Exhibit 10(bb)
REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT 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, BANK OF AMERICA, N.A., a national banking
association ("Bank of America"), as a Lender and as administrative agent
("Administration Agent") for the Lenders, U.S. BANK NATIONAL ASSOCIATION, a
national banking association ("USB"), as a Lender and as the syndication agent
("Syndication Agent") for the Lenders, and DRESDNER BANK AG, New York and Grand
Cayman Branches ("Dresdner"), as a Lender and as the documentation agent
("Documentation Agent") for the Lenders (the Administrative Agent, the
Documentation Agent and the Syndication Agent being referred to herein
collectively as the "Co-Arrangers").
The parties hereto agree as follows:
ARTICLE I - DEFINITIONS
1.1 Certain Defined Terms. The following terms used in this Agreement
shall have the following meanings, applicable both to the singular and the
plural forms of the terms defined:
"Addendum" is defined in Section 3.3 hereof.
"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 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
for such partial quarter. Adjusted EBITDA shall be determined by reference to
the Borrower's statement of operations for the applicable period.
Notwithstanding anything to the contrary contained herein, (1) Adjusted EBITDA
shall not include any revenues generated by or allocable to any Property to the
extent that the Investment in such Property constitutes an Event of Default or
Potential Event of Default under Section 10.11 hereof; (2) Adjusted EBITDA shall
not include any revenues generated by or allocable to any Real Estate Under
Construction with respect to which the Borrower elects to include Construction
Asset Cost in Capitalization Value; provided, however, that such revenues may be
included to the extent that (A) the construction in question constitutes
renovation or expansion of a Property that is otherwise completed, open for
business and operational, (B) the construction in question will not materially
interrupt, limit or impair such ongoing business and operations, and (C) the
inclusion of both such revenues in Adjusted EBITDA and such Construction Asset
Cost in Capitalization Value is not duplicative; and (3) the Building located at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ is not a Property for the purposes of
this definition.
"Administrative Agent" is defined in the preamble and includes Bank of
America 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.
"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, the
Facility Fee Percentage and the financial ratios described in Section 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 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 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 G hereto. The Building located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ is not 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 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.
2
Applicable Margin (% per annum)
-------------------------------
Eurodollar Base
Leverage Ratio Rate Loans Rate Loans
-------------- ---------- ----------
less than 45% 1.00% 0.00%
45% to less than 50% 1.25% 0.00%
50% to less than 55% 1.40% 0.00%
55% to less than 60% 1.65% 0.00%
60% or greater 1.90% 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
Administrative Agent.
"Bank of America" is defined in the preamble to this Agreement.
"Base Eurodollar Rate" means, with respect to any Eurodollar Interest
Period applicable to a Borrowing of Eurodollar Rate Loans, an interest rate per
annum displayed on the Rate Page for the purpose of displaying interest rates at
which U.S. Dollar deposits are offered by major banks in the London interbank
market as of 11:00 a.m., London time, on the applicable Eurodollar Interest Rate
Determination Date, for deposits in Dollars, in immediately available funds, in
an amount comparable to the amount of the applicable Eurodollar Rate Loan on
such date, and for a duration comparable to the applicable Eurodollar Interest
Period; provided, however, that if such rate does not appear on the Rate Page,
the "Base Eurodollar Rate" applicable to a particular Eurodollar Interest Period
shall mean a rate per annum equal to the rate at which U.S. Dollar deposits in
an amount approximately equal to the principal balance (or the portion thereof
which will bear interest at a rate determined by reference to the Base
Eurodollar Rate during the Interest Period to which such Base Eurodollar Rate is
applicable in accordance with the provisions hereof), and with maturities
comparable to the last day of the Eurodollar Interest Period with respect to
which such Base Eurodollar Rate is applicable, are offered in immediately
available funds in the London Interbank Market to the London office of Bank of
America 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:
3
(i) the rate of interest announced publicly by Bank of America, from
time to time, as Bank of America'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
Administrative Agent or as permitted under Section 10.8.
"Borrower Partnership Agreement" means the Second Amended and Restated
Agreement of Limited Partnership of the Partnership dated April 1, 1998, as
amended by First Amendment dated as of June 10, 1998 and Second Amendment dated
as of June 29, 1998, and as supplemented by joinders of certain third parties as
limited partners in the Partnership, as such agreement may be amended, restated,
modified or supplemented from time to time with the consent of the
Administrative Agent or as permitted under Section 10.8.
"Borrowing" means a borrowing 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 Chicago, Illinois,
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 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
4
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 leasable area in Real Property, 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%, and (ii) Cash and Cash Equivalents, and
(iii) Inactive Assets, other than Construction Assets, at the lesser of cost or
fair market value; and (iv) Construction Asset Cost; provided, however, that
Capitalization Value shall include Inactive Assets and Construction Asset Cost
only to the extent that Inactive Assets and Construction Asset Cost do not
exceed, in the aggregate, eight percent (8%) of Capitalization Value; and
provided further that 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; and provided further that Capitalization Value shall not include any
Inactive Asset or Construction Asset Cost incurred with respect to any
Construction Asset to the extent the incurrence of such Construction Asset Cost
or the Investment in such Inactive Asset or Construction Asset constitutes an
Event of Default or Potential Event of Default under Section 10.11 hereof; and
provided further that Capitalization Value shall not include Construction Asset
Cost as to any Real Estate Under Construction with respect to which the Borrower
elects to include revenues in Adjusted EBITDA; provided, however, that such
Construction Asset Cost may be included to the extent that (A) the construction
in question constitutes renovation or expansion of a Property that is otherwise
completed, open for business and operational, (B) the construction in question
will not materially interrupt, limit or impair such ongoing business and
operations, and (C) the inclusion of both such revenues in Adjusted EBITDA and
such Construction Asset Cost in Capitalization Value is not duplicative.
"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.
5
"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
▇▇▇▇▇'▇; 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. (S)(S) 9601 et seq., any amendments thereto,
any successor statutes, and any regulations or guidance having the force of law
promulgated thereunder.
"Change of Control" means that (i) more than two of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇▇, or any
replacement for any of the foregoing Persons approved by the Requisite Lenders
pursuant to clause (ii) below, cease to be senior officers of GGP, Inc., and
(ii) if the circumstances described in clause (i) shall occur, the senior
management positions of the foregoing Persons who cease to be senior officers as
aforesaid are not filled within 180 days after the vacancy in such positions
arise with replacements approved by the Requisite Lenders.
"Claim" means any claim or demand, by any Person, of whatsoever kind or
nature for any alleged Liabilities and Costs, whether based in contract, tort,
implied or express warranty, strict liability, criminal or civil statute,
Permit, ordinance or regulation, common law or otherwise.
"Closing Date" means July 31, 2000.
"Co-Arrangers" 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 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
6
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
(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).
"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 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
7
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 ▇▇▇▇▇'▇ or S&P or has creditworthiness otherwise
reasonably acceptable to the Administrative Agent, and (ii) in the case of a
guaranty (whether or not joint and several) of an obligation otherwise
constituting Indebtedness of such Person, the amount of such guaranty shall be
deemed to be only that amount in excess of the amount of the obligation
constituting Indebtedness of such Person. Notwithstanding anything contained
herein to the contrary, "Contingent Obligations" shall not be deemed to include
guarantees of loan commitments or of construction loans to the extent the same
have not been drawn.
"Contractual Obligation" means, as applied to any Person, any provision of
any Securities issued by that Person or any Organizational Document, indenture,
mortgage, deed of trust, security agreement, pledge agreement, guaranty,
contract, undertaking, agreement or instrument to which that Person is a party
or by which it or any of its properties is bound, or to which it or any of its
properties is subject.
"Credit Rating" means the publicly announced rating of a Person given by
▇▇▇▇▇'▇ or S&P.
"Cure Loans" is defined in Section 4.2(b)(v)(C).
8
"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 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
worker's compensation, unemployment insurance or other types of social
security benefits or to secure the performance of bids, tenders, sales,
contracts (other than for the repayment of borrowed money), surety, appeal
and performance bonds; provided that (A) all such Liens do not in the
aggregate materially detract from the value of the Borrower's (if such
Liens are against Property of 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
$5,000,000 with respect to the Borrower and its Subsidiaries; and
(d) Liens against any Property of the Borrower or any Subsidiary of
the Borrower arising with respect to zoning restrictions, easements,
operating agreements, licenses, reservations, covenants, rights-of-way,
utility easements, building restrictions and other similar charges or
encumbrances on the use of Real Property which do not interfere with the
ordinary conduct of the business of the Borrower or any of its Subsidiaries
or materially affect the value thereof or, taken together, to the extent
they would not be likely to result in a Material Adverse Effect.
"Documentation Agent" is defined in the preamble to this Agreement and
includes Dresdner in its capacity as documentation agent for the Lenders and
each successor documentation agent appointed in accordance with the terms of
this Agreement.
"DOL" means the United States Department of Labor and any Person succeeding
to the functions thereof.
"Dollars" and "$" mean the lawful money of the United States.
9
"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 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.
"Dresdner" is defined in the preamble to this Agreement.
"Eligible Assignee" means (i) a Lender or any Affiliate thereof; (ii) a
commercial bank having total assets in excess of $5,000,000,000; (iii) the
central bank of any country which is a member of the Organization for Economic
Cooperation and Development; or (iv) a finance company or other financial
institution reasonably acceptable to the Administrative Agent, which is
regularly engaged in making, purchasing or investing in loans and having total
assets in excess of $500,000,000 or is otherwise acceptable to the
Administrative Agent and in each case (other than (i) above) 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,
ordinance, rule, regulation, Permit, license or other binding determination of
any Governmental Authority relating to, imposing liability or standards
concerning, or otherwise addressing the environment, health and/or safety,
including, but not limited to the Clean Air Act, the Clean Water Act, CERCLA,
RCRA, any so-called "Superfund" or "Superlien" law, the Toxic Substances Control
Act and OSHA, and public health codes, each as from time to time in effect, in
each case as applicable to the Borrower or its Property.
"Environmental Lien" means a Lien in favor of any Governmental Authority
for any (i) liabilities under any Environmental, Health or Safety Requirement of
Law, or (ii) damages arising from, or costs incurred by such Governmental
Authority in response to, a Release or threatened Release of a Contaminant into
the environment.
"Environmental Property Transfer Act" means any applicable Requirement of
Law that conditions, restricts, prohibits or requires any notification or
disclosure triggered by the transfer, sale, lease or closure of any Property or
deed or title for any Property for environmental reasons, including, but not
limited to, any so-called "Environmental Cleanup Responsibility Act" or
"Responsible Property Transfer Act".
"Equipment" means equipment which is personal property used in connection
with the maintenance of any Property.
"ERISA" means the Employee Retirement Income Security Act of 1974, 29
U.S.C. (S)(S) 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
10
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 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; or (vi) the partial or complete
withdrawal of the Borrower or any ERISA Affiliate from a Multiemployer Plan.
"Eurodollar Affiliate" means, with respect to each Lender, the Affiliate of
such Lender (if any) set forth below such Lender's name under the heading
"Eurodollar Affiliate" on the signature pages hereof or on the Assignment and
Acceptance or Joinder Agreement by which it became a Lender or such Affiliate of
a Lender as it may from time to time specify by written notice to the Borrower
and the Administrative Agent.
"Eurodollar Interest Period" is defined in Section 5.2(b).
"Eurodollar Interest Rate Determination Date" is defined in Section 5.2(c).
"Eurodollar Lending Office" means, with respect to any Lender, such
Lender's office (if any) specified as the "Eurodollar Lending Office" under its
name on the signature pages hereof or on the Assignment and Acceptance or
Joinder Agreement by which it became a Lender or such other office or offices of
such Lender as it may from time to time specify by written notice to the
Borrower and the Administrative Agent.
"Eurodollar Rate" means, with respect to any Eurodollar Interest Period
applicable to a Eurodollar Rate Loan, an interest rate per annum obtained by
dividing (i) the Base Eurodollar Rate applicable to that Eurodollar Interest
Period by (ii) a percentage, calculated for each Lender in respect of the Loans
made by it, equal to 100% minus the Eurodollar Reserve Percentage in effect as
to such Lender, if any, on the relevant Eurodollar Interest Rate Determination
Date.
"Eurodollar Rate Loan" means (i) a Loan which bears interest at a rate
determined by reference to the Eurodollar Rate and the Applicable Margin for
Eurodollar Rate Loans, as provided in Section 5.1(a) or (ii) an overdue amount
which was a Eurodollar Rate Loan immediately before it became due.
11
"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
cost, 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 applied to acquire Property, other than Real Property, in replacement
of Property, other than Real Property, so sold.
"Facility Fee" is defined in Section 5.3(a).
"Facility Fee Percentage" means the applicable percentage per annum
determined, at any time, based on the range into which the Leverage Ratio then
falls, in accordance with the following table. Any change in the Facility Fee
Percentage shall be effective as of the applicable financial reporting date set
forth in Section 8.2 hereof (exclusive of Section 8.2(b)(iv) hereof) and as of
the date of the consummation and funding of each Capital Event.
Facility Fee
Percentage
Leverage Ratio (% per annum)
-------------- -------------
less than 45% 0.10%
45% to less than 50% 0.15%
50% to less than 55% 0.20%
55% to less than 60% 0.25%
60% or greater 0.30%
12
"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 Chicago, Illinois, for the next preceding Business
Day) in Chicago, Illinois by the Federal Reserve Bank of Chicago, or if such
rate is not so published for any day which is a Business Day in Chicago,
Illinois, 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 Administrative Agent or the Requisite Lenders may from
time to time reasonably specify; provided, however, that the Financial
Statements referenced in clauses (i) and (ii) above shall be prepared in form
satisfactory to the Administrative Agent.
"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 the Consolidated Businesses and GGP, Inc. 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 accounting profession as in
13
effect on the Closing Date (unless otherwise specified herein as in effect on
another date or dates).
"GGP, Inc." means General Growth Properties, Inc., a Delaware corporation.
"Governmental Approval" means 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, dated as of even date herewith,
made by GGP, Inc. in favor of the Administrative Agent, as agent for the
Lenders, guaranteeing the payment and performance of the Obligations of the
Borrower hereunder.
"Holder" means any Person entitled to enforce any of the Obligations,
whether or not such Person holds any evidence of Indebtedness, including,
without limitation, the Administrative Agent and each other Lender.
"Homart Portfolio" means the portfolio of Properties commonly described by
the Borrower as GGP/Homart and GGP/Homart II, and their respective 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 (i) through (iv) of Section 10.11(d) 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 Leases, (vi) which are Contingent
Obligations, (vii) under warranties and
14
indemnities or (viii) for the payment of taxes, levies, or other obligations
which are then past due and payable to any Governmental Authority; (b) all
indebtedness, obligations or other liabilities of such Person or others secured
by a Lien on any property of such Person, whether or not such indebtedness,
obligations or liabilities are assumed by such Person, all as of such time; (c)
all indebtedness, obligations or other liabilities of such Person in respect of
interest rate contracts and foreign exchange contracts, net of liabilities owed
to such Person by the counterparties thereon; (d) all preferred stock and other
Securities subject (upon the occurrence of any contingency or otherwise) to
mandatory redemption by such Person; (e) all indebtedness, obligations or other
liabilities of such person in respect of forward equity sales and similar
purchase obligations, and (f) all contingent Contractual Obligations with
respect to any of the foregoing.
"Indemnified Matters" is defined in Section 15.3.
"Indemnitees" is defined in Section 15.3.
"Initial Funding Date" means the date on or after the Closing Date, on
which all of the conditions described in Section 6.1 have been satisfied (or
waived) in a manner satisfactory to the Administrative Agent and the Lenders and
on which the initial Loans under this Agreement are made by the Lenders to the
Borrower.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
to the date hereof and from time to time hereafter, any successor statute and
any regulations or guidance having the force of law promulgated thereunder.
"Investment" means, with respect to any Person, (i) any purchase or other
acquisition by that Person of any Property, including, without limitation,
Securities, or of a beneficial interest in Securities, issued by any other
Person, (ii) any purchase by that Person of all or substantially all of the
assets of a business conducted by another Person, and (iii) any loan, advance
(other than deposits with financial institutions available for withdrawal on
demand, prepaid expenses, accounts receivable, advances to employees and similar
items made or incurred in the ordinary course of business) or capital
contribution by that Person to any other Person, including all Indebtedness to
such Person arising from a sale of property by such Person other than in the
ordinary course of its business. The amount of any Investment shall be the
original cost of such Investment, plus the cost of all additions thereto less
the amount of any return of capital or principal to the extent such return is in
cash with respect to such Investment without any adjustments for increases or
decreases in value or write-ups, write-downs or write-offs with respect to such
Investment.
"Investment Grade" means (i) with respect to ▇▇▇▇▇'▇ 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.
15
"Ivanhoe Portfolio" means the portfolio of Properties commonly described by
the Borrower as GGP/Ivanhoe, GGP/Ivanhoe II and GGP/Ivanhoe III, and their
respective Subsidiaries and Investments.
"Joinder Agreement" is defined in Section 3.2 hereof.
"knowledge" with reference to any Person or any Subsidiary of such Person,
means the actual knowledge of an officer of such Person after reasonable inquiry
(which reasonable inquiry shall include, without limitation, interviewing and
questioning such other Persons as such Person or such Subsidiary, as applicable,
deems reasonably necessary).
"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.
"Lender" means each of the Co-Arrangers and, at any other given time, 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, and regardless of the capacity in which such entity is acting
(i.e. whether as a Co-Arranger or Lender).
"Lender Process Agent" is defined in Section 15.17(a).
"Leverage Ratio" means the ratio, expressed as a percentage, of the Total
Adjusted Outstanding Indebtedness to the Capitalization Value.
"Liabilities and Costs" means all liabilities, obligations,
responsibilities, losses, damages, personal injury, death, punitive damages,
economic damages, consequential damages, treble damages, intentional, willful or
wanton injury, damage or threat to the environment, natural resources or public
health or welfare, costs and expenses (including, without limitation, attorney,
expert and consulting fees and costs of investigation, feasibility or Remedial
Action studies), fines, penalties and monetary sanctions, interest, direct or
indirect, known or unknown, absolute or contingent, past, present or future.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, conditional sale agreement, deposit arrangement, security interest,
encumbrance, lien (statutory or other and including, without limitation, any
Environmental Lien), preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever in respect of any
property of a Person, whether granted voluntarily or imposed by law, and
includes the interest of a lessor under a Capital Lease or under any financing
lease having substantially the same economic effect as any of the foregoing and
the filing of any financing statement or similar notice (other than a financing
statement filed by a "true" lessor pursuant to (S) 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
16
managing member of such Minority Holding, or otherwise or (iii) the Borrower or
GGP, Inc. does not control decisions with respect to the financing or sale or
other disposition of the assets thereof. As used in this definition only, the
term "control" shall mean the authority to make major management decisions or
the management of day-to-day operations of such entity and shall include
instances in which the Management Company manages the day-to-day leasing,
management, control or development of the Properties of such Minority Holding
pursuant to the terms of a management agreement.
"Loan Account" is defined in Section 4.3(b).
"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" means a loan made by a Lender pursuant to Section 2.1; provided,
that if any such loan or loans (or portions thereof) are combined or subdivided
pursuant to a Notice of Conversion/Continuation under Section 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-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 value of such Property or asset (which value shall be the Capitalization
Value attributable thereto).
"Management Company" means General Growth Management, Inc., a Delaware
corporation and its Subsidiaries, and any of its successors and assigns that are
Affiliates of GGP, Inc.
"Margin Stock" means "margin stock" as such term is defined in Regulation U
and Regulation G.
"Material Adverse Effect" means a material adverse effect upon (i) the
financial condition or assets of the Borrower and its Subsidiaries taken as a
whole, (ii) the ability of the Borrower to perform its obligations under the
Loan Documents, or (iii) the ability of the Lenders or the Administrative Agent
to enforce any of the Loan Documents.
"Maximum Revolving Credit Amount" means, at any particular time, the
Revolving Credit Commitments at such time, which shall not exceed the Maximum
Aggregate Commitment Amount.
"Maximum Aggregate Commitment Amount" means $135,000,000, subject to
increase in accordance with Article III hereof.
17
"Minority Holdings" means partnerships, joint ventures, trusts, limited
liability companies and corporations held or owned by the Borrower, GGP, Inc. or
the Management Company, which are not wholly-owned by the Borrower, GGP, Inc. or
the Management Company.
"Moody's" means ▇▇▇▇▇'▇ Investor Services, Inc.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
3(37) of ERISA which is, or within the immediately preceding six (6) years was,
contributed to by either the Borrower or any ERISA Affiliate or in respect of
which the Borrower or any ERISA Affiliate has assumed any liability.
"Non Pro Rata Loan" is defined in Section 4.2 (b)(v).
"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, any Joinder Agreement pursuant to Section
3.2 and any Addendum hereto pursuant to Section 3.3, which is in form and
substance acceptable to the Administrative Agent and the parties to such
Assignment and Acceptance, Joinder Agreement or Addendum, 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 Borrowing" means a notice substantially in the form of Exhibit C
attached hereto and made a part hereof.
"Notice of Conversion/Continuation" means a notice substantially in the
form of Exhibit D attached hereto and made a part hereof with respect to a
proposed conversion or continuation of a Loan pursuant to Section 5.1(c).
"Obligations" means all Loans, advances, debts, liabilities, obligations,
covenants and duties owing by the Borrower to the Administrative Agent, any
other Lender, any Affiliate of the Administrative Agent, any other Lender, or
any Person entitled to indemnification pursuant to Section 15.3 of this
Agreement, of any kind or nature, arising under this Agreement, the Notes or any
other Loan Document. The term includes, without limitation, all interest,
charges, expenses, fees, reasonable attorneys' fees and disbursements and any
other sum chargeable to the Borrower under this Agreement or any other Loan
Document.
