Exhibit 10(o)
EXECUTION COPY
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TERM LOAN AGREEMENT
among
GGP LIMITED PARTNERSHIP,
as Borrower,
GGPLP L.L.C.,
as Borrower,
The Institutions From Time to Time Parties Hereto,
as Lenders,
BANKERS TRUST COMPANY,
as Administrative Agent,
and
XXXXXX COMMERCIAL PAPER INC.,
as Syndication Agent,
Dated as of July 31, 2000
___________________________
DEUTSCHE BANK SECURITIES, INC. AND XXXXXX BROTHERS INC.,
as Co-Lead Arrangers and Joint Book Running Managers
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Table of Contents
Page
ARTICLE I DEFINITIONS.................................................................................... 1
1.1. Certain Defined Terms.................................................................... 1
1.2. Computation of Time Periods.............................................................. 23
1.3. Accounting Terms......................................................................... 24
1.4. Other Terms.............................................................................. 24
ARTICLE II AMOUNTS AND TERMS OF LOANS.................................................................... 24
2.1. Loans.................................................................................... 24
2.2. [Intentionally Omitted].................................................................. 25
2.3. Use of Proceeds of Loans................................................................. 25
2.4. Repayment................................................................................ 25
2.5. [Intentionally Omitted].................................................................. 26
2.6. [Intentionally Omitted].................................................................. 26
2.7. Authorized Agents........................................................................ 26
ARTICLE III ADDITIONAL LOANS............................................................................. 26
3.1. Additional Loans......................................................................... 26
3.2. Joinder of New Lender.................................................................... 26
3.3. Additional Loans made by Existing Lender................................................. 27
ARTICLE IV PAYMENTS AND PREPAYMENTS...................................................................... 28
4.1. Prepayments.............................................................................. 28
4.2. Payments................................................................................. 29
4.3. Promise to Repay; Evidence of Indebtedness............................................... 31
ARTICLE V INTEREST AND FEES.............................................................................. 31
5.1. Interest on the Loans and Other Obligations.............................................. 31
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5.2. Special Provisions Governing Eurodollar Rate Loans....................................... 34
5.3. Fees..................................................................................... 37
ARTICLE VI CONDITIONS TO LOANS........................................................................... 37
6.1. Conditions Precedent to the Initial Loans................................................ 37
6.2. Conditions Precedent to All Subsequent Loans............................................. 39
ARTICLE VII REPRESENTATIONS AND WARRANTIES............................................................... 40
7.1. Representations and Warranties of the Borrower........................................... 40
ARTICLE VIII REPORTING COVENANTS......................................................................... 49
8.1. Borrower Accounting Practices............................................................ 49
8.2. Financial Reports........................................................................ 49
8.3. Events of Default........................................................................ 52
8.4. Lawsuits................................................................................. 53
8.5. Insurance................................................................................ 53
8.6. ERISA Notices............................................................................ 53
8.7. Environmental Notices.................................................................... 55
8.8. Labor Matters............................................................................ 55
8.9. Notices of Asset Sales and/or Acquisitions............................................... 55
8.10. Other Reports............................................................................ 56
8.11. Other Information........................................................................ 56
ARTICLE IX AFFIRMATIVE COVENANTS......................................................................... 56
9.1. Existence, Etc........................................................................... 56
9.2. Powers; Conduct of Business.............................................................. 56
9.3. Compliance with Laws, Etc................................................................ 56
9.4. Payment of Taxes and Claims.............................................................. 57
9.5. Insurance................................................................................ 57
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9.6. Inspection of Property; Books and Records; Discussions................................... 57
9.7. ERISA Compliance......................................................................... 57
9.8. Maintenance of Property.................................................................. 58
9.9. Management of the Company................................................................ 58
9.10. Ownership of Property.................................................................... 58
9.11. Committed Financing...................................................................... 58
ARTICLE X NEGATIVE COVENANTS............................................................................. 58
10.1. Sales of Assets.......................................................................... 58
10.2. Liens.................................................................................... 58
10.3. Conduct of Business...................................................................... 59
10.4. Transactions with Partners and Affiliates................................................ 59
10.5. Restriction on Fundamental Changes and Changes of Control................................ 59
10.6. Margin Regulations; Securities Laws...................................................... 60
10.7. ERISA.................................................................................... 60
10.8. Organizational Documents................................................................. 60
10.9. Fiscal Year.............................................................................. 60
10.10. [Intentionally Omitted]................................................................. 61
10.11. Investments............................................................................. 61
10.12. Other Financial Covenants............................................................... 62
ARTICLE XI EVENTS OF DEFAULT; RIGHTS AND REMEDIES........................................................ 65
11.1. Events of Default....................................................................... 65
11.2. Rights and Remedies..................................................................... 68
ARTICLE XII THE CO-AGENTS................................................................................ 69
12.1. Appointment............................................................................. 69
12.2. Powers.................................................................................. 69
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12.3. General Immunity........................................................................ 70
12.4. No Responsibility for Loans, Recitals, etc.............................................. 70
12.5. Action on Instructions of Lenders....................................................... 70
12.6. Employment of Agents and Counsel........................................................ 70
12.7. Reliance on Documents................................................................... 70
12.8. Co-Agents' Reimbursement and Indemnification............................................ 71
12.9. Rights as a Lender...................................................................... 71
12.10. Lender Credit Decision.................................................................. 71
12.11. Successor Co-Agents..................................................................... 72
12.12. Notice of Defaults...................................................................... 72
12.13. Requests for Approval................................................................... 73
12.14. Copies of Documents..................................................................... 73
12.15. Withholding Tax......................................................................... 73
12.16. Borrower's Default; Enforcement......................................................... 73
12.17. Relationship of Parties................................................................. 73
12.18. Counsel................................................................................. 74
ARTICLE XIII YIELD PROTECTION............................................................................ 74
13.1. Taxes................................................................................... 74
13.2. Increased Capital....................................................................... 76
13.3. Changes; Legal Restrictions............................................................. 77
ARTICLE XIV BENEFIT OF LOANS............................................................................. 78
ARTICLE XV MISCELLANEOUS................................................................................. 78
15.1. Assignments and Participations.......................................................... 78
15.2. Expenses................................................................................ 80
15.3. Indemnity............................................................................... 81
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15.4. Change in Accounting Principles......................................................... 82
15.5. Setoff.................................................................................. 82
15.6. Ratable Sharing......................................................................... 82
15.7. Amendments and Waivers.................................................................. 83
15.8. Notices................................................................................. 84
15.9. Survival of Warranties and Agreements................................................... 84
15.10. Failure or Indulgence Not Waiver; Remedies Cumulative................................... 85
15.11. Marshalling: Payments Set Aside......................................................... 85
15.12. Severability............................................................................ 85
15.13. Headings................................................................................ 85
15.14. Governing Law........................................................................... 85
15.15. Limitation of Liability................................................................. 85
15.16. Successors and Assigns.................................................................. 86
15.17. Submission to Jurisdiction.............................................................. 86
15.18. Counterparts; Effectiveness; Inconsistencies............................................ 86
15.19. Limitation on Agreements................................................................ 87
15.20. Confidentiality......................................................................... 87
15.21. Disclaimers............................................................................. 87
15.22. [Intentionally Omitted]................................................................. 88
15.23. Entire Agreement........................................................................ 88
15.24. No Third Party Beneficiaires............................................................ 88
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Schedules
Schedule 1 -- Certain Construction Asset Values
Schedule 7.1A -- Organizational Documents
Schedule 7.1C -- Subsidiaries
Schedule 7.1H -- Indebtedness
Schedule 7.1I -- Litigation
Schedule 7.1Q -- ERISA Plans
Schedule 7.1T -- Insurance
Schedule 10.12 -- Excluded Encumbrances
Exhibits
Exhibit A -- Assignment and Acceptance
Exhibit B -- Note
Exhibit C -- Notice of Conversion/Continuation
Exhibit D -- List of Closing Documents
Exhibit E -- Sample Covenant Calculations
Exhibit F -- Non-Bank Certificate
Exhibit G -- Guaranty
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This TERM LOAN AGREEMENT, dated as of July 31, 2000 (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 and collectively, as the "Borrower"), the institutions from
time to time parties hereto as Lenders, BANKERS TRUST COMPANY, a New York
banking corporation ("Bankers Trust"), as a Lender and as administrative agent
for the Lenders (in such capacity, the "Administrative Agent") and XXXXXX
COMMERCIAL PAPER INC., a New York corporation ("Xxxxxx"), as a Lender and as
syndication agent for the Lenders (in such capacity, the "Syndication Agent")
(the Administrative Agent and the Syndication Agent being referred to herein
collectively as the "Co-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:
"Adjusted EBITDA" means, with respect to any Property, for any
period, 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 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 the 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 based on actual results.
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
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is not duplicative; and (3) the building located at 000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxx shall not be considered to be a Property for
the purposes of this definition.
"Administrative Agent" is defined in the preamble and includes
Bankers Trust 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.
"Agreement" is defined in the preamble to this Agreement.
"Annual EBITDA" means, with respect to any Property as of the
first day of any calendar quarter: (i) for purposes of determining the
Applicable Margin and the financial ratios described in Sections
10.12(b) and (e) hereof, Adjusted EBITDA for the immediately preceding
consecutive four calendar quarters; provided, however, that for each
Property which has been owned by the Borrower, a Consolidated Business
or a Minority Holding or open for business for a period of less than
one year, Annual EBITDA shall be calculated on the basis of Adjusted
EBITDA determined as of the first day of each calendar quarter for such
period or the immediately preceding consecutive one, two or three
calendar quarters, as applicable with respect to the length of such
ownership, for the period of the Borrower's ownership or since opening,
annualized; and (ii) for all other purposes of this Agreement, the sum
of (x) Adjusted EBITDA for the immediately preceding calendar quarter
determined without regard to any percentage rent or temporary rent,
annualized, plus (y) percentage rent and temporary rent for the
immediately preceding consecutive four calendar quarters, adjusted for
any Properties or Minority Holdings acquired, opened or sold during
that period. Examples of the foregoing calculations are set forth on
Exhibit E hereto. The building located at 000 Xxxxx Xxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx shall not be considered to be a Property for the
purposes of this definition.
"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
3
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)
Eurodollar Base
Leverage Ratio Rate Loans Rate Loans
-------------- ---------- ----------
less than 50% 1.00% 0.00%
50% to less than 60% 1.35% 0.00%
60% or greater 1.70% 0.00%
"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) 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 Co-Agents.
"Bankers Trust" 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 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 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
Bankers Trust 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:
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(i) the rate of interest announced publicly by Bankers
Trust, from time to time, as Bankers Trust's reference rate;
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.
"Borrower Operating Agreement" means the Amended and Restated
Operating Agreement of the Company dated May 25, 2000, as such
agreement may be amended, restated, modified or supplemented from time
to time with the consent of the Co-Agents 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 the First Amendment thereto dated as of
June 10, 1998, and the Second Amendment thereto dated as of June 29,
1998, as supplemented by the 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 Co-Agents or as permitted under Section 10.8.
