENTS AND WAIVERS BY ALL LENDERS. Any
amendment, modification, termination, waiver or consent with respect to any of
the following provisions of this Agreement shall be effective only by a written
agreement, signed by each Lender:
(i) postponement or extension of the Termination Date,
(ii) increase in the amount of the Facility to any amount in
excess of $1,000,000,000,
(iii) change in the definition of Requisite Lenders or in the
aggregate Pro Rata Share of the Lenders which shall be required for the
Lenders or any of them to take action hereunder or under the other Loan
Documents,
(iv) amendment of SECTION 15.6 or this SECTION 15.7,
(v) assignment of any right or interest in or under this
Agreement or any of the other Loan Documents by the Borrower, except as
expressly permitted in this Agreement,
(vi) any release of the Guarantor under the Guaranty prior
to the satisfaction in full of the Obligations, and
(vii) waiver of any Event of Default described in SECTION
11.1(a).
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(d) AGENT AUTHORITY. The Administrative Agent may, but shall have
no obligation to, with the written concurrence of any Lender, execute
amendments, modifications, waivers or consents on behalf of that Lender.
Notwithstanding anything to the contrary contained in this SECTION 15.7, no
amendment, modification, waiver or consent shall affect the rights or duties of
the Administrative Agent as Administrative Agent under this Agreement and the
other Loan Documents, unless made in writing and signed by the Administrative
Agent in addition to the Lenders required above to take such action.
Notwithstanding anything herein to the contrary, in the event that the Borrower
shall have requested, in writing, that any Lender agree to an amendment,
modification, waiver or consent with respect to any particular provision or
provisions of this Agreement or the other Loan Documents, and such Lender shall
have failed to state, in writing, that it either agrees or disagrees (in full or
in part) with all such requests (in the case of its statement of agreement,
subject to satisfactory documentation and such other reasonable conditions it
may specify) within ten (10) Business Days after such request, then such Lender
hereby irrevocably authorizes the Administrative Agent to agree or disagree, in
full or in part, and in the Administrative Agent's sole discretion, to such
requests on behalf of such Lender as such Lender's attorney-in-fact and to
execute and deliver any writing approved by the Administrative Agent which
evidences such agreement as such Lender's duly authorized agent for such
purposes.
15.8 NOTICES. Unless otherwise specifically provided herein, any notice
or other communication herein required or permitted to be given shall be in
writing and may be personally served, sent by facsimile transmission or by
courier service or United States certified mail and shall be deemed to have been
given when delivered in person or by courier service, upon receipt of a
facsimile transmission, or four (4) Business Days after deposit in the United
States mail with postage prepaid and properly addressed. Notices to the
Administrative Agent pursuant to ARTICLES II, IV OR XII shall not be effective
until received by the Administrative Agent. For the purposes hereof, the
addresses of the parties hereto (until notice of a change thereof is delivered
as provided in this SECTION 15.8) shall be as set forth below each party's name
on the signature pages hereof or the signature page of any applicable Assignment
and Acceptance or Joinder Agreement, or, as to each party, at such other address
as may be designated by such party in a written notice to all of the other
parties to this Agreement.
15.9 SURVIVAL OF WARRANTIES AND AGREEMENTS. All representations and
warranties made herein and all obligations of the Borrower in respect of taxes,
indemnification and expense reimbursement shall survive the execution and
delivery of this Agreement and the other Loan Documents, the making and
repayment of the Loans and the termination of this Agreement and, except as
otherwise expressly provided in SECTION 6.2(a) hereof, shall not be limited in
any way by the passage of time or occurrence of any event and shall expressly
cover time periods when the Administrative Agent or any of the other Lenders may
have come into possession or control of any Property of the Borrower or any of
its Subsidiaries. Notwithstanding the foregoing, however, such representations,
warranties and obligations shall terminate and be of no further force and effect
two years after payment in full of the Loans.
15.10 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. Subject to
the terms of SECTION 15.7(d) of this Agreement, no failure or delay on the part
of the Administrative Agent or any other Lender in the exercise of any power,
right or privilege under any of the Loan Documents shall impair such power,
right or privilege or be construed to be a waiver of any
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default or acquiescence therein, nor shall any single or partial exercise of any
such power, right or privilege preclude other or further exercise thereof or of
any other right, power or privilege. All rights and remedies existing under the
Loan Documents are cumulative to and not exclusive of any rights or remedies
otherwise available.