"Officer's Certificate" means, as to a corporation, a certificate executed
on behalf of such corporation by the chairman of its board of directors (if an
officer of such corporation) or its chief executive officer, president, any of
its vice-presidents, its chief financial officer, or its treasurer and, as to a
partnership, a certificate executed on behalf of such partnership by the
18
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.
"Organizational Documents" means, with respect to any corporation, limited
liability company, trust or partnership (i) the articles/certificate of
incorporation, formation or limited partnership (or the equivalent
organizational documents) of such corporation or limited liability company,
trust or limited partnership, (ii) the partnership agreement, operating
agreement or trust agreement executed by the partners in the partnership, the
members in the limited liability company or governing the trust, (iii) the
bylaws (or the equivalent governing documents) of the corporation, limited
liability company, trust or partnership, and (iv) any document setting forth the
designation, amount and/or relative rights, limitations and preferences of any
class or series of such corporation's Capital Stock or such limited liability
company's, partnership's or trust's equity, ownership or beneficial interests.
"OSHA" means the Occupational Safety and Health Act of 1970, 29 U.S.C.
(S)(S) 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 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).
"Process Agent" is defined in Section 15.17(a).
"Property" means any Real Property or personal property, plant, building,
facility, structure, underground storage tank or unit, equipment, general
intangible, receivable, or other asset owned, leased or operated by any
Consolidated Business or any Minority Holding (including any surface water
thereon or adjacent thereto, and soil and groundwater thereunder).
19
"Pro Rata Share" means, with respect to any Lender, the percentage obtained
by dividing (i) the sum of such Lender's Revolving Credit Commitments (in each
case, as adjusted from time to time in accordance with the provisions of this
Agreement or any Assignment and Acceptance, Joinder Agreement or Addendum to
which such Lender is a party) by (ii) the aggregate amount of all of the
Lenders' Revolving Credit Commitments.
"Rate Page" means the display designated as "Page 3750" on the Associated
Press-Dow ▇▇▇▇▇ Telerate Service (or such other page as may replace Page 3750 on
the Associated Press-Dow ▇▇▇▇▇ 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
U.S. Dollar deposits).
"RCRA" means the Resource Conservation and Recovery Act of 1976, 42 U.S.C.
(S)(S) 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 Borrower's
present and future right, title and interest (including, without limitation, any
leasehold estate) in (i) any plots, pieces or parcels of land, (ii) any
Improvements of every nature whatsoever (the rights and interests described in
clauses (i) and (ii) above being the "Premises"), (iii) all easements, rights of
way, gores of land or any lands occupied by streets, ways, alleys, passages,
sewer rights, water courses, water rights and powers, and public places
adjoining such land, and any other interests in property constituting
appurtenances to the Premises, or which hereafter shall in any way belong,
relate or be appurtenant thereto, (iv) all hereditaments, gas, oil, minerals
(with the right to extract, sever and remove such gas, oil and minerals), and
easements, of every nature whatsoever, located in, on or benefiting the Premises
and (v) all other rights and privileges thereunto belonging or appertaining and
all extensions, additions, improvements, betterments, renewals, substitutions
and replacements to or of any of the rights and interests described in clauses
(iii) and (iv) above.
"Recourse Indebtedness" means any Indebtedness, to the extent that recourse
of the applicable lender for non-payment is not limited to such lender's Liens
on a particular asset or group of assets (except to the extent the property on
which such lender has a Lien and to which its recourse for non-payment is
limited constitutes Cash or Cash Equivalents, to which extent such Indebtedness
shall be deemed to be Recourse Indebtedness).
"Reference Bank" means Bank of America.
"Register" is defined in Section 15.1(c).
20
"Regulation A" means Regulation A of the Federal Reserve Board as in effect
from time to time.
"Regulation G" means Regulation G 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 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
G, 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.
21
"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 which are not
then Defaulting Lenders.
"Revolving Credit Availability" means, at any particular time, the amount
by which the Maximum Revolving Credit Amount at such time exceeds the Revolving
Credit Obligations at such time.
"Revolving Credit 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 "Revolving Credit Commitment" on
the signature pages hereof or the signature page of the Assignment and
Acceptance or Joinder Agreement by which it became a Lender, as modified from
time to time pursuant to the terms of this Agreement or to give effect to any
applicable Assignment and Acceptance or Addendum, and "Revolving Credit
Commitments" means the aggregate principal amount of the Revolving Credit
Commitments of all the Lenders, which shall not exceed the Maximum Aggregate
Commitment Amount, as the Revolving Credit Commitments may be reduced from time
to time pursuant to Section 4.1(b) hereof or increased from time to time in
connection with any increase in the Maximum Aggregate Commitment Amount pursuant
to Section 3.1 hereof.
"Revolving Credit Obligations" means, at any particular time, the sum of
the outstanding principal amount of the Loans at such time.
"Revolving Credit Period" means the period from the Initial Funding Date to
the Business Day next preceding the Revolving Credit Termination Date.
"Revolving Credit Termination Date" means the earlier to occur of (i) July
31, 2003 (or, if not a Business Day, the next preceding Business Day); and (ii)
the date of termination of the Revolving Credit Commitments pursuant to the
terms of this Agreement.
"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.
22
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"Solvent", when used with respect to any Person, means that at the time of
determination:
(a) the fair saleable value of its assets is in excess of the total
amount of its liabilities (including, without limitation, contingent
liabilities); and
(b) the present fair saleable value of its assets is greater than its
probable liability on its existing debts as such debts become absolute and
matured; and
(c) it is then able and expects to be able to pay its debts
(including, without limitation, contingent debts and other commitments) as
they mature; and
(d) it has capital sufficient to carry on its business as conducted
and as proposed to be conducted.
"Subsidiary" of a Person means 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 USB 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 letters of credit
issued to support guaranties of interest or
23
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 1.0% of Capitalization Value.
"Total Adjusted Outstanding Unsecured Indebtedness" means that portion of
Total Adjusted Outstanding Indebtedness that is Unsecured Indebtedness.
"USB" is defined in the preamble to this Agreement.
"Uniform Commercial Code" means the Uniform Commercial Code as enacted in
the State of Illinois, as it may be amended from time to time.
"Unsecured Indebtedness" means Indebtedness that is not secured by any
Lien.
1.2 Computation of Time Periods. In this Agreement, in the computation
of periods of time from a specified date to a later specified date, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding". Periods of days referred to in this Agreement shall be counted
in calendar days unless Business Days are expressly prescribed. Any period
determined hereunder by reference to a month or months or year or years shall
end on the day in the relevant calendar month in the relevant year, if
applicable, immediately preceding the date numerically corresponding to the
first day of such period, provided, that if such period commences on the last
day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month during which such period is to end),
such period shall, unless otherwise expressly required by the other provisions
of this Agreement, end on the last day of the calendar month.
1.3 Accounting Terms. Subject to Section 15.4, for purposes of this
Agreement, all accounting terms not otherwise defined herein shall have the
meanings assigned to them in conformity with GAAP.
1.4 Other Terms. All other terms contained in this Agreement shall,
unless the context indicates otherwise, have the meanings assigned to such terms
by the Uniform Commercial Code to the extent the same are defined therein.
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
revolving loans, in Dollars (each individually, a "Loan" and, collectively, the
"Loans") to the Borrower from time to time during the Revolving Credit Period,
in an amount not to exceed such Lender's Pro Rata Share of the Revolving Credit
Availability at such time. All Loans comprising the same Borrowing under this
Agreement shall be made by the Lenders simultaneously and proportionately to
their then respective Pro Rata Shares, it being understood that no Lender shall
be responsible for any failure by any other Lender to perform its obligation to
make a Loan hereunder nor shall the Revolving Credit Commitment of any Lender be
increased or decreased
24
as a result of any such failure. Subject to the provisions of this Agreement,
the Borrower may repay any outstanding Loan on any day which is a Business Day
and any amounts so repaid may be reborrowed, up to the amount available under
this Section 2.1(a) at the time of such Borrowing, until the Business Day next
preceding the Revolving Credit Termination Date. Each requested Borrowing of
Loans funded on any Funding Date shall be in a principal amount of at least
$2,000,000 and (i) in integral multiples of $1,000,000 in excess of that amount,
in the case of any Borrowing of Eurodollar Rate Loans, and (ii) in integral
multiples of $500,000 in excess of that amount, in the case of any Borrowing of
Base Rate Loans; provided, however, that if the aggregate Revolving Credit
Commitments outstanding at the time of such requested Borrowing is less than
$2,000,000, then the requested Borrowing shall be for the total amount of such
outstanding aggregate Revolving Credit Commitments.
(b) Notice of Borrowing. When the Borrower desires to borrow under
this Section 2.1, it shall deliver to the Administrative Agent a Notice of
Borrowing, signed by it (i) no later than 11:00 a.m. (Chicago 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 11:00 a.m. (Chicago time) at
least three (3) Business Days in advance of the proposed Funding Date, in the
case of a Borrowing of Eurodollar Rate Loans; provided, however, that no
Borrowing may be made within less than five (5) Business Days after any given
Borrowing. 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) the Revolving Credit Availability as of the date of such Notice of
Borrowing, (iv) whether the proposed Borrowing will be of Base Rate Loans or
Eurodollar Rate Loans, (v) in the case of Eurodollar Rate Loans, the requested
Eurodollar Interest Period and (vi) instructions for the disbursement of the
proceeds of the proposed Borrowing. In lieu of delivering such a Notice of
Borrowing (except with respect to a Borrowing of Loans on the Initial Funding
Date), the Borrower may give the Administrative Agent telephonic notice of any
proposed Borrowing by the time required under this Section 2.1(b), if the
Borrower confirms such notice by delivery of the Notice of Borrowing to the
Administrative Agent by facsimile transmission promptly, but in no event later
than 12:00 noon (Chicago time) on the same day. Any Notice of Borrowing (or
telephonic notice in lieu thereof) given pursuant to this Section 2.1(b) shall
be irrevocable.
(c) Making of Loans.
(i) Promptly after receipt of a Notice of Borrowing under
Section 2.1(b) (or telephonic notice in lieu thereof), the Administrative Agent
shall notify each Lender by facsimile transmission, or other similar form of
transmission, of the proposed Borrowing (which notice to the Lenders, in the
case of a Borrowing of Eurodollar Rate Loans, shall be at least three (3)
Business Days in advance of the proposed Funding Date for such Loans). Each
Lender shall deposit an amount equal to its Pro Rata Share of the Borrowing
requested by the Borrower with the Administrative Agent at its office in
Chicago, Illinois in immediately available funds, not later than 11:00 a.m.
(Chicago time) on the respective Funding Date therefor. 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
Chicago, Illinois on such Funding Date (or on the date received if later than
such Funding Date) and shall disburse such proceeds in accordance
25
with the Borrower's disbursement instructions set forth in the applicable Notice
of Borrowing. The failure of any Lender to deposit the amount described above
with the Administrative Agent on the applicable Funding Date shall not relieve
any other Lender of its obligations hereunder to make its Loan on such Funding
Date. In the event the conditions precedent set forth in Section 6.1 or Section
6.2, as applicable, are not fulfilled as of the proposed Funding Date for any
Borrowing, the Administrative Agent shall promptly return to each Lender, by
wire transfer of immediately available funds, the amount deposited by such
Lender.
(ii) Unless the Administrative Agent shall have been notified by
any Lender on the Business Day immediately preceding the applicable Funding Date
in respect of any Borrowing that such Lender does not intend to fund its Loan
requested to be funded on such Funding Date, the Administrative Agent may assume
that such Lender has funded its Loan and is depositing the proceeds thereof with
the Administrative Agent on such Funding Date, and the Administrative Agent in
its sole discretion may, but shall not be obligated to, disburse a corresponding
amount to the Borrower on such Funding Date. If the Loan proceeds corresponding
to that amount are advanced to the Borrower by the Administrative Agent but are
not in fact deposited with the Administrative Agent by such Lender on or prior
to such Funding Date, such Lender agrees to pay, and in addition the Borrower
agrees to repay, to the Administrative Agent forthwith on demand such
corresponding amount of such advance by the Administrative Agent, together with
interest thereon, for each day from the date such amount is disbursed to or for
the benefit of the Borrower until the date such amount is paid or repaid to the
Administrative Agent, at the interest rate applicable to such Borrowing. If such
Lender shall pay to the Administrative Agent the corresponding amount of such
advance by the Administrative Agent, the amount so paid shall constitute such
Lender's Loan, and if both such Lender and the Borrower shall pay and repay such
corresponding amount, the Administrative Agent shall promptly pay to the
Borrower such corresponding amount of such advance by the Administrative Agent.
This Section 2.1(c)(ii) does not relieve any Lender of its obligation to make
its Loan on any applicable Funding Date.
(d) [Intentionally Omitted]
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) acquisition of Real Properties, directly or through a Subsidiary
or Minority Holding, by the Borrower;
(b) development of Real Properties owned, directly or indirectly, and
operated by the Borrower; and
(c) other general and working capital needs of the Borrower,
inclusive of repayment of Indebtedness for borrowed money;
26
each of which purposes described in clauses (a) through (c) above shall be
lawful working capital purposes of the Borrower.
2.4 Revolving Credit Termination Date. The Revolving Credit Commitments
shall terminate, and all outstanding Revolving Credit Obligations shall be paid
in full, on the Revolving Credit Termination Date. Each Lender's obligation to
make Loans shall terminate on the Business Day next preceding the Revolving
Credit Termination Date.
2.5 [Intentionally Omitted]
2.6 Maximum Credit Facility. Notwithstanding anything in this Agreement
to the contrary, in no event shall the aggregate Revolving Credit Obligations
exceed the Maximum Aggregate Commitment Amount.
2.7 Authorized Agents. On the Closing Date and from time to time
thereafter, the Borrower shall deliver to the Administrative Agent an Officer's
Certificate setting forth the names of the employees and agents authorized to
request Loans and to request a conversion/continuation of any Loan and
containing a specimen signature of each such employee or agent. The employees
and agents so authorized shall also be authorized to act for the Borrower in
respect of all other matters relating to the Loan Documents. The Administrative
Agent and the Lenders shall be entitled to rely conclusively on such employee's
or agent's authority to request such Loan or such conversion/continuation until
the Administrative Agent receives written notice to the contrary. The
Administrative Agent shall have no duty to verify the authenticity of the
signature appearing on any written Notice of Borrowing or Notice of
Conversion/Continuation or any other document, and, with respect to an oral
request for any Loan or any conversion/continuation, the Administrative Agent
shall have no duty to verify the identity of any person representing himself or
herself as one of the employees or agents authorized to make such request or
otherwise to act on behalf of the Borrower. None of the Administrative Agent or
the Lenders shall incur any liability to the Borrower or any other Person in
acting upon any telephonic or facsimile notice referred to above which the
Administrative Agent or such Lender reasonably believes to have been given by a
person duly authorized to act on behalf of the Borrower and the Borrower hereby
indemnifies and holds harmless the Administrative Agent and each other Lender
from any loss or expense the Administrative Agent or the Lenders incur in acting
in good faith as provided in this Section 2.7., provided however that the
Borrower shall not indemnify or hold harmless the Administrative Agent or any
other Lender from any loss or expense incurred as the result of the
Administrative Agent's or such Lender's gross negligence or willful misconduct.
ARTICLE III - INCREASE OF THE FACILITY
3.1 Increase in Maximum Aggregate Commitment Amount. In no event shall the
Revolving Credit Commitments exceed the Maximum Aggregate Commitment Amount.
Notwithstanding anything to the contrary contained herein, in connection with
any proposed increase in the Revolving Credit Commitment(s) of any Lender(s) or
any proposed joinder of any Eligible Assignee(s) as a new Lender(s) party to
this Agreement, the Maximum Aggregate Commitment Amount may be increased (i)
with the consent of the Co-Arrangers and the
27
Borrower, to an amount not greater than $250,000,000, and (ii) with the consent
of all of the Lenders and the Borrower, to an amount in excess of $250,000,000.
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 a Revolving Credit
Commitment by such Eligible Assignee that will not cause all Revolving Credit
Commitments to exceed the Maximum Aggregate Commitment Amount, after giving
effect to such joinder and any other such joinders and any increases under
Section 3.3 hereof to occur substantially contemporaneously therewith. The
proposed joinder of any Eligible Assignee satisfying the requirements of the
preceding sentence shall be effectuated through such Eligible Assignee's
execution and delivery to the Administrative Agent, the Borrower and each Lender
of a joinder agreement ("Joinder Agreement"), in form and content reasonably
satisfactory to the Administrative Agent and the Borrower, pursuant to which
such Eligible Assignee agrees to become a Lender hereunder and under the other
Loan Documents and 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 Revolving Credit Commitment of such Eligible Assignee shall
be the amount committed by such Eligible Assignee as set forth in such Joinder
Agreement (which amount will not cause all Revolving Credit Commitments to
exceed the Maximum Aggregate Commitment Amount, after giving effect to such
joinder and any other such joinders and any increases under Section 3.3 hereof
to occur substantially contemporaneously therewith),
(c) the Borrower shall immediately pay to such Eligible Assignee such
fees as the Borrower may have agreed to pay in connection with the joinder of
such Eligible Assignee,
(d) each such Eligible Assignee shall immediately purchase from each
party hereto that was a Lender immediately prior to such effective date, and pay
to each such Lender at par, such Eligible Assignee's Pro Rata Share of each such
Lender's Loans then outstanding hereunder (including, without limitation,
interest then accrued and unpaid thereon), and
(e) 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 Revolving Credit Commitment.
3.3 Increase in Commitment of Existing Lender. In the event of any such
proposed increase in the Revolving Credit Commitment of any Lender, such
increase shall occur only as to an increase in an amount that will not cause all
Revolving Credit Commitments to exceed the Maximum Aggregate Commitment Amount,
after giving effect to such increase and any other such increases and any
joinders under Section 3.2 hereof to occur substantially contemporaneously
therewith. Any proposed increase satisfying the requirements of the preceding
sentence shall be effectuated through such Lender's execution and delivery to
the Administrative Agent, the Borrower and each Lender of an addendum to this
Agreement
28
("Addendum"), in form and content reasonably satisfactory to the Administrative
Agent and the Borrower, evidencing such increase, whereupon, effective as of the
date of such execution and delivery:
(a) the Revolving Commitment of such Lender shall be increased by the
amount set forth in such Addendum (which amount shall not cause all Revolving
Credit Commitments to exceed the Maximum Aggregate Commitment Amount, after
giving effect to such increase and any other such increases and any joinders
under Section 3.2 hereof to occur substantially contemporaneously therewith),
(b) the Borrower shall immediately pay to such Lender such fees as
the Borrower may have agreed to pay in connection with such increase,
(c) such Lender shall immediately purchase from each other Lender
that was a party hereto immediately prior to such effective date, and pay to
each such other Lender at par, a percentage of each such other Lender's Loans
then outstanding hereunder (including, without limitation, interest then accrued
and unpaid thereon), which percentage shall equal the increase in such
purchasing Lender's Pro Rata Share resulting from the increase in its Revolving
Credit Commitment, and
(d) 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 Revolving Credit Commitment, upon receipt of which such
Lender shall surrender its original Note marked "Replaced."
ARTICLE IV - PAYMENTS AND PREPAYMENTS
4.1 Prepayments; Reductions in Revolving Credit Commitments.
(a) Voluntary Prepayments. The Borrower may, at any time and from
time to time, prepay the Loans, in part or in their entirety, subject to the
following limitations. The Borrower shall give at least 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).
(b) Voluntary Reductions In Revolving Credit Commitments. The
Borrower may, upon at least five (5) days' prior written notice to the
Administrative Agent (which the Administrative Agent shall promptly transmit to
each Lender), at any time and from time to time, terminate in whole or
permanently reduce in part the Revolving Credit Commitments; provided that the
Borrower shall have made whatever payment may be required to reduce the
Revolving
29
Credit Obligations to an amount less than or equal to the Revolving Credit
Commitments as reduced or terminated, which amount shall become due and payable
on the date specified in such notice. Any partial reduction of the Revolving
Credit Commitments shall be in an aggregate minimum amount of $1,000,000, and
shall reduce the Revolving Credit Commitment of each Lender proportionately in
accordance with its Pro Rata Share. Any notice of termination or reduction given
to the Administrative Agent under this Section 4.1(b) shall specify the date
(which shall be a Business Day) of such termination or reduction and, with
respect to a partial reduction, the aggregate principal amount thereof.
(c) No Penalty. The prepayments and payments in respect of reductions
and terminations described in clauses (a) and (b) of this Section 4.1 may be
made without premium or penalty (except as provided in Section 5.2(f)).
(d) 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, excluding any such Real Properties that are Limited
Minority Holdings (the date any such event shall occur being the "Prepayment
Date"), the Revolving Credit Commitments shall be terminated and the Borrower
shall be required to prepay the Loans in their entirety as if the Prepayment
Date were the Revolving Credit Termination 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(d)(i) may not be reborrowed. As used in this Section 4.1(d)(i)
only, the phrase "sells, transfers, assigns or conveys" shall not include (i)
sales or conveyances among Borrower and any Consolidated Subsidiaries, or (ii)
mortgages secured by Real Property, or (iii) sales or conveyances of Securities
representing interests in or obligations of the Borrower or 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 of all other
rights and remedies of the Administrative Agent 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
30
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 Administrative
Agent, 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 Administrative Agent 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 11:00
a.m. (Chicago 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 11:00 a.m. (Chicago time) on any
given Business Day shall be credited against payment to be made that day and
funds received by the Administrative Agent after that time shall be deemed to
have been paid on the next succeeding Business Day. Payments actually received
by the Administrative Agent for the account of the Lenders, or any of them,
shall be paid to them in immediately available funds by the Administrative Agent
promptly after receipt thereof.