"Borrowing" means a borrowing 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 $50,000,000; 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 $75,000,000.
"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
5
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.
Notwithstanding the foregoing, Capital Expenditures shall not include
Construction Asset Cost or costs associated with the renovation of an
individual Property in excess of $5,000,000.
"Capital Improvement Reserve" means $0.25 per annum per square
foot of mall store gross leaseable area in the Real Properties and in
that portion of real property owned by Minority Holdings allocable, on
a pro rata basis, to the Borrower or any of its Subsidiaries.
"Capitalization Value" means the sum of (i) the Combined
EBITDA for the applicable period divided by 8.25%, (ii) Cash and Cash
Equivalents, (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; provided,
further, that for purposes of determining Capitalization Value only,
"Construction Asset Cost" shall mean, with respect to the land portion
of the Construction Assets set forth on Schedule 1, instead of
acquisition cost, the values of the land portion of such Construction
Assets as set forth on such Schedule 1; 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.
6
"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.
"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),
which, at the time of acquisition, are rated A1 (or better) by S&P or
P1 (or better) by Xxxxx'x; 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. xx.xx. 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 Xxxxxxx
Xxxxxxxxx, Xxxx Xxxxxxxxx, Xxxxxx Xxxxxxxx, Xxxxxxx Xxxxxxxx and Xxx
Xxxxxxxx, or any replacement for any of the foregoing Persons approved
by the Requisite Lenders pursuant to clause (ii) below, cease to be
senior officers primarily responsible for the day-to-day management and
operation of GGP, Inc., and (ii) if the circumstances described in
clause (i) above 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 July 31, 2000.
"Co-Agents" is defined in the preamble to this Agreement.
"Combined EBITDA" means the sum of (i) 100% of the Annual
EBITDA of the Borrower and its wholly-owned Subsidiaries with respect
to Properties wholly-owned by the Borrower or any such Subsidiary; and
(ii) the portion of the Annual EBITDA of the Minority Holdings
allocable to the Borrower and the Management Company in accordance with
GAAP; provided, however, that Combined EBITDA shall include
7
Annual EBITDA allocable to the Management Company only to the extent
that Annual 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 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 Annual EBITDA, the interest expense with respect thereto
(including interest expense 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 the Borrower, a Consolidated Business or a Minority
Holding, annualized.
"Commission" means the Securities and Exchange Commission and
any Person succeeding to the functions thereof.
"Compliance Certificate" is defined in Section 8.2(b)(iii).
"Consolidated" means consolidated in accordance with GAAP.
"Consolidated Businesses" means the Borrower and its
respective 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
8
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 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 of the applicable
Borrower required to be delivered pursuant 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 applicable 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 either Xxxxx'x or S&P or has creditworthiness
otherwise reasonably acceptable to the Co-Agents, 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
9
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 Rating" means the publicly announced rating of a
Person given by Xxxxx'x 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
favor of the Borrower or such Subsidiary, would not, individually or in the
aggregate, be likely 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 workers'
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 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 $5,000,000 with respect to the Borrower and its Subsidiaries; and
(d) Liens against any Property of the Borrower or any
Subsidiary of the Borrower arising with respect to zoning restrictions,
easements, operating agreements, licenses, reservations, covenants, rights-of-
way, utility easements, building restrictions and other similar charges or
encumbrances on the use of Real Property which do not interfere with the
ordinary conduct of the business of the Borrower or any of its Subsidiaries or
materially affect the value thereof or, taken together, to the extent they would
not be likely to result in a Material Adverse Effect.
10
"Documentation Agent" means any Lender appointed as
documentation agent under this Agreement, in its capacity as
documentation agent for the Lenders and each successor documentation
agent appointed in accordance with the terms of this Agreement.
"DOL" means the United States Department of Labor and any
Person succeeding to the functions thereof.
"Dollars" and "$" 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 or the joinder agreement executed
pursuant to Section 3.2 hereof 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, Hypo-und Vereinsbank,
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 Co-Agents, 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 Co-Agents and
in each case when an Event of Default does not exist and other than in
the case of clause (i) above, reasonably acceptable to the Borrower.
"Environmental, Health or Safety Requirements of Law" means
all Requirements of Law derived from or relating to any federal, state
or local law (including common 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, any
of its Subsidiaries or a 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 (including a
transfer of direct or indirect equity or debt interests), sale, lease
or closure of any Property or deed or title for any Property for
environmental
11
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.ss.ss.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.
"ERISA Termination Event" means (i) a Reportable Event with
respect to any Benefit Plan; (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 or the cessation of operations
which results in the termination of employment of twenty percent (20%)
of Benefit Plan participants who are employees of the Borrower or any
ERISA Affiliate; (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; (vi) any event or condition which results
in material liability to the Borrower under Section 4069 of ERISA;
(vii) the partial or complete withdrawal of the Borrower or any ERISA
Affiliate from a Multiemployer Plan; or (viii) any other event or
condition shall occur or exist with respect to a Plan, and in each such
case in clauses (i) through (vii) above, such event or condition
together with all other events or conditions with respect to a Plan, if
any, could, in the reasonable judgment of the Co-Agents, reasonably be
expected to have a Material Adverse Effect.
"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 the joinder agreement executed
pursuant to Section 3.2 hereof 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).
12
"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 the joinder agreement executed pursuant to
Section 3.2 hereof 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.
"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.
"External Revenues" means all the excess of (i) gross revenues
realized by GGP, Inc., the Consolidated Businesses and, to the extent
allocable to the Consolidated Businesses, in accordance with GAAP, the
Minority Holdings, excluding only revenues realized in the ordinary
course of business, but including, without limitation, proceeds of any
sales of Properties, financings or refinancings of Properties, whether
secured or unsecured, or sales or issuance of any Securities
representing equity interests in or obligations of such entity, over
(ii) the sum of (A) the reasonable and customary out-of-pocket costs,
fees and expenses paid or incurred by GGP, Inc., the Consolidated
Businesses and, to the extent allocable to the Consolidated Businesses,
in accordance with GAAP, the Minority Holdings, in connection with the
transactions or other proceedings from which such revenues were
realized; (B) the amount of such proceeds applied to repay Indebtedness
secured by or otherwise directly related to the Property sold, financed
or refinanced; and (C) the amount of such proceeds used to acquire
Property (other than Real Property) in replacement or substitution of
Property (other than Real Property) so sold.
13
"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, as determined in accordance with GAAP,
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).
"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 as the Co-Agents 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 Co-Agents.
"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.
"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 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 of GGP, Inc. and the Consolidated Businesses not owned
by the Borrower or any of its Affiliates.
"Funding Date" means any date on which a Loan under this
Agreement is made by the Lenders to the Borrower.
"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
14
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 and the general partner of the Partnership.
"Governmental Approval" means all right, title and interest in
any existing or future certificates, licenses, permits, variances,
authorizations and approvals 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.
"Guaranty" means that certain Guaranty, substantially in the
form attached as Exhibit G, made by GGP, Inc. in favor of the
Administrative Agent guaranteeing the payment and performance of the
Obligations.
"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 Co-Agents and each
Lender.
"Homart Portfolio" means the portfolio of Properties commonly
described by the Borrower as GGP/Homart and GGP/Homart II and their
Subsidiaries and Investments.
"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), and other
miscellaneous Property not described in any of clauses (A) through (D)
of Section 10.11(iv) hereof.
"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
15
Leases, (vi) which are Contingent Obligations, (vii) under warranties
and indemnities or (viii) for the payment of taxes, levies or other
obligations which then are 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
or 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 the Co-Agents and the
Lenders and on which 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 Xxxxx'x a Credit
Rating of Baa3 or higher and (ii) 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.
16
"Ivanhoe Portfolio" means the portfolio of Properties commonly
described by the Borrower as GGP/Ivanhoe, GGP/Ivanhoe II and
GGP/Ivanhoe III and their Subsidiaries and Investments.
"Knowledge" with reference to any 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 deems reasonably
necessary).
"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.
"Xxxxxx" is defined in the preamble to this Agreement.
"Lender" means each financial institution which is a party
hereto as a Lender, whether as a signatory hereto, pursuant to an
Assignment and Acceptance or pursuant to a joinder agreement executed
and delivered in accordance with Section 3.2 hereof.
"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 ss. 9-408 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
17
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
or Article III; provided, that if any such loan or loans (or portions
thereof) are combined or subdivided pursuant to a Notice of
Conversion/Continuation under Section 4.1, 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).
"Loan Commitment" means, with respect to any Lender, the
obligation of such Lender to make 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 "Loan
Commitment" on the signature pages hereof or the signature page of the
joinder agreement pursuant to Section 3.2 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 joinder agreement pursuant to
Section 3.2, and "Loan Commitments" means the aggregate principal
amount of the Loan Commitments of all the Lenders, which shall
initially be $100,000,000.
"Loan Documents" means this Agreement, the Notes, the Guaranty
and all other instruments, agreements and written Contractual
Obligations between the Borrower and any of the Lenders pursuant to or
in connection with the transactions contemplated hereby.
"Loan Obligations" means, at any particular time, the sum of
the outstanding principal amount of the Loans of all Lenders at such
time.
"Loan-to-Value Ratio" means, with respect to all Indebtedness
for borrowed money directly related to any Property or asset
(including, without limitation, Indebtedness secured by a Lien thereon
or on the equity interests in the entity owning such Property or
incurred to finance any construction thereon) the ratio (expressed as a
percentage) of: (i) the amount of such Indebtedness; to (ii) the
Capitalization Value attributable to such Property or asset.
"Management Company" means General Growth Management, Inc., a
Delaware corporation and its Subsidiaries, its successors or assigns,
so long as it is an Affiliate 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., the Borrower and
its Subsidiaries taken as a whole, (ii)
18
the ability of GGP, Inc. or the Borrower to perform their respective
obligations under the Loan Documents, or (iii) the ability of the
Lenders or the Administrative Agent to enforce any of the Loan
Documents.
"Maturity Date" means July 31, 2003 (or, if not a Business
Day, the next preceding Business Day).
"Maximum Aggregate Loan Amount" means $100,000,000, subject to
increase in accordance with Article III hereof.
"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 Xxxxx'x 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 joint and several Obligations of and executed by the
Borrower as required by Section 4.3(a), as well as any such other
promissory note as is necessary to evidence the Loans owing to a Lender
after giving effect to any Assignment and Acceptance pursuant to
Section 15.1 or joinder agreement pursuant to Section 3.2 which is in
form and substance acceptable to the Administrative Agent and the
parties to such Assignment and Acceptance or joinder agreement, as
applicable. 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 Conversion/Continuation" means a notice
substantially in the form of Exhibit C attached hereto and made a part
hereof with respect to a proposed conversion or continuation of a Loan
pursuant to Section 5.1(c).