15.11 MARSHALLING: PAYMENTS SET ASIDE. Neither the Administrative Agent
nor any other Lender shall be under any obligation to marshal any assets in
favor of the Borrower or any other party or against or in payment of any or all
of the Obligations. To the extent that the Borrower makes a payment or payments
to the Administrative Agent or any other Lender or any such Person exercises its
rights of setoff, and such payment or payments or the proceeds of such
enforcement or setoff or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside or required to be repaid to a
trustee, receiver or any other party, then to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and all right
and remedies therefor, shall be revived and continued in full force and effect
as if such payment had not been made or such enforcement or setoff had not
occurred.
15.12 SEVERABILITY. In case any provision in or obligation under this
Agreement or the other Loan Documents shall be invalid, illegal or unenforceable
in any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
15.13 HEADINGS. Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
or be given any substantive effect.
15.14 GOVERNING LAW. THIS AGREEMENT SHALL BE INTERPRETED, AND THE RIGHTS
AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE LAWS OF
THE STATE OF
ILLINOIS.
15.15 LIMITATION OF LIABILITY. No claim may be made by any Lender, any of
the Lead Agents or any other Person against any Lender (acting in any capacity
hereunder) or the Affiliates, directors, officers, employees, attorneys or
agents of any of them for any consequential or punitive damages in respect of
any claim for breach of contract or any other theory of liability arising out of
or related to the transactions contemplated by this Agreement, or any act,
omission or event occurring in connection therewith; and each Lender and the
Administrative Agent hereby waives, releases and agrees not to ▇▇▇ upon any such
claim for any such damages, whether or not accrued and whether or not known or
suspected to exist in its favor. In addition, no claim may be made by any
Lender, the Administrative Agent or any other Person against any directors,
officers or trustees of the Borrower or the Guarantor.
15.16 SUCCESSORS AND ASSIGNS. This Agreement and the other Loan Documents
shall be binding upon the parties hereto and their respective successors and
assigns and shall inure to the benefit of the parties hereto and their
successors and permitted assigns.
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15.17 CERTAIN CONSENTS AND WAIVERS.
(a) PERSONAL JURISDICTION.
(i) EACH OF THE LENDERS AND THE BORROWER IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF ANY
ILLINOIS STATE COURT OR FEDERAL COURT SITTING IN
CHICAGO,
ILLINOIS AND ANY COURT HAVING JURISDICTION OVER APPEALS OF MATTERS
HEARD IN SUCH COURTS, IN ANY ACTION OR PROCEEDING ARISING OUT OF, CONNECTED
WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM
IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT,
EQUITY OR OTHERWISE, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND
EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL
CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH
FEDERAL COURT. THE BORROWER (IN SUCH CAPACITY, THE "PROCESS AGENT") AGREES
TO ACCEPT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT,
SUCH SERVICE BEING HEREBY ACKNOWLEDGED TO BE EFFECTIVE AND BINDING SERVICE
IN EVERY RESPECT. EACH OF THE LENDERS AND THE BORROWER AGREES 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. EACH OF THE LENDERS (AS TO COURTS IN
ILLINOIS ONLY)
AND THE BORROWER WAIVES IN ALL DISPUTES ANY OBJECTION THAT IT MAY HAVE TO
THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(ii) THE BORROWER AGREES THAT THE ADMINISTRATIVE AGENT SHALL
HAVE THE RIGHT TO PROCEED AGAINST THE BORROWER OR ITS PROPERTY IN A COURT
IN ANY LOCATION NECESSARY OR APPROPRIATE TO ENABLE THE ADMINISTRATIVE AGENT
AND THE OTHER LENDERS TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN
FAVOR OF THE ADMINISTRATIVE AGENT OR ANY OTHER LENDER IN ANY PROCEEDING
DESCRIBED IN SUBSECTION (i) ABOVE. THE BORROWER AGREES THAT IT WILL NOT
ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY THE
ADMINISTRATIVE AGENT OR ANY LENDER TO ENFORCE SUCH A JUDGMENT OR OTHER
COURT ORDER IN FAVOR OF THE ADMINISTRATIVE AGENT OR ANY LENDER. THE
BORROWER WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT
IN WHICH THE ADMINISTRATIVE AGENT OR ANY LENDER MAY COMMENCE A PROCEEDING
DESCRIBED IN THIS SUBSECTION (ii).
(b) SERVICE OF PROCESS. EACH OF THE LENDERS (WITH RESPECT TO
ILLINOIS ONLY) AND THE BORROWER IRREVOCABLY CONSENTS TO THE
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SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE PROCESS AGENT (FOR BORROWER) OR THE BORROWER'S NOTICE
ADDRESS SPECIFIED BELOW, SUCH SERVICE TO BECOME EFFECTIVE UPON RECEIPT. EACH OF
THE LENDERS (WITH RESPECT TO
ILLINOIS ONLY) AND THE BORROWER IRREVOCABLY WAIVES
ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY JURISDICTION SET FORTH ABOVE.
NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT, THE OTHER
LENDERS OR THE BORROWER TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS
OF ANY OTHER JURISDICTION.
(c) WAIVER OF JURY TRIAL. EACH OF THE ADMINISTRATIVE AGENT AND THE
OTHER LENDERS AND THE BORROWER IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
15.18 COUNTERPARTS; EFFECTIVENESS; INCONSISTENCIES. This Agreement and any
amendments, waivers, consents, or supplements hereto may be executed in
counterparts, each of which when so executed and delivered (including delivery
via facsimile) shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument. This Agreement shall become
effective against the Borrower and each Lender on the Closing Date. This
Agreement and each of the other Loan Documents shall be construed to the extent
reasonable to be consistent one with the other, but to the extent that the terms
and conditions of this Agreement are actually inconsistent with the terms and
conditions of any other Loan Document, this Agreement shall govern. In the event
the Lenders enter into any co-lender agreement with the Administrative Agent
pertaining to the Lenders' respective rights with respect to voting on any
matter referenced in this Agreement or the other Loan Documents on which the
Lenders have a right to vote under the terms of this Agreement or the other Loan
Documents, such co-lender agreement shall be construed to the extent reasonable
to be consistent with this Agreement and the other Loan Documents, but to the
extent that the terms and conditions of such co-lender agreement are actually
inconsistent with the terms and conditions of this Agreement and/or the other
Loan Documents, such co-lender agreement shall govern as among the
Administrative Agent and the Lenders. Notwithstanding the foregoing, any rights
reserved to the Administrative Agent under this Agreement and the other Loan
Documents shall not be varied or in any way affected by such co-lender agreement
and the rights and obligations of the Borrower under the Loan Documents will not
be varied.
15.19 LIMITATION ON AGREEMENTS. All agreements between the Borrower, the
Administrative Agent and each Lender in the Loan Documents are hereby expressly
limited so that in no event shall any of the Loans or other amounts payable by
the Borrower under any of the Loan Documents be directly or indirectly secured
(within the meaning of Regulation U) by Margin Stock.
94
15.20 CONFIDENTIALITY. Subject to SECTION 15.1(g), the Lenders shall hold
all nonpublic information obtained pursuant to the requirements of this
Agreement, and identified as such by the Borrower or the Guarantor, in
accordance with such Lender's customary procedures for handling confidential
information of this nature and in accordance with safe and sound banking
practices (provided that such Lender may share such information with its
Affiliates in accordance with such Lender's customary procedures for handling
confidential information of this nature and provided further that such Affiliate
shall hold such information confidential) and in any event the Lenders may make
disclosure reasonably required by a bona fide offeree, transferee or participant
in connection with the contemplated transfer or participation or as required or
requested by any Governmental Authority or representative thereof or pursuant to
legal process and shall require any such offeree, transferee or participant to
agree (and require any of its offerees, transferees or participants to agree) to
comply with this SECTION 15.20. In no event shall any Lender be obligated or
required to return any materials furnished by the Borrower; PROVIDED, HOWEVER,
each offeree shall be required to agree that if it does not become a transferee
or participant it shall return all materials furnished to it by the Borrower or
any Lender in connection with this Agreement. Any and all confidentiality
agreements entered into between any Lender and the Borrower shall survive the
execution of this Agreement. Notwithstanding anything herein to the contrary,
"nonpublic information" shall not include, and any party may disclose without
limitation of any kind, any information with respect to the "tax treatment" and
"tax structure" (in each case, within the meaning of Treasury Regulation Section
1.6011-4) of the transactions contemplated hereby and all materials of any kind
(including opinions or other tax analyses) that are provided to such party
relating to such tax treatment and tax structure; PROVIDED that with respect to
any document or similar item that in either case contains nonpublic information,
this sentence shall only apply to such portions of the document or similar item
that relate to the tax treatment or tax structure of the Loans and transactions
contemplated hereby.