(b) Apportionment of Payments.
(i) Subject to the provisions of Section 4.2(b)(v), all payments
of principal and interest in respect of outstanding Loans, all payments of fees
and all other payments in respect of any other Obligations, shall be allocated
among such of the Lenders as are entitled thereto, in proportion to their
respective Pro Rata 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 principal and interest on any portion of
the Loans which the Administrative Agent may have advanced on behalf of any
Lender other than Bank of America for which the Administrative Agent has
not then been reimbursed by such Lender or the Borrower,
(2) second, to pay all other Obligations then due and
payable, and
(3) third, as the Borrower so designates.
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
31
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 principal and interest on any portion of
the Loans which the Administrative Agent may have advanced on behalf of any
Lender other than Bank of America for which the Administrative Agent has
not then been reimbursed by such Lender or the Borrower;
(2) second, to pay Obligations in respect of any fees,
expense reimbursements or indemnities then due to the Co-Arrangers, or any
of them, in their respective capacities as such and not as Lenders;
(3) third, to pay Obligations in respect of any fees,
expense reimbursements or indemnities then due to the Lenders;
(4) fourth, to pay interest due in respect of Loans;
(5) fifth, to the ratable payment or prepayment of the
outstanding principal amounts of Loans; and
(6) sixth to the ratable payment of all other Obligations.
The order of priority set forth in this Section 4.2(b)(ii) and the related
provisions of this Agreement are set forth solely to determine the rights and
priorities of the Administrative Agent, the other Lenders and other Holders as
among themselves. The order of priority set forth in clauses (3) through (6) of
this Section 4.2(b)(ii) may at any time and from time to time be changed by the
Requisite Lenders without necessity of notice to or consent of or approval by
the Borrower, any Holder which is not a Lender, or any other Person; provided,
however, that no such change shall favor any Lender over any other Lender. The
order of priority set forth in clauses (1) and (2) of this Section 4.2(b)(ii)
may be changed only with the prior written consent of the Administrative Agent.
(iii) Upon the occurrence and during the continuation of an Event
of Default, the Administrative Agent, in its sole discretion subject only to the
terms of this Section 4.2(b)(iii), may pay from the proceeds of Loans made to
the Borrower hereunder, whether made following a request by the Borrower
pursuant to Section 2.1 or a deemed request as provided in this Section
4.2(b)(iii), all amounts payable by the Borrower hereunder, including, without
limitation, amounts payable with respect to payments of principal, interest and
fees and all reimbursements for expenses pursuant to Section 15.2. The Borrower
hereby irrevocably authorizes the Lenders, upon the occurrence and during the
continuation of an Event of Default, to make Loans, which Loans shall be Base
Rate Loans, in each case, upon notice from the Administrative Agent as described
in the following sentence, for the purpose of paying principal, interest and
fees due from the Borrower, reimbursing expenses pursuant to Section 15.2 and
32
paying any and all other amounts due and payable by the Borrower hereunder or
under the Notes, and agrees that all such Loans so made shall be deemed to have
been requested by it pursuant to Section 2.1 as of the date of the
aforementioned notice. The Administrative Agent shall request Loans on behalf
of the Borrower as described in the preceding sentence by notifying the Lenders
by facsimile transmission or other similar form of transmission (which notice
the Administrative Agent shall thereafter promptly transmit to the Borrower), of
the amount and Funding Date of the proposed Borrowing and that such Borrowing is
being requested on the Borrower's behalf pursuant to this Section 4.2(b)(iii).
On the proposed Funding Date, the Lenders shall make the requested Loans in
accordance with the procedures and subject to the conditions specified in
Section 2.1.
(iv) Subject to Section 4.2(b)(v), the Administrative Agent shall
promptly distribute to each other Lender at its primary address set forth on the
appropriate signature page hereof or the signature page to the Assignment and
Acceptance or the Joinder Agreement by which it became a Lender, or at such
other address as a Lender or other Holder may request in writing, such funds as
such Person may be entitled to receive, subject to the provisions of Article
XII; provided, however, that the Administrative Agent shall under no
circumstances be bound to inquire into or determine the validity, scope or
priority of any interest or entitlement of any Holder and may suspend all
payments or seek appropriate relief (including, without limitation, instructions
from the Requisite Lenders or an action in the nature of interpleader) in the
event of any doubt or dispute as to any apportionment or distribution
contemplated hereby.
(v) In the event that any Lender fails to fund its Pro Rata
Share of any Loan requested by the Borrower which such Lender is obligated to
fund under the terms of this Agreement (the funded portion of such Loan being
hereinafter referred to as a "Non Pro Rata Loan"), then until the earlier of
such Lender's cure of such failure and the termination of the Revolving Credit
Commitments, the proceeds of all amounts thereafter repaid to the Administrative
Agent by the Borrower and otherwise required to be applied to such Lender's
share of all other Obligations pursuant to the terms of this Agreement shall be
advanced to the Borrower by the Administrative Agent on behalf of such Lender to
cure, in full or in part, such failure by such Lender, but shall nevertheless be
deemed to have been paid to such Lender in satisfaction of such other
Obligations. Notwithstanding anything in this Agreement to the contrary:
(A) the foregoing provisions of this Section 4.2(b)(v)
shall apply only with respect to the proceeds of payments of Obligations and
shall not affect the conversion or continuation of Loans pursuant to Section
5.1(c);
(B) a Lender shall be deemed to have cured its failure to
fund its Pro Rata Share of any Loan (without waiver by the Borrower, the
Administrative Agent or any Lender of any claim against such Lender arising as a
consequence of such failure) at such time as an amount equal to such Lender's
original Pro Rata Share of the requested principal portion of such Loan is fully
funded to the Borrower, whether made by such Lender itself or by operation of
the terms of this Section 4.2(b)(v), and whether or not the Non Pro Rata Loan
with respect thereto has been repaid, converted or continued;
33
(C) amounts advanced to the Borrower to cure, in full or in
part, any such Lender's failure to fund its Pro Rata Share of any Loan ("Cure
Loans") shall bear interest at the same rate as, and for all other purposes of
this Agreement shall be treated as if they were Loans similar to, the advances
that would have been made had such Lender advanced its Pro Rata Share of the
requested Borrowing; and
(D) regardless of whether or not an Event of Default has
occurred or is continuing, and notwithstanding the instructions of the Borrower
as to its desired application, all repayments of principal which, in accordance
with the other terms of this Section 4.2, would be applied to the outstanding
Base Rate Loans shall be applied first, ratably to all Base Rate Loans
constituting Non Pro Rata Loans, second, ratably to Base Rate Loans other than
those constituting Non Pro Rata Loans or Cure Loans and, third, ratably to Base
Rate Loans constituting Cure Loans.
(c) Payments on Non-Business Days. Whenever any payment to be made by
the Borrower hereunder or under the Notes is stated to be due on a day which is
not a Business Day, the payment shall instead be due on the next succeeding
Business Day (or, if required pursuant to Section 5.2(b)(iii), the next
preceding Business Day).
4.3 Promise to Repay; Evidence of Indebtedness.
(a) Promise to Repay. The Borrower hereby agrees to pay when due the
principal amount of each Loan which is made to it, and further agrees to pay all
unpaid interest accrued thereon, in accordance with the terms of this Agreement
and the Notes. The Borrower shall execute and deliver to each Lender on the
Closing Date, a Note evidencing the Loans owing or which may become owing to
such Lender, and thereafter shall execute and deliver such other Notes as are
necessary to evidence the Loans owing to the Lenders after giving effect to any
Assignment and Acceptance pursuant to Section 15.1, any Joinder Agreement
pursuant to Section 3.2 and any Addendum pursuant to Section 3.3 hereof, all in
form and substance acceptable to the Administrative Agent and the parties to
such Assignment and Acceptance, Joinder Agreement or Addendum, as applicable.
(b) Loan Account. Each Lender shall maintain in accordance with its
usual practice an account or accounts (a "Loan Account") evidencing the
Indebtedness of 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 date and amount of each Borrowing made hereunder, the type of
Loans comprising such Borrowing and any Eurodollar Interest Period applicable
thereto, (ii) the effective date and amount of each Assignment and Acceptance,
Joinder Agreement and Addendum delivered to and accepted by it and the parties
thereto, (iii) the amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder or under the
Notes and (iv) the amount of
34
any sum received by the Administrative Agent from the Borrower hereunder and
each Lender's share thereof.
(d) Entries Binding. The entries made in the Register and each Loan
Account shall be conclusive and binding for all purposes, absent manifest error.
ARTICLE V - INTEREST AND FEES
5.1 Interest on the Loans and Other Obligations.
(a) Rate of Interest. All Loans and the outstanding principal balance
of all other Obligations shall bear interest on the unpaid principal amount
thereof from the date such Loans are made and such other Obligations are due and
payable until paid in full, except as otherwise provided in Section 5.1(d), as
follows:
(i) If a Base Rate Loan or an Obligation other than a Eurodollar
Rate Loan, at a rate per annum equal to the sum of (A) the Base Rate, as in
effect from time to time as interest accrues, plus (B) the then Applicable
Margin for Base Rate Loans; and
(ii) If a Eurodollar Rate Loan, at a rate per annum equal to the
sum of (A) the Eurodollar Rate determined for the applicable Eurodollar Interest
Period, plus (B) the then Applicable Margin for Eurodollar Rate Loans.
The applicable basis for determining the rate of interest on the Loans shall be
selected by the Borrower at the time a Notice of Borrowing or a Notice of
Conversion/Continuation is delivered by the Borrower to the Administrative
Agent; provided, however, that the Borrower may not select the Eurodollar Rate
as the applicable basis for determining the rate of interest on such a Loan if
at the time of such selection an Event of Default has occurred and is continuing
or an Event of Default would occur as a result of such selection; and provided
further that the Borrower may not select the Eurodollar Rate for a Eurodollar
Interest Period of more than thirty (30) days if at the time of such selection a
Potential Event of Default has occurred and is continuing or a Potential Event
of Default would occur as a result of such selection; and provided further that
from and after the occurrence of an Event of Default, each Eurodollar Rate Loan
then outstanding shall, at the Administrative Agent's option, convert to a Base
Rate Loan. If on any day any Loan is outstanding with respect to which notice
has not been timely delivered to the Administrative Agent in accordance with the
terms of this Agreement specifying the basis for determining the rate of
interest on that day, then 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.
35
(ii) Interest accrued on the principal balance of all other
Obligations shall be calculated on the last day of each calendar month and shall
be payable in arrears (A) on the first day of each calendar month, commencing on
the first such day following the accrual of such Obligation, (B) upon repayment
thereof in full or in part, and (C) if not previously paid in full, at the time
such other Obligation becomes due and payable (whether by acceleration or
otherwise).
(c) Conversion or Continuation.
(i) The Borrower shall have the option (A) to convert at any
time all or any part of outstanding Base Rate Loans to Eurodollar Rate Loans;
(B) to convert all or any part of outstanding Eurodollar Rate Loans having
Eurodollar Interest Periods which expire on the same date to Base Rate Loans on
such expiration date; or (C) to continue all or any part of outstanding
Eurodollar Rate Loans having Eurodollar Interest Periods which expire on the
same date as Eurodollar Rate Loans, and the succeeding Eurodollar Interest
Period of such continued Loans shall commence on such expiration date; provided,
however, no such outstanding Loan may be continued as, or be converted into, a
Eurodollar Rate Loan (i) if such continuation or conversion would violate any of
the provisions of Section 5.2 or (ii) if an Event of Default has occurred and is
continuing or an Event of Default would occur as a result of such continuation
or conversion; and provided further no such outstanding Loan may be continued
as, or be converted into, a Eurodollar Rate Loan having a Eurodollar Interest
Period of more than thirty (30) days, if a Potential Event of Default has
occurred and is continuing or a Potential Event of Default would occur as a
result of such continuation or conversion. Any conversion into or continuation
of Eurodollar Rate Loans under this Section 5.1(c) shall be in a minimum amount
of $2,000,000 and in integral multiples of $1,000,000 in excess of that amount,
except in the case of a conversion or continuation of an entire Borrowing of Non
Pro Rata Loans.
(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 11:00 a.m. (Chicago 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 12:00 noon (Chicago
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
36
when specified in this Section 5.1(c)(ii) with respect to outstanding Eurodollar
Rate Loans, upon the expiration of the Eurodollar Interest Period applicable
thereto, such Loans shall automatically be continued as Eurodollar Rate Loans
with a Eurodollar Interest Period of thirty (30) days.
(d) Default Interest. Notwithstanding the rates of interest specified
in Section 5.1(a) or elsewhere in this Agreement, effective immediately upon the
occurrence of an Event of Default, and for as long thereafter as such Event of
Default shall be continuing, the principal balance of all Loans and other
Obligations shall bear interest at a rate equal to the sum of (A) the Base Rate,
as in effect from time to time as interest accrues, plus (B) three percent
(3.0%) per annum.
(e) Computation of Interest. Interest on all Obligations shall be
computed on the basis of the actual number of days elapsed in the period during
which interest accrues and a year of 360 days. In computing interest on any
Loan, the date of the making of the Loan or the first day of a Eurodollar
Interest Period, as the case may be, shall be included and the date of payment
or the expiration date of a Eurodollar Interest Period, as the case may be,
shall be excluded; provided, however, if a Loan is repaid on the same day on
which it is made, one (1) day's interest shall be paid on such Loan.
(f) Eurodollar Rate Information. Upon the reasonable request of the
Borrower from time to time, the Administrative Agent shall promptly provide to
the Borrower such information with respect to the applicable Eurodollar Rate as
may be so requested.
5.2 Special Provisions Governing Eurodollar Rate Loans.
(a) Amount of Eurodollar Rate Loans. Each Eurodollar Rate Loan shall
be in a minimum principal amount of $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
37
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
Revolving Credit Termination 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:
(i) the Administrative Agent determines that deposits in
Dollars are not generally being offered in the London interbank market for such
Eurodollar Interest Period; or
(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.
38
(i) If at any time any Lender determines (which determination
shall, absent manifest error, be final and conclusive and binding upon all
parties) that the making or continuation of any Eurodollar Rate Loan has become
unlawful or impermissible by compliance by that Lender with any law,
governmental rule, regulation or order of any Governmental Authority (whether or
not having the force of law and whether or not failure to comply therewith would
be unlawful or would result in costs or penalties), then, and in any such event,
such Lender may give notice of that determination, in writing, to the Borrower
and the Administrative Agent, and the Administrative Agent shall promptly
transmit the notice to each other Lender.
(ii) When notice is given by a Lender under Section 5.2(e)(i),
(A) the Borrower's right to request from such Lender and such Lender's
obligation, if any, to make Eurodollar Rate Loans shall be immediately
suspended, and such Lender shall make a Base Rate Loan as part of any requested
Borrowing of Eurodollar Rate Loans and (B) if the affected Eurodollar Rate Loan
or Loans are then outstanding, the Borrower shall immediately, or if permitted
by applicable law, no later than the date permitted thereby, upon at least one
(1) Business Day's prior written notice to the Administrative Agent and the
affected Lender, convert each such Loan into a Base Rate Loan.
(iii) If at any time after a Lender gives notice under Section
5.2(e)(i) such Lender determines that it may lawfully make Eurodollar Rate
Loans, such Lender shall promptly give notice of that determination, in writing,
to the Borrower and the Administrative Agent, and the Administrative Agent shall
promptly transmit the notice to each other Lender. The Borrower's right to
request, and such Lender's obligation, if any, to make Eurodollar Rate Loans
shall thereupon be restored.
(iv) Notwithstanding the foregoing, in the event that any Lender
gives such a notice, at Borrower's sole election, Borrower may identify an
Eligible Assignee to whom the Lender which has given such a notice shall assign
its interest in the Loans pursuant to the terms of an Assignment and Acceptance
substantially in the form attached as Exhibit A.
(f) Compensation. In addition to all amounts required to be paid by
the Borrower pursuant to Section 5.1 and Article XIII, the Borrower shall
compensate each Lender, upon demand, for all losses, expenses and liabilities
(including, without limitation, any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to fund or maintain such Lender's Eurodollar Rate Loans to the Borrower but
excluding any loss of Applicable Margin on the relevant Loans and losses or
expenses incurred as the result of such Lender's gross negligence or willful
misconduct) which that Lender may sustain (i) if for any reason a Borrowing,
conversion into or continuation of Eurodollar Rate Loans does not occur on a
date specified therefor in a Notice of Borrowing or a Notice of
Conversion/Continuation given by the Borrower or in a telephonic request by it
for borrowing or conversion/continuation or a successive Eurodollar Interest
Period does not commence after notice therefor is given pursuant to Section
5.1(c), other than such a failure resulting from the circumstances described in
Section 5.2(d) or Section 5.2(e), (ii) if for any reason any Eurodollar Rate
Loan is prepaid (including, without limitation, on a mandatory basis pursuant to
Section 4.1(d)) on a date which is not the last day of the applicable Eurodollar
Interest Period, or (iii) as a consequence of any failure by the Borrower to
repay a Eurodollar
39
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.
5.3 Fees.
----
(a) Facility Fee. The Borrower shall pay to the Administrative Agent,
for the account of the Lenders based on their respective Pro Rata Shares, a fee
(the "Facility Fee"), accruing at a per annum rate equal to the then applicable
Facility Fee Percentage on the then available Revolving Credit Commitments, such
fee being payable quarterly, in arrears, commencing on October 1, 2000 and on
the first day of each calendar quarter thereafter. Notwithstanding the
foregoing, in the event that any Lender fails to fund its Pro Rata Share of any
Loan requested by the Borrower which such Lender is obligated to fund under the
terms of this Agreement, (A) such Lender shall not be entitled to any portion of
the Facility Fee with respect to its Revolving Credit Commitment until such
failure has been cured in accordance with Section 4.2(b)(v)(B) and (B) until
such time, the Facility Fee shall accrue in favor of the Lenders which have
funded their respective Pro Rata Shares of such requested Loan, shall be
allocated among such performing Lenders ratably based upon their relative
Revolving Credit Commitments, and shall be calculated based upon the average
amount by which the aggregate Revolving Credit Commitments of such performing
Lenders exceeds the sum of the outstanding principal amount of the Loans owing
to such performing Lenders.
(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,
40
indemnification and other Obligations. Fees shall be payable to the
Administrative Agent at its office in Chicago, Illinois 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, the Guaranty, all
other Loan Documents and agreements, documents and instruments described in the
List of Closing Documents attached hereto as Exhibit E and made a part hereof,
and such additional documentation as the Administrative Agent may reasonably
request, each duly executed, if applicable, by the Borrower or GGP, Inc., as
appropriate, and in form and substance satisfactory to the Administrative Agent.
Without limiting the foregoing, the Borrower hereby directs its counsel, ▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, to prepare and deliver to the Administrative Agent, the
Lenders, and Barack ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ the legal
opinion(s) referred to in such List of Closing Documents; and
(b) No Legal Impediments. No law, regulation, order, judgment or
decree of any Governmental Authority shall, and the Administrative Agent 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) impose or result in the imposition of 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 Properties shall have occurred since March 31,
2000, which change, in the judgment of the Administrative Agent, has had, will
have or is reasonably likely to have a Material Adverse Effect.
(d) Interim Liabilities and Equity. Except as disclosed to the
Administrative Agent and the Lenders, since March 31, 2000, the Borrower shall
not have (i) entered into any material (as determined in good faith by the
Administrative Agent) commitment or transaction, including, without limitation,
transactions for borrowings and Capital Expenditures, which are not in the
ordinary course of the Borrower'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 Properties shall have been terminated,
modified, revoked, breached or declared to be in
41
default, the termination, modification, revocation, breach or default under
which, in the reasonable judgment of the Administrative Agent, would result in a
Material Adverse Effect.
(f) Sharing Agreement. The Partnership and the Company shall have
entered into, and delivered to the Co-Arrangers a complete and accurate copy of,
a written agreement, in form and substance reasonably satisfactory to the Co-
Arrangers, 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
Administrative Agent, for the accounts of the Administrative Agent and the other
Lenders, as applicable, all fees due and payable on or before the Initial
Funding Date and all expenses due and payable on or before the Initial Funding
Date, including, without limitation, reasonable attorneys' fees and expenses,
and other costs and expenses incurred in connection with the Loan Documents.
(j) Committed Financing. The Borrower shall have: (i) obtained from
lenders or investors acceptable to the Co-Arrangers, and delivered to the Co-
Arrangers complete and accurate copies of, bona fide written commitments for
equity or unsecured debt financing available or to be funded to the Borrower
substantially contemporaneously herewith in an aggregate amount which, when
added to the Revolving Credit Commitments, equals $235,000,000, the terms,
conditions and pricing of which unsecured debt financing shall be acceptable to
the Co-Arrangers, shall comply with the requirements of Section 10.12(h) hereof,
and shall not otherwise be more favorable to the lender(s) than the terms,
conditions and pricing provided for herein; (ii) delivered to the Co-Arrangers a
schedule acceptable to the Administrative Agent of the Borrower's sources and
uses of funds for the twelve calendar months following the date hereof; and
(iii) given the Co-Arrangers 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 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 or at any time thereafter prior to the Revolving Credit
Termination Date.
(k) Repayment of Other Facilities. All commitments of the lenders
shall have terminated, under that certain Credit Agreement dated as of January
31, 2000 among the Partnership, Dresdner, as agent and a lender thereunder, and
the other lenders identified therein,
42
and Borrower shall repay in full all of its obligations thereunder immediately
upon the initial funding of the Loans hereunder.