"Obligations" means all Loans, advances, debts, liabilities,
obligations, covenants and duties owing by the Borrower to the
Co-Agents, any other Lender, any Affiliate of the Co-Agents or any
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 (including, without limitation,
interest, fees and expenses accruing after the maturity of the Loans
and interest, fees and expenses accruing after the filing of any
petition in
19
bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to the Borrower, whether or not a claim for
post-filing or post-petition interest, fees and expenses is allowed in
such proceeding), 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, (a) 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, (b) as to a partnership, a
certificate executed on behalf of such partnership by the chairman of
the board of directors (if an officer of such corporation) or chief
executive officer, president, any vice-president, or treasurer of the
general partner of such partnership and (c) as to a limited liability
company, a certificate executed on behalf of such limited liability
company by the chairman of the board of directors (if an officer of
such corporation) or chief executive officer, president, any
vice-president, or treasurer of the managing member of such limited
liability company.
"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 or 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.ss.ss.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.
"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 or any ERISA Affiliate
is, or within the immediately
20
preceding six (6) years was, 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)(i).
"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, at any
time the percentage obtained by dividing (i) the aggregate amount of
the then unpaid principal amount of such Lender's Loans by (ii) the
aggregate amount of the then unpaid principal amount of all of the
Lenders' Loans.
"Rate Page" means the display designated as "Page 3750" on the
Associated Press-Dow Xxxxx Telerate Service (or such other page as may
replace Page 3750 on the Associated Press-Dow Xxxxx Telerate Service or
such other service as may be nominated by the British Bankers'
Association as the information vendor for the purpose of displaying
British Bankers' Association interest settlement rates for Dollar
deposits).
"RCRA" means the Resource Conservation and Recovery Act of
1976, 42 U.S.C.ss.ss.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).
"Real Property" means all of the Borrower's or any Subsidiary
of the 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 benefitting 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.
21
"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 Bankers Trust.
"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; or (iii) investigate and
determine if a remedial response is needed and to design such a
response and post-remedial investigation, monitoring, operation and
maintenance and care.
"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
22
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 Permit and Environmental, Health or Safety Requirement
of Law.
"Requisite Lenders" means the 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.
"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) such Person 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) such Person has capital sufficient to carry on its
business as conducted and as proposed to be conducted.
23
"Subsidiary" of a Person means any corporation, limited
liability company, general or limited partnership, trust or other
entity of which Securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other
persons performing similar functions are at the time directly or
indirectly owned or controlled by such Person, one or more of the other
subsidiaries of such Person or any combination thereof. For purposes of
this Agreement, Subsidiaries of GGP, Inc. shall be considered
Subsidiaries of the Borrower.
"Syndication Agent" is defined in the preamble and includes
Xxxxxx, in its capacity as syndication agent for the Lenders and each
successor syndication agent appointed in accordance with the terms of
this Agreement.
"Taxes" is defined in Section 13.1(a) hereof.
"Tenant Allowance" means a cash allowance paid to a tenant by
the landlord pursuant to a Lease.
"TI Work" means any construction or other "build-out" of
tenant leasehold improvements to the space demised to such tenant under
Leases (excluding such tenant's furniture, fixtures and equipment)
performed pursuant to the terms of such Leases, whether or not such
tenant improvement work is performed by or on behalf of the landlord or
as part of a Tenant Allowance.
"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 the Borrower, as applicable, 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 undrawn 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; provided, however, that the exclusion for letters of
credit issued to support performance guaranty obligations shall not
exceed one percent (1.0%) of Capitalization Value.
"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 New York, as it may be amended from time to
time.
"Unsecured Indebtedness" means Indebtedness that is not
secured by any Lien.
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
24
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.
ARTICLE II
AMOUNTS AND TERMS OF LOANS
2.1. Loans.
(a) Availability. Subject to the terms and conditions set forth in this
Agreement, each Lender hereby severally and not jointly agrees to make term
loans, in Dollars (each individually, a "Loan" and, collectively, the "Loans")
to the Borrower on the Initial Funding Date, in the case of the Lenders parties
hereto as of the Closing Date, and on the Funding Date requested by the Borrower
in respect of any requested Borrowing in connection with additional Loans
provided pursuant to Article III, in an amount not to exceed such Lender's Loan
Commitment at such time. No Lender shall be responsible for any failure by any
other Lender to perform its obligation to make a Loan hereunder nor shall the
Loan Commitment of any Lender be increased or decreased as a result of any such
failure.
(b) Notice of Borrowing. The Borrower shall deliver to the
Administrative Agent an irrevocable notice of borrowing, signed by it (i) no
later than 12:00 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 12:00 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 the proposed Borrowing will be of Base Rate Loans or
Eurodollar Rate Loans, (iv) in the case of Eurodollar Rate Loans, the requested
Eurodollar Interest Period and (v) instructions for the disbursement of the
proceeds of the proposed Borrowing.
(c) Making of Loans. Promptly after receipt of a notice of borrowing
under Section 2.1(b), the Administrative Agent shall promptly notify each Lender
by facsimile
25
transmission, or other similar form of transmission, of the proposed Borrowing.
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 12:00 Noon (New
York time) on the Funding Date therefor, provided that with respect to any
Borrowing made after the Initial Funding Date pursuant to Article III, each
Lender agreeing to provide additional Loans on a Funding Date shall provide its
proportionate share of Loans agreed to be made by such Lender pursuant to
Article III on such 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 the applicable 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.
2.2. [Intentionally Omitted].
2.3. Use of Proceeds of Loans. The proceeds of the Loans to the
Borrower hereunder may be used for the purposes of: (a) development of Real
Properties owned, directly or indirectly, and operated by the Borrower; and (b)
other general and working capital needs of the Borrower, inclusive of repayment
of Indebtedness for borrowed money, each of which purposes described in clauses
(a) and (b) shall be lawful working capital purposes of the Borrower.
2.4. Repayment. The Loans of each Lender shall mature in six (6)
consecutive quarterly installments, commencing on January 31, 2002, each of
which shall be in an amount equal to the amount (as a percentage as set forth
below of the sum of the original principal amount of the Loans made by such
Lender on the Initial Funding Date, plus the original principal amount of any
additional Loans made by such Lender pursuant to Article III) on the installment
payment date set forth below:
Percentage of Lenders'
Installment Payment Date Original Loans
------------------------ --------------
January 31, 2002 10%
April 30, 2002 5%
July 31, 2002 5%
October 31, 2002 5%
January 31, 2003 5%
April 30, 2003 5%
July 31, 2003 Remaining Balance
26
2.5. [Intentionally Omitted].
2.6. [Intentionally Omitted].
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 Co-Agents 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 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 Co-Agents 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 such Co-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 each Co-Agent
and each Lender from any loss or expense the Co-Agents 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 either Co-Agent or any Lender
from any loss or expense incurred as the result of such Co-Agent's or such
Lender's gross negligence or willful misconduct.
ARTICLE III
ADDITIONAL LOANS
3.1. Additional Loans. Notwithstanding anything to the contrary
contained herein, in connection with any proposed additional Loans to be made by
any Lender(s) or any proposed joinder of any Eligible Assignee(s) as a new
Lender(s) party to this Agreement, the Maximum Aggregate Loan Amount may be
increased (i) with the consent of the Borrower (and such Lender) to an amount
not greater than $150,000,000 and (ii) with the consent of the Borrower and the
Co-Agents (and such Lender), to an amount not greater than $300,000,000.
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 additional
Loans to be made by such Eligible Assignee that will not cause the Loan
Obligations to exceed the Maximum Aggregate Loan Amount, after giving effect to
such joinder and any other such joinders, and the additional Loans made
thereunder, and any additional Loans made 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, in
form and content reasonably satisfactory to the Co-Agents and the
27
Borrower, pursuant to which such Eligible Assignee agrees to become a Lender
hereunder and under the other Loan Documents and 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 Loan Obligations of such Eligible Assignee shall be the
amount of additional Loans made by such Eligible Assignee as set forth in such
joinder agreement (which amount will not cause all Loan Obligations to exceed
the Maximum Aggregate Loan Amount, after giving effect to such joinder and any
other such joinders, and the additional Loans made thereunder, and any
additional Loans made 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 and/or the related increase in the Maximum Aggregate Loan
Amount), and
(d) to the extent requested by such Eligible Assignee, the Borrower
shall immediately deliver to each such Eligible Assignee a Note substantially in
the form attached hereto as Exhibit B in the amount of such Eligible Assignee's
Loans.
3.3. Additional Loans made by Existing Lender. In the event of any
such proposed additional Loans to be made by any Lender, such additional Loans
shall be made only as to additional Loans in an amount that will not cause all
Loan Obligations to exceed the Maximum Aggregate Loan Amount, after giving
effect to such additional Loans and any other such additional Loans and any
joinders under Section 3.2 hereof to occur substantially contemporaneously
therewith. Any proposed additional Loans satisfying the requirements of the
preceding sentence shall be effectuated through such Lender's execution and
delivery to the Co-Agents, the Borrower and each Lender of an addendum to this
Agreement, in form and content reasonably satisfactory to the Co-Agents and the
Borrower, evidencing such additional Loans, whereupon, effective as of the date
of such execution and delivery:
(a) the Loan Obligations of such Lender shall be increased by the
amount of additional Loans made by such Lender as set forth in such addendum
(which amount shall not cause all Loan Obligations to exceed the Maximum
Aggregate Loan Amount, after giving effect to such additional Loans and any
other such additional Loans and any joinders under Section 3.2 hereof to occur
substantially contemporaneously therewith),
(b) the Borrower shall immediately pay to such Lender such fees as
the Borrower may have agreed to pay in connection with the increase and/or the
related increase in the Maximum Aggregate Loan Amount, and
(c) to the extent requested by such Lender, the Borrower shall
immediately deliver to each such Lender a replacement Note substantially in the
form attached hereto as Exhibit B in the amount of such Lender's Loan
Obligations, upon receipt of which such Lender shall surrender its original
Note, if any, marked "Replaced".
28
ARTICLE IV
PAYMENTS AND PREPAYMENTS
4.1. Prepayments.
(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 five (5) days' prior
written notice to the Administrative Agent (which the Administrative Agent shall
promptly transmit to each Lender) of any prepayment in the entirety 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. 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 the Loans shall be in a minimum amount of $1,000,000. Eurodollar
Rate Loans may be prepaid in part or in their entirety only upon payment of the
amounts described in Section 5.2(f). Amounts prepaid pursuant to this Section
4.1(a) may not be reborrowed.
(b) No Penalty. The prepayments and payments described in clause
(a) of this Section 4.1 may be made without premium or penalty (except as
provided in Section 5.2(f)).
(c) Mandatory Prepayment.
(i) If at any time from and after the Closing Date: (i)
the Borrower merges or consolidates with another Person and the Borrower is
not the surviving entity, or (ii) within any twelve (12) month period, 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 (exclusive of
Limited Minority Holdings existing as of the Closing Date) of the Borrower
and its Consolidated Subsidiaries exceeds twenty percent (20%) 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 (exclusive of Properties which are Limited Minority
Holdings) (the date any such event shall occur being the "Prepayment
Date"), the Borrower shall be required to prepay the Loans in their
entirety as if the Prepayment Date were the Maturity Date. The Borrower
shall immediately make such prepayment together with interest accrued to
the date of the prepayment on the principal amount 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(c)(i) may not be
reborrowed. As used in this Section 4.1(c)(i) only, the phrase "sells,
transfers, assigns or conveys" shall not include (i) sales or conveyances
among Borrower and any
29
Consolidated Subsidiaries, or (ii) the granting of mortgages secured by
Real Property, or (iii) sales or conveyances of Securities in the Borrower
or in newly-formed Subsidiaries or Minority Holdings in connection with the
acquisition of interests in Real Property.