15.21 DISCLAIMERS. The Administrative Agent and the other Lenders shall
not be liable to any contractor, subcontractor, supplier, laborer, architect,
engineer, tenant or other party for services performed or materials supplied in
connection with any work performed on the Real Properties. The Administrative
Agent and the other Lenders shall not be liable for any debts or claims accruing
in favor of any such parties against the Borrower or others or against any of
the Real Properties. The Borrower is not and shall not be an agent of any of the
Administrative Agent or the other Lenders for any purposes and none of the
Lenders nor the Administrative Agent shall be deemed partners or joint venturers
with the Borrower or any of their Affiliates as a result of the consummation of
the transactions contemplated by this Agreement. None of the Administrative
Agent or the other Lenders shall be deemed to be in privity of contract with any
contractor or provider of services to any Real Property, nor shall any payment
of funds directly to a contractor or subcontractor or provider of services be
deemed to create any third party beneficiary status or recognition of same by
any of the Administrative Agent or the other Lenders and the Borrower agrees to
hold the Administrative Agent and the other Lenders harmless from any of the
damages and expenses resulting from such a construction of the relationship of
the parties or any assertion thereof solely to the extent, if any, that the
Borrower has requested that the Administrative Agent or any other Lender deal
directly with or make any payments directly to such a contractor or provider of
services.
15.22 NO THIRD PARTY BENEFICIARIES. Nothing contained in this Agreement or
any other Loan Document, whether express or implied, is intended to confer any
rights or remedies under
95
or by reason of this Agreement or such other Loan Documents on any Persons other
than the parties hereto from time to time and, to the extent specifically
provided herein, their respective officers, directors, shareholders, agents,
attorneys, employees, Affiliates, successors and assigns (including, without
limitation, the Indemnitees); nor is anything herein or therein intended to
relieve or discharge the obligation or liability of any Persons other than those
referred to above, or give any Persons other than those referred to above any
right of subrogation or action over or against any party hereto.
15.23 ENTIRE AGREEMENT. This Agreement, taken together with all of the
other Loan Documents, embodies the entire agreement and understanding among the
parties hereto and supersedes all prior agreements and understandings, written
and oral, relating to the subject matter hereof.
15.24 NATURE OF THE BORROWER'S LIABILITY. Notwithstanding anything to the
contrary contained in this Agreement or in any of the other Loan Documents, each
of the Partnership and the Company undertakes their respective monetary
Obligations and, to the extent divided, their respective non-monetary
Obligations contained in this Agreement or in any of the other Loan Documents on
an individual, not joint, basis and neither the Partnership nor the Company
shall be liable for damages or breach by the other of its respective Obligations
under this Agreement or any of the other Loan Documents; PROVIDED, HOWEVER, that
(i) the covenants of Borrower contained in SECTION 10.11(d) and SECTION 10.12 of
this Agreement are undertaken collectively and (ii) nothing herein shall impair
or limit the obligations of the Partnership (or GGP, Inc.) pursuant to the
Guaranty.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
96
EXECUTED as of the date first above written.
BORROWERS:
GGPLP L.L.C., a Delaware limited liability
company
By: GGP LIMITED PARTNERSHIP, a Delaware
limited partnership, its sole managing
member
By: GENERAL GROWTH PROPERTIES,
INC., a Delaware corporation, its sole
general partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President
GGP LIMITED PARTNERSHIP, a Delaware
limited partnership
By: GENERAL GROWTH PROPERTIES,
INC., a Delaware corporation, its sole
general partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President
Term Loan Commitment: $77,592,857.15 EUROHYPO AG, NEW YORK
BRANCH
Revolving Loan Commitment: $43,107,142.86
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
ADDRESS FOR NOTICES:
-------------------
Eurohypo AG
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇-▇▇.▇▇▇
Term Loan Commitment: $77,592,857.14 BANK OF AMERICA, N.A.
Revolving Loan Commitment: $43,107,142.85
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
ADDRESS FOR FUNDING NOTICES:
---------------------------
Bank of America, N.A.
TXI-492-14-05
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇.▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
ADDRESS FOR ALL OTHER NOTICES:
-----------------------------
Bank of America, N.A.
IL 1-231-10-35
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Term Loan Commitment: $77,592,857.14 ▇▇▇▇▇▇ COMMERCIAL PAPER
INC.
Revolving Loan Commitment: $43,107,142.86
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
ADDRESS FOR ALL OTHER NOTICES:
-----------------------------
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
Term Loan Commitment: $77,592,857.14 U.S. BANK NATIONAL
ASSOCIATION
Revolving Loan Commitment: $43,107,142.86
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
ADDRESS FOR NOTICES:
-------------------
U.S. Bank National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
Term Loan Commitment: $77,592,857.14 FLEET NATIONAL BANK
Revolving Loan Commitment: $43,107,142.86
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
ADDRESS FOR NOTICES:
-------------------
Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Code MA DE 10008H
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇_▇_▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
Term Loan Commitment: $62,035,714.29 COMMERZBANK AG NEW YORK
BRANCH
Revolving Loan Commitment: $34,464,285.71
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
ADDRESS FOR NOTICES:
-------------------
Commerzbank AG New York Branch
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