(l) Covenant Calculations. The Borrower shall have delivered to the
Administrative Agent pro forma calculations of the financial covenants and
ratios described in Article X hereof as of the end of each of the first four
calendar quarters ending after the date hereof, in form as provided in Section
8.2(a)(iii)(B) and 8.2(b)(iii)(B) hereof for such calculations and otherwise in
form and substance satisfactory to the Administrative Agent.
6.2 Conditions Precedent to All Subsequent Loans. The obligation of each
Lender to make any Loan requested to be made by it on any 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 Administrative Agent in writing that the facts are not as represented
therein and the Administrative Agent has approved or consented to, conditionally
or otherwise, the facts as so disclosed 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 Administrative Agent shall
not have received from any Lender notice that, in the judgment of such Lender,
litigation is pending or threatened which is likely to, enjoin, prohibit or
restrain, or impose or result in the imposition of any material adverse
condition upon, such Lender's making the requested Loan.
(d) No Material Adverse Effect. The Borrower shall not have received
written notice from the Requisite Lenders that an event has occurred since the
date of this Agreement which has had and continues to have, will have or is
reasonably likely to have, a Material Adverse Effect.
(e) Committed Financing. In the case of any Loan requested to be
funded on or after November 1, 2000, the Borrower shall have obtained from
lenders or investors reasonably acceptable to the Co-Arrangers, and delivered to
the Co-Arrangers complete and accurate copies of, bona fide written commitments
for equity or unsecured debt financing then available or to be funded to the
Borrower in an aggregate amount which, when added to (i) the Revolving Credit
Commitments and (ii) the commitments obtained pursuant to Section 6.1 (j)
hereof, equals $275,000,000, the terms, conditions and pricing of which
unsecured debt financing shall be reasonably acceptable to the Co-Arrangers,
shall comply with the requirements of Section 10.12(h) hereof, and shall not
otherwise be more favorable to the lender(s) than the terms, conditions and
pricing provided for herein.
43
Each submission by the Borrower to the Administrative Agent of a Notice of
Borrowing with respect to a Borrowing or a Notice of Conversion/Continuation
with respect to any Loan and each acceptance by the Borrower of the proceeds of
each Loan made, converted or continued hereunder, shall constitute a
representation and warranty by the Borrower as of the Funding Date in respect of
such Borrowing or Loan and the date of conversion or continuation, that all the
conditions contained in this Section 6.2 have been satisfied or waived in
accordance with Section 15.7.
ARTICLE VII - REPRESENTATIONS AND WARRANTIES
7.1 Representations and Warranties of the Borrower. In order to induce the
Lenders to enter into this Agreement and to make the Loans and the other
financial accommodations to the Borrower described herein, 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 member of the
Company, having an interest in the Company as set forth in Schedule 7.1-A-1
attached hereto. The only other members of the Company are ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Fund, L.P. (a limited partnership of which ▇▇▇▇▇▇▇, Sachs or an
entity controlled thereby is the sole general partner), Caledonian Holding
Company, Inc. (a corporation which is an Affiliate of the Partnership), and GGP
American Properties Inc. (a corporation which is an Affiliate of the
Partnership), each having an interest in the Company as set forth in Schedule
7.1-A-1 attached hereto.
(iii) 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 which failure to be so qualified and in good
standing will have or is reasonably likely to have a Material Adverse
44
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 7.1-A have been delivered to the Administrative
Agent, each of which is in full force and effect, has not been modified or
amended except to the extent indicated therein and, to the best of the
Borrower's knowledge, there are no defaults under such Organizational Documents
and no events which, with the passage of time or giving of notice or both, would
constitute a default under such Organizational Documents.
(v) Neither 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) in its capacity as the sole general partner
of the Partnership, in respect of the Partnership, and (B) in its capacity as
the sole general partner of the Partnership, in the Partnership's capacity as
the sole managing member of the Company, in respect of the Company, has the
requisite power and authority to execute, deliver and perform this Agreement on
behalf of the Borrower and each of the other Loan Documents which are required
to be executed on behalf of the Borrower as required by this Agreement. GGP,
Inc. is the Person who has executed this Agreement and such other Loan Documents
on behalf of the Borrower.
(iii) The execution, delivery and performance of each of the Loan
Documents which must be executed in connection with this Agreement by the
Borrower and to which the Borrower is a party and the consummation of the
transactions contemplated thereby are within the Partnership's partnership
powers and the Company's limited liability company powers, have been duly
authorized by all necessary partnership action or limited liability action, as
applicable (and, in the case of GGP, Inc. acting on behalf of the Borrower in
connection therewith, all necessary corporate action thereof) 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 the Borrower is a party
has been duly executed and delivered on behalf of the Borrower and constitutes
the Borrower's legal, valid and binding obligation, enforceable against the
Borrower in accordance with its terms (except to the extent that the enforcement
thereof or the availability of equitable remedies may be limited by applicable
bankruptcy, reorganization, insolvency, moratorium, fraudulent transfer,
fraudulent conveyance or similar laws now or hereafter in effect relating to or
affecting creditors' rights generally or by general principles of equity, or by
the discretion of any court in awarding equitable remedies, regardless of
whether such enforcement is considered in a preceding in
45
equity or at law), is in full force and effect and all the terms, provisions,
agreements and conditions set forth therein and required to be performed or
complied with by the Borrower on or before the Initial Funding Date have been
performed or complied with, and no Potential Event of Default, Event of Default
or breach of any covenant by the Borrower exists thereunder.
(c) Subsidiaries; Ownership of Capital Stock and Partnership
Interests.
(i) Schedule 7.1-C (A) contains a diagram indicating the
structure of the Borrower, and any other Person in which the Borrower holds a
direct or indirect partnership, membership, joint venture or other equity
interest, indicating the nature of such interest with respect to each Person
included in such diagram; and (B) accurately sets forth (1) the correct legal
name of such Person, the jurisdiction of its incorporation or organization and
the jurisdictions in which it is qualified to transact business as a foreign
corporation, or otherwise, and (2) the authorized, issued and outstanding shares
or interests of each class of Securities representing equity interests of the
Borrower and the owners of such shares or interests. None of such issued and
outstanding Securities is subject to any vesting, redemption, or repurchase
agreement, and there are no warrants or options outstanding with respect to such
Securities, except as noted on Schedule 7.1-C.
(ii) The outstanding 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 the Administrative Agent a true, accurate and complete copy of the
Borrower Partnership Agreement and the Borrower Operating Agreement, each as
amended through and as in effect on the Closing Date, and neither the Borrower
Partnership Agreement nor the Borrower Operating Agreement has been amended,
supplemented, replaced, restated or otherwise modified in any respect since the
Closing Date.
(iii) Except where failure may not have a Material Adverse Effect
on the Borrower, each Subsidiary: (A) is a corporation, limited liability
company, trust or partnership, as indicated on Schedule 7.1-C, duly organized or
formed, validly existing and, if applicable, in good standing under the laws of
the jurisdiction of its organization; (B) is duly qualified to do business and,
if applicable, is in good standing under the laws of each jurisdiction in which
failure to be so qualified and in good standing would limit its ability to use
the courts of such jurisdiction to enforce Contractual Obligations to which it
is a party; and (C) has all requisite power and authority to own, operate and
encumber its Property and to conduct its business as presently conducted and as
proposed to be conducted hereafter.
(d) No Conflict. The execution, delivery and performance of each of
the Loan Documents to which the Borrower is a party do not and will not (i)
conflict with the Organizational Documents of the Borrower, (ii) constitute a
tortious interference with any Contractual Obligation of any Person or conflict
with, result in a breach of or constitute (with or without notice or lapse of
time or both) a default under any Requirement of Law or Contractual Obligation
of the Borrower, or require termination of any such Contractual Obligation which
may subject the Administrative Agent or any of the other Lenders to any
liability or which is reasonably likely to have a Material Adverse Affect, (iii)
result in or require the creation or
46
imposition of any Lien whatsoever upon any of the Property or assets of the
Borrower or any Subsidiary of the Borrower, or (iv) require any approval of
shareholders of GGP, Inc.
(e) Governmental Consents. The execution, delivery and performance of
each of the Loan Documents to which the Borrower is a party do not and will not
require any registration with, consent or approval of, or notice to, or other
action to, with or by any Governmental Authority, except filings, consents or
notices which have been made, obtained or given.
(f) Governmental Regulation. 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 Administrative
Agent: (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 Administrative Agent on or prior to the
Closing Date or otherwise disclosed to the Administrative Agent and the Lenders
in writing, which will have or is reasonably likely to have a Material Adverse
Effect.
(h) Indebtedness. Schedule 7.1-H 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 7.1-H, there are no defaults
in the payment of principal or interest on any such Indebtedness and no payments
thereunder have been deferred or extended beyond their stated maturity and there
has been no material change in the type or amount of such Indebtedness (except
for the repayment or refinance of certain Indebtedness) since June 30, 2000.
(i) Litigation: Adverse Effects. Except as set forth in Schedule 7.1-
I, as of the Closing Date, there is no action, suit, proceeding, Claim,
investigation or arbitration before or by any Governmental Authority or private
arbitrator pending or, to the knowledge of the Borrower, threatened against the
Borrower, or any of 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
47
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 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 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 the Borrower to the extent,
if any, required by GAAP. The Borrower has not taken any reporting positions for
which it does not have a reasonable basis nor does the Borrower anticipate any
further material tax liability with respect to the years which have not been
closed pursuant to applicable law.
(l) Payment of Taxes. All tax returns, reports and similar statements
or filings of the Borrower and its Subsidiaries required to be filed have been
timely filed, and, except for Customary Permitted Liens, all taxes, assessments,
fees and other charges of Governmental Authorities thereupon and upon or
relating to their respective Properties, assets, receipts, sales, use, payroll,
employment, income, licenses and franchises which are shown in such returns or
reports to be due and payable have been paid, except to the extent (i) such
taxes, assessments, fees and other charges of Governmental Authorities are being
contested in good faith by an appropriate proceeding diligently pursued as
permitted by the terms of Section 9.4 and (ii) such taxes, assessments, fees and
other charges of Governmental Authorities pertain to Property of the Borrower or
any of its Subsidiaries and the nonpayment of the amounts thereof would not,
individually or in the aggregate, result in a Material Adverse Effect. All other
taxes (including, without limitation, real estate taxes), assessments, fees and
other governmental charges upon or relating to the respective Properties of the
Borrower and its Subsidiaries which are due and payable have been paid, except
for Customary Permitted Liens and except to the extent described in clauses (i)
and (ii) above. The Borrower has no knowledge of any proposed tax assessment
against the Borrower, any of their 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. Neither the Borrower nor any of its Subsidiaries has
received any notice, citation or allegation, nor has actual knowledge, that (i)
it is in default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any Contractual Obligation
applicable to it, (ii) any of its Properties is in violation of
48
any Requirements of Law or (iii) any condition exists which, with the giving of
notice or the lapse of time or both, would constitute a default with respect to
any such Contractual Obligation, in each case, except where such default or
defaults, if any, has not had, will not have and is not reasonably likely to
have a Material Adverse Effect.
(n) Disclosure. The representations and warranties of the Borrower
contained in the Loan Documents, and all certificates and other documents
delivered to the Administrative Agent pursuant to the terms thereof, do not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained herein or therein, in light
of the circumstances under which they were made, not misleading. The Borrower
has not intentionally withheld any fact from the Administrative Agent or the
other Lenders in regard to any matter which will have or is reasonably likely to
have a Material Adverse Effect. Notwithstanding the foregoing, the Lenders
acknowledge that the Borrower does not have liability under this clause (n) with
respect to its projections of future events.
(o) Requirements of Law. 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 disclosed on Schedule 7.1-P and except where
failure is not reasonably likely to have a Material Adverse Effect:
(A) the operations of the Borrower, each of its
Subsidiaries, and their respective Properties comply in all material respects
with all applicable Environmental, Health or Safety Requirements of Law;
(B) the Borrower and each of its Subsidiaries have obtained
all material environmental, health and safety Permits necessary for their
respective operations, and all such Permits are in good standing and the holder
of each such Permit is currently in compliance in all material respects with all
material terms and conditions of such Permits;
(C) none of the Borrower or any of its Subsidiaries or any
of their respective present or, to the Borrower's knowledge, past Property or
operations is subject to or is the subject of any investigation, judicial or
administrative proceeding, order, judgment, decree, dispute, negotiations,
agreement or settlement respecting (1) any Environmental, Health or Safety
Requirements of Law, (2) any Remedial Action, (3) any Claims or Liabilities and
Costs arising from the Release or threatened Release of a Contaminant into the
environment, or (4) any violation of or liability under any Environmental,
Health or Safety Requirement of Law;
(D) none of Borrower or any of its Subsidiaries has filed
any notice under any applicable Requirement of Law (1) reporting a Release of a
Contaminant; (2) indicating past or present treatment, storage or disposal of a
hazardous waste, as that term is
49
defined under 40 C.F.R. Part 261 or any state equivalent; or (3) reporting a
violation of any applicable Environmental, Health or Safety Requirement of Law;
(E) none of the Borrower's or any of its Subsidiaries'
present or, to Borrower's knowledge, past Property presently is listed or
proposed for listing on the National Priorities List ("NPL") pursuant to CERCLA
or on the Comprehensive Environmental Response Compensation Liability
Information System List ("CERCLIS") or any similar state list of sites requiring
Remedial Action;
(F) neither the Borrower nor any of its Subsidiaries has
sent or directly arranged for the transport of any waste to any site listed or
proposed for listing on the NPL, CERCLIS or any similar state list;
(G) to the best of the Borrower's knowledge, there is not
now, and to 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 which
Borrower has any reason to believe could subject the Borrower, any of its
Subsidiaries or any of their respective Properties to Liabilities and Costs
arising out of or relating to environmental, health or safety matters that would
result in a Material Adverse Effect; or (5) any polychlorinated biphenyls (PCB)
used in hydraulic oils, electrical transformers or other Equipment which the
Borrower has any reason to believe could subject the Borrower, any of its
Subsidiaries or any of their respective Properties to Liabilities and Costs
arising out of or relating to environmental, health or safety matters that would
result in a Material Adverse Effect;
(H) neither the Borrower nor any of its Subsidiaries has
received any notice or Claim to the effect that any of the Borrower or its
Subsidiaries is or may be liable to any Person as a result of the Release or
threatened Release of a Contaminant into the environment;
(I) to the Borrower's knowledge, neither the Borrower nor
any of its Subsidiaries has any contingent liability in connection with any
Release or threatened Release of any Contaminants into the environment;
(J) no Environmental Lien is presently recorded with
respect to any Property of the Borrower or any Subsidiary of the Borrower;
(K) no Property of the Borrower or any Subsidiary of the
Borrower is subject to any Environmental Property Transfer Act, or to the extent
such acts are applicable to any such Property, the Borrower and/or such
Subsidiary whose Property is subject thereto has fully complied with the
requirements of such acts; and
(L) neither the Borrower nor any of its Subsidiaries owns
or operates, or, to the Borrower's knowledge, has ever owned or operated, any
underground storage tank, the
50
presence or use of which is or has been in violation of applicable
Environmental, Health or Safety Requirements of Law, at any Real Property.
(ii) the Borrower and each of its Subsidiaries are conducting and
will continue to conduct their respective businesses and operations and maintain
each Real Property in compliance in all material respects with applicable
Environmental, Health or Safety Requirements of Law and neither the Borrower nor
any of its Subsidiaries has been or has any reason to believe that it or any of
its Property will be, subject to Liabilities and Costs arising out of or
relating to environmental, health or safety matters that would result in a
Material Adverse Effect.
(q) ERISA. Neither the Borrower nor any ERISA Affiliate maintains or
contributes to any Benefit Plan or Multiemployer Plan other than those listed on
Schedule 7.1-Q 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
7.1-Q, neither the Borrower nor any of its Subsidiaries maintains or contributes
to any "employee welfare benefit plan" within the meaning of Section 3(1) of
ERISA which provides benefits to employees after termination of employment other
than as required by Section 601 of ERISA. The Borrower and each of its
Subsidiaries is in compliance in all material respects with the
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 Administrative
Agent 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 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 7.1-Q, neither the Borrower nor any
of its Subsidiaries has, by reason of the
51
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 7.1-T accurately sets forth as of the Closing
Date all insurance policies and programs currently in effect with respect to the
respective Property and assets and business of the Borrower and its
Subsidiaries, specifying for each such policy and program, (i) the amount
thereof, (ii) the risks insured against thereby, (iii) the name of the insurer
and each insured party thereunder, (iv) the policy or other identification
number thereof, and (v) the expiration date thereof. Such insurance policies and
programs are currently in full force and effect, in compliance with the
requirements of Section 9.5 hereof and, together with payment by the insured of
scheduled deductible payments, are in amounts sufficient to cover the
replacement value of the respective Property and assets of the Borrower and/or
its Subsidiaries.
(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 Administrative Agent all information
relating to this representation that the Administrative Agent may reasonably
request.
ARTICLE VIII - REPORTING COVENANTS
The Borrower covenants and agrees that so long as any Revolving Credit
Commitments are outstanding and thereafter until payment in full of all of the
Obligations (other than indemnities pursuant to Section 15.3 not yet due),
unless the Requisite Lenders shall otherwise give prior written consent thereto:
52
8.1 Borrower Accounting Practices. The Borrower shall maintain, and cause
each of its Subsidiaries to maintain, a system of accounting established and
administered in accordance with sound business practices to permit preparation
of Consolidated and Consolidating financial statements in conformity with GAAP,
and each of the financial statements and reports described below shall be
prepared from such system and records and in form satisfactory to the
Administrative Agent.
8.2 Financial Reports. The Borrower shall deliver or cause to be delivered
to the Administrative Agent and the Lenders:
53
(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 Administrative Agent and, in
comparative form, the corresponding figures for the corresponding periods of the
previous Fiscal Year, certified by an Authorized Financial Officer of GGP, Inc.
as fairly presenting the Consolidated and Consolidating financial position of
the Borrower and its Consolidated Subsidiaries as of the dates indicated and 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 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(d) of this Agreement, or, if any such condition or event existed
or exists, and specifying the nature and period of existence thereof and what
action the Borrower or any of its Subsidiaries has taken, is taking and proposes
to take with respect thereto; (B) the calculations (in the form of Exhibit G
hereto and otherwise with such specificity as the Administrative Agent may
reasonably request) for the period then ended which demonstrate compliance with
the covenants and financial ratios set forth in Articles IX and X and, when
applicable, that no Event of Default described in Section 11.1 exists, (C) a
schedule of changes, if any, in the Borrower's outstanding Indebtedness for
borrowed money, including the amount, maturity, interest rate and amortization
requirements, as well as such other information regarding such Indebtedness as
may be reasonably requested by the Administrative Agent, since
54
the last date on which such a schedule was submitted, (D) a schedule of Combined
EBITDA, (E) a schedule of each bankruptcy or cessation of operations of any
tenant to which greater than 5% of the Borrower's share of consolidated minimum
rent is attributable, of which bankruptcy or cessation of operations the
Borrower obtained knowledge since the last date on which such a schedule was
submitted, and (F) such other information and reports 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 Administrative
Agent and, in comparative form, the corresponding figures for the previous
Fiscal Year, certified by an Authorized Financial Officer of GGP, Inc. as fairly
presenting the Consolidated and Consolidating financial position of each of the
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
Administrative Agent and each Lender (through the Administrative Agent) may,
with the consent of the Borrower (which consent shall not be unreasonably
withheld), communicate directly with such accountants or consultant, with any
such communication to occur together with a representative of the Borrower, at
the expense of the Administrative Agent (or the Lender requesting such
communication), upon reasonable notice and at reasonable times during normal
business hours.
(ii) GGP., Inc. Annual Financial Reports. As soon as practicable,
and in any event within ninety (90) days after the end of each Fiscal Year, (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 Administrative Agent, which report shall be unqualified and
shall state that such financial statements fairly present the Consolidated and
Consolidating financial position of GGP, Inc. and its Consolidated Subsidiaries
as of the date indicated and the results of its operations and cash flow for the
period indicated in conformity with GAAP applied on a basis consistent with
prior years (except for changes with which any such independent certified public
accountants shall concur and which shall have been disclosed in the notes to the
financial statements), 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 Administrative Agent and each Lender (through
the Administrative Agent) may, with the consent of the Borrower (which consent
shall not be unreasonably withheld),
55
communicate directly with such accountants or consultant, with any such
communication to occur together with a representative of the Borrower, at the
expense of the Administrative Agent (or the Lender requesting such
communication), upon reasonable notice and at reasonable times during normal
business hours.
(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(d) of this
Agreement, or, if any such condition or event existed or exists, and specifying
the nature and period of existence thereof and what action the Borrower or any
of its Subsidiaries has taken, is taking and proposes to take with respect
thereto; (B) the calculations (in the form of Exhibit G and otherwise with such
specificity as the Administrative Agent may reasonably request) for the period
then ended which demonstrate compliance with the covenants and financial ratios
set forth in Articles IX and X and, when applicable, that no Event of Default
described in Section 11.1 exists, (C) a schedule of the Borrower's outstanding
Indebtedness for borrowed money, including the amount, maturity, interest rate
and amortization requirements, as well as such other information regarding such
Indebtedness as may be reasonably requested by the Administrative Agent, (D) a
schedule of Combined EBITDA, (E) a schedule of the estimated taxable income of
the Borrower for such fiscal year, (F) a statement of net operating income and
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 Administrative Agent, and
(I) such other information and reports as the Administrative Agent may
reasonably request.