(ii) If an Event of Default shall occur under Section
10.12(e) hereof and for so long as it shall be continuing, then, in
addition to all other rights and remedies of the Co-Agents and the Lenders
hereunder in respect of such Event of Default, the Borrower shall apply all
External Revenues, within thirty (30) days after receipt thereof, to pay or
prepay, as the case may be, on a pro rata basis, all Total Adjusted
Outstanding Unsecured Indebtedness for borrowed money, including, without
limitation, the Loans then outstanding hereunder; provided, however, that
no such application of External Revenues, nor any demand therefor or
acceptance thereof by the Co-Agents, the Lenders or any other lender, shall
result in any waiver, release, limitation or impairment of any Obligation
of the Borrower, or of any right, remedy or recourse of the Co-Agents and
the Lenders, in connection with such Event of Default.
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 condition or reservation of right, in immediately
available funds, transmitted to the Administrative Agent not later than 12:00
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 12:00 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) 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 Shares 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 the Borrower
shall be applied in the following order:
(1) first, to pay all Obligations then due and payable,
(2) second, to pay installments of principal next due,
and
(3) third, as the Borrower so designates.
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Unless otherwise designated by the Borrower, 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.
(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 Obligations in respect of any
fees, expense reimbursements or indemnities then due to the
Co-Agents, or any of them, in their respective capacities as
such and not as Lenders;
(2) second, to pay Obligations in respect of any
fees, expense reimbursements or indemnities then due to the
Lenders;
(3) (third, to pay interest due in respect of
Loans;
(4) fourth, to the ratable payment or prepayment
of the outstanding principal amounts of Loans to be applied
to installments of principal next due; and
(5) fifth, 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 (other than the provisions
regarding application of payments in clause (4), on which the Borrower
may rely) are set forth solely to determine the rights and priorities
of the Administrative Agent, the Lenders and other Holders as among
themselves.
(iii) 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 joinder agreement pursuant to Section 3.2
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.
(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).
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4.3. Promise to Repay; Evidence of Indebtedness.
(a) Promise to Repay. The Borrower, jointly and severally, hereby
agrees to pay when due the principal amount of each Loan which is made to it,
and, jointly and severally, further agrees to pay all unpaid interest accrued
thereon, in accordance with the terms of this Agreement and the Notes. The
Borrower shall execute and deliver on the Closing Date to each Lender requesting
a Note, 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 any Lender requesting a Note after
giving effect to any Assignment and Acceptance thereof pursuant to Section 15.1
or joinder agreement pursuant to Section 3.2, all in form and substance
acceptable to the Administrative Agent and the parties to such Assignment and
Acceptance or joinder agreement.
(b) Loan Account. Each Lender shall maintain in accordance with
its usual practice an account or accounts (a "Loan Account") evidencing the
Indebtedness of the 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.
(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 amount of the Loan Obligations, the type of Loans and any
Eurodollar Interest Period applicable thereto, (ii) the effective date and
amount of each Assignment and Acceptance or joinder agreement pursuant to
Section 3.2 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
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(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 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 (notice of any election
of which the Administrative Agent shall promptly give to the Borrower), be
converted 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 for that day interest on that
Loan shall be determined by reference to the Base Rate.
(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 would occur as a result of
such continuation or conversion. Any conversion into or
33
continuation of Eurodollar Rate Loans under this Section 5.1(c) shall
be in a minimum amount of $2,000,000 and in integral multiples of
$1,000,000 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 12:00
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 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 3:00 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 applicable interest 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.
34
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 $2,000,000 and in integral multiples
of $1,000,000 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:
(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;
(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 Maturity Date; and
(v) There shall be no more than six (6) Eurodollar Rate
Loans outstanding at any one time.
(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:
35
(i) the Administrative Agent determines that deposits in
Dollars are not being offered in the London interbank market for such
Eurodollar Interest Period; or
(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.
36
(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 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
Sections 5.2(d) or 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.
37
5.3. Fees.
(a) Agency Fee. The Borrower shall pay to the Administrative Agent
for its own account an annual fee in an amount equal to $40,000, prorated on a
per diem basis for any partial calendar year, and payable in advance in monthly
installments, with the first installment being due and payable on the Closing
Date and subsequent installments being due and payable on the first day of each
calendar month.
(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 at its office in
New York, New York in immediately available funds. All fees shall be fully
earned and nonrefundable when paid. All fees due to any other 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 Initial 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) Documents. The Administrative Agent shall have received, on or
before the Initial Funding Date, this Agreement, the Notes for each Lender
requesting a Note, the Guaranty, all other Loan Documents and agreements,
documents and instruments described in the List of Closing Documents attached
hereto as Exhibit D and made a part hereof, and such additional documentation as
either Co-Agent may reasonably request, each duly executed, if applicable, by
the Borrower or GGP, Inc., as appropriate, and in form and substance
satisfactory to such Co-Agent. Without limiting the foregoing, the Borrower
hereby directs its counsel, Xxxx, Xxxxxx & Xxxxxxxxx, to prepare and deliver to
the Co-Agents and the Lenders, the legal opinion referred to in such List of
Closing Documents.
(b) No Legal Impediments. No law, regulation, order, judgment or
decree of any Governmental Authority shall, and the Co-Agents shall not have
received any notice that litigation is pending or threatened which is likely to
(i) enjoin, prohibit or restrain the making of the Loans on the Initial Funding
Date or (ii) have a Material Adverse Effect.
(c) No Change in Condition. No change in the business, assets,
management, operations, financial condition or prospects of the Borrower, GGP,
Inc. or any of their respective Subsidiaries or Properties shall have occurred
since March 31, 2000, which change, in the judgment of the Co-Agents, has had,
will have or is reasonably likely to have a Material Adverse Effect.
(d) Interim Liabilities and Equity. Except as disclosed to the Co-
Agents and the Lenders, since March 31, 2000, the Borrower or any of its
Subsidiaries shall not have (i)
38
entered into any material (as determined in good faith by the Co-Agents)
commitment or transaction, including, without limitation, transactions for
borrowings and Capital Expenditures, which are not in the ordinary course of the
Borrower's or such Subsidiary's business, (ii) declared or paid any dividends or
other distributions (other than the dividend anticipated to be paid on July 31,
2000), (iii) established compensation or employee benefit plans, or (iv)
redeemed any equity Securities.
(e) No Loss of Material Agreements and Licenses. Since March 31,
2000, no agreement or license relating to the business, operations or employee
relations of the Borrower or any of its Subsidiaries or 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 Co-Agents, would result in a Material Adverse Effect.
(f) Sharing Agreement. The Partnership and the Company shall have
entered into, and delivered to the Co-Agents a complete and accurate copy of, a
written agreement, in form and substance reasonably satisfactory to the Co-
Agents, providing for such adjustments between the Partnership and the Company
as may be necessary from time to time to assure, insofar as practicable, that
each of them bears the costs and other burdens imposed on the Borrower under
this Agreement and the other Loan Documents to which the Borrower is a party
substantially in proportion to the loan proceeds and other benefits received and
enjoyed by them, respectively, hereunder and thereunder.
(g) 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.
(h) 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 which expressly speak as to a
different specific date, which shall be true and correct as of such date).
(i) Fees and Expenses Paid. There shall have been paid to
the Co-Agents, for the accounts of the Co-Agents and the 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.
(ii) Committed Financing. The Borrower shall have: (i)
obtained from lenders or investors acceptable to the Co-Agents and
delivered to the Co-Agents copies of bona fide written commitments for
equity or unsecured debt financing available or to be funded to the
Borrower on the date hereof in an aggregate amount which, when added to the
Loan Commitments, equals $235,000,000; (ii) delivered to the Co-Agents a
schedule acceptable to the Co-Agents of the Borrower's sources and uses of
funds for the twelve calendar months following the date hereof; and (iii)
given the Co-Agents reasonably detailed written notice of all other
requests, proposals, expressions of interest, offers, commitments and
letters of intent for unsecured debt financing given or received
39
by or on behalf of the Borrower that is proposed first to be funded or
available to the Borrower on or before the date hereof.
(i) Repayment of Other Facilities. The Borrower shall have repaid
in full all of its obligations, and all commitments of the lenders shall have
terminated, under that certain Credit Agreement dated as of January 31, 2000
among the Partnership, Dresdner Bank, AG, New York and Grand Cayman Branches, as
agent and a lender thereunder, and the other lenders identified therein and all
guarantees delivered in connection with such Credit Agreement shall have been
terminated and be of no further force and effect.
(j) Covenant Calculations. The Borrower shall have delivered to
the Co-Agents pro forma calculations of the financial covenants and ratios
described in Article X hereof as of the end of the first calendar quarter after
the Closing Date, in form as provided in Sections 8.2(a)(iii)(B) and
8.2(b)(iii)(B) hereof for such calculations and otherwise in form and substance
satisfactory to the Co-Agents.
6.2. Conditions Precedent to All Subsequent Loans. The obligation of
each Lender to make any Loan pursuant to Article III requested to be made by it
on any 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 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 in
any other Loan Document 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 has disclosed
to the Co-Agents in writing that the facts are not as represented therein and
the Co-Agents have approved or consented to, conditionally or otherwise, the
facts as so disclosed by the Borrower).
(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 Co-Agents 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
40
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, the Borrower
hereby represents and warrants 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 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, holding 911,900
common units of membership interest in the Company. The only other members
of the Company are (x) Xxxxxxx Xxxxx 0000 Xxxxxxxx Xxxxx Fund, L.P. (a
limited partnership of which Xxxxxxx, Sachs or an entity controlled thereby
is the sole general partner), which holds 700,000 Series A preferred units
of membership interest in the Company; (y) Caledonian Holding Company, Inc.
(a corporation which is an Affiliate of the Partnership), which holds
29,600 common units of membership in the Company; and (z) GGP American
Properties Inc. (a corporation which is an Affiliate of the Partnership),
which holds 58,500 common units of membership interest in the Company.
There are no holders of common units of membership interest in the Company
other than as set forth above.
(iii) GGP, Inc. (A) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, (B)
is duly authorized and qualified to do business and is in good standing
under the laws of each jurisdiction in
41
which failure to be so qualified and in good standing will have or is
reasonably likely to have a Material Adverse Effect, and (C) has all
requisite corporate power and authority to own, operate and encumber its
Property and to conduct its business as presently conducted.