(iv) Tenant Bankruptcy Reports. As soon as practicable, and in
any event within ninety (90) days after the end of each Fiscal Year, the
Borrower shall deliver a written report (which shall be incorporated into the
Annual Compliance Certificate), in form reasonably satisfactory to the
Administrative Agent, of all bankruptcy proceedings filed by or against, or the
cessation of business or operations of, any tenant of any of the Real Properties
of the Borrower or any of its Subsidiaries, the base rent payments of which
tenant account for more than 5% of the Borrower's share of consolidated minimum
rent in the Real Properties in the aggregate.
(c) Reports of Capital Events. On the date of the consummation and
funding of each Capital Event, the Borrower shall submit to the Administrative
Agent a reasonably detailed report thereof, which shall include a computation of
the Leverage Ratio after giving effect
56
thereto, and which shall be otherwise reasonably acceptable in form and
substance to the Administrative Agent.
(d) Information Regarding the Company. From time to time upon request
by the Administrative Agent, the Borrower shall deliver to the Administrative
Agent such information, reports and documents concerning the Company as the
Administrative 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 the Administrative Agent has given any
notice with respect to a claimed Event of Default or Potential Event of Default,
(c) that any Person has given any notice to the Borrower or taken any other
action with respect to a claimed default or event or condition of the type
referred to in Section 11.1(e), or (d) of any condition or event which has or is
reasonably likely to have a Material Adverse Effect, the Borrower shall deliver
to the Administrative Agent and the Lenders an Officer's Certificate specifying
(i) the nature and period of existence of any such claimed default, Event of
Default, Potential Event of Default, condition or event, (ii) the notice given
or action taken by such Person in connection therewith, and (iii) what action
the Borrower has taken, is taking and proposes to take with respect thereto.
8.4 Lawsuits. (i) Promptly upon the Borrower's obtaining knowledge of the
institution of, or written threat of, any action, suit, proceeding, governmental
investigation or arbitration against or affecting the Borrower or any of its
Subsidiaries of the type described in Section 7.1(i) of this Agreement not
previously disclosed pursuant to Section 7.1(i), the Borrower shall give written
notice thereof to the Administrative Agent and the Lenders and provide such
other information as may be reasonably available to enable each Lender and the
Administrative Agent and its counsel to evaluate such matters; (ii) as soon as
practicable and in any event within forty-five (45) days after the end of each
fiscal quarter of the Borrower, the Borrower shall provide a written quarterly
report to the Administrative Agent and the Lenders (which may be incorporated
into the Quarterly Compliance Certificate) covering the institution of, or
written threat of, any action, suit, proceeding, governmental investigation or
arbitration of the type described in Section 7.1(i) of this Agreement (not
previously reported) and involving a Claim which is uninsured against or
affecting the Borrower or any of its Subsidiaries or any Property of the
Borrower or any of its Subsidiaries not previously disclosed by the Borrower to
the Administrative Agent and the Lenders, and shall provide such other
information at such time as may be reasonably available to enable each Lender
and the Administrative Agent and its counsel to evaluate such matters; and (iii)
in addition to the requirements set forth in clauses (i) and (ii) of this
Section 8.4, the Borrower upon request of the Administrative Agent or the
Requisite Lenders shall promptly give written notice of the status of any
action, suit, proceeding, governmental investigation or arbitration covered by a
report delivered pursuant to clause (i) or (ii) above and provide such other
information as may be reasonably available to it to enable each Lender and the
Administrative Agent and its counsel to evaluate such matters.
8.5 Insurance. If requested by the Administrative Agent, the Borrower
shall promptly deliver to the Administrative Agent and the Lenders (i) a report
in form and substance reasonably satisfactory to the Administrative Agent and
the Lenders outlining all insurance coverage
57
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 Administrative Agent and the Lenders, at the Borrower's expense, the
following information and notices as soon as reasonably possible, and in any
event:
(a) within fifteen (15) Business Days after the Borrower or any ERISA
Affiliate knows or has reason to know that an ERISA Termination Event has
occurred, a written statement of the chief financial officer of the Borrower
describing such ERISA Termination Event and the action, if any, which the
Borrower or any ERISA Affiliate has taken, is taking or proposes to take with
respect thereto, and when known, any action taken or threatened by the IRS, DOL
or PBGC with respect thereto;
(b) within fifteen (15) Business Days after the Borrower knows or has
reason to know that a prohibited transaction (defined in Sections 406 of ERISA
and 4975 of the Internal Revenue Code) has occurred, a statement of the chief
financial officer of the Borrower describing such transaction and the action
which the Borrower or any ERISA Affiliate has taken, is taking or proposes to
take with respect thereto;
(c) within fifteen (15) Business Days after the filing of the same
with the DOL, 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
58
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.
8.7 Environmental Notices. The Borrower shall notify the Administrative
Agent and the Lenders in writing, promptly upon any senior employee of the
Borrower responsible for environmental matters at the applicable Property of the
Borrower or any of its Subsidiaries learning thereof with respect to a Property,
of any of the following (together with any material documents and correspondence
received or sent in connection therewith):
(a) notice or claim to the effect that the Borrower or any of its
Subsidiaries is or may be liable to any Person as a result of the Release or
threatened Release of any Contaminant into the environment, if such liability
would result in a Material Adverse Effect;
(b) notice that the Borrower or any of its Subsidiaries is subject to
investigation by any Governmental Authority evaluating whether any Remedial
Action is needed to respond to the Release or threatened Release of any
Contaminant into the environment which is reasonably likely to result in a
Material Adverse Effect;
(c) notice that any Property of the Borrower or any of its
Subsidiaries is subject to an Environmental Lien if the claim to which such
Environmental Lien relates would result in a Material Adverse Effect;
(d) notice of a material violation by the Borrower or any of its
Subsidiaries of any Environmental, Health or Safety Requirement of Law which is
reasonably likely to result in a Material Adverse Effect;
59
(e) any condition which might reasonably result in a violation by the
Borrower or any Subsidiary of the Borrower of any Environmental, Health or
Safety Requirement of Law, which violation would result in a Material Adverse
Effect;
(f) commencement or threat of any judicial or administrative
proceeding alleging a violation by the Borrower or any of its Subsidiaries of
any Environmental, Health or Safety Requirement of Law, which would result in a
Material Adverse Effect;
(g) new or proposed changes to any existing Environmental, Health or
Safety Requirement of Law that is reasonably likely to result in a Material
Adverse Effect; or
(h) any proposed acquisition of stock, assets, real estate, or
leasing of Property, or any other action by the Borrower or any of its
Subsidiaries that could subject the Borrower or any of its Subsidiaries to
environmental, health or safety Liabilities and Costs which are reasonably
likely to result in a Material Adverse Effect.
8.8 Labor Matters. The Borrower shall notify the Administrative Agent in
writing, promptly upon the Borrower's learning thereof, of any labor dispute to
which the Borrower or any of its Subsidiaries may become a party (including,
without limitation, any strikes, lockouts or other disputes relating to any
Property of such Persons and other facilities) which could result in a Material
Adverse Effect.
8.9 Notices of Asset Sales and/or Acquisitions. The Borrower shall deliver
to the Administrative Agent and the Lenders written notice of each of the
following upon the occurrence thereof: (a) a sale, transfer or other disposition
of assets, in a single transaction or series of related transactions, for
consideration in excess of $200,000,000, (b) an acquisition of assets, in a
single transaction or series of related transactions, for consideration in
excess of $200,000,000, and (c) the grant of a Lien with respect to assets, in a
single transaction or series of related transactions, in connection with
Indebtedness aggregating an amount in excess of $200,000,000.
8.10 [Intentionally Omitted]
8.11 Other Reports. The Borrower shall deliver or cause to be delivered to
the Administrative Agent copies of all financial statements, reports, material
notices and other materials, if any, sent or made available generally by GGP,
Inc. or the Borrower to their respective Securities holders or filed with the
Commission, all press releases made available generally by GGP, Inc., the
Borrower or any of its Subsidiaries to the public concerning material
developments in the business of GGP, Inc., the Borrower or any such Subsidiary
and all notifications received by GGP, Inc., the Borrower or its Subsidiaries
pursuant to the Securities Exchange Act and the rules promulgated thereunder.
8.12 Other Information. Promptly upon receiving a request therefor from the
Administrative Agent, the Borrower shall prepare and deliver to the
Administrative Agent 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 the Administrative Agent.
60
ARTICLE IX - AFFIRMATIVE COVENANTS
Borrower covenants and agrees that so long as any Revolving Credit Commitments
are outstanding and thereafter until payment in full of all of the Obligations
(other than indemnities pursuant to Section 15.3 not yet due), unless the
Requisite Lenders shall otherwise give prior written consent:
9.1 Existence, Etc. The Borrower shall, and shall cause each of its
Subsidiaries to, at all times maintain its corporate existence or existence as a
limited liability company, limited partnership, general partnership, trust or
joint venture, as applicable, and preserve and keep, or cause to be preserved
and kept, in full force and effect, its rights and franchises material to its
businesses, except where the loss or termination of such rights and franchises
is not likely to have a Material Adverse Effect.
9.2 Powers; Conduct of Business. The Borrower shall remain qualified, and
shall cause each of its Subsidiaries to qualify and remain qualified, to do
business and maintain its good standing in each jurisdiction in which the nature
of its business and the ownership of its respective Properties requires it to be
so qualified and in good standing.
9.3 Compliance with Laws, Etc. The Borrower shall, and shall cause each of
its Subsidiaries to, (a) comply in all material respects with all Requirements
of Law and all restrictive covenants affecting such Person or the business,
Property, assets or operations of such Person, and (b) obtain and maintain as
needed all Permits necessary for its operations (including, without limitation,
the operation of the Real Properties) and maintain such Permits in good
standing, except where noncompliance with either clause (a) or (b) above is not
reasonably likely to have a Material Adverse Effect.
9.4 Payment of Taxes and Claims. (a) The Borrower shall pay, and cause
each of its Subsidiaries to pay, (i) all taxes, assessments and other
governmental charges imposed upon it or on any of its Property or assets or in
respect of any of its franchises, licenses, receipts, sales, use, payroll,
employment, business, income or Property before any penalty or interest accrues
thereon, and (ii) all Claims (including, without limitation, claims for labor,
services, materials and supplies) for sums which have become due and payable and
which by law have or may become a Lien (other than a Lien permitted by Section
10.2 or a Customary Permitted Lien for property taxes and assessments not yet
due) upon any of the Borrower's or any of the Borrower's Subsidiaries' Property
or assets, prior to the time when any penalty or fine shall be incurred with
respect thereto; provided, however, that no such taxes, assessments, fees and
governmental charges referred to in clause (i) above or Claims referred to in
clause (ii) above need be paid if being contested in good faith by appropriate
proceedings diligently instituted and conducted and if such reserve or other
appropriate provision, if any, as shall be required in conformity with GAAP
shall have been made therefor.
9.5 Insurance. The Borrower shall maintain for itself and its
Subsidiaries, or shall cause each of its Subsidiaries to maintain in full force
and effect the insurance policies and programs listed on Schedule 7.1-T or
substantially similar policies and programs or other policies
61
and programs as are reasonably acceptable to the Administrative Agent. All such
policies and programs shall be maintained with insurers reasonably acceptable to
the Administrative Agent.
9.6 Inspection of Property; Books and Records; Discussions. The Borrower
shall permit, and cause each of its Subsidiaries to permit, any authorized
representative(s) designated by either the Administrative Agent or other Lender
to visit and inspect any of their respective Real Properties, to examine, audit,
check and make copies of their respective financial and accounting records,
books, journals, orders, receipts and any correspondence and other data relating
to their respective businesses or the transactions contemplated hereby
(including, without limitation, in connection with environmental compliance,
hazard or liability), and to discuss their affairs, finances and accounts with
their Authorized Financial Officers and independent certified public
accountants, all with a representative of the Borrower present, upon reasonable
notice and at such reasonable times during normal business hours, as often as
may be reasonably requested. Each such visitation and inspection shall be at
such visitor's expense. The Borrower shall keep and maintain, and cause its
Subsidiaries to keep and maintain, in all material respects proper books of
record and account in which entries in conformity with GAAP shall be made of all
dealings and transactions in relation to their respective businesses and
activities.
9.7 ERISA Compliance. The Borrower shall, and shall cause each of its
ERISA Affiliates to, establish, maintain and operate all Plans to comply in all
material respects with the provisions of ERISA, the Internal Revenue Code, all
other applicable laws, and the regulations and interpretations having the force
of law thereunder and the respective requirements of the governing documents for
such Plans.
9.8 Maintenance of Property. The Borrower shall, and shall cause each of
its Subsidiaries to, maintain in all material respects all of their respective
owned and leased Property in good, safe and insurable condition and repair, and
not permit, commit or suffer any waste or abandonment of any such Property and
from time to time shall make or cause to be made all material repairs, renewal
and replacements thereof, including, without limitation, any capital
improvements which may be required to maintain the same in good condition and
repair; provided, however, that such Property may be altered or renovated in the
ordinary course of business of the Borrower or such applicable Subsidiary.
Without any limitation on the foregoing, the Borrower shall maintain the Real
Property in a manner such that each Real Property can be used in the manner and
substantially for the purposes such Real Property is used on the Closing Date,
including, without limitation, maintaining all utilities, access rights, zoning
and necessary Permits for such Real Property.
9.9 REIT Status. GGP, Inc. shall at all times (1) remain a publicly
traded company listed on the New York Stock Exchange or other national stock
exchange; (2) maintain its status as a REIT under the Internal Revenue Code, and
(3) retain direct or indirect management and control of the Borrower. The
Partnership shall at all times retain direct or indirect control of the Company.
9.10 Ownership of Property. The ownership of substantially all Property of
the Consolidated Businesses shall be held by the Borrower and its Subsidiaries.
62
9.11 Financing. The Borrower shall cause the condition set forth in
Section 6.2(e) hereof to be fulfilled on or before October 31, 2000.
ARTICLE X - NEGATIVE COVENANTS
Borrower covenants and agrees that it shall comply, or cause compliance, with
the following covenants so long as any Revolving Credit Commitments are
outstanding and thereafter until payment in full of all of the Obligations
(other than indemnities pursuant to Section 15.3 not yet due), unless the
Requisite Lenders shall otherwise give prior written consent:
10.1 Sales of Assets. Neither 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 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 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
63
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 (a) issuance, transfer, conversion
or repurchase of limited partnership interests in the Partnership, or (b)
conversion or repurchase of membership interests in the Company to the extent
required pursuant to any existing Contractual Obligation under the Borrower
Operating Agreement. 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(d)
hereof. No Change of Control shall occur.
10.6 Margin Regulations; Securities Laws. Neither the Borrower nor any of
its Subsidiaries, shall use all or any portion of the proceeds of any credit
extended under this Agreement to purchase or carry Margin Stock.
10.7 ERISA. 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;
64
(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 Borrower nor any of their
respective Subsidiaries shall amend, modify or otherwise change any of the terms
or provisions in any of their respective Organizational Documents as in effect
on the Closing Date, except amendments to effect (a) a change of name of the
Borrower or any such Subsidiary (provided, however, that the Borrower shall have
provided the Administrative Agent with at least ten (10) Business Days' prior
written notice of any such name change), (b) changes to the Borrower Partnership
Agreement relating to the acquisition of Real Property or interests in an owner
of Real Property with respect to which the consideration paid to the seller
thereof includes limited partnership interests in the Partnership, or (c)
changes that would not affect such Organizational Documents or the interests of
the Lenders in any material manner not otherwise permitted under this Agreement.
10.9 Fiscal Year. Neither 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.
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:
(a) Investments in Cash and Cash Equivalents;
(b) Subject to the limitations set forth in this Section 10.11,
Investments in the Borrower's Subsidiaries, Borrower's Affiliates and the
Management Company;
(c) Investments received in connection with the bankruptcy or
reorganization of suppliers and lessees and in settlement of delinquent
obligations of, and other disputes with, lessees and suppliers arising in the
ordinary course of business;
(d) Investments in:
(i) any individual Real Property (other than the Ala Moana
Center and Property related thereto) which do not exceed seven percent (7%) of
the Capitalization Value after giving effect to such Investments of the Borrower
and its Subsidiaries;
(ii) 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
65
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;
(iii) 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;
(iv) 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 a binding contract of
sale to an "anchor tenant" shall be deemed to be leased); and
(v) 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
(e) Investments held as of the Closing Date.
66
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 consecutive four fiscal quarters,
the ratio of (i) Combined EBITDA to (ii) Combined Interest Expense, shall not be
less than 1.8 to 1.0.
(c) Minimum Debt Yield. As of the 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; provided, however, that no such redemption,
repurchase or acquisition shall have, or be reasonably likely to have, a
Material Adverse Effect.
(e) Minimum Fixed Charge Coverage Ratio. As of the first day of each
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 cumulative, 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,
67
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 wholly-owned Properties shall at no time exceed sixty five
percent (65%), in the aggregate.
(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 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, 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 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), subsection (iii) or subsection (iv) 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 July
31, 2003, Total Adjusted Outstanding Unsecured Indebtedness shall not exceed
$450,000,000.
(iv) As of and after August 1, 2003, if this Agreement is then
in effect, through and including the Revolving Credit Termination Date, Total
Adjusted Outstanding Unsecured Indebtedness shall not exceed $300,000,000.
(h) Most Favored Loan. The Borrower will not enter into any credit
agreement or execute any note, deed of trust, mortgage, security agreement,
pledge or any other loan agreement, document or instrument governing, evidencing
or securing any Indebtedness of the Borrower which is either (A) Unsecured
Indebtedness or (B) secured and Recourse Indebtedness, the terms of which
require compliance by the Borrower with covenants that, taken as a whole, are
more restrictive than the covenants of the Borrower herein contained, including,
without limitation, those covenants set forth in this Section 10.12.
(i) Certain Liens. Neither the Borrower, GGP, Inc. nor any of
their respective Affiliates controlled by them, respectively, will encumber with
any Lien any stock, partnership
68
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 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 Secured 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 the holder(s)
of the remaining equity interests in such Minority Holdings to secure
obligations under the applicable Organizational Documents of such Minority
Holdings.
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 9.4, 9.5 or 9.6, and such failure shall continue for fifteen (15) days
after receipt of written notice from the Administrative Agent thereof.
(c) Breach of Representation or Warranty. Any representation or
warranty made by the Borrower to the Administrative Agent or any other Lender
herein or by the Borrower or any of its Subsidiaries in any of the other Loan
Documents or in any statement or certificate at
69
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) 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 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 the Borrower,
or any of its Subsidiaries to which more than $50,000,000 of the Capitalization
Value is attributable, and the petition shall not be dismissed, stayed or
discharged within sixty (60) days after commencement of the case; or a court
having jurisdiction in the premises shall enter a decree or order for relief in
respect of the Borrower or any of 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 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 the Borrower or any of such Subsidiaries shall be entered; or
an interim receiver, trustee or other custodian of any of the Borrower or any of
such Subsidiaries or of all or
70
a substantial part of the Property of any of the Borrower or any of such
Subsidiaries shall be appointed or a warrant of attachment, execution or similar
process against any substantial part of the Property of any of 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 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 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 by a receiver, trustee or other custodian for all or a substantial
part of its Property; or any of 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 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 the
Borrower which is not discharged of record, bonded over or otherwise secured to
the satisfaction of the Administrative Agent within thirty (30) days after the
filing thereof or the date upon which the Administrative Agent receives actual
knowledge of the filing thereof for an amount which, either separately or when
aggregated with the amount of any judgments described in clause (i) above and/or
the amount of the Environmental Lien Claims described in clause (iii) below,
equals or exceeds $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.
71
(i) Dissolution. Any order, judgment or decree shall be entered
against the Borrower decreeing its involuntary dissolution or split up; or the
Borrower shall otherwise dissolve or cease to exist except as specifically
permitted by this Agreement.
(j) Loan Documents. At any time, for any reason, any Loan Document
ceases to be in full force and effect or the Borrower seeks to repudiate its
obligations thereunder.
(k) ERISA Termination Event. Any ERISA Termination Event occurs which
the Administrative Agent reasonably believes could subject either the Borrower
or any ERISA Affiliate to liability in excess of $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
Administrative Agent reasonably believes that the substantial business hardship
upon which the application for the waiver is based could subject either the
Borrower or any ERISA Affiliate to liability in excess of $1,000,000.
(m) Certain Defaults Pertaining to GGP, Inc. GGP, Inc. shall fail to
(i) maintain its status as a REIT for federal income tax purposes, (ii) continue
as a general partner of the Partnership, (iii) 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, (iv) remain
listed on the New York Stock Exchange or other national stock exchange, or (v)
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 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.
72
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 Revolving Credit
Commitments shall automatically and immediately terminate and the unpaid
principal amount of, and any and all accrued interest on, the Obligations and
all accrued fees shall automatically become immediately due and payable, without
presentment, demand, or protest or other requirements of any kind (including,
without limitation, valuation and appraisement, diligence, presentment, notice
of intent to demand or accelerate and of acceleration), all of which are hereby
expressly waived by the Borrower; and upon the occurrence and during the
continuance of any other Event of Default, the Administrative Agent shall at the
request, or may with the consent, of the Requisite Lenders, by written notice to
the Borrower, (i) declare that the Revolving Credit Commitments are terminated,
whereupon the Revolving Credit Commitments and the obligation of each Lender to
make any Loan hereunder shall immediately terminate, and/or (ii) declare the
unpaid principal amount of and any and all accrued and unpaid interest on the
Obligations to be, and the same shall thereupon be, immediately due and payable,
without any other presentment, demand, or protest or other requirements of any
kind (including, without limitation, valuation and appraisement, diligence,
presentment, notice of intent to demand or accelerate and of acceleration), all
of which are hereby expressly waived by the Borrower.
(b) Rescission. If at any time after termination of the Revolving
Credit Commitments and/or acceleration of the maturity of the Loans, the
Borrower shall pay all arrears of interest and all payments on account of
principal of the Loans which shall have become due otherwise than by
acceleration (with interest on principal and, to the extent permitted by law, on
overdue interest, at the rates specified in this Agreement) and all Events of
Default and Potential Events of Default (other than nonpayment of principal of
and accrued interest on the Loans due and payable solely by virtue of
acceleration) shall be remedied or waived pursuant to Section 15.7, then upon
the written consent of the Requisite Lenders and written notice to the Borrower,
the termination of the Revolving Credit Commitments and/or the acceleration and
the consequences thereof may be rescinded and annulled; but such action shall
not affect any subsequent Event of Default or Potential Event of Default or
impair any right or remedy consequent thereon. The provisions of the preceding
sentence are intended merely to bind the Lenders to a decision which may be made
at the election of the Requisite Lenders; they are not intended to benefit the
Borrower and do not give the Borrower the right to require the Lenders to
rescind or annul any acceleration hereunder, even if the conditions set forth
herein are met.
(c) Enforcement. The Borrower acknowledges that in the event the
Borrower fails to perform, observe or discharge any of its obligations or
liabilities under this Agreement or any other Loan Document, any remedy of law
may prove to be inadequate relief to the Administrative Agent and the other
Lenders; therefore, the Borrower agrees that the Administrative Agent and the
other Lenders shall be entitled to temporary and permanent injunctive relief in
any such case without the necessity of proving actual damages.
ARTICLE XII - THE AGENT
73
12.1 Appointment. Bank of America is hereby irrevocably appointed
Administrative Agent hereunder and under each other Loan Document, and each of
the Lenders irrevocably authorizes the Administrative Agent to act as the agent
of such Lender. The Administrative Agent agrees to act as such upon the express
conditions contained in this Article XII. The Administrative Agent shall not
have any duties or responsibilities to the Lenders except those expressly set
forth herein and shall not have a fiduciary relationship in respect of any
Lender by reason of this Agreement. USB and Dresdner are hereby irrevocably
appointed as the Syndication Agent and Documentation Agent, respectively, for
the Lenders. Neither the Documentation Agent nor the Syndication Agent shall
have any fiduciary relationship in respect of any Lender by reason of this
Agreement, or any duties or responsibilities to the Lenders in that capacity, in
connection with the administration of the Facility or otherwise.
12.2 Powers. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto (but subject to Section 15.7 below). The
Administrative Agent shall have no implied duties, obligations or liabilities to
the Lenders, or any obligation to the Lenders to take any action thereunder
except any action specifically provided by the Loan Documents to be taken by the
Administrative Agent. Only the Administrative Agent may perform the duties
reserved to it under the Loan Documents and no Lender shall act or purport to
act on behalf of the other Lenders or Administrative Agent on any such matters.
Without limiting the generality of the foregoing:
(a) The Administrative Agent shall have the exclusive right to
collect from Borrower and any Guarantor, or third parties, on account of the
Facility, including, principal, interest, fees, protective advances and
prepayment premiums (if any), whether such sums are received directly from
Borrower, any guarantor (including, without limitation, GGP, Inc., as the
guarantor under the Guaranty) or any other Persons, or are obtained by right of
offset by the Administrative Agent of any kind, or by enforcement of the Loan
Documents. The Administrative Agent will receive and hold all collections with
respect to the Loan for the benefit of the Lenders in accordance with their
respective Pro Rata Shares or as otherwise provided herein.
(b) If any Lender shall receive any payments or property in
connection with the Facility (whether or not voluntary), from any Person other
than the Administrative Agent, such Lender shall transfer to the Administrative
Agent all such payments or property within one (1) Business Day of receipt.
(c) No Lender shall independently initiate any judicial action or
other proceeding against Borrower or any Guarantor with respect to the Facility.
12.3 General Immunity. None of the Co-Arrangers nor any of their
respective directors, officers, agents or employees shall be liable to the
Borrower or the Lenders for any action taken or omitted to be taken by it or
them hereunder or under any other Loan Document or in connection herewith or
therewith, except for its or their own gross negligence or willful misconduct.
74
12.4 No Responsibility for Loans, Recitals, etc. None of the Co-Arrangers
nor any of their respective directors, officers, agents or employees shall be
responsible for or have any duty to ascertain, inquire into, or verify (i) any
statement, warranty or representation made in connection with any Loan Document
or any Borrowing hereunder; (ii) the performance or observance of any of the
covenants or agreements of any obligor under any Loan Document; (iii) the
satisfaction of any condition specified in Article VI, except receipt of items
required to be delivered to the Administrative Agent; or (iv) the validity,
effectiveness or genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith.
12.5 Action on Instructions of Lenders. The Administrative Agent shall in
all cases be fully protected by the Lenders, as against any claim or other
action of any kind or nature whatsoever by any Lender, in acting, or in
refraining from acting, hereunder and under any other Loan Document in
accordance with written instructions signed by the Requisite Lenders (or, in the
case of any waiver or amendment listed in Section 15.7(b) hereof, all of the
Lenders) and such instructions and any action taken or failure to act pursuant
thereto shall be binding on all of the Lenders and on all Holders. As between
the Administrative Agent and the Lenders, the Administrative Agent shall be
fully justified in failing or refusing to take any action hereunder and under
any other Loan Document unless it shall first receive such advice or
concurrence, if it so requests, of the Requisite Lenders and shall first be
indemnified to its satisfaction by the Lenders in accordance with their
respective Pro Rata Shares against any and all liability, cost and expense that
it may incur by reason of taking or continuing to take any such action.
12.6 Employment of Administrative Agents and Counsel. Each of the Co-
Arrangers may execute any of its duties as Administrative Agent, Documentation
Agent or Syndication Agent (as the case may be) hereunder and under any other
Loan Document by or through employees, agents and attorneys-in-fact and shall
not be answerable to the Lenders, except as to money or securities received by
it or its authorized agents, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. As between each of the
Co-Arrangers, on the one hand, and the Lenders, on the other hand, such Co-
Arranger 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 the such Co-Arranger concerning all
matters pertaining to its agency hereby created and its duties hereunder and
under any other Loan Document.
12.7 Reliance on Documents. The Administrative Agent shall be entitled to
rely upon any Note or other Loan Document, writing, notice, consent,
certificate, facsimile, affidavit, letter, telegram, statement, paper, document
or other communication believed by it to be genuine and correct and to have been
signed, sent or otherwise communicated by the proper person or persons.
12.8 Administrative Agent's Reimbursement and Indemnification'. The
Lenders, ratably in accordance with their respective Pro Rata Shares, agree to
reimburse and indemnify upon demand each of the Co-Arrangers (i) for any amounts
not reimbursed by the Borrower for which such Co-Arranger is entitled to
reimbursement by the Borrower under the Loan Documents, (ii) for any other
expenses (including reasonable attorneys' fees) incurred by such Co-Arranger on
behalf of the Lenders, in connection with the preparation, execution, delivery,
75
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-Arranger 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-Arranger. Each Lender shall indemnify each of the
Co-Arrangers 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-Arranger shall have any liability or obligation hereunder with respect to any
negligence or misconduct of any other Co-Arranger.
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-Arrangers 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-Arrangers, and the term
"Lender" or "Lenders" shall, unless the context otherwise indicates, include
each of the Co-Arrangers in its capacity as a Lender. Each of the Co-Arrangers,
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-Arrangers
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-Arrangers 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-
Arrangers or their respective Affiliates may receive information regarding the
Borrower or its Affiliates and acknowledge that none of the Co-Arrangers 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-Arrangers nor any of their respective agents has made any representation or
warranty to such Lender and that no action or statement hereafter made or taken
by any of the Co-Arrangers or any of their respective agents shall be deemed to
be representation or warranty by any other of the Co-Arrangers to such Lenders.
Each Lender further acknowledges that it has, independently and without reliance
upon any of the Co-Arrangers or any other Lender and based on the financial
statements prepared by the Borrower and such other documents and information as
such Lender has deemed appropriate, made its own credit analysis and decision to
enter into this Agreement and the other Loan Documents. Each Lender also
acknowledges that it will, independently and without reliance upon any of the
Co-Arrangers or any other Lender and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit analysis
and decisions in taking or not taking action under this Agreement and the other
Loan Documents.
76
12.11 Successor Administrative Agent. Each Lender agrees that Bank of
America shall serve as the Administrative Agent at all times during the Term of
this Facility, except that of Bank of America may resign from its agency at any
time, in its sole discretion, upon thirty (30) days' prior written notice to the
Lenders and the Borrower. If the Administrative Agent is permitted to (in
accordance with the terms of this Agreement) and does participate or assign its
total interests in the Facility, other than to a successor entity to the
Administrative Agent, then the Administrative 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 Administrative Agent, which successor Administrative Agent,
other than a successor entity to the Administrative Agent, shall, so long as no
Event of Default exists hereunder, be subject to the approval of the Borrower
(such approval not to be unreasonably withheld or delayed). If no successor
Administrative Agent shall have been so appointed by the other Lenders (and, if
applicable, approved by Borrower) and shall have accepted such appointment
within thirty (30) days after the retiring Administrative Agent's giving notice
of resignation, then the retiring Administrative Agent may appoint, on behalf of
the Borrower and the Lenders, a successor Administrative Agent, which successor
Administrative Agent, other than a successor entity to the Administrative Agent,
shall, so long as no Event of Default exists hereunder, be subject to the
approval of Borrower (such approval not to be unreasonably withheld or delayed).
Such successor Administrative Agent shall be a commercial bank having capital
and retained earnings of at least $1,000,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, including the right to receive any fees for performing
such duties which accrue thereafter, and the retiring Administrative Agent shall
be discharged from its duties and obligations subsequently arising hereunder and
under the other Loan Documents. After any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the provisions of this Article
XII shall continue in effect for its benefit and that of the other Lenders in
respect of any actions taken or omitted to be taken by it while it was acting as
the Administrative Agent hereunder and under the other Loan Documents.
12.12 Notice of Defaults. If a Lender becomes aware of a Potential Event
of Default or Event of Default, such Lender shall notify the Administrative
Agent of such fact. Upon receipt of such notice that a Potential Event of
Default or Event of Default has occurred, the Administrative Agent shall notify
each of the Lenders of such fact. Except for defaults in the payment of
principal, interest and fees payable to Administrative Agent for the account of
the Lenders and such other Obligations for which Administrative Agent is
expressly responsible for determining the Borrower's compliance, Administrative
Agent shall not be deemed to have knowledge or notice of the occurrence of any
Potential Event of Default or Event of Default, unless Administrative Agent
shall have received written notice from a Lender or the Borrower referring to
the Loan, describing such Potential Event of Default or Event of Default and
stating that such notice is a "notice of default". Administrative Agent will
notify the Lenders of its receipt of any such notice. Administrative Agent
shall take action with respect to such Potential Event of Default or Event of
Default in accordance with the provisions of this Agreement and the Loan
Documents.
77
12.13 Requests for Approval. If the Administrative Agent requests in
writing the consent or approval of a Lender, whether or not such consent or
approval is required hereunder (and no such requirement shall be inferred from
any such request), such Lender shall respond and either approve or disapprove
definitively in writing to the Administrative Agent within ten (10) Business
Days (or sooner if such notice specifies a shorter period based on
Administrative Agent's good faith determination that circumstances warrant an
earlier response) after such written request from the Administrative Agent. If
any Lender does not so respond, that Lender shall be deemed to have approved the
request. Upon request, the Administrative Agent shall notify the Lenders which
Lenders, if any, failed to respond to a request for approval.
12.14 Copies of Documents. Administrative Agent shall promptly deliver to
each of the Lenders copies of all notices of default and other formal notices
sent to or received by the Administrative Agent pursuant to Section 15.1 of this
Agreement. Within fifteen (15) Business Days after a request by a Lender to the
Administrative Agent for other documents furnished to the Administrative Agent
by the Borrower, the Administrative Agent shall provide copies of such documents
to such Lender except where this Agreement obligates Administrative Agent to
provide copies in a shorter period of time.
12.15 Withholding Tax. All taxes due and payable on any payments to be
made to a Lender under this Agreement shall be such Lender's sole
responsibility, except to the extent such taxes are actually reimbursed by the
Borrower under the Loan Documents. All payments to be made to each Lender under
this Agreement shall be made after deduction for any taxes, charges, levies or
withholdings which are imposed by the country of organization of the Borrower,
the United States of America or any other applicable taxing authority. Each
Lender agrees to provide to Administrative Agent completed and signed copies of
any forms that may be required by the IRS (and any applicable state authority)
in order to certify such Lender's exemption from or reduction of United States
(or applicable state) withholding taxes with respect to payments to be made to
such Lender under this Agreement or the Loan Documents. Each Lender agrees to
promptly notify Administrative Agent of any change which would modify or render
invalid any claimed exemption or reduction. If any governmental authority of
the United States or other jurisdiction asserts a claim that Administrative
Agent did not properly withhold tax from amounts paid to or for the account of
any Lender, such Lender shall indemnify Administrative Agent fully for all
amounts paid by Administrative Agent as tax or otherwise, including penalties
and interest, and including any taxes imposed by any jurisdiction on the amount
payable to Administrative Agent under this section, together with all costs and
expenses (including legal expenses). The obligation of the Lenders under this
subsection shall survive the payment of all Obligations and the resignation or
replacement of Administrative Agent.
12.16 Borrower's Default; Enforcement'. Upon the occurrence of an Event
of Default under any Loan Document, the Requisite Lenders shall have the right,
upon written notice to Administrative Agent, to require that Administrative
Agent exercise the rights of the Lenders as directed by the Requisite Lenders;
provided, however, that the Lenders shall indemnify, exonerate and hold
Administrative Agent harmless from and against any and all claims, losses,
liabilities, damages and costs (including reasonable legal fees) incurred by
Administrative Agent as a result of any such exercise of rights at the direction
of the Lenders and not resulting from the gross negligence or willful misconduct
of Administrative Agent.
78
12.17 Workout. If an Event of Default has occurred, Administrative Agent
may declare by written notice to the Lenders (with a copy to the Borrower) that
the Loan is "in workout" (the "Notice of Workout"). The Lenders acknowledge
that workouts of defaulted loans usually are resolved by either a borrower cure
of the default; or a restructure of or other modification to the loan; or by
exercising remedies; and that it is in the interest of the Lenders to attain a
resolution within a reasonable period of time. Notwithstanding any action by
Administrative Agent under this Section 12.17, Administrative Agent shall follow
the direction of the Requisite Lenders under Section 12.16 above at any time.
Nevertheless, unless and until the Requisite Lenders shall direct Administrative
Agent to the contrary, Administrative Agent shall have the right but not the
obligation to take such action as it may deem appropriate to preserve the rights
of the Lenders to recover any amounts owing under the Loan Documents, without
the consent of the Requisite Lenders.
12.18 Bankruptcy of Borrower. In the event of a bankruptcy by the
Borrower, the Lenders shall act through Administrative Agent to petition the
court, make any motion for relief from the automatic stay, participate in any
appropriate creditors' committee, vote on a plan of reorganization or pursue
other remedies or actions in accordance with the approval of the Requisite
Lenders.
12.19 Relationship of Parties. This Agreement is not intended to
establish a partnership or joint venture between any of the Co-Arrangers, on the
one hand, and the Lenders, on the other hand. The provisions of the Loan
Documents regarding the relationships among each of the Co-Arrangers and the
Lenders and this Article XII are intended solely to facilitate co-lending
relationships among the Lenders for the Facility. No security or investment
contract under any federal or state law is intended to be created among the
Lenders or between any of the Co-Arrangers and the Lenders. The execution of
this Agreement, the performance of the terms thereof, and the Lenders' purchase
of and ownership interest in the Facility and the Loan Documents shall not
constitute any Lender as owner, purchaser or seller of any security (as that
term is defined in the Securities Act of 1933 or the Securities Exchange Act of
1934) issued, owned, purchased or sold by Bank of America, Dresdner or USB 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 Bank of America, Dresdner or
USB, and no debtor-creditor relationship exists between them as a result of this
Agreement.
12.20 Counsel. The Lenders acknowledge that the Co-Arranger's respective
counsel have represented and shall represent only the Co-Arrangers,
respectively, in their respective capacities 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
79
13.1 Taxes.
(a) Payment of Taxes. Any and all payments by the Borrower hereunder
or under any Note or other document evidencing any Obligations shall be made, in
accordance with Section 4.2, free and clear of and without reduction for any and
all present or future taxes, levies, imposts, deductions, charges, withholdings,
and all stamp or documentary taxes, excise taxes, ad 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 Revolving Credit
Commitments and all other liabilities with respect thereto excluding, in the
case of each Lender, taxes imposed on or measured by net income or overall gross
receipts and capital and franchise taxes imposed on it by (i) the United States,
(ii) the Governmental Authority of the jurisdiction in which such Lender's
Applicable Lending Office is located or any political subdivision thereof or
(iii) the Governmental Authority of the jurisdiction in which such Person is
organized, managed and controlled or any political subdivision thereof (all such
nonexcluded taxes, levies, imposts, deductions, charges and withholdings being
hereinafter referred to as "Taxes"). If the Borrower shall be required by law to
withhold or deduct any Taxes from or in respect of any sum payable hereunder or
under any such Note or document to any Lender, (x) the sum payable to such
Lender shall be increased as may be necessary so that after making all required
withholding or deductions (including withholding or deductions applicable to
additional sums payable under this Section 13.1) such Lender receives an amount
equal to the sum it would have received had no such withholding or deductions
been made, (y) the Borrower shall make such withholding or deductions, and (z)
the Borrower shall pay the full amount withheld or deducted to the relevant
taxation authority or other authority in accordance with applicable law.
Notwithstanding the foregoing, in the event that any Lender is or becomes so
subject to such Taxes, at Borrower's sole election, Borrower may identify an
Eligible Assignee not so subject to such Taxes to whom the Lender which is so
subject shall assign its interest in the Loans pursuant to the terms of an
Assignment and Acceptance substantially in the form attached as Exhibit A.
(b) Indemnification. The Borrower will indemnify each Lender
against, and reimburse each on demand for, the full amount of all Taxes
(including, without limitation, any Taxes imposed by any Governmental Authority
on amounts payable under this Section 13.1 resulting therefrom) incurred or paid
by such Lender or any of its respective Affiliates and any liability (including
penalties, interest, and out-of-pocket expenses paid to third parties) arising
therefrom or with respect thereto, whether or not such Taxes were lawfully
payable. A certificate as to any additional amount payable to any Person under
this Section 13.1 submitted by a Lender to the Borrower shall, absent manifest
error, be final, conclusive and binding upon all parties hereto. Each Lender
agrees, within a reasonable time after receiving a written request from the
Borrower, to provide the Borrower and the Administrative Agent with such
certificates as are reasonably required, and take such other actions as are
reasonably necessary to claim such exemptions as such Lender may be entitled to
claim in respect of all or a portion of any Taxes which are otherwise required
to be paid or deducted or withheld pursuant to this Section 13.1 in respect of
any payments under this Agreement or under the Notes.
80
(c) Receipts. Within thirty (30) days after the date of any payment
of Taxes by the Borrower, it will furnish to the Administrative Agent, at its
address referred to in Section 15.8, the original or a certified copy of a
receipt evidencing payment thereof.
(d) Foreign Bank Certifications.
(i) Each Lender that is not created or organized under the laws
of the United States or a political subdivision thereof shall deliver to the
Borrower and the Administrative Agent on the Closing Date or the date on which
such Lender becomes a 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)) or (II)
under Sections 1442(c)(1) and 1442(a) of the Internal Revenue Code (in which
case the certificate shall be accompanied by two duly completed copies of IRS
Form 4224 (or any successor or substitute form or forms)).
(ii) Each Lender further agrees to deliver to the Borrower and
the Administrative Agent from time to time, a true and accurate certificate
executed in duplicate by a duly authorized officer of such Lender before or
promptly upon the occurrence of any event requiring a change in the most recent
certificate previously delivered by it to the Borrower and the Administrative
Agent pursuant to this Section 13.1(d). Each certificate required to be
delivered pursuant to this Section 13.1(d)(ii) shall certify as to one of the
following:
(A) that such Lender can continue to receive payments
hereunder and under the Notes without deduction or withholding of United States
federal income tax;
(B) that such Lender cannot continue to receive payments
hereunder and under the Notes without deduction or withholding of United States
federal income tax as specified therein but does not require additional payments
pursuant to Section 13.1(a) because it is entitled to recover the full amount of
any such deduction or withholding from a source other than the Borrower; or
(C) that such Lender is no longer capable of receiving
payments hereunder and under the Notes without deduction or withholding of
United States federal income tax as specified therein and that it is not capable
of recovering the full amount of the same from a source other than the Borrower.
Each Lender agrees to deliver to the Borrower and the Administrative Agent
further duly completed copies of the above-mentioned IRS forms on or before the
earlier of (x) the date that any such form expires or becomes obsolete or
otherwise is required to be resubmitted as a condition to obtaining an exemption
from withholding from United States federal income tax and (y) fifteen (15) days
after the occurrence of any event requiring a change in the most recent form
previously delivered by such Lender to the Borrower and Administrative Agent,
unless any change in treaty, law, regulation, or official interpretation thereof
which would render such form
81
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 case, within thirty (30) days after written demand by such Lender
(with a copy of such demand to the Administrative Agent), the Borrower shall pay
to the Administrative Agent for the account of such Lender, from time to time as
specified by such Lender, additional amounts sufficient to compensate such
Lender or such corporation therefor. Such demand shall be accompanied by a
statement as to the amount of such compensation and include a brief summary of
the basis for such demand. Such statement shall be conclusive and binding for
all purposes, absent manifest error. Notwithstanding the foregoing, in the event
of any such demand, at Borrower's sole election, Borrower may identify an
Eligible Assignee not making such a demand to whom the demanding Lender shall
assign its interest in the Loans pursuant to the terms of an Assignment and
Acceptance substantially in the form attached as Exhibit A.