(iv) True, correct and complete copies of the Organizational
Documents identified on Schedule 7.1A have been delivered to the Co-Agents,
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 Borrower nor any of its Affiliates are "foreign
persons" 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) for itself, (B) in its capacity as the
sole general partner of the Partnership, in respect of the Partnership, and
(C) 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 for itself and
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 for
itself and 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
GGP, Inc. or the Borrower and to which GGP, Inc. or the Borrower is a party
and the consummation of the transactions contemplated thereby are within
GGP, Inc.'s corporate powers, the Partnership's partnership powers and the
Company's limited liability company powers, as applicable, have been duly
authorized by all necessary corporate action, partnership action or limited
liability action, as applicable and such authorization has not been
rescinded. No other partnership, limited liability company or corporate
action or proceedings on the part of the Borrower or GGP, Inc. is necessary
to consummate such transactions.
(iv) Each of the Loan Documents to which GGP, Inc. or the
Borrower is a party has been duly executed and delivered on behalf of GGP,
Inc. or the Borrower, as applicable, and constitutes the legal, valid and
binding obligation of GGP, Inc. or the
42
Borrower, as applicable, enforceable against GGP, Inc. or the Borrower, as
applicable, 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 GGP, Inc. or the Borrower, as
applicable, on or before the Initial Funding Date have been performed or
complied with, and no Potential Event of Default, Event of Default or
breach of any covenant by GGP, Inc. or the Borrower, as applicable, exists
thereunder.
(c) Subsidiaries; Ownership of Capital Stock and Partnership
Interests.
(i) Schedule 7.1C (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 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. None of the authorized,
issued and outstanding shares or interests of each class of Securities
issued by the Borrower 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 7.1C.
(ii) The outstanding Capital Stock issued by GGP, Inc. is
duly authorized, validly issued, fully paid and nonassessable and the
outstanding Securities issued by the Borrower and, to the extent owned by
Borrower, its Subsidiaries are duly authorized and validly issued. The
Borrower has previously delivered to the Co-Agents 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 on the Borrower, each Subsidiary: (A) is a corporation, limited
liability company, trust or partnership, as indicated on Schedule 7.1C,
duly organized or formed, validly existing and, if 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.
43
(d) No Conflict. The execution, delivery and performance of each of
the Loan Documents to which GGP, Inc. or the Borrower is a party do not and will
not (i) conflict with the Organizational Documents of GGP, Inc. or the Borrower,
as applicable, (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 GGP, Inc. or the Borrower, as
applicable, or require termination of any such Contractual Obligation which may
subject either the Co-Agent or any of the Lenders to any liability or which is
reasonably likely to have a Material Adverse Affect, (iii) result in or require
the creation or imposition of any Lien whatsoever upon any of the Property or
assets of GGP, Inc. or 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 GGP, Inc. or 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. Neither the Borrower nor GGP, Inc. 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 Co-Agents: (i)
annual audited financial statements of GGP, Inc. and its Consolidated
Subsidiaries for the fiscal year ended December 31, 1999, and (ii) quarterly
financial statements for the Borrower and its Consolidated Subsidiaries for the
fiscal quarter ending March 31, 2000. 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 Co-Agents on or prior to the Closing Date
or otherwise disclosed to the Co-Agents and the Lenders in writing, which will
have or is reasonably likely to have a Material Adverse Effect.
(h) Indebtedness. Schedule 7.1H sets forth, as of June 30, 2000, all
Indebtedness for borrowed money of each of the Borrower and its respective
Subsidiaries and, except as set forth on Schedule 7.1H, 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 June 30, 2000.
44
(i) Litigation: Adverse Effects. Except as set forth in Schedule
7.1I, 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 GGP,
Inc. or the Borrower, or any of their respective 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 the Borrower. None of GGP, Inc., the
Borrower or 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 March 31, 2000, 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 GGP, Inc. or 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. or the
Borrower, as applicable, 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 GGP, Inc., 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 and (ii) such taxes,
assessments, fees and other charges of Governmental Authorities pertain to
Property of GGP, Inc., 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 GGP, Inc., 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 GGP,
Inc., the Borrower, any of their
45
respective 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. None of GGP, Inc., the Borrower or 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 GGP, Inc. and
the Borrower contained in the Loan Documents, and all certificates and other
documents delivered to the Co-Agents 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 Co-Agents or the 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 the
Borrower does not have liability under this clause (n) with respect to its
projections of future events.
(o) Requirements of Law. GGP, Inc., the Borrower and each of its
Subsidiaries is 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 could not, individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect:
(A) the operations of the Borrower, each of its
Subsidiaries, and their respective Properties comply in all
respects with all applicable Environmental, Health or Safety
Requirements of Law;
(B) the Borrower and each of its Subsidiaries have obtained
all environmental, health and safety Permits necessary for their
respective operations, and all such Permits are in good standing
and the holder of each such Permit is currently in compliance in
all respects with all 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
46
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) there is not now, and to 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 Borrower's knowledge, has
been in violation of applicable Environmental, Health or Safety
Requirements of Law, (4) any asbestos-containing material; or (5)
any polychlorinated biphenyls (PCB) used in hydraulic oils,
electrical transformers or other Equipment;
(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
47
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 could individually or in the aggregate be reasonably expected to
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 other than those listed on
Schedule 7.1Q hereto. Each Plan 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, and each trust related to any such Plan has been
determined to be exempt from federal income tax under Section 501(a) of the
Internal Revenue Code as currently in effect. Except as disclosed in Schedule
7.1Q, 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
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 incurred 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
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 Co-Agents is
complete and accurate in all material respects. 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
48
4205 of ERISA from a Multiemployer Plan. 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. 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 7.1Q, 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 Borrower and GGP, Inc. is Solvent.
(t) Insurance. Schedule 7.1T 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.
(u) REIT Status. GGP, Inc. qualifies as a REIT under the Internal
Revenue Code.
(v) Ownership of Property. Ownership of substantially all Property of
the Consolidated Businesses is held by the Borrower and its Subsidiaries.
(w) Year 2000 Issues. The Borrower has reviewed and assessed its and
its Subsidiaries' business operations and computer systems and applications to
address the "year 2000 problem" (i.e., the risk that computer applications and
equipment used by the Borrower, directly or indirectly through third parties,
may have been or may be unable properly to perform date-sensitive functions
before, during or after January 1, 2000), and the "year 2000 problem" has not
resulted in and is not reasonably expected to result in a Material Adverse
Effect on the business, financial condition, operations or Properties of the
Borrower or any of its Subsidiaries, or on the ability of the Borrower to repay
the Loans and otherwise fulfill its Obligations under this Agreement. The
Borrower shall promptly deliver to the Co-Agents all information relating to
this representation that the Co-Agents may reasonably request.
49
ARTICLE VIII
REPORTING COVENANTS
The Borrower covenants and agrees that until payment in full of all of
the Obligations (other than indemnities pursuant to Section 15.3 not yet due):
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
Co-Agents.
8.2. Financial Reports. The Borrower shall deliver or cause to be
delivered to the Co-Agents and the Lenders:
(a) Quarterly Reports.
(i) Borrower Quarterly Financial Reports. As soon as
practicable, and in any event within forty-five (45) 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
Borrower and the related Consolidated statements of income and cash flow of
the Borrower (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 Co-Agents 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
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 forty-five (45) 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
50
Certificates"), signed by the Borrower's respective Authorized
Financial Officers 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(c) 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 E hereto and
otherwise with such specificity as the Co-Agents 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 as may be reasonably
requested by the Co-Agents, 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, together with such other information reasonably
satisfactory to the Co-Agents as to the square footage and total rent
payable by any such tenants of any such Real Properties and (F) such
other information and reports as the Administrative Agent may
reasonably request.
(b) Annual Reports.
(i) Borrower 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 the
Borrower and the related Consolidated statements of income and cash
flow of the Borrower for such Fiscal Year, in each case in form and
substance satisfactory to the Co-Agents 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
Borrower and its 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
Co-Agents and each Lender (through the Administrative Agent) may, with
the consent of the Borrower (which consent shall not be unreasonably
withheld), communicate directly
51
with such accountants or consultant, with any such communication to
occur together with a representative of the Borrower, at the expense of
the Co-Agents (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, (A) the financial statements of GGP, Inc. and its
Consolidated Subsidiaries as at the end of such period, and a report
setting forth in comparative form the corresponding figures for the
previous Fiscal Year, (B) an audit report with respect thereto by any
independent certified public accountants reasonably acceptable to the
Co-Agents, 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 consolidating 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), and (C)
a copy of the management letter or any similar written report delivered
to GGP, Inc. or to any Authorized Financial Officer thereof by such
independent certified public accountants or any 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 Co-Agents 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
Co-Agents (or the Lender requesting such communication), upon
reasonable notice and at reasonable times during normal business hours.
(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 Officer's Certificates of the
Borrower (the "Annual Compliance Certificates" and, collectively with
the Quarterly Compliance Certificates, the "Compliance Certificates"),
signed by the Borrower's respective Authorized Financial Officers,
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 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(c) 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 E and otherwise with such specificity as the Co-Agents
may reasonably request) for the period then ended which demonstrate
compliance with the covenants and financial ratios set forth in
52
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 as may be reasonably
requested by the Co-Agents, (D) a schedule of Combined EBITDA, (E) a
schedule of the estimated taxable income of the Borrower for such
fiscal year, (F) a statement of net operating income and a schedule of
tenant sales and occupancy with respect to each Real Property, (G) 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 Co-Agents, and (H) such other information and reports
as either Co-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 Co-Agents, 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 five percent (5%) of the Borrower's share of consolidated minimum
rent in the Real Properties in the aggregate, together with such other
information reasonably satisfactory to the Co-Agents as to the square
footage and total rent payable by any such tenants of any such Real
Properties.
(c) Reports of Capital Events. On the date of consummation and
funding of each Capital Event, the Borrower shall submit to the Co-Agents a
reasonably detailed report thereof, which shall include a computation of the
Leverage Ratio after giving effect thereto, and which shall be otherwise
reasonably acceptable in form and substance to the Co-Agents.
(d) Information Regarding the Borrower. From time to time upon
request by either Co-Agent, the Borrower shall deliver to such Co-Agents such
information, reports and documents concerning the Borrower as such Co-Agent may
reasonably request.
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 either Co-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 Co-Agents 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
has taken, is taking and proposes to take with respect thereto.
53
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 Co-Agents and the Lenders and provide
such other information as may be reasonably available to enable each Lender and
each Co-Agent and each Co-Agent's counsel to evaluate such matters; (ii) as soon
as practicable and in any event within forty-five (45) days after the end of
each fiscal quarter of the Borrower, the Borrower shall provide a written
quarterly report to the Co-Agents 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 Co-Agents and the Lenders, and shall provide such other information at such
time as may be reasonably available to enable each Lender and each Co-Agent and
each Co-Agent's 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 either Co-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 to enable each Lender and the Administrative Agent and its
counsel to evaluate such matters.
8.5. Insurance. If requested by either Co-Agent, the Borrower shall
promptly deliver to the Co-Agents and the Lenders (i) a report in form and
substance reasonably satisfactory to the Co-Agents 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. The Borrower shall deliver or cause to be
delivered to the Co-Agents 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;
54
(c) within fifteen (15) Business Days after the filing of the same
with the DOL, IRS or PBGC, 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;
(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.