13.3 Changes; Legal Restrictions. If after the date hereof any Lender
determines that the adoption or implementation of or any change in or in the
interpretation or administration of any law or regulation or any guideline or
request from any central bank or other Governmental Authority or quasi-
governmental authority exercising jurisdiction, power or control over any
Lender, or over banks or financial institutions generally (whether or not having
the force of law), compliance with which:
(a) does or will subject a Lender (or its Applicable Lending Office
or Eurodollar Affiliate) to charges (other than taxes) of any kind which such
Lender reasonably determines to be applicable to the Revolving Credit
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;
82
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 Revolving Credit 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
Borrower's sole election, Borrower may identify an Eligible Assignee not making
such a demand to whom the demanding Lender shall assign its interest in the
Loans pursuant to the terms of an Assignment and Acceptance substantially in the
form attached as Exhibit A.
ARTICLE XIV - 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, except as otherwise provided in subsection (b) below, a portion of its
rights and obligations under this Agreement in accordance with the provisions of
this Section 15.1.
(b) Limitations on Assignments. For so long as no Event of Default
has occurred and is continuing, each assignment shall be subject to the
following conditions: (i) 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 $20,000,000, (ii) each such
assignment shall be to an Eligible Assignee approved by the Administrative Agent
and, so long as no Event of Default shall have occurred and be continuing
hereunder, by the Borrower (which approval shall not be unreasonably withheld,
conditioned or delayed by the Administrative Agent or the Borrower), (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 shall maintain a minimum Revolving Credit
Commitment of at least $20,000,000; provided, however, that, within six (6)
months after the date hereof, one Eligible Assignee may become a Lender
hereunder pursuant to a Joinder Agreement providing for a Revolving Credit
Commitment in an amount less than $20,000,000, but not less than
83
$15,000,000, and such Lender (and its permitted assigns) may thereafter assign
all, but not less than all, of its rights and obligations hereunder to an
Eligible Assignee in accordance with all of the other requirements hereof, all
without regard to the requirement as to dollar amount of the foregoing clause
(i) or clause (iv); and provided further 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 portion of such assigning Lender's
rights and obligations under this Agreement, the assigning Lender shall cease to
be a party hereto) and (C) the Borrower shall execute and deliver to the
assignee thereunder a Note evidencing its obligations to such assignee with
respect to the Loans upon the cancellation or amendment of the original thereby
being replaced.
(c) The Register. The Administrative Agent shall maintain at its
address referred to in Section 15.8 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register (the "Register") for the
recordation of the names and addresses of the Lenders, the Revolving Credit
Commitment of, and the principal amount of the Loans under the Revolving Credit
Commitments owing to, each Lender from time to time and whether such Lender is
an original Lender, a Lender pursuant to a Joinder Agreement or the assignee of
another Lender pursuant to an Assignment and Acceptance. 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.
84
(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 Revolving
Credit Commitment hereunder and the Loans owing to it); Provided, however, that
(i) such Lender's obligations under this Agreement (including, without
limitation, its Revolving Credit Commitment hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) the Borrower, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement, (iv) each participation shall be in a minimum amount of $10,000,000,
and (v) such participant's rights to agree or to restrict such Lender's ability
to agree to the modification, waiver or release of any of the terms of the Loan
Documents, to consent to any action or failure to act by any party to any of the
Loan Documents or any of their respective Affiliates, or to exercise or refrain
from exercising any powers or rights which any Lender may have under or in
respect of the Loan Documents, shall be limited to the right to consent to (A)
increase in the Revolving Credit Commitment of the Lender from whom such
participant purchased a participation, (B) 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), (C) postponement of any date fixed
for any payment of principal of, or interest on, the Loan(s) subject to such
participation and (D) release of any guarantor of the Obligations.
(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-Arrangers 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, Revolving Credit 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-Arranger, or to any trust or special purpose funding vehicle, whether or
not such Co-Arranger 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) Information Regarding the Borrower. Any Lender may, in connection
with any assignment or participation or proposed assignment or participation
pursuant to this Section 15.1, disclose to the assignee or participant or
proposed assignee or participant, any information relating to the Borrower or
its Subsidiaries furnished to such Lender by the Administrative Agent or by or
on behalf of the Borrower; provided, that, prior to any such disclosure, such
assignee or participant, or proposed assignee or participant, shall agree, in
writing, to preserve in accordance with Section 15.20 the confidentiality of any
confidential information described therein.
(h) Payment to Participants. Anything in this Agreement to the
contrary notwithstanding, in the case of any participation, all amounts payable
by the Borrower under the
85
Loan Documents shall be calculated and made in the manner and to the parties
required hereby as if no such participation had been sold.
(i) Lenders' Creation of Security Interests. Notwithstanding any
other provision set forth in this Agreement, any Lender may at any time create a
security interest in all or any portion of its rights under this Agreement
(including, without limitation, Obligations owing to it and any Note held by it)
in favor of any Federal Reserve bank in accordance with Regulation A of the
Federal Reserve Board.
15.2 Expenses.
--------
(a) Generally. The Borrower agrees upon demand to pay, or reimburse
the each of the Co-Arrangers for all of their respective reasonable external
audit and investigation expenses and for the reasonable fees, expenses and
disbursements of their respective legal counsel and for all other reasonable
out-of-pocket costs and expenses of every type and nature incurred by the Co-
Arrangers, or any of them, in connection with (i) the audit and investigation of
the Consolidated Businesses, the Real Properties and other Properties of the
Consolidated Businesses in connection with the preparation, negotiation, and
execution of the Loan Documents; (ii) the preparation, negotiation, execution,
syndication and interpretation of this Agreement (including, without limitation,
the satisfaction or attempted satisfaction of any of the conditions set forth in
Article VI), the Loan Documents, and the making of the Loans hereunder; (iii)
the ongoing administration of this Agreement and the Loans, including, without
limitation, consultation with attorneys in connection therewith and with respect
to the Administrative Agent's rights and responsibilities under this Agreement
and the other Loan Documents, but excluding any allocation of overhead; (iv) the
protection, collection or enforcement of any of the Obligations or the
enforcement of any of the Loan Documents; (v) the commencement, defense or
intervention in any court proceeding relating in any way to the Obligations, the
Borrower, this Agreement or any of the other Loan Documents; (vi) the response
to, and preparation for, any subpoena or request for document production with
which any of the Co-Arrangers or any other Lender is served or deposition or
other proceeding in which any Lender is called to testify, in each case,
relating in any way to the Obligations, a Real Property, the Borrower, any of
the Consolidated Businesses, this Agreement or any of the other Loan Documents;
and (vii) any amendments, consents, waivers, assignments, restatements, or
supplements to any of the Loan Documents and the preparation, negotiation, and
execution of the same. Notwithstanding anything to the contrary contained
herein; (x) as to the negotiation and documentation of this Agreement and the
other Loan Documents, the closing pursuant thereto and the matters described in
clause (vii) above, the Borrower shall not be required to pay the fees, expenses
or disbursements of more than two law firms acting as counsel for the Co-
Arrangers or any of them; and (y) as to the other matters described in clauses
(i) through (iv) above, the Borrower shall not be required to pay the fees,
expenses or disbursements of more than one law firm acting as counsel for the
Co-Arrangers or any of them.
(b) After Default. The Borrower further agrees to pay or reimburse
each of the Co-Arrangers and each of the Lenders upon demand for all out-of-
pocket costs and expenses, including, without limitation, reasonable attorneys'
fees (including allocated costs of internal counsel and costs of settlement)
incurred by such entity after the occurrence of an Event of
86
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-Arrangers 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,
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 Revolving Credit
Commitments, the Revolving 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.
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
87
so as to equitably reflect such changes with the desired result that the
criteria for evaluating compliance with such covenants, standards and terms by
the Borrower shall be the same after such changes as if such changes had not
been made; provided, however, that no change in GAAP that would affect the
method of calculation of any of the covenants, standards or terms shall be given
effect in such calculations until such provisions are amended, in a manner
satisfactory to the Administrative Agent and the Borrower, to so reflect such
change in accounting principles.
15.5 Setoff. In addition to any rights now or hereafter granted under
applicable law, upon the occurrence and during the continuance of any Event of
Default, each Lender is hereby authorized by the Borrower at any time or from
time to time, without notice to any Person (any such notice being hereby
expressly waived) to set off and to appropriate and to apply any and all
deposits (general or special, including, but not limited to, indebtedness
evidenced by certificates of deposit, whether matured or unmatured (but not
including trust accounts)) and any other Indebtedness at any time held or owing
by such Lender to or for the credit or the account of the Borrower against and
on account of the Obligations of the Borrower then due to such Lender,
including, but not limited to, all Loans and all claims of any nature or
description arising out of 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 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
88
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.
89
15.7 Amendments and Waivers.
(a) General Provisions. Unless otherwise provided for or required in
this Agreement, no amendment or modification of any provision of this Agreement
or any of the other Loan Documents shall be effective without the written
agreement of the Requisite Lenders (which the Requisite Lenders shall have the
right to grant or withhold in their sole discretion) and the Borrower; provided,
however, that the Borrower's agreement shall not be required for any amendment
or modification of Article XII (other than any portions thereof on which the
Borrower is entitled to rely or which the Borrower is entitled to enforce). No
termination or waiver of any provision of this Agreement or any of the other
Loan Documents, or consent to any departure by the Borrower therefrom, other
than those specifically reserved to the Administrative Agent or the other
Lenders, shall be effective without the written concurrence of the Requisite
Lenders, which the Requisite Lenders shall have the right to grant or withhold
in their sole discretion. All amendments, waivers and consents not specifically
reserved to the Administrative Agent or the other Lenders in Section 15.7(b),
15.7(c), and in other provisions of this Agreement shall require only the
approval of the Requisite Lenders. Any waiver or consent shall be effective only
in the specific instance and for the specific purpose for which it was given. No
notice to or demand on the Borrower in any case shall entitle the Borrower to
any other or further notice or demand in similar or other circumstances.
(b) Amendments. Consents and Waivers by Affected Lenders. Any
amendment, modification, termination, waiver or consent with respect to any of
the following provisions of this Agreement shall be effective only by a written
agreement, signed by each Lender affected thereby as described below:
(i) 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 Revolving
Credit Commitment,
(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
Revolving Credit Termination Date postponement or extension of which is governed
by Section 15.7(c)(i)) fixed for any payment of principal of, or interest on,
the Loans or any fees or other amounts payable to such Lender (except with
respect to any modifications of the applicable provisions relating to
prepayments of Loans and other Obligations which are governed by Section
4.2(b)).
(c) Amendments, Consents and Waivers by All Lenders. Any amendment,
modification, termination, waiver or consent with respect to any of the
following provisions of this Agreement shall be effective only by a written
agreement, signed by each Lender:
90
(i) postponement or extension of the Revolving Credit
Termination Date,
(ii) increase in the Maximum Aggregate Commitment Amount
to any amount in excess of $250,000,000,
(iii) change in the definition of Requisite Lenders or in
the aggregate Pro Rata Share of the Lenders which shall be required for the
Lenders or any of them to take action hereunder or under the other Loan
Documents,
(iv) amendment of Section 15.6 or this Section 15.7,
(v) assignment of any right or interest in or under this
Agreement or any of the other Loan Documents by the Borrower,
(vi) any modification to or amendment of the Guaranty or
any release of GGP, Inc., as the guarantor thereunder, prior to the satisfaction
in full of the Obligations,
(vii) any modification to or amendment of Section 10.12
hereof, and
(viii) 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 that Lender. Notwithstanding
anything to the contrary contained in this Section 15.7, no amendment,
modification, waiver or consent shall affect the rights or duties of the
Administrative Agent as Administrative Agent under this Agreement and the other
Loan Documents, unless made in writing and signed by the Administrative Agent in
addition to the Lenders required above to take such action. Notwithstanding
anything herein to the contrary, in the event that the Borrower shall have
requested, in writing, that any Lender agree to an amendment, modification,
waiver or consent with respect to any particular provision or provisions of this
Agreement or the other Loan Documents, and such Lender shall have failed to
state, in writing, that it either agrees or disagrees (in full or in part) with
all such requests (in the case of its statement of agreement, subject to
satisfactory documentation and such other reasonable conditions it may specify)
within thirty (30) days after such request, then such Lender hereby irrevocably
authorizes the Administrative Agent to agree or disagree, in full or in part,
and in the Administrative Agent's sole discretion, to such requests on behalf of
such Lender as such Lender's attorney-in-fact and to execute and deliver any
writing approved by the Administrative Agent which evidences such agreement as
such Lender's duly authorized agent for such purposes.
15.8 Notices. Unless otherwise specifically provided herein, any notice
or other communication herein required or permitted to be given shall be in
writing and may be personally served, sent by facsimile transmission or by
courier service or United States certified mail and shall be deemed to have been
given when delivered in person or by courier service, upon receipt of a
facsimile transmission, or four (4) Business Days after deposit in the United
States mail with postage prepaid and properly addressed. Notices to the
Administrative Agent
91
pursuant to Articles II, IV or XII shall not be effective until received by the
Administrative Agent. For the purposes hereof, the addresses of the parties
hereto (until notice of a change thereof is delivered as provided in this
Section 15.8) shall be as set forth below each party's name on the signature
pages hereof or the signature page of any applicable Assignment and Acceptance,
Joinder Agreement or Addendum, or, as to each party, at such other address as
may be designated by such party in a written notice to all of the other parties
to this Agreement.
15.9 Survival of Warranties and Agreements. All representations and
warranties made herein and all obligations of the Borrower in respect of taxes,
indemnification and expense reimbursement shall survive the execution and
delivery of this Agreement and the other Loan Documents, the making and
repayment of the Loans and the termination of this Agreement and, except as
otherwise expressly provided in Section 6.2(a) hereof, shall not be limited in
any way by the passage of time or occurrence of any event and shall expressly
cover time periods when the Administrative Agent or any of the other Lenders may
have come into possession or control of any Property of the Borrower or any of
its Subsidiaries. Notwithstanding the foregoing, however, such representations,
warranties and obligations shall terminate and be of no further force and effect
two years after payment in full of the Loans.
15.10 Failure or Indulgence Not Waiver; Remedies Cumulative. Subject to
the terms of Section 15.7(d) of this Agreement, no failure or delay on the part
of the Administrative Agent or any other Lender in the exercise of any power,
right or privilege under any of the Loan Documents shall impair such power,
right or privilege or be construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other right,
power or privilege. All rights and remedies existing under the Loan Documents
are cumulative to and not exclusive of any rights or remedies otherwise
available.
15.11 Marshalling: Payments Set Aside. Neither the Administrative Agent
nor any other Lender shall be under any obligation to marshal any assets in
favor of the Borrower or any other party or against or in payment of any or all
of the Obligations. To the extent that the Borrower makes a payment or payments
to the Administrative Agent or any other Lender or any such Person exercises its
rights of setoff, and such payment or payments or the proceeds of such
enforcement or setoff or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside or required to be repaid to a
trustee, receiver or any other party, then to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and all right
and remedies therefor, shall be revived and continued in full force and effect
as if such payment had not been made or such enforcement or setoff had not
occurred.
15.12 Severability. In case any provision in or obligation under this
Agreement or the other Loan Documents shall be invalid, illegal or unenforceable
in any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
15.13 Headings. Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
or be given any substantive effect.
92
15.14 Governing Law. THIS AGREEMENT SHALL BE INTERPRETED, AND THE RIGHTS
AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD TO ITS CONFLICT OF LAWS
PRINCIPLES.
15.15 Limitation of Liability. No claim may be made by any Lender, any of
the Co-Arrangers or any other Person against any Lender (acting in any capacity
hereunder) or the Affiliates, directors, officers, employees, attorneys or
agents of any of them for any consequential or punitive damages in respect of
any claim for breach of contract or any other theory of liability arising out of
or related to the transactions contemplated by this Agreement, or any act,
omission or event occurring in connection therewith; and each Lender and the
Administrative Agent hereby waives, releases and agrees not to ▇▇▇ upon any such
claim for any such damages, whether or not accrued and whether or not known or
suspected to exist in its favor. In addition, no claim may be made by any
Lender, the Administrative Agent or any other Person against any directors,
officers or trustees of the Borrower.
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 Certain Consents and Waivers.
(a) Personal Jurisdiction.
(i) EACH OF THE LENDERS AND THE BORROWER IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF ANY ILLINOIS STATE COURT OR FEDERAL COURT SITTING IN CHICAGO,
ILLINOIS AND ANY COURT HAVING JURISDICTION OVER APPEALS OF MATTERS HEARD IN SUCH
COURTS, IN ANY ACTION OR PROCEEDING ARISING OUT OF, CONNECTED WITH, RELATED TO
OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT, WHETHER ARISING IN CONTRACT, TORT, EQUITY OR OTHERWISE, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURT OR, TO THE
EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. THE BORROWER (IN SUCH CAPACITY,
THE "PROCESS AGENT") AGREES TO ACCEPT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, SUCH SERVICE BEING HEREBY ACKNOWLEDGED TO BE
EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. EACH OF THE LENDERS AND THE
BORROWER AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW. EACH OF THE LENDERS (AS TO COURTS IN
ILLINOIS ONLY) AND THE BORROWER WAIVES IN
93
ALL DISPUTES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT
CONSIDERING THE DISPUTE.
(ii) THE BORROWER AGREES THAT THE AGENT SHALL HAVE THE RIGHT
TO PROCEED AGAINST THE BORROWER OR ITS PROPERTY IN A COURT IN ANY LOCATION
NECESSARY OR APPROPRIATE TO ENABLE THE AGENT AND THE OTHER LENDERS TO ENFORCE A
JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF THE AGENT OR ANY OTHER LENDER
IN ANY PROCEEDING DESCRIBED IN SUBSECTION (i) ABOVE. THE BORROWER AGREES THAT IT
WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY THE
AGENT OR ANY LENDER TO ENFORCE SUCH A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF
THE AGENT OR ANY LENDER. THE BORROWER WAIVES ANY OBJECTION THAT IT MAY HAVE TO
THE LOCATION OF THE COURT IN WHICH THE AGENT OR ANY LENDER MAY COMMENCE A
PROCEEDING DESCRIBED IN THIS SUBSECTION (ii).
(b) Service of Process. EACH OF THE LENDERS (WITH RESPECT TO
ILLINOIS ONLY) AND THE BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS
OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
THE PROCESS AGENT (FOR BORROWER) OR THE BORROWER'S NOTICE ADDRESS SPECIFIED
BELOW, SUCH SERVICE TO BECOME EFFECTIVE UPON RECEIPT. EACH OF THE LENDERS (WITH
RESPECT TO ILLINOIS ONLY) AND THE BORROWER IRREVOCABLY WAIVES ANY OBJECTION
(INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT IN ANY JURISDICTION SET FORTH ABOVE. NOTHING HEREIN SHALL
AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL
LIMIT THE RIGHT OF THE AGENT, THE OTHER LENDERS OR THE BORROWER TO BRING
PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.
(c) Waiver of Jury Trial. EACH OF THE AGENT AND THE OTHER LENDERS
AND THE BORROWER IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
15.18 Counterparts; Effectiveness; Inconsistencies. This Agreement and
any amendments, waivers, consents, or supplements hereto may be executed in
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument. This Agreement shall become effective against the Borrower and
each Lender on the Closing Date. This Agreement and each of the other Loan
Documents shall be construed to the extent reasonable to be consistent one with
the other, but to the extent that the terms and conditions of this Agreement are
actually inconsistent with
94
the terms and conditions of any other Loan Document, this Agreement shall
govern. In the event the Lenders enter into any co-lender agreement with the
Administrative Agent pertaining to the Lenders' respective rights with respect
to voting on any matter referenced in this Agreement or the other Loan Documents
on which the Lenders have a right to vote under the terms of this Agreement or
the other Loan Documents, such co-lender agreement shall be construed to the
extent reasonable to be consistent with this Agreement and the other Loan
Documents, but to the extent that the terms and conditions of such co-lender
agreement are actually inconsistent with the terms and conditions of this
Agreement and/or the other Loan Documents, such co-lender agreement shall govern
as among the Administrative Agent and the Lenders. Notwithstanding the
foregoing, any rights reserved to the Administrative Agent under this Agreement
and the other Loan Documents shall not be varied or in any way affected by such
co-lender agreement and the rights and obligations of the Borrower under the
Loan Documents will not be varied.
15.19 Limitation on Agreements. All agreements between the Borrower, the
Administrative Agent and each Lender in the Loan Documents are hereby expressly
limited so that in no event shall any of the Loans or other amounts payable by
the Borrower under any of the Loan Documents be directly or indirectly secured
(within the meaning of Regulation U) by Margin Stock.
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 Administrative Agent and the other Lenders shall
not be liable to any contractor, subcontractor, supplier, laborer, architect,
engineer, tenant or other party for services performed or materials supplied in
connection with any work performed on the Real Properties, including any TI
Work. The Administrative Agent and the other Lenders shall not be liable for any
debts or claims accruing in favor of any such parties against the Borrower or
others or against any of the Real Properties. The Borrower is not and shall not
be an agent of any of the Administrative Agent or the other Lenders for any
purposes and none of the Lenders nor the Administrative Agent shall be deemed
partners or joint venturers with Borrower or any of its Affiliates as a result
of the consummation of the transactions contemplated by this Agreement.