55
8.7. Environmental Notices. The Borrower shall notify the Co-Agents
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
could 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 could 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 could result in a Material Adverse Effect;
(d) notice of a violation by the Borrower or any of its Subsidiaries
of any Environmental, Health or Safety Requirement of Law which violation could
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 could 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 could result in a
Material Adverse Effect;
(g) new or proposed changes to any existing Environmental, Health or
Safety Requirement of Law that could 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 could result in a
Material Adverse Effect.
8.8. Labor Matters. The Borrower shall notify the Co-Agents 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 Co-Agents and the Lenders written notice of each of the following
upon the occurrence thereof: (a) a sale, transfer or other disposition of Real
Property or any interests therein, in a
56
single transaction or series of related transactions, for consideration in
excess of $100,000,000, (b) an acquisition of Real Property or any interest
therein, in a single transaction or series of related transactions, for
consideration in excess of $100,000,000 and (c) the grant of a Lien with respect
to Real Property or any interest therein, in a single transaction or series of
related transactions, in connection with Indebtedness aggregating an amount in
excess of $200,000,000.
8.10. Other Reports. The Borrower shall deliver or cause to be
delivered to the Co-Agents 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.
8.11. Other Information. Promptly upon receiving a request
therefor from either Co-Agent, the Borrower shall prepare and deliver to the Co-
Agents such other information with respect to the Borrower and its Subsidiaries,
on a Consolidated basis, as from time to time may be reasonably requested by
such Co-Agent.
ARTICLE IX
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that until payment in full of all of
the Obligations (other than indemnities pursuant to Section 15.3 not yet due):
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.
57
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 its Subsidiaries to maintain in full force
and effect the insurance policies and programs listed on Schedule 7.1T or
substantially similar policies and programs or other policies and programs as
are reasonably acceptable to the Co-Agents. All such policies and programs shall
be maintained with insurers reasonably acceptable to the Co-Agents.
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 Co-Agent or any 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; provided that at any time during the continuance of an
Event of Default, each such visitation and inspection by the Administrative
Agent shall be at the Borrower'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. Each Plan which is intended to qualify under Section 401(a) of the
Internal Revenue Code has received a favorable determination letter from the
Internal Revenue Service and nothing has occurred which would reasonably be
expected to cause the loss of such qualification.
58
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. Management of the Company. 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. Committed Financing. Within 90 days after the Closing Date, the
Borrower shall obtain from lenders or investors acceptable to the Co-Agents
equity or unsecured debt financing in an aggregate amount, when added to the
unsecured debt financing incurred on the Closing Date and under this Agreement,
equal to $275,000,000 and the terms, conditions and pricing of such unsecured
debt financing shall be reasonably acceptable to the Co-Agents, shall comply
with the requirements of Section 10.12(h) hereof, and shall not otherwise be
more favorable to the lender(s) thereof than the terms, conditions and pricing
provided for herein.
ARTICLE X
NEGATIVE COVENANTS
The Borrower covenants and agrees that it shall comply, or cause
compliance, with the following covenants until payment in full of all of the
Obligations (other than indemnities pursuant to Section 15.3 not yet due):
10.1. Sales of Assets. Neither the 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 the Borrower nor any of its 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 the Borrower or the Consolidated
Businesses) on or with respect to any such Securities held by the Borrower,
except, subject to Section 10.12(i) hereof:
(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
59
aggregate Indebtedness under such Capital Leases does not exceed $1,000,000 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;
provided, however, that none of the foregoing shall limit or prohibit the
Borrower from (i) granting Liens on its respective Real Properties for the
purposes of securing Secured Indebtedness otherwise permitted hereunder 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, without limitation, the purchase, sale, lease
or exchange of any Property or the rendering of any service) with any Affiliate
of the Borrower which is not its Subsidiary, 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.
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 the Borrower or such Subsidiary; provided, however, that no
Event of Default has occurred and is continuing; (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 the Borrower nor any of its 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 the
Borrower's or any such Subsidiary's business or Property, whether now or
hereafter acquired, except in connection with issuance, transfer, conversion or
repurchase of limited partnership interests in the Partnership or membership
interests in the Company (a) in connection with the acquisition of Real Property
as consideration paid to the seller thereof or (b) to the extent required under
the Borrower Operating Agreement. Notwithstanding the foregoing, the Borrower
shall be permitted to merge with another Person so long as the Borrower (i) is
the surviving Person following such merger or (ii) complies with Section
4.1(c)(i). No Change of Control shall occur.
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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. 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;
(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 Co-Agents 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 in any material
manner not otherwise permitted under this Agreement or in any manner adverse to
the Co-Agents or the Lenders.
10.9. Fiscal Year. Neither the 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.
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10.10. [Intentionally Omitted].
10.11. Investments. Neither the Borrower nor any of its Subsidiaries
shall directly or indirectly make or own any Investment, except:
(i) Investments in Cash and Cash Equivalents;
(ii) Subject to the limitations set forth in this Section
10.11, Investments in the Borrower's Subsidiaries, the Borrower's
Affiliates and the Management Company;
(iii) 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;
(iv) Investments in:
(A) any individual Real Property (other than the Ala Moana
Center and Property related thereto) which do not exceed seven
percent (7%) of the Capitalization Value after giving effect to
such Investments of the Borrower and its Subsidiaries;
(B) any single Person owning Property or any portfolio of
Properties (other than the Homart Portfolio and the Ivanhoe
Portfolio of the Borrower) which do not exceed twenty percent
(20%) of the Capitalization Value after giving effect to such
Investments of the Borrower and its Subsidiaries, it being
understood that no Investment in any individual Person will be
permitted if the Borrower's allocable share of the Investment of
such Person in any individual Property would exceed the
limitation described in clause (A) above;
(C) joint ventures and Subsidiaries that are not
Consolidated Subsidiaries (including, without limitation, such
Subsidiaries in the Homart Portfolio of the Borrower) which, in
the aggregate, do not exceed fifty percent (50%) of the
Capitalization Value after giving effect to such Investments of
the Borrower and its Subsidiaries;
(D) Real Estate Under Construction which, in the
aggregate, does not exceed fifteen percent (15%) of the
Capitalization Value after giving effect to such Investments of
the Borrower and its Subsidiaries (provided, however, that, for
purposes of this clause (D) 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 (D), any portion of a Construction
Asset which is under an unconditional (except for customary
closing conditions) binding contract of sale to an "anchor
tenant" shall be deemed to be leased); and
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(E) Inactive Assets which, in the aggregate, do not exceed
eight percent (8%) of the Capitalization Value after giving
effect to such Investments of the Borrower and its Subsidiaries;
provided, however, that the Investments of the Borrower and its
Subsidiaries described in clauses (D) and (E) above shall not
together exceed fifteen percent (15%) of the Capitalization
Value after giving effect to such Investments of the Borrower
and its Subsidiaries; and
(v) 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) $2,000,000,000, 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 membership interests)
representing interests in the Borrower, or GGP, Inc. or any of their respective
Subsidiaries.
(b) Consolidated Interest Coverage Ratio. As of the last day of each
fiscal quarter for the immediately preceding 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 last day of each fiscal quarter, 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 13.25%.
(d) Dividends and Redemptions.
(i) The Borrower will not, as determined on an aggregate annual
basis, pay any dividends (excluding special capital gain distributions, if
any) in excess of 65% of 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
$50,000,000 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 be; provided, however, that
no such redemption, repurchase or acquisition shall have, or be reasonably
likely to have, a Material Adverse Effect.
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(e) Minimum Fixed Charge Coverage Ratio. As of the first day of each
calendar quarter for the immediately preceding calendar quarter, the ratio of
(i) Combined EBITDA to (ii) Fixed Charges shall not be less than 1.5 to 1.0.
(f) Minimum Net Equity and Loan-to-Value For Certain Wholly-Owned
Properties. In the event that, and for so long as, the aggregate Investments of
the Borrower and its Subsidiaries in joint ventures and Subsidiaries that are
not Consolidated Subsidiaries (including, without limitation, such Subsidiaries
in the Homart Portfolio of the Borrower), exceed thirty-five percent (35%) of
the Capitalization Value: (i) the Capitalization Value attributable to
Properties that are wholly owned, directly or indirectly, by the Borrower, less
Indebtedness secured by Liens thereon or otherwise attributable thereto, shall
at no time be less than $1,750,000,000; and (ii) the Loan-to-Value Ratio with
respect to such Properties in the aggregate shall at no time exceed sixty-five
percent (65%).
(g) Leverage Ratio.
(i) Neither the Borrower nor any of its Subsidiaries shall
directly or indirectly create, incur, assume or otherwise become or remain
directly or indirectly liable with respect to: (w) any Indebtedness, except
Indebtedness which, when aggregated with Indebtedness of the Borrower and,
without duplication, its Subsidiaries and Minority Holdings Indebtedness
allocable pro rata in accordance with GAAP to the Borrower as of the time
of determination, would not cause Total Adjusted Outstanding Indebtedness
to exceed sixty-five percent (65%) of Capitalization Value as of the date
of incurrence; (x) any Recourse Indebtedness of the Borrower, except
Recourse Indebtedness which, when aggregated with Recourse Indebtedness of
the Borrower and without, duplication, its respective Subsidiaries and
Recourse Minority Holdings Indebtedness allocable in accordance with GAAP
to 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 as of
the date of incurrence; (y) secured Recourse Indebtedness (other than
secured Indebtedness relating to construction loans) in an aggregate amount
outstanding not to exceed $175,000,000; or (z) 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 the lesser of twenty percent
(20%) Combined Equity Value as of the date of incurrence or the amount that
is then applicable under subsection (ii) or subsection (iii) below.
(ii) From and after the date hereof, through and including July
31, 2002, Total Adjusted Outstanding Unsecured Indebtedness shall not
exceed $650,000,000.
(iii) From and after August 1, 2002, through and including the
Maturity Date, Total Adjusted Outstanding Unsecured Indebtedness shall not
exceed $450,000,000.
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(h) Most Favored Loan.
(i) 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 (or any amendment or modification
of 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.
(ii) The Borrower will not grant any Liens on any Property of the
Borrower or its Subsidiaries to secure Unsecured Indebtedness in respect of
the Revolving Credit Agreement, dated as of the date hereof, among the
Company, the Partnership, Bank of America, N.A., as administrative agent,
and others, unless substantially simultaneously therewith the Borrower or
its Subsidiaries, as applicable, shall grant similar Liens on a pari passu
basis to secure the Obligations to the extent and in a manner reasonably
satisfactory to the Co-Agents.
(i) Certain Liens. None of the Borrower, GGP, Inc. or any of the
Affiliates which are controlled by them, respectively, will encumber with any
Lien any stock, partnership interest, joint venture interest, membership
interest, beneficial interest or other equity interest in any corporation,
partnership, joint venture, limited liability company, trust or other entity
that (i) owns any of the respective Property, or (ii) is a direct or indirect
shareholder, partner, joint venturer, member, beneficiary or other type of
equity holder in any entity described in clause (i) above; provided, however,
that the foregoing prohibition shall not apply with respect to any of the
encumbrances existing on the date hereof set forth in Schedule 10.12 hereto; and
provided further; that the prohibition set forth in this subsection (i) shall
not apply as to any such corporation, partnership, joint venture, limited
liability company, trust or other entity which owns Property with respect to
which the Loan-to-Value Ratio as to all Secured Indebtedness for borrowed money
related to such Property, in the aggregate, before giving effect to such
encumbrance, is not greater than fifty percent (50%), and, after giving effect
to such encumbrance, is not greater than sixty-five percent (65%); and provided
further that the prohibition set forth in this subsection (i) shall not apply as
to any such encumbrance granted to secure Indebtedness related to any Property
or asset of such corporation, partnership, joint venture, limited liability
company, trust or other entity, if such encumbrance secures a construction loan
and the Loan-to-Value Ratio with respect to all Indebtedness relating to the
construction in question does not exceed seventy-five percent (75%), or would
not exceed such Loan-to-Value Ratio, but for the applicability of unusually
onerous stamp, transfer or recording taxes and fees in connection with such
encumbrance; and provided further that the prohibition set forth in this
subsection (i) shall not apply as to any such encumbrance of equity interests in
Minority Holdings in favor of holders(s) of the remaining equity interests in
such Minority Holdings to secure obligations under the applicable Organizational
Documents of such Minority Holdings.
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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 of or interest payment on the Obligations.
(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 8.2, 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.
(iii) GGP, Inc. shall fail duly and punctually to perform or
observe any covenant in the Guaranty (provided that if such covenant
requires performance by the Guarantor which is substantially similar to
performance of the Borrower required by a covenant hereunder, the Guarantor
shall be permitted the same right to notice of failure of performance and
period of opportunity for cure, if any, provided to the Borrower hereunder
in respect of such covenant).
(c) Breach of Representation or Warranty. Any representation or
warranty made by the Borrower to the Co-Agents or any Lender herein or by GGP,
Inc., 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.
(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 or event of default (other than as
identified in paragraphs (a), (b) or (c) of this Section 11.1) shall occur under
any of the other Loan Documents, and such default or event of 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) Cross-Defaults; Acceleration of Other Indebtedness. Any breach,
default or event of default shall occur, or any other condition shall exist,
subject to the receipt of any
66
applicable notice and the expiration of any applicable cure period or grace
period, under any instrument, agreement or indenture pertaining to any Recourse
Indebtedness (other than the Obligations) of the Borrower or its Subsidiaries
aggregating $15,000,000 or more; or any such Recourse Indebtedness aggregating
$15,000,000 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 GGP, Inc., 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 GGP, Inc., the Borrower or any of
their respective 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 GGP, Inc.,
the Borrower or any of their respective 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 any of GGP, Inc., the Borrower or any
of such Subsidiaries shall be entered; or an interim receiver, trustee or
other custodian of any of GGP, Inc., the Borrower or any of such
Subsidiaries or of all or a substantial part of the Property of any of GGP,
Inc., 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 any of GGP, Inc., the Borrower or any of such
Subsidiaries shall be issued and any 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 any of
GGP, Inc., the Borrower or partners of the Borrower or the board of
directors 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. Any of GGP,
Inc., the Borrower, or any of their respective 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
67
by a receiver, trustee or other custodian for all or a substantial part of its
Property; or any of GGP, Inc., the 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 GGP, Inc., the
Borrower or any of its Subsidiaries or any of its respective assets
involving in any event an amount in excess of $15,000,000 (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 GGP, Inc., the Borrower which is not discharged of record, bonded
over or otherwise secured to the satisfaction of the Co-Agents within
thirty (30) days after the filing thereof or the date upon which the Co-
Agents receive 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 $15,000,000.
(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 $15,000,000.
(i) Dissolution. Any order, judgment or decree shall be entered against
GGP, Inc. or the Borrower decreeing its involuntary dissolution or split up; or
GGP, Inc. or the Borrower shall otherwise dissolve or cease to exist except as
specifically permitted by this Agreement.
(j) Loan Documents. At any time, for any reason, any Loan Document
ceases to be in full force and effect or any of the Borrower or GGP, Inc. seeks
to repudiate its obligations thereunder.
(k) ERISA Termination Event. Any ERISA Termination Event occurs which
the Co-Agents reasonably believe could subject either the Borrower or any ERISA
Affiliate to liability in excess of $1,000,000.
(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
Co-Agents reasonably believe
68
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 $1,000,000.
(m) Certain Defaults Pertaining to GGP, Inc. GGP, Inc. shall fail to
(i) maintain its status as a REIT under the Internal Revenue Code, (ii) retain
direct or indirect management and control of the Borrower, (iii) continue as the
general partner of the Partnership, (iv) 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, (v) remain
listed on the New York Stock Exchange or other national stock exchange, or (vi)
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 (A) that are being contested by GGP, Inc. in good faith by
an appropriate proceeding diligently pursued, (B) for which adequate reserves
have been made on its books and records, and (C) the amounts the nonpayment of
which would not, individually or in the aggregate, result in a Material Adverse
Effect.
(n) Merger or Liquidation of GGP, Inc. or the Borrower. GGP, Inc. or
the Borrower shall merge or liquidate with or into any other Person and, as a
result thereof and after giving effect thereto, (i) GGP, Inc. or the Borrower,
as applicable 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.
An Event of Default shall be deemed "continuing" until cured or waived in
writing in accordance with Section 15.7.
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), 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, 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.
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(b) 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 Co-Agents and the other Lenders;
therefore, the Borrower agrees that the Co-Agents 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 CO-AGENTS
12.1. Appointment. Bankers Trust is hereby irrevocably appointed
Administrative Agent hereunder and under each other Loan Document and Xxxxxx is
hereby irrevocably appointed Syndication Agent hereunder and under each other
Loans Document, and each of the Lenders irrevocably authorizes the Co-Agents to
act as co-agents of such Lender. The Co-Agents agree to act as such upon the
express condition contained in this Article XII. The Co-Agents 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. The Co-Agents, with the consent of the Borrower, may
appoint any Lender as Documentation Agent under this Agreement. Any
Documentation Agent appointed pursuant to the preceding sentence shall not have
a fiduciary relationship in respect of any Lender by reason of this Agreement,
and has no duties or responsibilities to the Lenders in that capacity, in
connection with the administration of the Loan Documents or otherwise.
12.2. Powers. Each Co-Agent shall have and may exercise such powers
under the Loan Documents as are specifically delegated to such Co-Agent by the
terms of each thereof, together with such powers as are reasonably incidental
thereto (but subject to Section 15.7 below). No Co-Agent shall have 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 such Co-Agent. Only the Co-Agents may perform
the duties reserved to them, respectively, under the Loan Documents and no
Lender shall act or purport to act on behalf of the other Lenders or the Co-
Agents on any such matters. Without limiting the generality of the foregoing:
(a) The Administrative Agent shall have the exclusive right to collect
from Borrower and any Guarantor, or third parties, on account of the
Obligations, including, principal, interest, fees, protective advances and
prepayment premiums (if any), whether such sums are received directly from
Borrower, any guarantor, 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 Obligations (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.
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(c) No Lender shall independently initiate any judicial action or other
proceeding against Borrower or any guarantor under the Guaranty or any other
guaranty with respect to the Obligations.
12.3. General Immunity. None of the Co-Agents or 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
Co-Agents or 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) the
satisfaction of any condition specified in Article VI, except receipt of items
required to be delivered to the Co-Agents or either of them, respectively; 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 Co-Agents 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 Co-Agents and
the Lenders, the Co-Agents 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 Agents and Counsel. Each Co-Agent may execute any
of its duties as administrative agent or syndication agent, as applicable,
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 them or their respective authorized agents, for the
default or misconduct of any such agents or attorneys-in-fact selected by them
with reasonable care. As between the Co-Agents and the Lenders, each Co-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 Co-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 Co-Agents 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
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correct and to have been signed, sent or otherwise communicated by the proper
person or persons.
12.8. Co-Agents' Reimbursement and Indemnification. The Lenders,
ratably in accordance with their respective Pro Rata Shares, agree to reimburse
and indemnify upon demand each of the Co-Agents (i) for any amounts not
reimbursed by the Borrower for which such Co-Agent is entitled to reimbursement
by the Borrower under the Loan Documents, (ii) for any other expenses (including
reasonable attorneys' fees) incurred by such Co-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 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 Co-
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 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
Co-Agent. Each Lender shall indemnify each of the Co-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 Co-Agent shall have any
liability or obligation hereunder with respect to any negligence or misconduct
of any other Co-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 Co-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 Co-Agents, and the term
"Lender" or "Lenders" shall, unless the context otherwise indicates, include
each of the Co-Agents in its capacity as a Lender. Each of the Co-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 Co-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 Borrower and its
Affiliates, as though it were not one of the Co-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 Co-Agents or their
respective Affiliates may receive information regarding the Borrower or its
Affiliates and acknowledge that none of the Co-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 Co-Agents or 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 either Co-Agent or any of their respective agents shall be deemed to be
representation or warranty by such Co-Agent to such Lenders. Each Lender further
acknowledges that it has, independently and without reliance upon the Co-Agents
or any Lender and based on the financial statements prepared by the
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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 the Co-Agents or any 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 Co-Agents. Each Lender agrees that Bankers Trust
shall serve as the Administrative Agent and Xxxxxx as Syndication Agent at all
times until all of the Obligations are paid in full, except that Bankers Trust
or Xxxxxx, as applicable, 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 either Co-Agent is permitted to (in accordance with the terms of
this Agreement) and does participate or assign its total interests in its Loans,
other than to a successor entity to such Co-Agent, then such Co-Agent agrees to
resign upon the request of any Lender or the Borrower. Upon any such
resignation, the other Lenders shall have the right to appoint, on behalf of the
Borrower and the Lenders, a successor Co-Agent, which successor Co-Agent, other
than a successor entity to such Co-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). If no successor Co-Agent shall have been
so appointed by the other Lenders (and, if applicable, approved by Borrower) and
shall have accepted such appointment within thirty (30) days after the retiring
Co-Agent's giving notice of resignation, then the retiring Co-Agent may appoint,
on behalf of the Borrower and the Lenders, a successor Co-Agent, which successor
Co-Agent, other than a successor entity to the Co-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). Any 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
Co-Agent hereunder by a successor Co-Agent, such successor Co-Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Co-Agent, including the right to receive any fees for
performing such duties which accrue thereafter, and the retiring Co-Agent shall
be discharged from its duties and obligations subsequently arising hereunder and
under the other Loan Documents. After any retiring Co-Agent's resignation
hereunder as Co-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 Co-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 the Administrative Agent for
the account of the Lenders and such other Obligations for which the
Administrative Agent is expressly responsible for determining the Borrower's
compliance, the 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 the 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". The Administrative Agent will notify the Lenders of its receipt of any
such notice. The Administrative Agent shall take action with
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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 the
Administrative Agent's good faith determination that circumstances warrant an
earlier response) after such written request from the Administrative Agent.