95
None of the Administrative Agent or the other Lenders shall be deemed to be in
privity of contract with any contractor or provider of services to any Real
Property, nor shall any payment of funds directly to a contractor or
subcontractor or provider of services be deemed to create any third party
beneficiary status or recognition of same by any of the Administrative Agent or
the other Lenders and the Borrower agrees to hold the Administrative Agent and
the other Lenders harmless from any of the damages and expenses resulting from
such a construction of the relationship of the parties or any assertion thereof
solely to the extent, if any, that the Borrower has requested that the
Administrative Agent or any other Lender deal directly with or make any payments
directly to such a contractor or provider of services.
15.22 No Third Party Beneficiaries. Nothing contained in this Agreement
or any other Loan Document, whether express or implied, is intended to confer
any rights or remedies under or by reason of this Agreement or such other Loan
Documents on any Persons other than the parties hereto from time to time and, to
the extent specifically provided herein, their respective officers, directors,
shareholders, agents, attorneys, employees, Affiliates, successors and assigns
(including, without limitation, the Indemnitees); nor is anything herein or
therein intended to relieve or discharge the obligation or liability of any
Persons other than those referred to above, or give any Persons other than those
referred to above any right of subrogation or action over or against any party
hereto.
15.23 Entire Agreement. This Agreement, taken together with all of the
other Loan Documents, embodies the entire agreement and understanding among the
parties hereto and supersedes all prior agreements and understandings, written
and oral, relating to the subject matter hereof.
15.24 Borrower's Obligations. The Partnership and the Company shall be
jointly and severally liable for all of the Obligations of the Borrower
hereunder.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
96
EXHIBIT A
to
Revolving Credit Agreement dated as of July 31, 2000
FORM OF ASSIGNMENT AND ACCEPTANCE
ASSIGNMENT AND ACCEPTANCE
This ASSIGNMENT AND ACCEPTANCE dated as of _______________________,
_________, among [Names of Assignor Lenders] (each, an "Assignor" and
collectively, the "Assignors") and ________________________,
_______________________(etc.) (each, an "Assignee" and collectively, the
"Assignees").
PRELIMINARY STATEMENTS
Reference is made to the Revolving Credit Agreement dated as of July 31,
2000 (as the same may be amended, supplemented, restated or otherwise modified
from time to time, the "Credit Agreement") among GGP Limited Partnership, GGPLP
L.L.C., the institutions from time to time parties thereto as Lenders, and Bank
of America, N.A., as Administrative Agent. Capitalized terms used herein and not
otherwise defined herein are used as defined in the Credit Agreement.
The Assignors are Lenders under the Credit Agreement and each desires to
sell and assign to the Assignees a portion of such Assignor's Loans, as set
forth on Schedule 2 attached hereto (collectively, the "Assigned Loans") in the
aggregate amount of $________ (the "Aggregate Assigned Amount"), and each
Assignee desires to purchase and assume from each Assignor, on terms and
conditions set forth below, an interest in such Assignor's respective Assigned
Loans (the "Assigned Percentages"), together with the Assignors' respective
rights and obligations under the Credit Agreement with respect to the Assigned
Percentages, such that each Assignee shall, from and after the Effective Date
(as defined below), become a Lender under the Credit Agreement with the
respective Pro Rata Share listed on the signature pages attached hereto.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Assignors and the Assignees
hereby agree as follows:
In consideration of the payments by each Assignee to each Assignor, to be
made by wire transfer to the Administrative Agent of immediately available funds
on the Effective Date in accordance with Schedule 3 attached hereto, each
Assignor hereby sells and assigns to each Assignee, and each Assignee hereby
purchases and assumes from such Assignor, the Assigned Percentage set forth on
Schedule 1 attached hereto, together with such Assignor's rights and obligations
under the Credit Agreement and all of the other Loan Documents with respect to
the Assigned Percentages as of the date hereof (after giving effect to any other
assignments thereof made prior to the date hereof, whether or not such
assignments have become effective, but without giving effect to any other
assignments thereof also made on the date hereof).
Each Assignor (i) represents and warrants that as of the date hereof its
Loans are set forth on Schedule 2 attached hereto (in each case, after giving
effect to any other assignments thereof made prior to the date hereof, whether
or not such assignments have become effective, but without giving effect to any
other assignments thereof made as of the date hereof); (ii) represents and
warrants that it is the legal and beneficial owner of the interest being
assigned by it hereunder and that such interest is free and clear of any adverse
claim and that such Assignor is legally authorized to enter into this Assignment
and Acceptance; (iii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any of the other Loan
Documents or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement or any of the other Loan Documents
or any other instrument or document furnished pursuant thereto and (iv) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or observance by the
Borrower of any obligations under the Credit Agreement or any of the other Loan
Documents or any other instrument or document furnished pursuant thereto.
Each Assignee (i) represents and warrants that it is legally authorized to
enter into this Assignment and Acceptance; (ii) confirms that it has received a
copy of the Credit Agreement, together with copies of such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (iii) agrees that it
shall have no recourse against the Assignor with respect to any matter relating
to the Credit Agreement, any of the other Loan Documents, or this Assignment and
Acceptance (except with respect to the representations or warranties made by the
Assignors in clauses (i) and (ii) of paragraph 2 above); (iv) agrees that it
will, independently and without reliance upon the Administrative Agent, the
Assignors or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (v) confirms that it is
an Eligible Assignee; (vi) appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under the
Credit Agreement as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are reasonably incidental thereto; (vii)
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender; (viii) confirms that, to the best of its knowledge,
as of the date hereof, it is not subject to any law, regulation or guideline
from any central bank or other Governmental Authority or quasi-governmental
authority exercising jurisdiction, power or control over it, which would subject
the Borrower to the payment of additional compensation under Section 13.2 or
under Section 13.3 of the Credit Agreement; (ix) specifies as its Domestic
Lending Office (and address for notices) and Eurodollar Lending Office(s) the
offices set forth beneath its name on the signature pages hereof; (x) if such
Assignee is organized under the laws of a jurisdiction outside the United
States, attaches the forms prescribed by the Internal Revenue Service of the
United States certifying as to the Assignee's status for purposes of determining
exemption from United States withholding taxes with respect to all payments to
be made to the Assignee under the Credit Agreement and the Notes or such other
documents as are necessary to indicate that all such payments are subject to
such taxes at a rate reduced by an applicable tax treaty; and (xi) represents
and warrants that none of the funds, monies, assets or other consideration being
used to purchase pursuant to this Assignment and Acceptance are "plan assets" as
defined under
ERISA and that its rights, benefits, and interests in and under the Loan
Documents will not be "plan assets" under ERISA.
Following the execution of this Assignment and Acceptance by each of the
Assignors and the Assignees, it will be delivered to the Administrative Agent
for acceptance and recording by the Administrative Agent. The effective date of
this Assignment and Acceptance shall be _______________________ (the "Effective
Date").
As of the Effective Date, (i) each Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Lender thereunder and (ii) each Assignor shall,
to the extent provided in this Assignment and Acceptance, relinquish its rights
and be released from its obligations subsequently arising under the Credit
Agreement with respect to its Assigned Loans.
From and after the Effective Date, the Administrative Agent shall make all
payments under the Credit Agreement and the Notes in respect of the Aggregate
Assigned Amount (including, without limitation, all payments of principal,
interest and fees with respect thereto) to the appropriate Assignees. The
Administrative Agent shall make all appropriate adjustments in payments under
the Credit Agreement and the Notes for periods prior to the Effective Date.
THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF ILLINOIS.
This Assignment and Acceptance may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
ASSIGNORS:
__________________________________
By:_______________________________
Name:_____________________________
Title:____________________________
By:_______________________________
Name:_____________________________
Title:____________________________
Notice Address, Domestic Lending Office
and Eurodollar Lending Office:
Adjusted Pro Rata Share: _______ %
Adjusted Loans: $____________
ASSIGNEES:
__________________________________
By:_______________________________
Name:_____________________________
Title:____________________________
By:_______________________________
Name:_____________________________
Title:____________________________
Pro Rata Share: %
Accepted as of this ______ day of
_________________________, _____
BANK OF AMERICA, N.A., as Administrative Agent
By:____________________________
Name:__________________________
Title:_________________________
SCHEDULE 1
to
Exhibit A
Assigned New Pro
Assignee Percentage Rata Share
-------- ---------- ----------
SCHEDULE 2
to
Exhibit A
EXISTING LOANS
AND PRO RATA SHARES OF ASSIGNORS
Existing Assigned
Assignor Existing Loans Pro Rata Share Loans
-------- -------------- -------------- -----
SCHEDULE 3
to
Exhibit A
PAYMENTS*
Funding Amount
Repayment to
Lender Facility Fee Assignors Agent**
------ ------------ --------- -------
__________________
* Payments to the Lenders are shown without parentheses; payments from the
Lenders to the Agent, on its own behalf or on behalf of the Lenders, are shown
in parentheses.
** Pursuant to Section 15.1(d) of the Credit Agreement.
EXHIBIT B
to
Revolving Credit Agreement dated as of January 31, 2000
FORM OF PROMISSORY NOTE
PROMISSORY NOTE
Dated: January 31, 2000
FOR VALUE RECEIVED, the undersigned, GGP LIMITED PARTNERSHIP, a Delaware
limited partnership, and GGPLP L.L.C., a Delaware limited liability company (the
"Borrower"), jointly and severally, HEREBY PROMISE TO PAY to the order of
____________________ (the "Lender") on the Maturity Date, the aggregate
principal amount then outstanding of the Loans made by the Lender to the
Borrower pursuant to that certain Revolving Credit Agreement dated as of July
31, 2000, among the Borrower, the Lender, and the other financial institutions
from time to time parties thereto as Lenders and Bank of America, N.A., as
Administrative Agent (as the same may be amended, restated, supplemented, or
otherwise modified from time to time, the "Credit Agreement"). Capitalized terms
used herein, and not otherwise defined herein, shall have the meanings ascribed
to such terms in the Credit Agreement.
The Borrower further promises to pay interest on the unpaid principal
amount of each Loan from the date advanced until such principal amount is paid
in full, at such interest rates (which shall not exceed the maximum rate
permitted by Illinois law), and at such times, as are specified in the Credit
Agreement.
All payments of principal and interest in respect of this Promissory Note
shall be made to the Administrative Agent in lawful money of the United States
of America in same day funds for the account of the Lender in accordance with
the terms of the Credit Agreement. Each Loan made by the Lender to the Borrower
pursuant to the Credit Agreement, and all payments made on account of principal
thereof, shall be recorded by the Lender on its books and records and, if the
Lender so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding may be endorsed by the Lender on a schedule to be
attached hereto by the Lender and thereby made a part hereof, or on a
continuation of such schedule to be attached to and made a part hereof; provided
that the failure of the Lender to make any such recordation or endorsement shall
not affect the obligations of the Borrower hereunder or under the Credit
Agreement.
This Promissory Note is one of the Notes referred to in, is executed and
delivered pursuant to, and is entitled to the benefits of, the Credit Agreement,
to which Credit Agreement reference is hereby made for a statement of the terms
and conditions under which this Promissory Note may be prepaid or the
Obligations accelerated or extended. The terms and conditions of the Credit
Agreement are hereby incorporated in their entirety herein by reference as
though fully set forth herein. Upon the occurrence of certain Events of Default
as more particularly described in the Credit Agreement, the unpaid principal
amount evidenced by this Promissory Note shall become, and upon the occurrence
and during the continuance of certain other Events of Default, such
unpaid principal amount may be declared to be, due and payable in the manner,
upon the conditions and with the effect provided in the Credit Agreement.
Demand, presentment, diligence, protest and notice of nonpayment are hereby
waived by the Borrower.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF ILLINOIS.
IN WITNESS WHEREOF, the Borrower has caused this Promissory Note to be
executed and delivered by its duly authorized officer as of the day and year
first above written.
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: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President
EXHIBIT C-1
to
Revolving Credit Agreement dated as of January 31, 2000
NOTICE OF BORROWING - BASE RATE LOANS
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Reference is hereby made to that certain Revolving Credit Agreement dated
as of July 31, 2000 (as the same may be amended, supplemented, restated or
otherwise modified from time to time, the "Credit Agreement", the terms defined
therein being used herein as therein defined), among GGP Limited Partnership, a
Delaware limited partnership, and GGPLP L.L.C., a Delaware limited liability
company (collectively, the "Borrower"), the institutions from time to time
parties thereto as Lenders and Bank of America, N.A., as Administrative Agent.
The Borrower hereby gives you notice, irrevocably, pursuant to Section
2.1(b) of the Credit Agreement that the Borrower hereby requests a Borrowing
under the Credit Agreement and, in that connection, sets forth below the
information relating to such Borrowing (the "Proposed Borrowing") as required
pursuant to the terms of the Credit Agreement:
The Funding Date (which shall be a Business Day) of the Proposed Borrowing
is _____________, ____.
The amount of the Proposed Borrowing is $___________.
The Proposed Borrowing will be of Base Rate Loans.
The Borrower hereby directs the Administrative Agent to disburse the
proceeds of the Loans comprising the Proposed Borrowing on the Funding Date as
set forth on Schedule 1 attached hereto and made a part hereof, whereupon the
proceeds of such Loans shall be deemed received by or for the benefit of the
Borrower.
The Borrower hereby certifies that the conditions precedent contained in
Section 6.1 or 6.2, as applicable, are satisfied on the date hereof and will be
satisfied on the Funding Date of the Proposed Borrowing.
[Signatures on next page]
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: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President
SCHEDULE 1
----------
to
Notice of Borrowing
dated as of ____________, 2000
Bank:
ABA No.:
Account Name:
Account No.:
Special Instructions:
EXHIBIT C-2
-----------
to
Revolving Credit Agreement dated as of January 31, 2000
NOTICE OF BORROWING - EURODOLLAR RATE LOANS
-------------------------------------------
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Reference is hereby made to that certain Revolving Credit Agreement dated
as of July 31, 2000 (as the same may be amended, supplemented, restated or
otherwise modified from time to time, the "Credit Agreement", the terms defined
therein being used herein as therein defined), among GGP Limited Partnership, a
Delaware limited partnership, and GGPLP L.L.C., a Delaware limited liability
company (collectively, the "Borrower"), the institutions from time to time
parties thereto as Lenders and Bank of America, N.A., as Administrative Agent.
The Borrower hereby gives you notice, irrevocably, pursuant to Section
2.1(b) of the Credit Agreement that the Borrower hereby requests a Borrowing
under the Credit Agreement and, in that connection, sets forth below the
information relating to such Borrowing (the "Proposed Borrowing") as required
pursuant to the terms of the Credit Agreement:
The Funding Date (which shall be a Business Day) of the Proposed Borrowing
is ___________, _____.
The amount of the Proposed Borrowing is $_____________________.
The Proposed Borrowing will be of Eurodollar Rate Loans.
The requested Eurodollar Interest Period for the Proposed Borrowing is from
_________ and ending __________ (for a total of _______ months).
The Borrower hereby directs the Administrative Agent to disburse the
proceeds of the Loans comprising the Proposed Borrowing on the Funding Date as
set forth on Schedule 1 attached hereto and made a part hereof, whereupon the
proceeds of such Loans shall be deemed received by or for the benefit of the
Borrower.
The Borrower hereby certifies that the conditions precedent contained in
Section 6.1 or 6.2, as applicable, are satisfied on the date hereof and will be
satisfied on the Funding Date of the Proposed Borrowing.
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: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President
SCHEDULE 1
----------
to
Notice of Borrowing
dated as of ____________, 2000
Bank:
ABA No.:
Account Name:
Account No.:
Special Instructions:
EXHIBIT D
---------
to
Credit Agreement dated as of January 31, 2000
FORM OF NOTICE OF CONVERSION/CONTINUATION
-----------------------------------------
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Reference is hereby made to that certain Revolving Credit Agreement dated
as of July 31, 2000 (as the same may be amended, supplemented, restated or
otherwise modified from time to time, the "Credit Agreement", the terms defined
therein being used herein as therein defined), among GGP Limited Partnership, a
Delaware limited partnership, and GGPLP L.L.C., a Delaware limited liability
company (collectively, the "Borrower"), the institutions from time to time
parties thereto as Lenders and Bank of America, N.A., as Administrative Agent.
The Borrower hereby gives you notice pursuant to Section 5.1(c)(ii) of the
Credit Agreement that the Borrower hereby elects to/1/:
1. Convert $__________/2/ in aggregate principal amount of Base Rate Loans
from Base Rate Loans to Eurodollar Rate Loans on __________________, _______/3/.
The Eurodollar Interest Period for such Eurodollar Rate Loans is requested to be
month(s).
2. Convert $____________ in aggregate principal amount of Eurodollar Rate
Loans with a current Eurodollar Interest Period ending ________________,
_________/4/ to Base Rate Loans.
/1/ Include those items that are applicable, completed appropriately for the
circumstances.
/2/ Such amount of conversion to or continuation of Eurodollar Rate Loans must
be in a minimum amount of $2,000,000 and in integral multiples of $1,000,000 in
excess of that amount.
/3/ Date of conversion must be a Business Day.
/4/ The Conversion of Eurodollar Rate Loans shall be made on, and only on, the
last day of the Eurodollar Interest Period for such Eurodollar Rate Loans.
3. Continue as Eurodollar Rate Loans $__________/5/ in aggregate principal
amount of Eurodollar Rate Loans with a current Eurodollar Interest Period ending
__________________, ______. The succeeding Eurodollar Interest Period for such
Eurodollar Rate Loans is requested to be _______ month(s).
The Borrower hereby certifies that on the date hereof there are no
prohibitions under the Credit Agreement to the requested
conversion/continuation, and no such prohibitions will exist on the date of the
requested conversion/continuation.
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: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President
______________________
/5/ Such amount of conversion to or continuation of Eurodollar Rate Loans must
be in a minimum amount of $2,000,000 and in integral multiples of $1,000,000 in
excess of that amount.
EXHIBIT E
---------
To Revolving Credit Agreement dated
January 31, 2000
LIST OF CLOSING DOCUMENTS AND OTHER DELIVERIES
----------------------------------------------
-------------------------------------------------------------
Document Description
--------------------
-------------------------------------------------------------
A. REVOLVING CREDIT AGREEMENT - CONDITIONS
TO LOANS
-------------------------------------------------------------
1. Signed Copies of the Credit Agreement - 6.1(a)
-------------------------------------------------------------
2. Signed Copies of Promissory Notes - 6.1(a)
-------------------------------------------------------------
a. BOA
-------------------------------------------------------------
b. USB
-------------------------------------------------------------
▇. ▇▇▇▇▇▇▇▇
-------------------------------------------------------------
3. Signed Copies of the Guaranty - 6.1(a)
-------------------------------------------------------------
4. Opinion of Counsel for the Borrower - 6.1(a)
-------------------------------------------------------------
5. Borrower Sharing Agreement - 6.1(f)
-------------------------------------------------------------
6. Pro Forma Covenant Calculations - 6.1(l)
-------------------------------------------------------------
7. Set of ▇▇▇▇▇▇ Term Loan Documents - 6.1(j)
-------------------------------------------------------------
8. Schedule of Sources and Uses of Funds - 6.1(j)
-------------------------------------------------------------
9. Notice of Other Proposed Financing - 6.1(j)
-------------------------------------------------------------
b. EXHIBITS
-------------------------------------------------------------
10. Exhibit A - Form of Assignment and Acceptance
-------------------------------------------------------------
11. Exhibit B - Form of Promissory Note
-------------------------------------------------------------
12. Exhibit C - Form of Notice of Borrowing
-------------------------------------------------------------
----------------------------------------------------------------------
Document Description
--------------------
----------------------------------------------------------------------
13. Exhibit D - Form of Notice of Conversion/ Continuation
----------------------------------------------------------------------
14. Exhibit E - List of Closing Documents
----------------------------------------------------------------------
15. Exhibit G - Calculations
----------------------------------------------------------------------
C. SCHEDULES
----------------------------------------------------------------------
16. [Intentionally Omitted]
----------------------------------------------------------------------
17. Schedule 7.1-A - Copies of Organizational Documents
Schedule 7.1-A-1 - Ownership Interests in GGPLP L.L.C.
----------------------------------------------------------------------
18. Schedule 7.1-C - Diagram of Structure of Borrower
----------------------------------------------------------------------
19. Schedule 7.1-C - Outstanding Warrants and Options
----------------------------------------------------------------------
20. Schedule 7.1-H - Indebtedness as of 6/30/00
----------------------------------------------------------------------
21. Schedule 7.1-I - Litigation
----------------------------------------------------------------------
22. Schedule 7.1-P - Environmental Matters
----------------------------------------------------------------------
23. Schedule 7.1-Q - Benefit or Multiemployer Plan
----------------------------------------------------------------------
24. Schedule 7.1-T- Insurance policies and programs
----------------------------------------------------------------------
25. Schedule 10.12 - Existing Liens on Equity Interests
----------------------------------------------------------------------
26. Schedule 1 - Construction Asset Cost of Certain Land
----------------------------------------------------------------------
D. MISCELLANEOUS
----------------------------------------------------------------------
27. Officer's Certificate Re: Authorized Employees
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
EXHIBIT F
---------
[Intentionally Omitted]
EXHIBIT G
---------
to
Credit Agreement dated as of January 31, 2000
SAMPLE CALCULATIONS OF FINANCIAL COVENANTS
------------------------------------------
(See Attached)