12.14. Copies of Documents. The 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.
12.15. Withholding Tax. All taxes due and payable on any payments to
be made by the Administrative Agent 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 by
the Administrative Agent 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 the
Administrative Agent completed and signed copies of any forms that may be
required by the IRS (and any applicable state authority) 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 the
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 the Administrative Agent did
not properly withhold tax from amounts paid to or for the account of any Lender,
such Lender shall indemnify the Administrative Agent fully for all amounts paid
by the Administrative Agent as tax or otherwise, including penalties and
interest, and including any taxes imposed by any jurisdiction on the amount
payable to the 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 the 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 the Administrative Agent, to require that the
Administrative Agent exercise the rights of the Lenders as directed by the
Requisite Lenders; provided, however, that the Lenders shall indemnify,
exonerate and hold the Administrative Agent harmless from and against any and
all claims, losses, liabilities, damages and costs (including reasonable legal
fees) incurred by the 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 the Administrative Agent.
12.17. Relationship of Parties. This Agreement is not intended to
establish a partnership or joint venture between the Co-Agents and the Lenders.
The provisions of the Loan
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Documents regarding the relationships among the Co-Agents and the Lenders and
this Article XII are intended solely to facilitate co-lending relationships
among the Lenders under this Agreement. No security or investment contract under
any federal or state law is intended to be created among the Lenders or between
the Co-Agents and the Lenders. The execution of this Agreement, the performance
of the terms thereof, and the Lenders' purchase of and ownership interests under
this Agreement 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 Bankers Trust 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
Bankers Trust or Xxxxxx, and no debtor-creditor relationship exists between them
as a result of this Agreement.
12.18. Counsel. The Lenders acknowledge that the Administrative
Agent's counsel has represented and shall represent only the Administrative
Agent in its capacity as such, in connection with the Loan Documents and this
Agreement. Each other Lender shall 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. 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 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 Loan 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 in lieu of taxes
imposed on or measured by net income or overall gross receipts and capital)
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 Lender 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
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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, 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) 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 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 1001 (or any
successor or substitute form or forms)), (II) under Section 1442(b) of the
Internal Revenue Code (in which case the certificate shall be accompanied
by two duly completed copies of IRS Form 4224 (or any successor or
substitute form or forms)) or (III) under Section 871(h) of the Internal
Revenue Code with respect to payments of "portfolio interest" (which
certificate shall be substantially in the form of Exhibit F hereto and
shall be accompanied by two duly completed copies of IRS Form W-8 (or any
successor or substitute form or forms).
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(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 the 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 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
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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 the Borrower's sole election, the 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 Loan 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 Loan 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 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 the
Borrower's sole election, the 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.
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ARTICLE XIV
BENEFIT OF LOANS
The Borrower represents and warrants to the Lenders: (i) that the
financing provided for herein is for the mutual benefit of both the Partnership
and the Company; and (ii) that the pricing, terms and conditions of the
financing provided for herein are more favorable than those that the Company
could reasonably expect to obtain were it to seek alternative financing
independently of the Partnership.
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 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) each assignment shall be of a constant, and not a varying,
ratable percentage of all of the assigning Lender's rights and obligations under
this Agreement and, in the case of a partial assignment, shall be in a minimum
principal amount of at least $5,000,000, (ii) each such assignment shall be to
an Eligible Assignee approved by the Co-Agents 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 Co-
Agents or the Borrower), (iii) 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 (iv) each Lender which maintains any
Loans shall maintain minimum Loans of at least $5,000,000; 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 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
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portion of such assigning Lender's rights and obligations under this Agreement,
the assigning Lender shall cease to be a party hereto) and (C) if requested by
the assignee thereunder, the Borrower shall execute and deliver to such assignee
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 Loan 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 or the assignee of another Lender
pursuant to an Assignment and Acceptance. The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the Borrower
and each of its Subsidiaries, GGP, Inc., 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 Loan
Commitment hereunder and the Loans owing to it); provided, however, that (i)
such Lender's obligations under this Agreement (including, without limitation,
its Loan Obligations 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 Co-Agents 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) reduction of the principal of,
or rate or amount of interest on the Loans subject to such participation (other
than by the payment or prepayment thereof), (B) postponement of any date fixed
for any payment of principal of, or interest on, the Loan(s) subject to such
participation and (C) release of any guarantor of the Obligations.
80
(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 Co-Agents 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, Loan 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 Co-
Agent, or to any trust or special purpose funding vehicle, whether or not such
Co-Agent 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.
(g) 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.
(h) 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.
15.2. Expenses. Generally. Subject to Section 15.2(b), the Borrower
agrees upon demand to pay, or reimburse the each of the Co-Agents for all of
their respective reasonable external audit, investigation and other expenses and
for the reasonable fees, expenses and disbursements of one legal counsel and for
all other reasonable out-of-pocket costs and expenses of every type and nature
incurred by the Co-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 (exclusive of
customary and routine administration and oversight, the payment of which shall
be satisfied by the Borrower's payment of the agency fee pursuant to Section
5.3(b)) of this Agreement and the Loans, including, without limitation,
consultation with attorneys in connection therewith and with respect to the Co-
Agents' rights and responsibilities under this Agreement and the other Loan
Documents; (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 Co-Agents or any other Lender is
served or deposition or other proceeding in which any Lender is called to
testify, in each case, relating
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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.
(b) After Default. The Borrower further agrees to pay or reimburse
each of the Co-Agents and each of the Lenders upon demand for all out-of-pocket
costs and expenses, including, without limitation, 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 Co-Agents and each and all of the other
Lenders and each of their respective officers, directors, employees, attorneys
and agents (including, without limitation, 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, costs, reasonable expenses 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, the violation of, noncompliance with or
liability under, any Environmental, Health or Safety Requirements of Law
applicable to the operations of the Borrower or any of its Subsidiaries or any
of the Properties 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 Loan
Commitments, the Credit 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.
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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 Co-Agents 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 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 Sections 5.2(f) and 5.3 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 Sections
5.2(f) and 5.3 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
83
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. 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 such Sections 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 Co-Agents (or either of them) 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 Co-Agents (or
either of them) or the 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) waiver of any of the conditions specified in Sections 6.1
and 6.2 (except with respect to a condition based upon another provision of
this Agreement, the waiver of which requires the concurrence of only the
Requisite Lenders),
(ii) increase in the amount of such Lender's Loan Obligations,
(iii) 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
(iv) postponement or extension of any date (other than the
Maturity 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
84
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 Maturity Date,
(ii) 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,
(iii) amendment of Section 15.6 or this Section 15.7,
(iv) assignment of any right or interest in or under this
Agreement or any of the other Loan Documents by the Borrower,
(v) any release of any guarantor of the Obligations prior to
the satisfaction in full of the Obligations, and
(vi) waiver of any Event of Default described in Section
11.1(a).
(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 such 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 or the Syndication Agent as
Syndication Agent under this Agreement and the other Loan Documents, unless made
in writing and signed by the applicable Co-Agent in addition to the Lenders
required above to take such action.
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 either of
the Co-Agents pursuant to Articles II, IV or XII shall not be effective until
received by such Co-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 pursuant to Section 3.2, 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
85
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 shall not be limited in any way by the
passage of time or occurrence of any event (other than as set forth in Section
6.2) and shall expressly cover time periods when either Co-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 after the earlier of (a) two years after the Maturity
Date or (b) payment in full of the Obligations.
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 Co-Agents 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 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. None of the Co-Agents or any
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
Co-Agents (or either of them) 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 AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED, IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
15.15. Limitation of Liability. No claim may be made by any Lender,
the Administrative Agent, the Syndication Agent or any other Person against any
Lender (acting in any capacity hereunder) or the Affiliates, directors,
officers, employees, attorneys or agents of
86
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 each Co-Agent
hereby waives, releases and agrees not to xxx 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, either Co-Agent
or any other Person against any directors, officers or trustees of the Borrower.
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.
15.17. Submission to Jurisdiction. Jurisdiction; Service of Process.
The Borrower hereby irrevocably and unconditionally :
(i) submits for itself and its Property in any legal action
or proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the courts of
the State of New York, the courts of the United States for the Southern
District of New York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any such
court or that such action or proceeding was brought in an inconvenient
court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth in Section 15.8 or at
such other address of which the Administrative Agent shall have been
notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction.
(b) Waiver of Jury Trial. EACH OF THE CO-AGENTS, THE LENDERS AND
THE BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AND FOR ANY COUNTERCLAIM THEREIN.
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 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
87
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 Co-Agents 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.
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, 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.
15.21. Disclaimers. The Co-Agents and the 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, including any TI Work. The Co-
Agents and the 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 Co-
Agents or the Lenders for any purposes and none of the Lenders nor the Co-Agents
shall be deemed partners or joint venturers with Borrower or any of its
Affiliates as a result of the consummation of the
88
transactions contemplated by this Agreement. None of the Co-Agents or the
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
Co-Agents or the Lenders and the Borrower agrees to hold the Co-Agents and the
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 Co-Agents or any
Lender deal directly with or make any payments directly to such a contractor or
provider of services.
15.22. [Intentionally Omitted].
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. No Third Party Beneficiaries. Nothing in this Agreement or
any other Loan Document, whether express or implied, is intended to confer any
rights or remedies under or by reason of this Agreement or such other Loan
Documents on any third person nor is anything herein or therein intended to
relieve or discharge the obligation or liability of any third person or give any
third person any right of subrogation or action over or against any party
hereto.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, this Agreement has been duly executed as of the date
first above written.
BORROWER:
---------
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:__________________________________
Name: Xxxxxxx Xxxxxxxx
Title: Executive Vice President
GGP LIMITED PARTNERSHIP, a Delaware
limited partnership
By: GENERAL GROWTH PROPERTIES, INC.,
a Delaware corporation, its sole
general partner
By:__________________________________
Name: Xxxxxxx Xxxxxxxx
Title: Executive Vice President
Notice Address for Borrower:
----------------------------
c/o General Growth Properties, Inc.
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
Telecopy: (000) 000-0000
with a copy to:
Xxxx, Gerber & Xxxxxxxxx
Two North LaSalle Street, Suite 2200
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxxxxxx
Telecopy: (000) 000-0000
Pro Rata Share: 50% BANKERS TRUST COMPANY, as
Administrative Agent and Lender
By:_________________________________
Name:
Title:
Notice Address:
---------------
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxx
Telecopy: (000) 000-0000
Pro Rata Share: 50% XXXXXX COMMERCIAL PAPER INC., as
Syndication Agent and Lender
By:_________________________________
Name:
Title:
Notice Address:
---------------
3 World Financial Center
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxxx Xxxxxxx
Xxxxx 0000, Xxxxxxx Two Tower
000 Xxxxxxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxxx Xxxxxxxx Xxxx
Telecopy: (000) 000-0000
